Who Keeps Assets Acquired Before Marriage in Turkish Law?
Acquired Assets and Personal Assets
During the marriage, assets acquired are subject to the acquired property regime and are shared equally between spouses in the event of divorce. However, assets acquired before marriage are generally considered personal property and do not fall under the acquired property regime.
The fact that an item is used only by one spouse does not always make it personal property. What matters is the purpose of the item’s use. If an item is used for the benefit of the marital union (for the benefit of the other spouse or common children), it is not considered personal property. In this case, it is included in the group of acquired assets.
Proof of Personal Property:
The burden of proving that an asset was acquired before marriage lies with the spouse claiming it. Otherwise, the asset will be considered acquired during the marriage. Evidence such as invoices, bank statements, land registry records, and inheritance documents can be used to prove this.
Example Supreme Court Decision
(…) According to Article 219, paragraph 1 of the Turkish Civil Code (TMK), assets acquired by either spouse in return for a price during the continuation of this property regime are considered acquired property. According to Article 222/1 of the TMK, the person claiming that a certain asset belongs to one of the spouses must prove their claim. In the concrete case, it was not proven that the disputed property was the personal property of the defendant. Although the defendant claimed that the property was purchased with the savings from working before marriage and with the contribution of their family, this was not proven. According to the last paragraph of Article 222 of the TMK, all assets of a spouse are considered acquired property until proven otherwise. (…)
Property Regime Agreement
Spouses can stipulate different provisions regarding the sharing of assets acquired before marriage in a marriage contract. With this contract, spouses can decide to share all or part of the assets acquired before marriage or not to share them at all.
Income from Personal Assets
Although personal assets themselves do not fall under the acquired property regime, the income from these assets obtained during the marriage is considered acquired property and is subject to sharing in the event of divorce. However, spouses can specify in the property regime agreement that this income will not be considered acquired property.
Example: Person A buys a stock portfolio before marriage. During the marriage, A marries B. When a divorce case is filed, the stock portfolio purchased by A before the marriage is considered personal property. However, the profits and earnings from this portfolio during the marriage are considered acquired property and shared with B.
Assets Arising from the Practice of a Profession or Business Activity
One of the special arrangements that spouses can make with a property regime agreement is that the assets arising from the practice of a profession or business activity can be considered personal property.
Broad Interpretation:
In a broad interpretation, all income, earnings, or products obtained as a result of the practice of a profession or business activity can be considered personal property. This interpretation contradicts the idea of “obtaining in return, obtaining in return for work,” which is a basic condition for an asset to be included in the group of acquired assets in the legal property regime. This broad interpretation transforms the property regime from the legal property regime to the separation of property regime.
Narrow Interpretation:
In a narrow interpretation, the assets included in the scope of assets arising from the practice of a profession or business activity are those allocated for the practice of the profession or the operation of the business. Examples of these assets include the computer and books in an accountant’s office, medical tools and equipment in a doctor’s office, or a sewing machine in a tailor’s shop.
In summary:
Spouses can agree in the property regime agreement that the assets arising from the practice of a profession or business activity will be considered personal property. There are two different interpretations in this regard:
Broad interpretation: All income from the practice of a profession can be considered personal property.
Narrow interpretation: Assets allocated for the practice of the business or profession can be considered personal property.
Assets Inherited by Inheritance
During the marriage, assets inherited by one of the spouses are also considered personal property and do not fall under the acquired property regime. However, the income from these assets obtained during the marriage is considered acquired property and is subject to sharing in the event of divorce.
Example: Person A inherits a plot of land from their aunt before marriage. During the marriage, A marries B. When a divorce case is filed, the plot of land inherited by A from their aunt is considered personal property. However, the rental income from this land during the marriage is considered acquired property and shared with B.
Assets Purchased with Loans Before Marriage
Pre-Marriage Loan Purchases
An asset purchased with a loan before the marriage creates a special situation in the sharing of assets in the event of divorce. Although ownership occurred before marriage, if loan payments continue during the marriage, some of these payments may be subject to sharing.
Example: Person A buys an apartment with a loan before marriage. During the marriage, A marries B and they pay off the loan together. When a divorce case is filed, the value of the loan payments made during the marriage will be calculated as a proportion of the sale price of the apartment. B will be entitled to a share of the sale price of the apartment corresponding to the contribution value resulting from this calculation.
Calculation of Loan Payments
The portions of the loan paid during the marriage are calculated proportionally to the sale price of the asset. In this calculation, factors such as the total amount of the loan, the amount paid during the marriage, and the sale price of the asset are taken into account.
