Division of Property in Divorce
Divorce is the termination of the marriage union by a court decision. This leads to the termination of the property regime between the spouses and the division of property. The legal property regime in Turkey is the regime of participation in acquired property. According to this regime, all property acquired during the marriage is shared equally between the spouses. In this content, we will answer the question of how to divide property in divorce in detail. You can find answers to all the questions you are looking for in Lawyer Mert Kanalıcı information notes.
In divorce, the division of property is carried out through a separate lawsuit filed in the family court. This case is conducted independently from the divorce case. The property division case can be filed before or after the divorce case. The property division case filed before the divorce case is considered as a matter of waiting until the divorce decision is finalised. In the property division case, the property values of the spouses are determined and these values are determined by an expert. Then, these values are shared equally.
During the division of property, the contributions of the spouses are also taken into consideration. For example, the labour of the spouse who contributes to housework and childcare is taken into account in the division of property. In a property division case, the spouses may reach an agreement. In this case, the agreed issues are decided by the court. If an agreement cannot be reached, the property division case is decided by the court and the court makes an equitable decision.
Goods Not Included in Property Sharing
In the event of divorce, the division of the property acquired by the spouses during the marriage comes to the agenda. However, some goods are not included in the scope of sharing during divorce. Personal Goods The goods that are not included in the division during divorce are called personal goods. Personal properties are the properties acquired by the spouses during the marriage but reserved for the personal use of the spouses. These can be categorised as; the goods belonging to the personal use of only one of the spouses, the goods belonging to one of the spouses before the marriage, the inheritance left to one of the spouses, the values obtained during the marriage for free (without paying a price), moral compensation receivables can be classified as values that replace personal goods.
Statute of Limitations for Property of Division in Divorce
Divorce is a situation where the marriage union ends. When divorce occurs, the division of the property acquired during the marriage comes to the agenda. This division is made through a lawsuit to be filed within 10 years after the finalisation of the divorce decision. The property division case in divorce ensures that the property acquired during the marriage union is divided fairly due to divorce. This lawsuit must be filed within 10 years following the finalisation of the divorce decision. This period is known as the forfeiture period and a property division case cannot be filed after it has passed.
The statute of limitations for the division of property in divorce is specified in Article 146 of the Turkish Civil Code. According to this article, “Unless otherwise provided by law, every claim is subject to a ten-year statute of limitations.” The property division case in divorce is in the nature of a debt case and the statute of limitations is 10 years. This period is a forfeiture period and a lawsuit cannot be filed after it has expired. Therefore, those who want to file a property division lawsuit should take this period into consideration. The property division case in divorce is filed in the family court.
In order to file the lawsuit, the plaintiff spouse must wait for the finalisation of the divorce decision. After the divorce decision is finalised, the plaintiff spouse applies to the court by preparing the necessary documents for the property division case. In the case of property division in divorce, the court creates a list of the goods acquired by the spouses during the marriage. If there is a property regime agreement between the spouses, this list is prepared according to this agreement. If there is no property regime agreement, the court makes an assessment according to the way the goods were acquired.
The court ensures that the spouses divide their property equally in the property division case. However, in the divorce of the spouses due to adultery or intent to commit adultery, the property division rates may change according to their fault status. The property division case in divorce is a lawsuit aiming to share the property acquired during the marriage. This lawsuit must be filed within 10 years following the finalisation of the divorce decision. This period is a forfeiture period and it is not possible to file a property division case after this period has passed.
Competent and Responsible Court in Property Sharing Case
Where and how to file a property division case in divorce; in other words, the competent and responsible court is determined by the Law No. 4787 on the Establishment, Duties and Trial Procedures of Family Courts and Article 214 of the Civil Code.
- The competent court for the division of property in divorce: In the case of divorce, the Family Court is competent for the division of property between the spouses.
- Competent Court for Property Division Case in Divorce: The competent court where the property division case will be heard, i.e. in which province or district in Turkey the case will be filed, is determined as follows (Article 214 of the Civil Code):
If the property regime has ended due to the death of one of the spouses, the court of last residence of the deceased is authorised to hear the property division case in divorce.
If the marriage has ended with the divorce decision of the court or if there is an ongoing divorce case, the court authorised to hear the divorce case is also authorised to hear the liquidation of the property regime, i.e. the division of property in divorce.
In all other cases other than the above two cases, the family court of residence of the defendant spouse is authorised to hear the property division case in divorce.
Competent and Mandated Court in the Divorce Case for Division of Property in Divorce
Uncontested Divorce is a type of divorce in which the spouses agree on divorce and document this agreement with a protocol. In this type of divorce case, the spouses can reach an agreement not only on divorce but also on other issues. One of these issues is the division of property.
In an uncontested divorce case, the division of property is carried out according to the agreement of the spouses. Spouses can divide all the property they acquired during the marriage among themselves as they wish. This division may be in the form of equal or unequal division of the assets of the spouses. The property regime provisions of the Turkish Civil Code are also taken into consideration when dividing the property in an uncontested divorce case.
If there is no different property regime agreement between the spouses, the regime of participation in acquired property is applied. According to this regime, all property acquired during the marriage is divided equally. In an uncontested divorce case, the division of property is regulated in the divorce protocol. The divorce protocol is prepared and signed by the spouses and submitted to the court. If the court approves the protocol after examining it, the property division case is finalised.
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