Property Regime, Participation Claim, No Need For Spouse’s Contribution In Claim
T.C.
COURT OF CASSATION
8th CIVIL CHAMBER
CASE NO: 2017/16895
DECISION NO: 2018/1753
DATE OF DECISION: 07.02.2018
COURT: Family Court
CASE TYPE: Liquidation of Property Regime
>>PROPERTY REGIME, PARTICIPATION CLAIM IS A RIGHT DERIVED FROM THE LAW, THERE IS NO REQUIREMENT FOR THE SPOUSE CLAIMING THIS RIGHT TO HAVE INCOME OR TO HAVE CONTRIBUTED TO THE ACQUISITION, IMPROVEMENT, OR PRESERVATION OF THE PROPERTY IN QUESTION.
SUMMARY: During the continuation of the property regime, the other spouse has a right to half of the increase in value of the acquired property owned by one spouse. The share in the increase in value includes
is the other spouse’s right to claim half of the residual value (TMK 231.m) remaining after deducting debts related to the property from the total value of the spouse’s acquired property (TMK 219.m), including amounts obtained from added values (TMK 229.m) and equalization (TMK 230.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).
At the end of the trial in the case heard between the parties and described above, the Court decided to partially accept the case. Upon appeal of the judgment by the plaintiff’s attorney and the defendant’s attorney, the Chamber reviewed the file and considered the matter.
DECISION
The plaintiff, … Öztürk, requested the liquidation of the property regime and the payment of the debt due to the immovable property specified in the petition.
The defendant’s attorney defended the dismissal of the case.
Upon the Court’s decision to partially accept the case and order the collection of 17,261.50 TL from the defendant, the judgment was appealed by the plaintiff’s attorney and the defendant’s attorney. Before January 1, 2002, when Turkish Civil Code No. 743 (TKM) was in force,
the legal regime of separate property between spouses was valid (TKM 170 m). Since TCC did not contain provisions regarding the liquidation of the property regime, disputes concerning the liquidation of property acquired by spouses during this period should be resolved according to the rules of the “contribution share claim” calculation method, taking into account the general provisions of the Code of Obligations, as referred to in Article 5 of the same law. This is because the Code of Obligations is considered to be complementary to the Civil Code (eBK 544, TBK 646 m). Under the regime of separate property, spouses have the right of disposal and usufruct over their own property, and the management of their property belongs to them (TKM 186/1 m). Each spouse’s property, income, and earnings are their personal property (TKM 189 m). In order for the wife or husband to claim a contribution share due to their contribution to the other spouse’s property acquired during the continuation of the property regime, they must have contributed with money or with a material or service value that can be measured in money. If it is claimed that the property subject to liquidation was purchased during the period when the separation of property regime was in effect and that a collective contribution was made with property other than regular income (such as jewelry, inheritance, gifts, etc.)
the amount of the contribution share to be received by the plaintiff spouse is determined by multiplying the contribution ratio, calculated by determining the ratio of the value of the property used in the contribution to the total purchase price of the property subject to liquidation, by the market value of the property subject to liquidation on the date of the lawsuit.
During the continuation of the property regime, the other spouse has the right to claim half of the increase in value of the acquired property owned by one spouse.
The right to share in the residual value; the amount obtained from the added values (TMK 229.m) and equalization (TMK 230.m), including the total value of the spouse’s acquired property (TMK 219.m), after deducting the debts related to these properties, is the right of the other spouse to the residual value (TMK 231.m). The participation claim is a right arising from the Law
and there is no requirement 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).
In the present case, the spouses married on August 1, 1988, and divorced upon the finalization of the judgment granting the divorce petition filed on June 11, 2012. 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 (Article 170 of the Turkish Civil Code No. 743) applies from the date of marriage until January 1, 2002, when the Turkish Civil Code No. 4721 came into force, and the regime of participation in acquired property applies from that date until the date the property regime ended (Law No. 4722, Article 10, TMK 202/1). Based on the information and documents in the file and the missing transaction records obtained, the defendant owns a 647/2400 share in the immovable property with the parcel number 1225, which is subject to liquidation, and a 334/2400 share was registered in the defendant’s name through a zoning application on 19.07.2002
through urban planning, that 313/2400 shares were acquired by the defendant through purchase with an official deed dated 17.12.2002 and were consolidated with the original share and registered in his name as 647/2400 shares, and that after the date of the divorce lawsuit
was sold and transferred to a third party on July 2, 2012.
