In the Turkish Civil Code, the system dec which financial relations between spouses are regulated is called the “goods regime”. The property regime and the legal regime between the spouses, to which the property assets such as money, securities and real estate that the spouses owned before marriage or acquired during marriage are subject, the management of the property assets, the rights and powers of the spouses over each other’s property assets and the regulations on their liability for debts are understood. dec.
During the continuation of the goods regime, one spouse has the right to participate in the acquired goods at a rate of half of the residual value of the other spouse.In the liquidation of the regime of participation in acquired goods, “values to be added” are taken into account when calculating the amount of receivables for participation in residual value. 229 of the Turkish Civil Code. according to the article; transfers made by one of the spouses in the year preceding the expiration of the goods regime without the consent of the other spouse, with the intention of reducing the participation of the other spouse during the continuation of the goods regime with gratuitous gains made outside the usual gifts, are included in the liquidation as if they existed at the moment when the goods regime ended.
The court decision may also be brought against third parties who have benefited from the acquisition or transfer, provided that the case has been reported to them. In this case, 241 of the same law is subsequently applied against the third person.according to article 229 when a claim for receivables is filed.whether the conditions of acquisition or transfer in the article have been fulfilled will not be the subject of re-investigation.
An example Supreme Court Decision on the issue is as follows;
T.C. COURT OF CASSATION 8. DEPARTMENT OF LAW E. 2017/12991 K. 2017/11707 T. 28.9.2017
“CASE: At the end of the trial between the parties in the case described above, the Court decided to dismiss the case and after the decision was appealed by the dectiff’s deputy, the Apartment file was examined and considered as necessary.
DECISION: The plaintiff … his deputy requested and sued that the 150,000.00 TL you will receive from the defendant be taken from the plaintiff and given to the plaintiff due to the real estate acquired within the marriage union.
The defendant …his deputy has defended the dismissal of the case.
The court decided to dismiss the case. The judgment has been appealed by the acting plaintiff.
It is up to the parties to assert material events, the judge to make a legal qualification and determine the articles of the law to be applied (HMK m No. 6100. 33). According to the way the claim is put forward, the case is related to the request that it will no longer participate in the value.
During the continuation of the goods regime, in the acquired goods owned by one spouse, the other spouse has the right to participate at a rate of half of the residual value. He will no longer receive participation in the value; one of the values to be added (TMK m. 229) and without equalization (TMK m. 230), including the amounts obtained, the spouse’s acquired property (TMK m. 219) from the total value, the residual value remaining after the debts for these goods have been deducted (TMK m. 231) the other spouse over half is entitled to receivables (TMK m. 236/1). Participation is a right arising from the Law that he will receive, and the spouse who claims this right does not need to have income or contribute to the acquisition, improvement or protection of this property.
In the liquidation of the regime of participation in acquired goods, “values to be added” are taken into account when calculating the amount of receivables for participation in residual value. 229 of the Turkish Civil Code No. 4721. according to Article one of the property regime of the spouses without the consent of the other spouse within one year prior to the expiration of the usual gifts, except for unpaid property with the participation of the other spouse kazandirma during the continuation of the regime that would reduce property transfers made with the intent to eliminate the end of the regime as soon as possible are included. The court decision may also be brought against third parties who have benefited from the acquisition or transfer, provided that the case has been reported to them. In this case, 241 of the same law is subsequently applied against the third person.according to article 229 when a claim for receivables is filed.whether the conditions of acquisition or transfer in the article have been fulfilled will not be the subject of re-investigation.
In such disputes; first of all, by the defendant spouse 229. it should be investigated and determined whether the acquisition or transfer has been made in accordance with the purpose and direction of the article. If it is understood that an unrequited acquisition or transfer has been made by the court, a provision should be made to determine whether the plaintiff has the right to participate in the calculation made by accepting the goods in question, determine the amount, if any, and collect it from the defendant spouse. In liquidation, the value of the version at the date of the decision is based on the status of the transferred assets at the time of transfer (TMK m. 235/2).
A person who claims that a certain property belongs to one of the spouses is obliged to prove his claim. Goods belonging to which of the spouses cannot be proved are considered their shared property. All property of a spouse is considered acquired property until proven otherwise (TMK m. 222).
If it is deemed necessary to make the above value determination, determination and calculations, the expert expert or expert witnesses of the subject should also be assisted.
As for the concrete incident; the spouses were married on 17.11.1975 and divorced on 26.01.2015 when the decision on the acceptance of the divorce case filed on 29.08.2012 was finalized on 26.01.2015. The goods regime has expired as of the date of filing for divorce (TMK m. 225/last). Since it is not claimed that another goods regime has been selected by the contract, the separation of goods from the date of marriage until 01.01.2002, when TMK 4721 entered into force (TKM 743 m. 170), if from this date until the date of termination of the goods regime, the regime of participation in the acquired goods is valid (article of Law No. 4722. 10 a.m. 202/1). Parcel No. 336 13 immovable subject to liquidation island, between the spouses purchased on 27.02.2004 possible answers is true of the defendant registered in the name of the spouse, the spouse on 12.02.2008 real estate of the defendant, the parties to a joint daughter …..’a has been transferred through sale. In the liquidation of the goods regime, the provisions of the regime to which the spouses are bound are applied (TMK m. 179).
In the review conducted in accordance with the legal regulations and principles described above;
When the land registry records, party and witness statements and the entire scope of the file are examined together, the defendant’s real estate subject to liquidation is the joint daughter of the parties about four years before the divorce case …..he sold it to DEC, there has been unrest between the parties since 2007, and they have been living separately since 2009, and …..in his statement as a witness, he also stated that he inherited the real estate from his mother in the deed, it has been seen that he has declared that he has not sold’.Transfers made by one of the spouses with the intention of reducing the participation of the other spouse during the continuation of the goods regime are included in the liquidation as if they existed at the moment when the goods regime ends (TMK m.229). Then, by the Court, the witness …..the declaration of decency that it has not purchased the real estate is that the transfer of the real estate is not a real sale given the unrest between the parties, which is fixed with all the scope of the file, and TMK 229. since it is understood that it has a value to be added in accordance with the article, it is necessary to judge the receivable taking into account the nature of the real estate at the time of transfer and its value at the date of liquidation, while it was decided in writing by incorrectly evaluating the evidence, it was contrary to the procedure and law, and it required to be overturned.
CONCLUSION : For the reasons shown above, the appealed provision is subject to Provisional Article 3 of HMK No. 6100..article 428 of HUMK No. 1086. it was decided unanimously on 28.09.2017 that it could be OVERTURNED in accordance with article 440/I of the HUMK and requested to correct the decision against the ad within 15 days from the notification of the Supreme Court’s Office, and if an advance fee was requested, it could be returned to the appellant plaintiff.”
