Marriage is not merely an emotional partnership; it also brings with it legal and financial responsibilities. Among these responsibilities, property rights and the division of assets are the matters that most directly affect the spouses’ economic security. A matrimonial property agreement, known in everyday practice as a marriage contract, provides couples with precisely this kind of safeguard against the legal and economic problems that may arise in the future.
The Turkish Civil Code No. 4721 has adopted the regime of participation in acquired property as the statutory matrimonial property regime applicable between spouses. Couples may nevertheless move to one of the other regimes listed in the Code by means of an agreement executed before a notary. In this way, the manner in which the assets are to be managed during the marriage, how they may be disposed of and how they are to be divided in the event of a divorce is determined in advance, and a significant proportion of the disputes that might otherwise arise is prevented from the outset.
In which situations is such an agreement necessary, how does it affect the division of assets in the event of divorce, and which regime suits which profile of couple? We address these questions and the details of the matrimonial property agreement below.
Definition of the Matrimonial Property Agreement
A marriage contract is a formal agreement containing provisions on the management, disposal and division of the spouses’ assets throughout the marital union and in the event of a possible divorce. This document, which secures the spouses’ financial rights, serves to prevent the disagreements that may arise during the marriage and at the divorce stage. As the most important legal instrument determining the division of assets on divorce, it performs a decisive function for couples seeking economic security.
Under Article 202 of the Turkish Civil Code No. 4721, where spouses wish to apply a regime other than the statutory regime of participation in acquired property, they may conclude an agreement before a notary, either by way of execution or by way of authentication. The management and division of the assets is thereby shaped according to the will of the spouses, within the framework drawn by the Code.
Legal Basis and Legal Nature
With the regulation that entered into force on 1 January 2002, the regime of participation in acquired property was adopted as the statutory matrimonial property regime between spouses. Spouses nevertheless retain the right to choose another regime provided for in the Code by means of an agreement made before a notary.
The provisions on the subject are as follows:
Turkish Civil Code No. 4721, Art. 202
“Spouses may, by a matrimonial property agreement, adopt one of the matrimonial property regimes laid down in the Code.”
Turkish Civil Code No. 4721, Art. 203
“A matrimonial property agreement may be concluded only by persons possessing the capacity of discernment.”
Turkish Civil Code No. 4721, Art. 205
“A matrimonial property agreement may be made before a notary by way of execution or of authentication.”
The Code does not grant spouses the freedom to create a regime entirely of their own devising. Under Art. 202 of the Turkish Civil Code No. 4721, the choice that may be made is confined to the following four regimes:
- Community of Property Regime (Turkish Civil Code No. 4721, Arts. 256-281)
- Separation of Property with Division Regime (Turkish Civil Code No. 4721, Arts. 244-255)
- Separation of Property Regime (Turkish Civil Code No. 4721, Arts. 242-243)
- Participation in Acquired Property Regime (Turkish Civil Code No. 4721, Arts. 218-241) (the statutory matrimonial property regime)
Under Art. 206 of the Turkish Civil Code No. 4721, spouses may amend the agreement within the limits set by the Code; they cannot, however, create an entirely new regime that the Code does not provide for.
Who May Conclude the Agreement?
A matrimonial property agreement may be concluded by couples preparing to marry before the marriage takes place, and equally by married couples while the marriage is ongoing. The validity of the agreement depends on its being drawn up in conformity with the statutory limitations and on its being executed or authenticated before a notary.
Under Article 203 of the Turkish Civil Code No. 4721, the capacity to conclude the agreement is granted only to persons possessing the capacity of discernment. Accordingly, the agreement may be concluded:
- By the spouses while the marriage is ongoing, by mutual agreement.
- By engaged couples before the marriage.
That said, under Art. 204 of the Turkish Civil Code No. 4721, a change of regime made after the marriage has taken place may be subject to court approval.
The Statutory Matrimonial Property Regime: Participation in Acquired Property
The Turkish Civil Code No. 4721 provides for the regime of participation in acquired property as the statutory regime between spouses. Where the spouses have not chosen a different regime, the division is made on this basis. In practice the matrimonial property regime seldom comes up during the marriage; in situations such as divorce or death, however, the question of which assets are to be treated as personal and which as acquired becomes a matter of dispute.
The general framework may be summarised as follows: the spouses’ personal property continues to remain in their own ownership, whereas assets acquired within the marital union are treated as acquired property, and both spouses are presumed to have rights over such property.
Since the division of assets is a highly sensitive area, the details of the subject are addressed separately under the headings The Regime of Participation in Acquired Property and How Property Is Divided on Divorce.
