Liquidation of the Marital Property Regime and Participation Claim

 LIQUIDATION OF PROPERTY REGIME AND PARTICIPATION CLAIM

Once the divorce decree becomes final, the marital union between the parties ends, but the "economic partnership" ends through a liquidation process. Articles 179-181 of the Turkish Civil Codeare the rules that determine how the assets held by the spouses at the time of divorce will be divided.

1.1. Legal Property Regime: Participation in Acquired Property

In all marriages established after January 1, 2002, unless there is a contract to the contrary (Separation of Property Agreement), the "Community Property Regime" applies.

• Personal Property (Turkish Civil Code Article 220): This includes the spouses' pre-marital assets, inherited property, personal belongings, and claims for moral damages. These are not included in the liquidation.
• Acquired Assets (Turkish Civil Code Article 219): Income earned through work during the marriage, assets purchased with this income, and compensation paid by social security institutions. At the time of divorce, after deducting debts from the total value of these assets, the remaining "surplus value" is considered to have a 50%-50% share between the spouses

1.2. Liquidation Process and Statute of Limitations

• Liquidation (Article 179): Liquidation begins after the divorce proceedings become final. If the parties agree, the division is made in the presence of a notary; if they cannot agree, a "Property Regime Liquidation Lawsuit" is filed.
• Statute of limitations (Article 178): A liquidation lawsuit must be filed within 10 years of the divorce decree becoming final . No claims can be made after this period.

1.3. Receivables for Value Increase Share and Contribution Share

• Capital Gains Share (Turkish Civil Code Article 227): A contribution by one spouse from their own personal property to the property of the other spouse (e.g., using inherited money to pay a mortgage on the other spouse's house).
• Contribution Reimbursement: The right to reclaim the monetary contribution made by a spouse to the purchase of goods acquired before 2002.

 INTERNATIONAL LAW AND PRIVATE NATIONAL LAW IN THE LIQUIDATION OF PROPERTY REGIMES 

The liquidation of marital property regimes is not only about the division of immovable property, but also a point of conflict between different legal systems. Specifically, for foreign spouses residing in Turkey or Turkish citizens with assets abroad, the applicable marital property regime rules of each country are regulated by Article 15 of the Law on Private International Law and Procedural Law (MÖHUK)

This section will examine the applicable law and international practice in cross-border property sharing.

2.1. Hierarchy of Law Applicable to Marital Property Regimes (Article 15 of the Private International Law Act)

In a property regime case involving a foreign element, a Turkish judge determines the applicable law (lex causae) by following these steps:

Stages of Choosing the Property Regime Law:

 ├── 1. Selection of Spouses ───────> Spouses shall enter into a written agreement at the time of marriage or while the marriage is ongoing 

 │                              They can choose the law that will apply to their property regime through a contract. 

 │                              (One of their national laws or the law of their habitual residence).

 ├── 2. If There Is No Option ──────────> The "Common National Law" of the spouses at the time of marriage applies.

 ├── 3. If there is no Common National Law -> The "Common Habitual Residence Law" of the spouses at the time of marriage.

 └── 4. If None of These Exist ────────> “Turkish Law” (Provisions of Property Regimes) applies.

• Important Note: The citizenship or place of residence at the time of marriage is fundamental. Even if a divorce case is filed 10 years later, the legal system they were subject to at the time of marriage will continue to apply to the property regime (unless changed by contract).

2.2. The Impact of Foreign Law on Goods in Türkiye

If the spouses chose or were subject to a foreign legal system when they married, the Turkish court will apply the "property regime" concept of the foreign law during the liquidation process.

• Public Order Exception: If the chosen or applied foreign law contains rules that completely disregard a woman's property rights or establish absolute inequality, the Turkish judge "Turkish Public Order" (Article 5 of the Private International Law Act)and instead apply the principles of fair distribution of property under Turkish law (Articles 218 and subsequent articles of the Turkish Civil Code).
• The “Lex Rei Sitae” Principle in Immovable Property: Property rights over immovable property are subject to the law of the country in which the property is located (Article 21 of the Turkish Private International Law Act). For example, the division of a house in Turkey, according to the property regime, is governed by Turkish law, while the division of a house in Germany may be subject to German law (within the framework of that country's local property rules). This situation leads to complex legal situations known as "dépeçage" (fragmentation).

2.3. Enforcement of Foreign Court Judgments (Regarding Marital Property Regimes)

Even if a "divorce" decree obtained from a foreign court abroad is recognized/enforced and is valid in Türkiye, the "liquidation of property regime" section within that decree may not automatically be valid in Türkiye.

• Special Enforcement Requirement: If a foreign court decision involves the liquidation of a marital property regime that stipulates the transfer of ownership of immovable properties in Turkey, an enforcement lawsuit must be filed in Turkey for this judgment to be executed . Turkish land registry offices will not process ownership changes based solely on a divorce decree without an enforcement order.

My wife and I got married in Germany and signed a contract stating that we would be subject to German law. Does German law apply to our house in Türkiye?

Yes. According to Article 15/1 of the Turkish Code of Private International Law, the choice of law made by the spouses is valid. In a liquidation case, the Turkish court will examine the provisions of German marital property regime law. You must submit documents containing these foreign legal rules to the court with a sworn translation.

A foreign court granted a divorce and also ruled on the division of assets. Is this decision automatically valid in Türkiye?

No. Even if a divorce decree is recognized, the provision regarding the division of property only becomes valid for real estate in Türkiye through an enforcement lawsuit. To conduct transactions at the Turkish land registry office, you absolutely need an enforced court decision or a notarized division agreement.

