This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Mal Rejimi Sözleşmesi: Evlenmeden Önce Yapılabilecekler.
The statutory regime in Turkey is participation in acquired property, and it applies unless the spouses agree otherwise (Article 202 of the Civil Code). By an agreement made before a notary, or declared on the application to marry, they may choose one of the other regimes the Act provides. The agreement may be made before or after the marriage — but no regime outside those listed in the Act can be created.
“Prenuptial agreement” brings films to mind, but in Turkish law the thing itself is precise: a matrimonial property agreement.
This article sets out which regimes may be chosen, how and when the agreement is made, and what can and cannot be settled in it.
The Statutory Regime
Under Article 202, participation in acquired property applies between spouses as the rule. Where they make no agreement, it applies automatically.
Under this regime each spouse's property divides in two: acquired property and personal property.
Acquired property is what a spouse obtains for consideration during the regime: earnings from work, payments made by social security or social assistance institutions, compensation paid for loss of earning capacity, the income of personal property, and whatever replaces these.
Personal property is: items serving only a spouse's personal use, property belonging to them at the start of the regime or acquired later by inheritance or otherwise gratuitously, claims for non-pecuniary damages, and whatever replaces personal property.
What is shared on divorce is half of the acquired property — the participation claim. Personal property does not enter the division.
Which Regimes May Be Chosen?
The Act provides three optional regimes.
Separation of property (Arts. 242–243). Each spouse keeps the rights of administration, enjoyment and disposal over their own property. There is no division on divorce; each takes their own. It suits spouses who want to keep their assets apart, but it gives no protection to a spouse who works at home and earns nothing.
Separation of property with sharing (Arts. 244–255). Similar to separation of property, except that property devoted to the spouses' common use and enjoyment, together with investments intended to secure the family's economic future and whatever replaces them, is shared equally between them.
Community of property (Arts. 256–281). It covers the community property and each spouse's personal property; the community property belongs to the spouses jointly. It is a complex regime and rarely chosen in practice.
The important limit: the spouses may choose only one of the regimes written in the Act; a hybrid of their own devising is not valid (Article 203).
| Regime | The basic rule | Provision |
|---|---|---|
| Participation in acquired property (statutory) | Property acquired during the marriage is divided in half on liquidation | Arts. 218 ff. |
| Separation of property | Each spouse owns their own property; there is no division | Arts. 242 ff. |
| Separation of property with sharing | Separation is the rule; property devoted to the family is shared | Arts. 244 ff. |
| Community of property | The designated property becomes jointly owned | Arts. 256 ff. |
Personal property — what was owned before the marriage, inheritances, gifts, items of personal use and claims for non-pecuniary damages — stays out of the division under the statutory regime as well.
How the Agreement Is Made
Under Article 205 a matrimonial property agreement is made before a notary, by execution or by attestation.
Alternatively, the parties may state in writing on their application to marry which regime they have chosen.
The agreement is signed by the parties and, where required, by their legal representatives.
Timing: it may be made before or after the marriage. The regime can therefore be changed while the marriage subsists.
To make one, a person must have capacity of discernment; minors and persons under a restriction need the consent of their legal representative.
What Can and Cannot Be Agreed
What can be agreed:
- the choice of one of the regimes in the Act
- under participation in acquired property, that assets which would fall into acquired property because of the exercise of a profession or the operation of a business are to count as personal property (Art. 221)
- that the income of personal property is not to fall into acquired property (Art. 221/2)
- a different proportion for the share in the residual value (Art. 237) — but this may not encroach on the reserved shares of children who are not common to both spouses, or of their descendants
What cannot be agreed:
- that no maintenance will be paid or no compensation claimed on divorce
- custody, settled in advance
- a hybrid regime not provided for in the Act
- terms that defeat reserved shares
The distinction matters: a matrimonial property agreement concerns property; it cannot regulate the personal and family consequences of divorce.
The Family Home Is Protected Either Way
Whichever regime is chosen, the protection of the family home continues.
Under Article 194 neither spouse may, without the other's express consent, terminate the lease of the family home, transfer it, or restrict the rights over it.
Where consent cannot be obtained, or is withheld without good reason, the spouse may apply to the judge to intervene.
A spouse who is not the owner of immovable property devoted to use as the family home may also require that the necessary annotation be entered on the land register. That annotation makes a transfer behind the other spouse's back practically impossible, and it operates independently of the property regime.
Spouses may choose only one of the regimes written in the Act; an arrangement of their own devising has no effect. The agreement is made before a notary and may be changed during the marriage. Maintenance and custody cannot be settled in it.
Frequently Asked Questions
Which regime applies if we make no agreement?
The statutory regime — participation in acquired property — applies automatically.
How is a matrimonial property agreement made?
Before a notary, by execution or attestation; or by a written statement on the application to marry.
Can the regime be changed after the wedding?
Yes. The agreement may be made either before or after the marriage.
Can we agree that no maintenance will be paid?
No. The agreement concerns property only; maintenance, compensation and custody cannot be settled in it.
Under which regime is the family home protected?
Under all of them. The non-owning spouse may require a family-home annotation on the title, and the home cannot be transferred without their consent.