Since the formula used in the calculation can be complex, it would be beneficial to seek help from an expert in this matter.
Asset Sold During the Marriage
The income obtained from the sale of an asset purchased by one of the spouses before the marriage or inherited during the marriage is considered personal property. If a new asset is acquired with this income, this new asset is also considered personal property.
Purchases Made with Inherited Money
If a new asset is purchased by adding to the inherited money and the added amount is not paid with the proceeds from the sale of a personal asset, the excess part can still be subject to sharing.
The Effect of Inherited and Donated Assets on Asset Sharing in Divorce
The Status of Inherited Assets
According to the Turkish Civil Code, assets inherited by one spouse during the marriage are considered that spouse’s personal property and are not subject to sharing in the event of divorce. This is based on the idea that the inheritance is an asset acquired outside the marital union and that the other spouse has no rights over this asset.
The Status of Income from Inherited Assets
Income from inherited assets is considered acquired property and is subject to sharing in the event of divorce. For example, rental income from an inherited property is considered acquired property, and half of this income belongs to the other spouse.
The Status of Donated Assets
Any asset donated to one spouse during the marriage is also considered that spouse’s personal property and is not subject to sharing in the event of divorce. This is based on the idea that the donation is an unearned gain and that the other spouse has no rights over this gain.
For an unearned gain to be included in the personal property group, the spouse acquiring the asset must not have incurred any obligations or sacrifices while acquiring it. In the case of mixed donations, where part is reciprocal and part is gratuitous, if the reciprocal part is more than the gratuitous part, the asset acquired through the donation is considered acquired property, but the gratuitous part is subject to equalization.
Reasons for Considering Unearned Gains as Personal Property:
The main reason for considering assets obtained by one spouse through unearned gain as personal property in the property regime is that the acquisition of this asset has no contribution or effect from the other spouse or the marital union. These types of gains can be obtained through donation, lottery winnings, compensation, and similar means. Jewelry given to the bride during the marriage, regardless of who gave it, is considered a gift to the woman and becomes her personal property.
Example Supreme Court Decision on Unearned Gain
EIGHTH CIVIL CHAMBER 2009/2348 2009/6173 17.12.2009
(…) According to the information in the file, the plaintiff woman left the common residence on 10.01.2004. The spouses did not choose another property regime other than the legal participation in acquired property regime (TMK.m.202/2).
The plaintiff woman claimed that she gave 12,500 TL obtained by selling her jewelry and 10,000 TL taken from her father, a total of 22,500 TL, for the purchase of the vehicle to the defendant-counter plaintiff spouse. Therefore, this request relates to the value increase share arising from the contribution made from personal property to the acquired property (TMK.m.227).
The gold and money taken from her father belonging to the plaintiff Irge is her personal property according to Article 220/2 of the TMK, and the money from the sold gold is considered as the value replacing personal property according to the same article.
On the other hand, mutual loans transferred to each other by the parties before and after marriage with the intention of establishing a marriage and during the marriage should be considered as acquisitions in return for their work according to Article 219/1 of the TMK. In other words, they are considered acquired property. (…)
Moral Compensation Claims
Moral compensation is compensation paid to the person whose personal rights have been violated due to an unlawful attack on their personal rights, to compensate for the pain, suffering, and distress caused. Therefore, the right to claim moral compensation is a strictly personal right.
The main reason for considering moral compensation claims as personal property is that their source is related to personal rights. Personal rights are fundamental rights aimed at protecting an individual’s existence, dignity, and honor. Moral compensation claims arising from attacks on these rights are considered an extension of personal rights.
Payments Received from Social Security and Assistance Institutions:
Payments made by social security or assistance institutions and compensation for loss of work capacity are subject to a specific calculation process. In this process, lump-sum payments are calculated considering the individual’s lifespan and classified according to the expenses made within the legal property regime.
Calculation Process:
In calculating lump-sum payments, the individual’s lifespan and the annual amount of these payments are taken into account. This calculation is made by experts and determines the proportions in which these payments will be classified as personal property and acquired property.
Classification:
The portion corresponding to the expenses made within the legal property regime is considered acquired property, while expenses made outside the regime are considered personal property.
Asset Sharing for Marriages Before 2002
In marriages before 2002, asset sharing was done according to the separation of property regime under the old Civil Code No. 743. In this regime, all assets acquired before and during the marriage were considered personal property. In the event of divorce or the death of one of the spouses, personal property could not be shared; only debts and receivables were liquidated.
However, with the entry into force of the Turkish Civil Code No. 4721 in 2002, the legal property regime was changed to the participation in acquired property regime. In this regime, half of the assets acquired together during the marriage are shared with the other spouse in the event of divorce or the death of one of the spouses. Personal property is not included in this sharing.