Can foreigners enter into a "Separation of Property" agreement in Türkiye?

Yes, foreigners can also choose a separate property regime of their own choosing instead of the legal regime stipulated in the Turkish Civil Code by signing a "Separation of Property Agreement" before a notary public when marrying or being married in Türkiye. This agreement is valid and binding within the borders of Türkiye for both Turkish and foreign spouses.

 CUSTODY, PERSONAL RELATIONSHIP, AND THE BEST INTERESTS OF THE CHILD IN DIVORCE CASES

In divorce proceedings, the most emotionally and legally sensitive issue for the parties is the fate of their children. Our legal system defines custody not as a "right," but as a "public duty" aimed at protecting the best interests of the child. Articles 182-183 of the Turkish Civil Coderegulate the judge's powers and the parents' obligations in this process.

3.1. Regulation of Custody: The Principle of "The Best Interests of the Child"

When determining custody in a divorce case, the judge prioritizes the "best interests of the child" (biological, emotional, educational, and housing needs) rather than the wishes of either parent

• Age Factor: Custody of children, especially those in ages where maternal affection is most needed (0-6 years old), is generally granted to the mother unless proof of her "incompetence" (e.g., mental instability, severe dependency, neglect/abuse) is provided.
• Child's Opinion (Turkish Civil Code Article 339): If the child has the capacity to understand (usually 8 years and older), their opinion is taken in court with the assistance of expert pedagogues. The child's preference is not binding on its own, but it is very decisive in the judge's decision.
• Removal or Modification of Custody (Turkish Civil Code Article 183): If the spouse with custody rights acts negligently, hinders the child's education, or incites the child against the other parent (alienation syndrome), the other spouse may file a lawsuit for a modification of custody.

3.2. Personal Relationship and New Child Custody System

The right to establish personal contact with a child after divorce is a constitutional right of the parent who does not have custody.

• Detailed Arrangement: Instead of vague phrases like "every two-weekend weekend," decisions should clearly specify time intervals, holidays, semester breaks, and summer vacations.
• Revolution in Enforcement Procedures (Child Custody): Previously, child custody was handled by enforcement offices through "coercion" (force). with the changes made in 2022. Now, child custody the Judicial Support and Victim Services Directorates , accompanied by experts and psychologists, in a way that prevents the child from experiencing trauma. Now, instead of an enforcement officer, a specialist child psychologist knocks on the door for the child.

3.3. Parental Alienation Syndrome

In practice, it is common for the custodial parent to undermine the child's affection for the other parent, to speak ill of them, or to prevent them from visiting.

• Sanctions: A custodian who prevents or obstructs the other parent from seeing their child may be warned by the court, fined, or face administrative penalties for violating the child's best interests. This is considered one of the strongest grounds for changing custody

My wife constantly refuses to let me see our child, what should I do?

Unlike the old system, you don't need to apply to the enforcement office and call the police. It is sufficient to apply to the Directorate of Legal Support and Victim Services regarding the spouse who is acting contrary to the personal contact order. Furthermore, this action provides legitimate grounds for you to file a lawsuit to gain custody.

I have custody of my child, but I need to move to another city. Do I need permission from the child's father or mother?

As the legally custodial parent, you have the authority to determine the child's place of residence. However, if this relocation makes it impossible for the other parent to have personal contact (visitation) with the child, the other parent may apply to the court for a "rearrangement of visitation dates.".

My child is 12 years old and wants to live with his father; will the court allow this?

The court, taking into account the child's age of understanding, obtains the opinion of a child psychologist. The statement of a 12-year-old child may guide the court's decision, as long as it does not conflict with the "best interests of the child." However, the final decision is ultimately made by the judge, considering the child's safety and development.

PROPERTY DIVISION AND CHILDREN'S RIGHTS IN DIVORCE: A COMPREHENSIVE LEGAL GUIDE

Divorce is not just the end of a legal process, but the beginning of a new life. In this guide, we examine the issues of "Property Regime Dissolution," which determines the economic future of the parties in a divorce case, and "Custody and Personal Relationship," which determine the future of the children , from local and international (Private Private Law) perspectives.

 1: SAVING YOUR ECONOMIC FUTURE: ASSET LIQUIDATION (Turkish Civil Code Articles 179-181)

• Acquired Property vs. Personal Property: The distinction between property that is and is not subject to sharing.
• Participation Claim and Value Increase Share: The return of invested money and labor.
• Liquidation Process: Agreed-upon or Contested?
• Statute of limitations: The importance of the 10-year forfeiture period.

 2: CROSS-BORDER ASSETS AND INTERNATIONAL LIQUIDATION (Turkish Code of Private International Law, Article 15)

• Choice of Law: The Power of Prenuptial Agreements.
• Foreign Law Application: Division of property and enforcement obstacles in different countries.

 3: THE FUTURE OF CHILDREN: CUSTODY AND THE BEST INTERESTS OF THEM (Turkish Civil Code Articles 182-183)

• Custody Criteria: Maternal affection, age of understanding, and the child's preference.
• The Child Custody Revolution: A new legal system and expert-led interviews.
• Alienation Syndrome: Legal sanctions against abuse of parental rights.

 4: GLOBAL CUSTODY AND CHILD ABDUCTION (HAGUE CONVENTION)

• Child Return: What is the 1980 Hague Convention and how does it work?
• Return Exceptions: High risk and child's opinion.
• International Guarantees: Protection of personal relationship after the return of the abducted child.