HOW DOES PROPERTY SEPERATION OCCUR ACCORDING TO TURKISH LAW?

In Turkish law, property separation during a divorce is governed by the Turkish Civil Code (Türk Medeni Kanunu). The default regime for dividing property is "participation in acquired property" (edinilmiş mallara katılma rejimi), but there are other regimes that spouses can choose through a prenuptial agreement. Here's a breakdown of the property separation rules in Turkey:

1. Default Property Regime: Participation in Acquired Property (Edinilmiş Mallara Katılma)

This regime applies to most marriages unless the couple has agreed to a different property regime. Under this regime, the property is divided into acquired property (edinilmiş mal) and personal property (kişisel mal).

Acquired Property (Edinilmiş Mal)

Acquired property refers to assets accumulated by either spouse during the marriage. These assets are considered joint property and are divided equally upon divorce. Acquired property includes:

• Income from employment (e.g., salary, bonuses).

• Income generated from personal property (e.g., rental income from a property owned before marriage).

• Payments made to pension funds or other retirement savings during the marriage.

• Property purchased with income earned during the marriage.

Personal Property (Kişisel Mal)

Personal property refers to assets that belong solely to one spouse and are not subject to division. These include:

• Assets owned before the marriage.

• Inheritances or gifts received by one spouse during the marriage.

• Compensation for non-financial damages (e.g., pain and suffering).

• Personal belongings used exclusively by one spouse (e.g., clothes, personal items).

Division of Acquired Property

Upon divorce, each spouse is entitled to half of the acquired property, after deducting the debts and liabilities related to the acquired property. Personal property is not divided and remains with the spouse who owns it.

2. Other Property Regimes

Spouses can choose a different property regime through a prenuptial or postnuptial agreement. The available regimes are:

• Separation of Property (Mal Ayrılığı): Each spouse retains ownership of their assets, whether acquired before or during the marriage. There is no sharing of property upon divorce.

• Shared Ownership of Property (Mal Ortaklığı): All property, whether acquired before or during the marriage, is considered joint property, and both spouses share equally in its division.

• Separation of Property with Sharing (Mal Paylaşmalı Mal Ayrılığı): In this regime, the spouses retain their personal property, but the acquired property is divided similarly to the default regime.

3. Steps in Property Division

1. Determine Personal vs. Acquired Property: The first step is to distinguish which assets are considered acquired property and which are personal.

2. Valuation of Assets: The assets are valued, typically at the time of divorce. Debts and liabilities related to the acquired property are deducted from the total value.

3. Division: The acquired property is divided equally between the spouses.

4. Considerations

• Prenuptial Agreement: If the couple signed a prenuptial agreement (mal rejimi sözleşmesi), the division of property will be carried out according to the terms of that agreement.

• Marital Home (Aile Konutu): Special rules apply to the marital home, especially regarding the right to live there. Even if the home is owned by one spouse, the court may grant the other spouse the right to continue living there, particularly if there are children involved.

• Debt Division: Debts incurred during the marriage for the benefit of the family or joint property are usually divided equally, but personal debts may remain with the spouse who incurred them.

5. Judicial Discretion

If there are disputes over property division, the family court (Aile Mahkemesi) can make decisions based on fairness, considering the contributions of each spouse to the marriage and family, even in non-financial ways (e.g., taking care of children or household duties).

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