Are Transfers Made By A Spouse With The Intent Of Reducing Their Share Of The Claim In A Claim Arising From The Property Regime Between Spouses Included In The Liquidation?
The system governing financial relations between spouses under the Turkish Civil Code is referred to as the “property regime.” The property regime refers to the legal regime governing the money, movable and immovable property that spouses owned before marriage or acquired during marriage, the management of property, the rights and powers of spouses over each other’s property, and the regulations regarding their liability for debts.
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. When calculating the amount of the claim for participation in the increase in value during the liquidation of the participation regime in acquired property, “additional values” are taken into account. According to Article 229 of the Turkish Civil Code, gratuitous transfers made by one spouse without the consent of the other spouse within one year prior to the termination of the property regime, other than ordinary gifts, and transfers made during the continuation of the property regime with the intent to reduce the other spouse’s participation claim shall be included in the liquidation as if they existed at the time of termination of the property regime.
The court decision may also be enforced against third parties who benefited from the gift or transfer, provided that they were notified of the case. In this case, if a claim for payment is subsequently filed against the third party pursuant to Article 241 of the same law, the conditions for the gift or transfer under Article 229 will not be re-examined.
An example of a Supreme Court decision on this subject is as follows:
SUPREME COURT OF TURKEY 8TH CIVIL CHAMBER E. 2017/12991 K. 2017/11707 T. 28.9.2017
“CASE: Following the trial in the case between the parties described above, the Court decided to dismiss the case. Upon appeal of the decision by the plaintiff’s attorney, the Chamber reviewed the case file and considered the matter.
DECISION: The plaintiff’s attorney requested and sued for 150,000.00 TL to be collected from the defendant and given to the plaintiff due to real estate acquired during the marriage.
The defendant’s attorney defended the dismissal of the case.
The Court decided to dismiss the case. The judgment was appealed by the plaintiff’s attorney.
It is incumbent upon the parties to present the material facts, and upon the judge to make the legal assessment and determine the applicable provisions of law (Article 33 of the Code of Civil Procedure No. 6100). Based on the manner in which the claim is presented, the lawsuit relates to a 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 claim for participation in the surplus value is the other spouse’s claim on the surplus value (Turkish Civil Code, Article 231) remaining after deducting the debts related to the property from the total value of the spouse’s acquired property (Turkish Civil Code, Article 219), including the amounts obtained from the added values (Turkish Civil Code, Article 229) and equalization (Turkish Civil Code, Article 230). 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.
In the liquidation of the participation regime for acquired property, “additional values” are taken into account when calculating the amount of the participation claim on the residual value. According to Article 229 of the Turkish Civil Code No. 4721, gratuitous transfers made by one spouse without the consent of the other spouse within one year prior to the termination of the property regime, other than ordinary gifts, and transfers made during the continuation of the property regime with the intent to reduce the other spouse’s participation claim shall be included in the liquidation as if they existed at the time of termination of the property regime. The court decision may also be enforced against third parties who benefited from the gift or transfer, provided that they were notified of the case. In this case, if a claim for payment is subsequently filed against the third party pursuant to Article 241 of the same law, whether the conditions for the gift or transfer under Article 229 have been met will not be re-examined.
In such disputes, it must first be investigated and determined whether the transfer or conveyance was made by the defendant spouse for the purposes and in the manner specified in Article 229. If the court finds that a gratuitous transfer or conveyance has been made, the property in question shall be considered to exist, and a ruling shall be made on the recovery of the plaintiff’s right to a share, if any, from the defendant spouse, after determining the amount. In liquidation, the market value of the transferred property as of the date of the transfer shall be taken as the basis for the decision (TMK m. 235/2).
Anyone claiming that a specific asset belongs to one of the spouses is obliged to prove their claim. Assets that cannot be proven to belong to either spouse shall be considered jointly owned. All property of a spouse is considered acquired property until proven otherwise (TMK m. 222).
If deemed necessary for the above valuation, determination, and calculations, assistance should be sought from an expert or experts in the field.
In this specific case, the spouses married on November 17, 1975, and divorced when the judgment accepting the divorce petition filed on August 29, 2012, became final on January 26, 2015. The property regime ended on the date the divorce case was filed (TMK m. 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. (Article 10 of Law No. 4722, Article 202/1 of the Turkish Civil Code). The immovable property subject to liquidation, located at 336 ada 13 parsel, was purchased on February 27, 2004, when the community of acquired property regime was valid between the spouses, and was registered in the name of the defendant spouse. The defendant spouse transferred the immovable property to the parties’ joint daughter … by way of sale on February 12, 2008. In the liquidation of the property regime, the provisions regarding the regime to which the spouses are subject shall apply (TMK Article 179).
Upon examination in accordance with the legal regulations and principles explained above;
Upon examining the land registry records, the statements of the parties and witnesses, and the entire file together, it was found that the defendant sold the real estate subject to liquidation to the parties’ joint daughter … approximately four years before the divorce case, that there had been discord between the parties since 2007 and that they had been living separately since 2009, and that … stated as a witness that she “took over the property from her mother in the land registry and did not sell it.” Transfers made by one spouse with the intent to reduce the other spouse’s participation claim during the continuation of the property regime are included in the liquidation as if they existed at the time the property regime ended (TMK m.229). Therefore, the Court ruled that the witness’s statement that he did not purchase the immovable property, considering the discord between the parties established by the entire file, the transfer of the immovable property was not a real sale, and the value to be added pursuant to Article 229 of the TMK Therefore, considering the nature of the real estate at the time of transfer and its value at the time of liquidation, a claim should have been ruled upon. However, the decision rendered in writing, based on the erroneous evaluation of the evidence, is contrary to procedure and law and requires reversal.
CONCLUSION: The appealed judgment is REVERSED pursuant to Article 428 of the Code of Civil Procedure No. 1086, as referred to in Provisional Article 3 of the Code of Civil Procedure No. 6100, for the reasons stated above. and that, pursuant to Article 440/I of the Code of Civil Procedure, a request for correction of the decision may be made within 15 days of the notification of the Court of Cassation Chamber’s decision, and that the advance fee shall be refunded to the appellant if requested, was unanimously decided on 09/28/2017.”