This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Boşanmada Mal Paylaşımı: Edinilmiş Mallara Katılma Rejimi.
On divorce, not everything the spouses own is divided in half. What enters the division is, as a rule, property acquired for value during the marriage. Property owned before the marriage, and anything received by inheritance or gift, is personal property. Which asset falls into which group is set out in the table below.
Since the Turkish Civil Code came into force on 1 January 2002, the statutory matrimonial property regime has been participation in acquired property. Unless the spouses chose a different regime before a notary — separation of property, shared separation of property, or community of property — this regime applies automatically.
What Is Acquired Property?
Acquired property is what each spouse obtains for value during the regime. The statute lists:
- earnings from work (salary, wages, professional income);
- payments made by social security or social assistance institutions;
- compensation paid for loss of working capacity;
- the income of personal property (for example, rent from an inherited flat);
- values substituted for acquired property.
The last item matters more than it looks. If a car bought with salary during the marriage is sold and something else bought with the proceeds, the new asset is acquired property too. A change of form does not change the character.
What Is Personal Property?
Personal property does not enter the division:
- items serving only one spouse's personal use;
- assets owned before the marriage;
- assets received by inheritance or otherwise without consideration (gift);
- claims for non-pecuniary damages;
- values substituted for personal property.
So a field inherited from a spouse's father during the marriage is personal property and is not divided. But the rent from that field is acquired property and is.
By a matrimonial property agreement the spouses may also stipulate that values arising from the exercise of a profession or the operation of a business, which would otherwise be acquired property, count as personal property.
| Asset or value | Group |
|---|---|
| Wages and earnings from work during the marriage | Acquired |
| Payments by social security and social assistance institutions | Acquired |
| Compensation for loss of working capacity | Acquired |
| Income of personal property (e.g. rent from a personally owned flat) | Acquired |
| Values substituted for acquired property | Acquired |
| Assets owned before the marriage | Personal |
| Assets received by inheritance or gift | Personal |
| Claims for non-pecuniary damages | Personal |
| Items serving only personal use | Personal |
| Values substituted for personal property | Personal |
Where the classification is disputed, the spouse asserting that an asset is personal must prove it; what cannot be proved is treated as acquired property.
Proving That an Asset Is Personal
Two statutory rules govern the burden of proof.
First: a person asserting that a particular asset belongs to one spouse must prove it. Assets that cannot be proved are deemed to be in the joint ownership of the spouses.
Second: all of a spouse's assets are presumed to be acquired property until the contrary is proved. The spouse claiming that an asset is personal must document it.
Hence the certificate of inheritance for an inherited property, the registration date of an asset bought before the marriage, the deed of gift — these decide the case. An assertion without a document usually fails.
How the Participation Claim Is Calculated
When the regime ends — the date the divorce action was filed — a separate calculation is made for each spouse:
- the total value of that spouse's acquired property is established;
- the debts relating to it are deducted;
- what remains is the residual value;
- each spouse has a claim to half of the other's residual value.
The mutual claims are set off and the difference becomes a single payment. The participation claim is in principle a monetary claim: a spouse is entitled to half the value, not to the asset itself — although transfer of the asset in kind may be sought where the conditions are met.
Valuation is at the market value at the moment of liquidation, not the price paid when the asset was bought. In a rising property market this distinction decides the size of the claim.
Increase in Value and Contribution Claims
Share in the increase in value. Where one spouse has contributed to the acquisition, improvement or preservation of the other's property without receiving an appropriate return, they may claim a share of the increase in that asset's value in proportion to the contribution. The contribution need not have been made in money.
Contribution claim. For marriages before 1 January 2002, the separation of property regime applied up to that date. For assets acquired in that earlier period no participation claim is available; instead a contribution claim is brought, and actual contribution must be proved. The acquired property rules apply to the period after 2002.
In a long marriage the two periods must be calculated separately. It is one of the main reasons these cases take years.
When the Action Must Be Brought
Matrimonial property is not decided within the divorce action. It is a separate action, and as a rule the divorce judgment must first become final. It may be filed together with the divorce, but the court will stay it until the divorce is final.
The participation claim is subject to a ten-year limitation period running from the date the divorce judgment becomes final. The period looks generous, but waiting usually works against the claimant because of the risk of assets being moved.
Where there is a prospect of the other party transferring immovable property, an injunction annotated on the title register should be sought when the action is filed. Without it the property can change hands and the claim becomes practically uncollectable.
This is largely a documentary case. Title records, vehicle registrations, bank statements, loan agreements, inheritance certificates and dated records of pre-marital acquisitions determine the outcome directly. Assembling them before filing shortens the case markedly.
Frequently Asked Questions
Is the house my spouse bought with their salary also mine?
Even if registered in that spouse's name alone, a home bought during the marriage out of earnings is acquired property. The other spouse is entitled to a participation claim for half its value at liquidation.
Does inherited property enter the division?
No. Inherited assets are personal property. But the income they generate during the marriage — rent, interest — is acquired property and does enter the division.
Is the property action filed together with the divorce?
It can be, but the court will stay it until the divorce judgment is final. In practice a separate action is filed after the divorce becomes final.
My spouse has put the assets in their own name. What can I do?
Unusual gratuitous transfers made in the year before the regime ended without the other spouse's consent, and transfers made to reduce the participation claim, are added back to the acquired property in the calculation. An injunction on the title register should also be sought.