How is Asset Sharing Done for Marriages Before 2002?
For couples married before 2002 and who did not make a property regime contract within one year from 2002, the participation in acquired property regime applies. However, the separation of property regime provisions apply to the part of the marriage before 2002. In this case, assets acquired before 2002 are considered personal property and are not shared.
Asset Sharing for Marriages Before 2002
In marriages before 2002, asset sharing was done according to the separation of property regime under the old Civil Code No. 743. In this regime, all assets acquired before and during the marriage were considered personal property. In the event of divorce or the death of one of the spouses, personal property could not be shared; only debts and receivables were liquidated.
However, with the entry into force of the Turkish Civil Code No. 4721 in 2002, the legal property regime was changed to the participation in acquired property regime. In this regime, half of the assets acquired together during the marriage are shared with the other spouse in the event of divorce or the death of one of the spouses. Personal property is not included in this sharing.
Can Couples Married Before 2002 Change Their Property Regime?
Yes, couples married before 2002 can change their property regime by making a marriage contract. For the contract to be valid, it must be notarized.
An Example Supreme Court Decision on Asset Sharing for Marriages Before 2002:
EIGHTH CIVIL CHAMBER 2010/3917 2011/44 17.01.2011
(…) The defendant Kenan B.’s attorney defended the rejection of the case.
The court ruled that the property in question was a personal property of the defendant, inherited from his father, and that the plaintiff had no right to it, and that the pension had been spent and was not available. Upon the appeal of the ruling by the plaintiff’s attorney, the decision was upheld by the Supreme Court.
The parties married on 21.11.1998, the divorce case filed on 11.07.2006 was finalized on 12.03.2009. From the date of marriage to 01.01.2002, the separation of property regime (TKM 170) applied, and from this date until the end of the property regime, the participation in acquired property regime (TMK 202) applied as no other property regime was chosen by contract.
According to Article 235/1 of the TMK; the acquired property existing at the end of the property regime is taken into account with their value at the time of liquidation. According to the file, it was understood that the pension received by the defendant husband since 01.01.2002 was acquired property and had been spent, and it was not found to have been accumulated or used for acquiring property. Therefore, the decision to reject the case regarding this matter was deemed appropriate. (…)
What Assets Are Not Shared in Divorce?
Sharing of Personal Assets:
Assets acquired before marriage, inherited or donated assets, assets acquired for personal use, and assets of sentimental value are not subject to sharing because they were acquired outside the marriage or serve personal use. For example, a car purchased before marriage, a plot of land inherited by one of the spouses, or an antique piece of furniture inherited from a family member are among the assets that are not shared.
Sharing of Debts:
Debts incurred before the marriage and debts arising from personal use (gambling debts, credit card debts, etc.) are not subject to sharing because they are not related to the marital union. These debts remain with the indebted spouse.
Sharing of Compensation Claims:
Compensation claims arising from personal injury or property damage and moral compensation claims are not subject to sharing because they arise from personal rights violations. These claims belong to the spouse entitled to the compensation.
Sharing of Privately Owned Assets:
Intellectual and industrial property rights (patents, copyrights, etc.) and personal businesses are not subject to sharing because they are subject to private property rights. These assets remain with their owner.
Sharing of Some Assets Acquired During Marriage:
Assets that are stipulated not to be shared by a marriage contract or that are ruled not to be shared by a court decision are not subject to sharing because they are stipulated not to be shared by a marriage contract or a court decision. These assets are liquidated as specified in the contract or court decision.
House Purchased Before Marriage, Mortgage Payments Made Together During Marriage, and Asset Sharing:
A house purchased with a loan by one party before marriage becomes a significant asset in the couple’s joint life from the marriage date. Mortgage payments made during the marriage contribute significantly to the ownership of this house. However, what matters here is the contribution of the non-titled spouse to these payments and the impact of these payments on the value increase of the house.
Mortgage payments made during the marriage can contribute to the value of the house, potentially causing an increase in its value. In this case, the non-titled spouse has the right to claim a share of the increase in the value of the house proportionate to the total amount of mortgage payments made during the marriage. The total payments made during the marriage are considered an indicator of the increase in the value of the house, and each spouse contributing to this increase has the right to share in this increase.
Family Annotation and Asset Sharing for Houses Purchased Before Marriage
Family annotations can also be applied to houses purchased before marriage. This annotation is placed to prove that the house is used by the family and that the residents are family members. Family annotations can also be applied to rented or for-sale houses, preventing the house from being sold without permission or the lease being terminated without permission.
