T.C.
Supreme
- law office
Base No:2014/14603
Decision No:2015/21591
K. Date:2.12.2015
N.. B.. with M.. He.. although the Supreme Court’s review of the decision14.02.2014 days and … issued by the Karamursel Court of First Instance Law (Family) on the rejection of the receivable case arising from the Property Regime between them was requested by the plaintiff’s deputy during the time; the file was examined, the need was considered:
K A R A R
Plaintiff N. his deputy filed a claim for receivables with the liquidation of the property regime in relation to the real estate specified in the petition of claim.
Defendant M. the deputy defended the refusal of the case.
After the court decided to dismiss the case on the grounds that it could not be proved that the plaintiff had a contribution to the acquisition of the goods subject to litigation, the provision was appealed by the deputy plaintiff.
1- The subject of the lawsuit cannot be resolved within the framework of the provisions on the liquidation of the goods regime, since the independent sections 4 and 13 were purchased by tender after the expiration of the goods regime and registered on behalf of the defendant. However, according to the general provisions of the Code of Obligations, the plaintiff can file a claim with a claim for receivables that he will open in the general courts. Since the rejection decision regarding these real estate is correct as a result of the decision, it was necessary to decide on the rejection of appeals against these real estate appeals.
2- As for appeals related to the independent section No. 12, the subject of the case; 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 33 of 6100. m). According to the way the claim is put forward, the case is related to the request that he 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; from the values that will be added (TMK 229.m) and without equalization (TMK 230.m) the amount of the spouse’s acquired property, including the amounts obtained (TMK 219.m) the residual value remaining after the debts related to these goods have been deducted from the total value (TMK 231.m) the other spouse over half has the right to receivables (TMK 236/1.m). 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.
When calculating the amount of receivables for participation in the residual value, the version (fair) values of the goods available at the time of the expiration of the goods regime are taken as a basis, depending on their condition at this date, but not on the date of liquidation (TMK 227/1, 228/1, 232 and 235/1. m). According to the practices of the Supreme Court, the date of liquidation is the date of the decision.
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 222. m).
In order to make the above value determination, determination and calculations, expert or expert experts of the subject should also be assisted if necessary.
As for the concrete incident; the spouses were married on 24.08.1993 and divorced upon the finalization of the provision on the acceptance of the divorce case filed on 15.09.2010. The goods regime has expired as of the date of filing for divorce (TMK 225/son). Since it is not claimed that any other 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 743 170.m), if from this date until the date of expiration of the goods regime, the regime of participation in the acquired goods applies (Article 10 of Law No. 4722, TMK 202/1.m). The independent part No. 12, subject to liquidation, was purchased on dec4.07.2009, when the regime of participation in acquired property between spouses applies, and was registered in the name of the defendant spouse. In the liquidation of the goods regime, the provisions related to the regime to which the spouses are bound are applied (TMK 179.m). According to the dec register found in the file … a mortgage has been established in favor of the Bank. Although it was decided to dismiss the case based on the expert’s report based on the court’s decision that the case would receive a contribution and the plaintiff’s contribution could not be proven,; according to the way the claim was put forward and the date of acquisition of the real estate, the plaintiff’s request is now directed to the value addition receivable, and the contribution does not have to be made to rule on the receivable. Accordingly, while a decision should be made about this independent section by collecting the party’s evidence within the framework of the claim and the defense, the conclusion reached by misjudging the evidence has not been correct.
CONCLUSION: The above-mentioned provision of the appeal (2.), the other appeals of the plaintiff’s attorney to the DETERIORATION of the reason shown in paragraph No. 1 above (1.) for the reason indicated in paragraph No. 388/4 of the CMB by the parties to the refusal. (H.M.m.297/ç) and in accordance with Articles 440/I of the CMB, it was unanimously decided on 02.12.2015 that a request for correction of the decision may be made against the announcement within 15 days from the notification of the Supreme Court’s Office and that the advance fee of 25.20 TL may be returned to the appellant upon request.