Personal Property
Under the Code, the personal property regarded as belonging to one of the spouses is as follows:
- Assets obtained by way of inheritance or otherwise gratuitously
- Asset values owned before the marriage
- Items reserved for personal use, such as jewellery and clothing
- Claims for non-pecuniary damages
- Values that take the place of personal property
Acquired Property
Acquired property comprises the values that the spouses obtain during the marriage through work or by paying consideration. The principal items listed by the Code in this regard are as follows:
- Income obtained in return for work, such as salaries, wages and bonuses
- Payments made by social security and social assistance institutions, such as retirement gratuities
- Compensation paid on account of loss of earning capacity
- Income generated by personal property; for example, rental income obtained from immovable property belonging to one of the spouses
- Values that take the place of acquired property; for example, a vehicle purchased out of a salary
Matrimonial Property Regimes That May Be Agreed by Contract
A matrimonial property agreement gives spouses the opportunity to determine how they will manage their assets and how those assets will be divided in the event of divorce or death. The Turkish Civil Code No. 4721 has limited this choice to four regimes.
Separation of Property Regime
Under this regime each spouse has full power of disposal over his or her own assets.
- Assets acquired during the marriage remain in the ownership of the person in whose name they are registered.
- No right accrues to the other spouse over those assets. If, for instance, one of the spouses purchased immovable property during the marriage and had the title deed registered in his or her own name, the property belongs to that spouse in its entirety.
- The party making the assertion bears the burden of proof. A spouse claiming that a particular asset belongs to him or her must establish this by official documents such as a title deed or a licence.
- Where it cannot be established to whom an asset belongs, it is treated as being held in the spouses’ co-ownership in shares; that is, both spouses are regarded as having equal rights over that asset.
In which situations is it preferred?
- It is advantageous for couples who wish to preserve their financial independence.
- It is suitable for spouses who carry on separate businesses and have different sources of income.
- It may be preferred by couples who do not wish to face future disputes over the division of assets.
Separation of Property with Division Regime
Under this regime too the spouses’ assets are separate; a joint right nevertheless exists in respect of property dedicated to the family.
- The family residence and the household goods are treated as common. Even where one of the spouses purchased a dwelling during the marriage, if that dwelling is used as the family residence it is possible for the other spouse also to have rights over it.
- Which spouse is to retain the family residence and the household goods may be determined by agreement between the spouses. Where no agreement is reached, the judge delivers a decision consistent with equity, having regard to the parties’ economic and social circumstances.
- The spouse granted the right to remain in the dwelling may have that right annotated on the land registry; the other spouse is thereby prevented from selling or transferring the dwelling.
In which situations is it preferred?
- It is well suited to couples who give priority to preserving the family order.
- It is advantageous for spouses who wish the family residence and the household goods to be secured.
- It affords protection to the spouse who contributes domestic labour or earns comparatively less.
Community of Property Regime
Under this regime all asset values other than those treated by law as personal property are regarded as common property.
- Income obtained and assets acquired are subject to the principle of joint ownership. If, for example, one of the spouses generates income through work, that income is treated as common throughout the marriage.
- The spouses hold the community property as an undivided whole. Since the assets are held in joint ownership, the other spouse’s right subsists even where the assets are registered in the name of a single spouse.
- It is possible to leave certain values outside the community; unless the contrary is proved, however, all assets are presumed to be common.
In which situations is it preferred?
- It is well suited to couples who wish income and assets to be shared equally.
- It enables the spouses to act wholly together in financial matters.
- It suits couples who embrace the principle that everything is shared and who are close to a traditional understanding of marriage.
Extraordinary Matrimonial Property Regime
In certain special circumstances the matrimonial property regime may be converted into separation of property by court decision, independently of the free will of the spouses. Upon the application of one of the spouses, the court may, where just cause exists, rule that the existing regime be converted into separation of property.
The circumstances accepted as just cause are as follows:
- The other spouse mismanaging the assets and acting in a manner that will cause loss to the community
- One of the spouses withholding, without just cause, the consent required for a disposal over the common property
- The attachment of the assets on account of the other spouse’s debts, or the assets becoming over-indebted
In which situations is it preferred?
- It is a means of protection for persons whose spouse has come under a burden of debt or who mismanages his or her financial affairs.
- It affords security to the spouse who is economically at risk.
- It is suitable for those who wish to prevent the other spouse from misusing the assets.
Termination and Liquidation of the Matrimonial Property Regime
A request for the liquidation of a matrimonial property regime is contingent, first of all, upon that regime having come to an end in law. The grounds of termination most frequently encountered in practice are set out in detail below.
Liquidation and Division in the Event of Death
The matrimonial property regime comes to an end upon the death of one of the spouses; at this point the liquidation of the property and the division of the estate are conducted as two independent processes.
- At the first stage the matrimonial property regime between the spouses is liquidated, and the surviving spouse’s personal property and statutory share in the acquired property are determined.
- Once the liquidation is complete, the remaining assets of the deceased spouse are divided among the heirs within the framework of the rules of inheritance law.
