The dissolution of a marriage by court decision does not merely alter the civil status of the parties; it also reorganises their economic relations from the ground up. Whichever route is taken, uncontested or contested, the divorce judgment brings with it a series of consequences that bear directly on the spouses’ assets. In practice these consequences are examined under the heading of the financial consequences of divorce and fall into three items:
- liquidation of the matrimonial property regime, that is, the division of the values accumulated over the course of the marriage;
- the maintenance obligation, that is, the duty of care and support that continues even after the union has ended;
- pecuniary and non-pecuniary damages, that is, the compensation of the losses arising from the divorce.
Where the parties choose to separate by agreement, their intentions must coincide on the questions of damages, maintenance and division; once that condition is met, the spouses may regulate these matters freely. Where the dispute is carried into contested proceedings, by contrast, the power of appraisal passes to the judge. The judge determines the financial consequences by weighing where fault lies and how serious it is, the income and asset position of the parties and, where there is a child, that child’s best interests.
This is also one of the most keenly felt effects of divorce: the parties entered into the marital union with certain expectations, and over time their assets became intertwined. When the union ends, the questions of how unfulfilled expectations are to be made good, who is to bear the cost of caring for the children, and how values created by joint effort are to be shared all arise at the same time.
Damages in Divorce Proceedings
Where a marriage ends in divorce, one party may claim pecuniary and non-pecuniary damages from the other if the conditions laid down in the statute are met on the facts. The basic provision on the subject is contained in Article 174 of the Turkish Civil Code:
Turkish Civil Code Art. 174
“The party who is without fault, or whose fault is the lesser, and whose existing or expected interests are impaired by reason of the divorce, may claim appropriate pecuniary damages from the party at fault.
The party whose personality rights have been attacked by reason of the events giving rise to the divorce may claim payment of an appropriate sum of money as non-pecuniary damages from the other party who is at fault.”
The two paragraphs of the provision give rise to separate claims; the conditions required for pecuniary damages therefore differ in certain respects from those required for non-pecuniary damages.
Pecuniary Damages
A party whose present interests, or interests expected to be obtained in the future, are impaired by reason of the divorce may, if that party is without fault or bears a lighter fault than the other, claim payment of an appropriate sum as pecuniary damages from the spouse at fault. If, for example, the marital union has ended because of the infidelity of one of the spouses, the unfaithful party is regarded as being at fault in the divorce; in that case the other spouse, whose expectations from the marriage have gone unfulfilled, acquires a right to claim pecuniary damages.
The point not to be overlooked here is that the claimant must be in the superior position as regards fault. A spouse who has brought about the divorce by his or her own conduct, or, where both parties are at fault, the spouse whose fault is the graver, cannot advance this claim.
The amount of the damages likewise calls for a separate assessment. In making the calculation the respective degrees of fault of the parties are taken as the basis; the spouses’ level of income, their assets and their accustomed standard of living are also taken into account. The significance of fault in divorce is a matter that directly determines the fate of claims for damages.
Non-Pecuniary Damages
A spouse whose personality rights have been impaired by reason of the events giving rise to the divorce may claim an appropriate sum from the other spouse at fault by way of non-pecuniary damages. The aspect that distinguishes this from pecuniary damages is the following: what is to be made good here is not a diminution in assets but the non-pecuniary harm caused by an attack on personal values.
Subjecting a spouse to physical violence, exposing him or her to insult in severe terms, or humiliating him or her with degrading expressions are typical examples of an infringement of personality rights. Non-pecuniary damages may be awarded in order to make good, to a degree, the distress and the emotional attrition that such conduct, and the separation resulting from it, have left in the person concerned.
Finally, it should be noted that claims for damages may be raised within the divorce proceedings themselves, or advanced by bringing a separate action once the judgment has become final. The subject of pecuniary and non-pecuniary damages in divorce proceedings should also be examined in detail in terms of the time of the claim and the burden of proof.
The Maintenance Obligation
The legislature has adopted the understanding that the duty of solidarity and of contributing to expenses between spouses is not confined to the marital union but must be continued to a certain extent after the union has ended. That is why the maintenance obligation arises upon divorce. Poverty alimony and child support may be ordered together with the divorce judgment.
Poverty Alimony
The spouse who will fall into poverty because of the divorce may, provided that his or her fault is not graver than that of the other, claim maintenance from the other party for an indefinite period and in proportion to that party’s financial means, in order to support himself or herself. The fact that the party liable to pay is without fault does not extinguish this obligation; that is to say, poverty alimony may be ordered against a spouse who bears no fault at all in the divorce. The reason for this is that the purpose of the institution differs from that of damages: what is sought here is not the compensation of a loss but the securing of the subsistence of the party who has fallen into need. Where, by contrast, the fault of the claimant spouse is graver than that of the other, the claim is dismissed even though the other party is without fault.
As regards the determination of the amount, the criterion is the proportion to be established with the income of the liable spouse, and the appraisal rests with the judge. If, however, the parties have chosen the route of divorce by agreement, they may settle the amount of maintenance by their own intentions. Poverty alimony and its conditions is one of the most debated topics in practice.
