What are the Types of Marital Property Regimes in Turkish Law?

WHAT IS THE PROPERTY REGIME?

The property regime, also known as the property regime contract, is a contract that regulates the rights of spouses to benefit from, use, and dispose of their assets within the marriage union or during the liquidation stage after the end of the marriage. It is a bilateral contract subject to form, capacity, and validity conditions to gain validity.

The property regime contract can be made between couples in the engagement status before marriage or between spouses after marriage. Parties can choose, modify, or cancel any property regime they want from the elective property regimes regulated by law, such as separation of property, participation in acquired property, and community property. In this context, they do not have the authority to determine a property regime outside the elective property regimes recognized by the law, nor can they decide not to be bound by any property regime. Likewise, not every arrangement made regarding the spouses’ assets can be considered within the scope of the property regime contract.

The application of the regime of participation in acquired property is essential among spouses. Spouses can accept one of the other regimes determined by law with a property regime contract. The property regime contract is possible by choosing one of the property regimes limitedly listed in the law with the intention of waiving the application of the legal property regime to themselves. Without making this choice, it is not possible to abolish the legal property regime, and in this case, the adoption of the legal property regime is considered valid.

Spouses can always accept a previous or another property regime with a new property regime contract. The selected property regime contract will take effect and produce its results until the end of the marriage or the selection of a new property regime by meeting the validity conditions explained above.

CONDITIONS FOR THE VALIDITY OF THE PROPERTY REGIME CONTRACT

The property regime contract can be considered valid under certain conditions. These conditions are specified below.

Property Regime and Engagement

A property regime contract can be made before or after marriage, provided there is an engagement with the promise and expectation of marriage. Engaged couples can make a choice by notifying the relevant officer in writing of the property regime to be applied between them during the application for marriage, or they can do so in the form of an arrangement or approval at a notary. In this context, the existence of a promise of marriage is among the conditions of validity.

Capacity in the Property Regime

The property regime contract can only be made by those who have the capacity to discern. Minors and those under guardianship must obtain the consent of their legal representatives. Therefore, it can be said that the condition of having the capacity to act is not required to be a party to the property regime contract, and having the capacity to discern is sufficient for minors and those under guardianship with the consent of the legal representative.

Form in the Property Regime Contract

The property regime contract is made in the form of an arrangement or approval at a notary. However, parties can also notify in writing which property regime they choose during the application for marriage. It is mandatory for the property regime contract to be signed by the parties and, when necessary, by their legal representatives. Changes to be made within the boundaries drawn by the law in property regime contracts made in the form of an arrangement refer to contracts created from start to finish by the notary, while contracts that come into force by the approval of the property regime contract prepared in advance by the parties and the notary are made in the form of approval.

The formal requirement for property regime contracts to be made before a notary is a condition of validity by form, and contracts contrary to this are considered absolutely null and void. However, a simple written form is deemed sufficient when choosing the type of property regime during the marriage application.

WHAT ARE THE TYPES OF PROPERTY REGIMES?

The Civil Code has determined the regime of participation in acquired property as the legal property regime. In addition, there are other types of property regimes specified in the Code. Consequently, the types of property regimes can be listed as follows;

1. Participation in Acquired Property Regime

2. Separation of Property Regime

3. Regime of Separation of Property with Distribution

4. Community Property Regime

PARTICIPATION IN ACQUIRED PROPERTY REGIME

Acquired Property and Personal Property

The regime of participation in acquired property divides the spouses’ assets into acquired property and personal property. Acquired property includes assets obtained by each spouse in exchange for their work during the continuation of this regime. The main types of acquired property are earnings from work, payments made by social security or social assistance institutions and organizations or similar funds established to assist personnel, compensations paid due to loss of working capacity, incomes of personal properties, and values replacing acquired properties. Items intended solely for one spouse’s personal use, assets belonging to one spouse at the beginning of the property regime, or assets acquired by one spouse later through inheritance or gratuitous acquisition are considered personal properties. Personal compensation claims and values replacing personal properties are also included in personal properties by law. Each spouse has the right to manage, benefit from, and dispose of their personal and acquired properties within legal limits.

The principle of immutability of property groups prevails in this property regime, and except for the exceptions brought by the law, it is not possible to include acquired properties in the category of personal properties and vice versa. In this context, spouses can agree that property values that should be included in acquired properties due to the exercise of a profession or the operation of a business will be considered personal properties by a property regime contract. Another exception is that spouses can agree by a property regime contract that the incomes of personal properties will not be included in acquired properties.

Co-ownership

Each spouse has the right to manage, benefit from, and dispose of their personal and acquired properties within legal limits. In this property regime, unless otherwise agreed, one spouse cannot dispose of their share in co-owned property without the other’s consent.

Claims for Value Increase Share

Details of spouses’ claims for value increase shares can be found in our previous articles. You can access the relevant article here.

The claim for value increase share refers to the right to claim a share of the value increase in a property owned by one spouse, which the other spouse has contributed to acquiring, improving, or preserving without receiving or receiving inadequate compensation, during the liquidation of the property regime.

One of the requirements of the marital union is solidarity between spouses, which has both material and moral aspects. Spouses can establish gratuitous financial resources for economic solidarity or contribute with their labor force. In this context, material and labor contributions that exceed the ordinary solidarity between spouses can be secured with the liquidation of the property regime.

