This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Evlilik Sözleşmesi: Mal Ayrılığı Rejimi Neden Önemlidir?.
Where no agreement is made, the statutory regime applies automatically: participation in acquired property (TMK art. 202). Under it, property acquired during the marriage is as a rule shared equally on liquidation, while property owned before the marriage, inheritances and gifts are personal property and are not shared.
Spouses may choose a different regime — separation of property, shared separation of property, or community of property — by an agreement before a notary, before or during the marriage. The choice matters most to entrepreneurs, to people entering a second marriage carrying obligations from the first, and to anyone bearing commercial risk.
How the Statutory Regime Works
- Acquired property: earnings from work during the marriage, the movable and immovable property bought with them, social security payments and compensation for loss of working capacity.
- Personal property: assets owned before the marriage, assets received during it by inheritance or gift, and items of personal use. These are not shared.
- Participation claim: when the marriage ends by divorce or death, each spouse has a claim to half the other's acquired property. In a twenty-year marriage, half the value of a home bought with one spouse's earnings may belong to a spouse who never worked outside the home.
The system exists to protect the spouse whose contribution is less visible — a homemaker, or a spouse who slowed a career for childcare. For entrepreneurs it can carry real risk.
| Asset | Character |
|---|---|
| Assets acquired during the marriage from work | Acquired |
| Payments by social security and assistance institutions | Acquired |
| Income of personal property | Acquired |
| Values substituted for acquired property | Acquired |
| Assets owned before the marriage | Personal |
| Assets received by inheritance | Personal |
| Gifts | Personal |
| Items of personal use | Personal |
| Claims for non-pecuniary damages | Personal |
Where the character of an asset cannot be proved it is deemed acquired property (TMK art. 222); that presumption puts the burden on the spouse claiming it is personal.
When Separation of Property Makes Sense
Under separation of property each spouse has full control of their own assets, and on the end of the marriage no claim lies over the other's acquired property. It is worth considering where:
- One spouse is an entrepreneur or self-employed. Debts and liabilities from the business should not threaten the other's assets, and separation of property prevents one spouse's commercial risk reaching the other.
- One spouse enters the marriage carrying obligations from a previous one.
- There is significant family wealth — a family company, a farm, a high-value property — to be preserved.
- The spouses live apart for long periods and wish to keep their finances independent.
Making a matrimonial property agreement does not signal distrust. It settles in advance questions that would otherwise be litigated, and it protects both spouses. It can be made in a sound marriage, and often should be.
How the Agreement Is Made
- Notarial form is compulsory. The agreement must be drawn up before a notary or the signatures certified by one. A privately signed agreement is void.
- Freedom within limits. One of the four statutory regimes may be chosen — participation in acquired property, separation of property, shared separation of property, community of property. A wholly bespoke regime cannot be created, though modifications are possible within the limits the statute allows.
- Timing. The agreement may be made before the marriage or changed during it, and a new agreement may replace it.
- Capacity. Both parties must have legal capacity.
A lawyer need not be present at the notary, but advice beforehand is worth taking: an agreement drafted badly can produce the opposite of what was intended.
"Spouses may choose one of the property regimes provided for in the statute by a marriage contract."
TMK art. 202
What Happens Without One
- A participation claim action. Either or both spouses may sue for their share of the acquired property. These actions are slow and costly.
- Difficulty of classification. Proving which asset was acquired before and which after the marriage becomes complicated in a long marriage; land records, bank records and other documents are examined one by one.
- A longer case. Property division can extend a divorce by years. An agreement shortens it considerably.
- Business assets at risk. An entrepreneur spouse's business assets may be brought into the participation calculation, with direct effects on the company's shareholding.
Frequently Asked Questions
What applies if we make no agreement?
Participation in acquired property, the statutory regime, applies automatically from the date of the marriage.
Does a prenuptial agreement have to be before a notary?
Yes. It must be drawn up before a notary or the signatures certified by one; a privately signed agreement is void.
Can we make it after the wedding?
Yes, at any time during the marriage — but it cannot operate retrospectively.
Can we design our own regime?
No. One of the four statutory regimes must be chosen, though modifications are possible within the limits the statute allows.
Is inherited property shared?
No, it is personal property. But the income it produces during the marriage is acquired property and is shared.