The surviving spouse has the status of a statutory heir in the division of the estate; the share he or she receives may vary according to the other heirs and to the matrimonial property regime applied. There are priority rights granted to the surviving spouse in respect of the family residence and the household goods, and recourse may be had to means such as an annotation on the land registry in order to protect those rights.
The details concerning the allocation of the family residence to the surviving spouse are assessed separately under the headings The Allocation of the Family Residence to the Surviving Spouse and The Surviving Spouse as an Heir.
Liquidation and Division in the Event of Divorce
In the event of divorce or annulment of the marriage, the matrimonial property regime comes to an end as of the date on which the action was brought, and the liquidation process begins from that date. The manner in which the division is to be carried out is determined by the regime in force between the spouses.
- Where the parties have concluded a matrimonial property agreement, the liquidation is carried out in accordance with the principles agreed in that agreement.
- Where there is no such agreement, the statutory regime provided for by the Turkish Civil Code No. 4721, namely the regime of participation in acquired property, applies.
- Under that regime the assets acquired during the marriage are divided equally, while personal property is left outside the division.
The liquidation may be concluded by agreement between the parties or, in the event of a dispute, determined by a court decision.
Frequently Asked Questions
What happens when the matrimonial property regime comes to an end?
With the termination of the regime, the liquidation stage begins between the spouses.
- Where the parties have reached agreement between themselves, the assets are divided in line with that agreement.
- Where no agreement can be reached, the division is determined by a court decision.
Where the conditions are met, the spouses may bring an action for a share in the increase in value or a contribution claim within the scope of the liquidation.
Is it compulsory to conclude a matrimonial property agreement?
No. There is no such obligation. Where the spouses wish to shape the matrimonial property regime according to their own preferences, however, they may execute an agreement before a notary.
For which couples is it more advantageous?
- Spouses between whom there is a marked difference in income levels or assets,
- Those engaged in trade, investors and business people,
- Those who wish to protect assets acquired before the marriage,
and those who wish to secure values obtained by way of inheritance may all derive an advantage from it.
How is the agreement made?
A matrimonial property agreement is made before a notary by way of execution or of authentication. A text clearly setting out the parties’ rights and obligations must be prepared and formally authenticated.
When may it be drawn up?
- Engaged couples may conclude an agreement before a notary prior to the marriage.
- The regime may be changed during the marriage by a notarised agreement.
- Court approval may be required for a change of regime after the marriage.
How is property divided on divorce?
The criterion for the division is the matrimonial property regime in force during the marriage. Where an agreement has been concluded, the division takes place in accordance with the provisions of that agreement; where none has been concluded, it takes place in accordance with the statutory regime of participation in acquired property.
How is property divided where there is no agreement?
Where there is no agreement, the regime of participation in acquired property is taken as the basis under the Turkish Civil Code No. 4721. Accordingly, the assets acquired during the marriage are divided equally, while personal property such as inheritance, gifts and values acquired before the marriage remains outside the division.
Does a matrimonial property agreement kill love?
No. The agreement regulates financial and legal rights, not the emotional relationship. It helps to prevent the economic disagreements that may arise during the marriage and offers the parties a secure framework.
Is it only wealthy people who make one?
No. Couples at every income level may make this agreement. The aim is to protect present and future assets and to determine the parties’ rights in advance.
Does the agreement apply only to divorce?
No. The agreement is not confined to the event of divorce; it also applies to the management of the assets and to dispositions over them during the marriage. It may, in addition, affect the division of the estate in the event of the death of one of the spouses.
Independent Legal Assessment
Although matrimonial property agreements are in practice most often raised with the possibility of divorce in mind, their real function is to give the management of assets a predictable framework throughout the marriage. Particularly for persons who carry on commercial activity, who hold shares in a company or who acquired substantial assets before the marriage, making the choice of regime at the outset markedly narrows the scope of any liquidation proceedings conducted later.
In liquidation disputes the argument most often centres not on to whom an asset belongs, but on which category it falls into and from what source its acquisition was financed. For this reason, maintaining orderly records throughout the marriage may prove more decisive than any legal assessment carried out after the event.
In a specific case it is appropriate to have regard to the following matters:
- Determining the choice of regime with regard to the parties’ income structure and the composition of their assets
- Documenting claims to personal property in advance by means of title deed, bank and succession records
- Checking whether court approval is required for changes of regime made during the marriage
- Assessing the possibility of an annotation on the land registry in respect of the family residence
- Raising claims for a share in the increase in value and contribution claims together with the request for liquidation
- Conducting the liquidation of the matrimonial property regime and the division of the estate as separate processes in the event of death
Independent Legal provides advisory services and conducts litigation in matters relating to the financial dimension of family law, from the drafting of matrimonial property agreements to the conduct of liquidation actions.