Child Support
Another matter to be addressed when assessing the financial dimension of divorce is the obligation of both parents to contribute to the expenditure made for the care and education of the children. Even though the marriage has ended, the duty of the mother and the father to care for their common children continues to exist. The spouse to whom custody has not been granted must therefore contribute, in proportion to his or her financial means, to the education and care costs of the common children. Under this head too the amount is determined by the judge, assessing the economic position of the parties.
Where the court is applied to with a request for divorce by agreement, the amount of child support may be settled freely by the spouses. Since the best interests of the child are protected here, however, the arrangement made must be approved by the judge. Child support is a separate topic concerning the conditions and scope of this contribution provided for the child.
Liquidation of the Matrimonial Property Regime
What is to be understood by liquidation of the matrimonial property regime is the division of the spouses’ assets between them. Since the common life comes to an end with the divorce, the question arises of the payment of the surplus value formed during the marriage. In other words, the asset values obtained during the period in which the union subsisted must be divided within the framework of the rules laid down by the statute.
The Turkish Civil Code affords the spouses the opportunity to determine, by concluding a contract between themselves, which property regime is to apply. Within the limits drawn by the statute the spouses may choose a regime, change the regime they have chosen, or abolish it. If no such contract has been made, the regime of participation in acquired property applies by operation of law.
The matrimonial property regime ends with the death of one of the spouses or with divorce. Under the system adopted by the statute, the assets of each spouse are subject to a twofold division into acquired property and personal property. How the division of property in divorce is to be carried out depends on this distinction being drawn correctly.
Acquired Property of the Spouses
Acquired property means an asset value that each of the spouses has obtained for consideration while the marital union subsists. The acquired property of a spouse consists of the following:
- the income obtained from his or her personal property; rental income and dividends fall within this group,
- the values received in return for his or her labour; items such as wages, salaries and profit shares come within this scope,
- compensation paid by reason of the loss of earning capacity; the compensation of bodily harm arising from an occupational accident or a traffic accident is of this nature,
- payments made by social security and social assistance institutions and organisations, and by funds and similar structures established to support personnel; a retirement pension is the typical example of this.
The regime of participation in acquired property is a system built on the correct classification of these items.
Personal Property of the Spouses
The group of personal property comprises the following values: items set aside for the personal use of one of the spouses alone; claims arising by way of non-pecuniary damages; the values present in the assets of one of the spouses at the moment the regime began, together with the asset values that a spouse subsequently acquires by way of inheritance or in any manner without consideration.
How Is the Liquidation Carried Out?
In carrying out the liquidation, the property acquired by each of the spouses from the moment the marital union was established is calculated separately. What is critical at this stage is the correct determination of which value is to be treated as acquired property and which as personal property. The moment to be taken as the basis for the distinction is the date on which the divorce action was brought. Accordingly, if one of the spouses has obtained a value by paying consideration after the action was brought, that value is not included in the liquidation calculation; nor does the other spouse acquire any right over the asset in question.
The mechanism is as follows: the acquired property existing as at the date of the action is identified and its market value at the time of liquidation is established. The debts relating to that property are deducted from those values, and what remains is the monetary sum known as the surplus value. Under the regime of participation in acquired property adopted by the Civil Code, the other spouse may be entitled to one half of that sum by way of a participation claim.
A Worked Liquidation Example
Let us look at an example. Suppose that one of the spouses has saved TRY 10,000 in a bank out of the salaries earned after the marriage, while the other has acquired a dwelling worth TRY 250,000 with income obtained from work. TRY 5,000, being one half of the surplus value of TRY 10,000 in the bank account, constitutes the other spouse’s participation claim; that is, the other spouse has a claim of TRY 5,000 over that account. As regards the spouse who owns the dwelling, TRY 125,000, being one half of the value of TRY 250,000, gives rise to a claim of the same nature. The other spouse thus acquires a claim of TRY 125,000.
That said, awarding the other party only one half of the surplus value in the liquidation can in some cases lead to results between the spouses that are contrary to equity. In the ordinary course of life one spouse may contribute to the assets of the other, and transfers of value may also occur between a person’s own groups of property. For this reason the legislature has not taken the surplus value alone as the basis in calculating the participation claim; it has also brought increases in value and equalisation items into the equation. The contribution that a spouse has transferred from his or her personal assets to his or her acquired property, for example, is deducted from the surplus value calculation.
Independent Legal Assessment
Although in practice these three heads may appear to be independent subjects, they form an interlocking whole. The determination of fault decides the fate of the damages while also affecting the claim for poverty alimony; and since the moment taken as the basis for the liquidation is tied to the day on which the statement of claim was filed, even the timing of the action can alter the scope of the division. An item drafted incompletely or inconsistently in a divorce settlement protocol may in turn become the subject of fresh proceedings at a later stage. When a roadmap is drawn up in a particular file, the following points stand out in particular:
- setting out the position on fault, together with its evidence, from the outset, and shaping the claims for damages accordingly,
- supporting the assertion of need, for the purposes of poverty alimony, with income and asset records,
- determining a realistic amount of child support on the basis of the child’s age and actual expenses,
- drawing the distinction between acquired property and personal property meticulously, taking the date of the action as the basis,
- reflecting increases in value and equalisation items in the calculation of the participation claim.
Independent Legal provides advisory services and conducts litigation at every stage of the divorce process relating to damages, maintenance and the liquidation of the matrimonial property regime.