The court found that the defendant had a 647/2400 share in the immovable property, that he had acquired 334 shares before the parties were married and that they were personal property, but that the plaintiff’s share from the immovable property in … during this period was also used in the purchase of the 334 shares and thus the plaintiff’s contribution to the 334 shares was 10/100, The value of the real estate on July 2, 2012, the date of sale to a third party, was 60,000 TL. The value of the 334 shares, which are personal property, was 31,845 TL. The plaintiff’s 10% contribution was worth 3,184 TL. 313 shares were acquired on 17.12.2002 and are considered acquired property, the value of the 313 shares is 28,155 TL, the plaintiff is entitled to 1/2 of the participation claim in accordance with the law, which amounts to 14,077.50 TL, The plaintiff’s total claim is 17,261.50 TL, and the case was partially accepted based on this amount, but it is not possible to agree with this opinion. First of all, it is not clear how the share values were determined with a 10% contribution rate for 334 shares. In the explanatory petition submitted by the plaintiff after the separation, he stated that the immovable property inherited from his father in … was sold at the end of 1995 or in 1996, that after delivering the amount due to his brother from the sale price, he combined the amount due to his own share and the amount due to his mother’s share, which his mother had gifted to him, and deposited it in the İş Bankası … Branch, then withdrew this money from the bank and purchased the property in question in 1996, claiming that the purchase price of the property was paid with the aforementioned inheritance money and loans his mother took out at different times from Ziraat Bank Istanbul … Branch, and requested that the records of İş Bank and Ziraat Bank be obtained. However, the court did not conduct any investigation into the aforementioned bank records.
As explained above, it is understood that 313/2400 shares of the 647/2400 shares in the immovable property in question were acquired by the defendant through purchase by means of an official deed dated 17.12.2002. despite our chamber’s decision to return the case and request the submission of the title deed records showing all transfers since the initial formation of the immovable property, the records relating to the 334/2400 share prior to zoning were not submitted, and therefore the date of initial acquisition of this share could not be determined. According to the title deed in the file, it is understood that the plaintiff’s father… had a 1/2 share in the immovable property with parcel number 5299 in the village of …, which is not subject to the lawsuit, and that this share was sold on 28.08.1996.
The defendant argued that the property in question was acquired in 1997 and that the plaintiff made no contribution to it. It is understood from the inspection report that the co-owners used the independent sections within the building corresponding to their shares, and that the independent section on the top floor was used in exchange for the share sold by the defendant, but since the door was not opened despite knocking, an inspection was conducted on the independent section on the floor below and a report was prepared.
It is not considered correct to base the report on the findings made on another property other than the property in question. It was not considered correct to rely on the report prepared as a result of the inspection conducted on a property other than the property in question.
Separately, since the property share in question was registered in the defendant’s name on the date of the divorce case when the property regime ended, the calculation should have been made based on the value at the Separately, since the share of the property in question was registered in the defendant’s name on the date of the divorce case when the property regime ended, the calculation should have been made based on the value on the date of liquidation, but it is also incorrect for the court to make the calculation based on the value on the date of sale to the third party, 02.07.2012.
The court should have obtained the title deeds showing all transfers since the initial establishment date of the real estate, the supporting documents for registration, and the official contract tables, since it was understood that the 334/2400 share in the real estate subject to the lawsuit was the predecessor. determine the date of initial acquisition of the 334/2400 share in the property subject to the lawsuit, also obtain the bank records relied upon as evidence by the plaintiff or grant the plaintiff time and opportunity to submit them, compare the date of initial acquisition of the property with the date of sale of the property not subject to the lawsuit and the bank account movements, to conduct an inspection by expert witnesses on the independent section corresponding to the share registered in the name of the defendant in the lawsuit, and to determine the market value at the date of liquidation (since the previous decision lost its validity due to being overturned, the date of the new decision after the overturning) according to the situation at the date of the divorce lawsuit when the property regime ended, obtain an audit-ready report from an expert witness in the field to calculate the plaintiff’s claim in accordance with the principles and rules outlined above, evaluate all evidence together based on the circumstances, and render a decision considering the acquired rights of the parties. Given this situation, it was incorrect to render a written decision based on an incomplete examination.
CONCLUSION: Since the appeals of the plaintiff’s attorney and the defendant’s attorney are justified for the reasons explained, the judgment is REVERSED pursuant to Provisional Article 3 of the Code of Civil Procedure and Article 428 of the Code of Civil Procedure. It was unanimously decided on February 7, 2018, that the parties may request a correction of the decision within 15 days of the notification of the Court of Cassation Chamber’s decision, in accordance with Article 440/I of the Code of Civil Procedure.