However, assets acquired before marriage are generally considered personal property, and claims on these assets during the marriage are limited. For example, although mortgage payments made during the marriage contribute to the value of the house, the house is considered personal property of the person who purchased it. However, the source of the payments made during the marriage is important. Payments made from the joint income of the spouses are taken into account during the asset sharing process, and the contribution of these payments to the value of the house is calculated.
In the Event of Death, the House Acquired Before Marriage
Assets acquired before marriage can cause complex legal processes and concerns among couples in the event of death. In this case, issues such as who will inherit the house, inheritance rights, and protection measures often come up.
Legal Inheritance Share:
The sharing of a house acquired before marriage among heirs in the event of death is determined by the concept of legal inheritance share. For a couple without children, the legal heirs are the parents of the spouse. Therefore, in the event of the spouse’s death, the heirs of the house are usually the parents of the spouse. However, the siblings of the spouse do not have inheritance rights.
Protection Measures:
In the event of the spouse’s death, there are concerns about the house being shared by other heirs or rent being demanded from the surviving spouse living in the house. In this case, protection measures should be sought. First, it is important to place a family annotation on the house by going to the land registry office. This process secures the right to live in the house in the event of the spouse’s death and facilitates the sharing process.
Having Children and Inheritance Rights:
If the couple has children, inheritance rights will change. After having children, the parents of the spouse lose their inheritance rights, and the new heirs become the spouse and children. In this case, the sharing of the house and inheritance rights will be determined according to the sharing to be made between the spouse and children.
The Concept of Acquired Property in the Event of Selling a House Purchased Before Marriage and Buying a New House
Assets acquired before marriage are considered personal property and are not subject to liquidation in the event of divorce. So, what happens if a house purchased before marriage is sold and a new house is bought with the proceeds from this sale?
The legal evaluation of this situation is made by considering the price of the new house and the duration of the marriage.
If the Price of the New House is the Same or Lower than the Price of the House Acquired Before Marriage:
The new house is considered personal property as it replaces the house acquired before marriage.
In this case, the new house is not subject to liquidation in the event of divorce.
If the Price of the New House is Higher than the Price of the House Acquired Before Marriage:
The difference in the price obtained from the house acquired before marriage is considered acquired property.
This price difference is shared equally between the spouses in the event of divorce.
Frequently Asked Questions:
Does the spouse become a co-owner of the house purchased before marriage?
No, the house that belonged to one party before marriage is not included in the joint assets of the spouses according to the acquired property regime. Even if one spouse increases the value of the house during the marriage with financial contributions or joint effort, this does not affect the ownership right of the asset.
Who gets the car purchased before marriage after divorce?
As explained above, a car acquired before marriage is not subject to asset sharing in the event of divorce and remains the property of the original owner. Even if one spouse increases the value of the car during the marriage with financial contributions or joint effort, this does not affect the ownership right of the car.
Who gets the house purchased before marriage after divorce?
When the marriage ends, the house that belonged to one party before marriage remains the property of that person. Asset sharing in divorce applies only to assets acquired during the marriage. Therefore, the house acquired before marriage is not considered within this scope.
What happens to the mortgage of the house purchased before marriage after divorce?
A house purchased with a loan before marriage is considered acquired property along with the mortgage payments made from the date of marriage. Therefore, the total amount of mortgage payments made during the marriage represents a claim for the non-titled spouse proportionate to the increase in the value of this property.
Do I have any rights if my spouse purchased a house before marriage and paid the mortgage themselves?
Participation in Acquired Property Regime: According to the Turkish Civil Code, assets acquired during the marriage are shared equally between spouses. However, assets acquired before the marriage are considered personal property and are not subject to asset sharing. Therefore, the house purchased by the spouse before marriage and the mortgage payments made are considered personal property. Consequently, no rights can be claimed on this house.
Note: The non-owner spouse can place a family annotation to reside in the house until the divorce is finalized and prevent its sale.
Rental Income:
Is Rental Income Acquired Property: Rental income obtained during the marriage is considered acquired property. Therefore, half of the rental income obtained during the marriage can be claimed.
Whether the Spouse Contributed to the Rental Income: Even if the spouse did not contribute to obtaining the rental income, this does not prevent them from claiming half of the rental income.
Do assets acquired before marriage pass to the second spouse?
Assets acquired before marriage do not pass to the second spouse when the marital union ends. These assets are not subject to sharing because they were acquired before marriage and are considered personal property. Spouses handle the sharing of assets acquired during the marital union according to the rules of the participation in acquired property regime.
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Who Keeps Assets Acquired Before Marriage in Turkish Law