Values to be Added

To secure the claim for participation in the residual value obtained by calculating the remaining amount after deducting the debts related to these properties from the total value of each spouse’s acquired properties, including the amounts obtained from addition and offsetting during the liquidation of the regime, the following values must be added:

– Gratuitous acquisitions made by one spouse without the other’s consent within one year before the end of the property regime, except for customary gifts

– Transfers made by one spouse during the continuation of the property regime with the intent to reduce the other spouse’s participation claim

In disputes related to such gratuitous acquisitions or transfers, the court’s decision can also be asserted against third parties benefiting from the acquisition or transfer, provided that the lawsuit has been notified to them.

Claim for Participation in Residual Value

The residual value is the amount obtained by calculating the remaining amount after deducting the debts related to these properties from the total value of each spouse’s acquired properties, including the amounts obtained from addition and offsetting. Each spouse has a right to half of the other spouse’s residual value. If no value is obtained or a negative value is found in the calculation to be made at the end of the property regime, the loss of value will not be considered.

Family Residence and Household Items

The family residence is the residence where the family life is maintained jointly and where they permanently reside. One spouse cannot terminate the lease agreement related to the family residence, transfer the family residence, or limit the rights over the family residence without the explicit consent of the other spouse. However, with a property contract accepted between spouses, it is possible to deviate from this arrangement and transfer the disposal power to one of the spouses. If it has not been regulated by contract and the regime of participation in acquired property ends with the death of one spouse, the surviving spouse can request the establishment of a usufruct or residence right over the house they lived in with the deceased spouse, to be offset against the participation claim and, if insufficient, with additional payment. Likewise, the surviving spouse can request the establishment of ownership right over household items under the same conditions.

SEPARATION OF PROPERTY REGIME

The separation of property regime is a type of regime where the principle of sharing is not fundamental between spouses. In the separation of property regime, each spouse retains the right to manage, benefit from, and dispose of their property

within legal limits. The end of the marriage and the property regime will not cause any change in ownership of the property, and there will be no necessity for sharing during liquidation.

In this property regime, the rules regarding proof, liability for debts, and allocation of co-owned property related to the regime of separation of property with distribution will be applied. Still, details are not included in this section to avoid repetition.

REGIME OF SEPARATION OF PROPERTY WITH DISTRIBUTION

In the regime of separation of property with distribution, each spouse retains the right to manage, benefit from, and dispose of their property within legal limits. Properties that cannot be proven to belong to one spouse are considered co-owned by them.

The principles of distribution in the regime of separation of property with distribution are determined based on the properties acquired by either spouse after the establishment of the regime of separation of property with distribution, allocated for the common use and benefit of the family, and investments aimed at securing the family’s economic future or their replacement values. However, one point to be noted is that the economic integrity of businesses must be considered during distribution. In this case, in-kind distribution is essential, but if it is not feasible, the shares must be equalized by adding value. The amount to be paid by one spouse to the other for equalization will be calculated based on the market value of the properties at the time of liquidation, with the possibility of deducting the debts incurred from the acquisition of the properties.

During the liquidation stage of the regime of separation of property with distribution, each spouse must take back the properties they own from the other spouse. If there is co-ownership, the spouse who proves a superior interest can request the transfer of the co-owned property to them by paying the value of the share at the date of payment to the other spouse, along with other measures.

Regarding the claim for contribution share, if one spouse has contributed without receiving or receiving inadequate compensation to the acquisition, improvement, or preservation of a property belonging to the other spouse, excluding those subject to distribution, upon the termination of the property regime, they can request a payment corresponding to their contribution in a fair amount.
In the regime of separation of property with distribution, the arrangement regarding debts is that each spouse will be responsible for their debts with their entire property. If the debts represent the marital union, the spouses will be jointly and severally liable to third parties.

COMMUNITY PROPERTY REGIME

The community property regime includes community property and personal property of spouses, with community property divided into general community property and limited community property. Unless proven to be personal property, all asset values are considered community property.

General Community Property

General community property consists of the properties and incomes of the spouses that are not considered personal property by law. Spouses own community property as an undivided whole. No spouse has the right to dispose of their share in the community property alone.

Limited Community Property

In limited community property, spouses can accept a community consisting only of acquired properties by a property regime contract, and the incomes of personal properties are also included in this community. Three scopes are envisaged for the determination of personal properties; property regime contract, gratuitous acquisition by a third party, or law. Personal properties arising from the law are each spouse’s property dedicated solely for their personal use and personal compensation claims.

The management and disposal procedures envisaged for community property are that spouses manage the community property in accordance with the benefit of the marital union and, within the limits of ordinary management, each spouse can obligate the community and dispose of the community property. In personal properties, management and disposal are carried out so that each spouse manages and disposes of their personal properties within legal limits. Management expenses of personal properties must be met with the incomes obtained from personal properties.

Upon the termination of the community property regime, if there is a claim for value increase share regarding the acquisition, improvement, or preservation of an asset included in another property category with personal property or community property of one spouse, the provisions related to the value increase share in the regime of participation in acquired property will be applied.

In the community property regime, liability for debts is limited to each spouse’s personal properties and half the value of the community property for all debts.

The method of sharing in the community property regime is realized by giving half of the community property to each spouse or their heirs upon the termination of the community property regime. Spouses are allowed to agree on another sharing ratio by a property regime contract.

 
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