Property Whose Ownership Cannot Be Proven To Belong To Either Spouse Shall Be Considered Jointly Owned By Them Supreme Court Decision
Republic of Turkey
Supreme Court of Appeals
8th Civil Chamber
Case No.: 2014/14603
Decision No.: 2015/21591
Date: 2.12.2015
The decision of the Karamürsel Civil Court of First Instance (Family) dated 14.02.2014 and numbered … regarding the rejection of the claim arising from the property regime between N.. B.. and M.. Ö.. was requested to be reviewed by the Supreme Court within the time limit by the plaintiff’s attorney; the file was reviewed, and the necessary considerations were made:
DECISION
The plaintiff N.’s attorney requested a claim for the liquidation of the property regime with regard to the immovable properties specified in the petition.
The defendant M.’s attorney defended the dismissal of the case.
The court ruled to dismiss the case on the grounds that the claim was for a contribution share and that the plaintiff’s contribution to the acquisition of the properties in question could not be proven. The ruling was appealed by the plaintiff’s attorney.
1- Since the independent sections numbered 4 and 13, which are the subject of the lawsuit, were purchased through a tender after the termination of the property regime and registered in the name of the defendant, they cannot be resolved within the framework of the provisions regarding the liquidation of the property regime. However, the plaintiff may file a claim in the general courts in accordance with the general provisions of the Code of Obligations. Since the decision to dismiss the case regarding these immovable properties is correct, it is necessary to decide to reject the appeals against these immovable properties.
2- Regarding the appeals concerning the independent section No. 12, which is the subject of the lawsuit; it is up to the parties to present the material facts, and it is up to the judge to make the legal assessment and determine the applicable provisions of law (Article 33 of the Code of Civil Procedure No. 6100). According to the manner in which the claim is presented, the lawsuit concerns the claim for participation in the surplus value.
During the continuation of the property regime, the other spouse has the right to claim half of the residual value of the acquired property owned by one spouse. The residual value participation claim includes the amounts obtained from the added values (Article 229 of the Turkish Civil Code) and equalization (Article 230 of the Turkish Civil Code), and is the other spouse’s right to half of the residual value (TMK 231.m) remaining after deducting debts related to these assets from the total value of the spouse’s acquired assets (TMK 219.m) (TMK 236/1.m). The participation claim is a right arising from the Law, and it is not necessary for the spouse claiming this right to have income or to have contributed to the acquisition, improvement, or preservation of the property in question.
When calculating the amount of the participation claim in the residual value, the market values of the assets existing at the time of termination of the property regime, based on their condition at that date, shall be taken as the basis (TMK 227/1, 228/1, 232, and 235/1). According to the practice of the Court of Cassation, the date of liquidation is the date of the decision.
Anyone claiming that a specific asset belongs to one of the spouses is responsible for proving their claim. Assets whose ownership by either spouse cannot be proven are considered jointly owned. All assets of a spouse are considered acquired property until proven otherwise (TMK 222).
If deemed necessary for the above valuation, determination, and calculations, assistance should be sought from an expert witness or expert witnesses in the relevant field.
In the specific case at hand, the spouses married on August 24, 1993, and divorced upon the finalization of the judgment accepting the divorce petition filed on September 15, 2010. The property regime ended on the date the divorce petition was filed (TMK 225/final). Since it was not claimed that another property regime was chosen by contract, the regime of separate property (Turkish Civil Code No. 743, Article 170) applied from the date of marriage until January 1, 2002, when Turkish Civil Code No. 4721 came into force, and the regime of participation in acquired property applied from that date until the date the property regime ended. (Law No. 4722, Article 10, TMK 202/1). The independent section No. 12 subject to liquidation was purchased on July 24, 2009, when the community of acquired property regime was valid between the spouses, and was registered in the name of the defendant spouse. The provisions relating to the regime to which the spouses are subject apply in the liquidation of the property regime (TMK 179.m). According to the title deed in the file, a mortgage has been established in favor of … Bank. Although the court decided to dismiss the case on the grounds that it concerned a claim for a contribution share and that the plaintiff’s contribution could not be proven, based on the expert report on which the judgment was based, the plaintiff’s claim, considering the manner in which the claim was made and the date of acquisition of the immovable property, is for a share in the increase in value, and the existence of a contribution is not required for a claim to be awarded. Accordingly, while a decision should have been made regarding this independent section by gathering the evidence of the parties within the framework of the claim and defense, the conclusion reached due to the incorrect evaluation of the evidence is not correct.
CONCLUSION: The appealed judgment is REVERSED for the reason stated in paragraph (2) above, and the plaintiff’s counsel’s other appeals are REJECTED for the reason stated in paragraph (1) above. Pursuant to Article 388/4 of the Code of Civil Procedure (HMK m.297/ ç) and Article 440/I of the Code of Civil Procedure, that a request for correction of the decision may be made within 15 days of the notification of the Supreme Court Chamber’s decision, and that the advance fee of TL 25.20 shall be refunded to the appellant upon request, was unanimously decided on 02.12.2015.