Liquidation Of Property Regime – Claim For Participation In Surplus Value
T.C. JUDICIARY 8TH CIVIL CHAMBER E. 2016/6745, K. 2018/15022, T. 5.7.2018
* DISSOLUTION OF PROPERTY REJECTION (The Defendant’s Personal Property Defense was not sufficiently addressed – The Court will make a decision by comparing the acquisition dates and acquisition values of the assets subject to liquidation one by one by bringing the records of all assets allegedly sold and determining the acquisition and sale dates and sale values of the assets subject to liquidation, taking into account the vested rights of the parties)
* PARTICIPATION RECEIPT IN SURPLUS VALUE ( Regime of Participation in Acquired Property / The Court Decides Half of the Value of the Defendant’s Acquired Property as of the Date of Liquidation as Participation Receivable – The Defendant’s Personal Property Defense Should be Evaluated and the Records of All Assets Should be Obtained and the Acquisition and Sale Dates and Sale Values of All Assets Should be Determined, Then the Acquisition Dates and Acquisition Values of the Assets Subject to Liquidation Should be Compared One by One and a Decision Should be Made)
* PERSONAL PROPERTY CLAIM ( Participation in Residual Value – Although the Court has ruled half of the value of the assets as of the date of liquidation as participation receivable, the records of all assets alleged to have been sold by focusing on the defendant’s personal property defense should be brought and the acquisition and sale dates and sale values should be determined, and then the acquisition dates and acquisition values of the assets subject to liquidation should be compared one by one, and a decision should be made by considering the vested rights of the parties)
* THE CLAIM THAT THE DEFENDANT ACQUIRED THE PROPERTY AND VEHICLES ACQUIRED BY THE DEFENDANT DURING THE MARRIAGE UNION BY SELLING THE PERSONAL PROPERTY ( Liquidation of the Property Regime – By Bringing the Records of All Assets Allegedly Sold by the Court After the Acquisition and Sale Dates and Sale Values are Determined, the Acquisition Dates and Acquisition Values of the Assets Subject to Liquidation shall be Compared One by One and a Decision shall be Made by Considering the Acquired Rights of the Parties )
4721/m.179,202,225
SUMMARY : The plaintiff has requested the liquidation of the property regime and the receivables due to the assets specified in the petition. The lawsuit is related to the claim for participation in the residual value. Although the court has ruled half of the value of the immovable properties and the vehicle acquired in 2002, 2006 and 2008 respectively after the marriage union, as of the date of liquidation, based on the assumption that they are the acquired property of the defendant, it is not possible to agree with this opinion. Namely, in his defense, the defendant stated that the immovable property numbered 197 block 108 parcel was purchased with the income obtained from the sale of the immovable property numbered 106 block 1 parcel on 26.05.2006, which he acquired before the date of marriage, the immovable property numbered 233 block 22 parcel was purchased with the income obtained from the sale of the independent section numbered 24 in 1072 block 134 parcel, which he also acquired before the date of marriage, and the vehicle was purchased with the income obtained from the sale of the immovable property belonging to his mother. Although the records of some of the immovables subject to the personal property defense were brought by the court, they were not evaluated, and the records of some of them were not brought. Therefore, the court did not sufficiently focus on the defendant’s personal property defense. It is not right for the court to make a decision based on incomplete research and examination, while it is necessary to make a decision according to the result by considering the vested rights of the parties by discussing and evaluating all the evidence shown by the parties, by comparing the acquisition dates and acquisition values of the assets subject to liquidation one by one, after the records of all assets alleged to have been sold are obtained and the acquisition and sale dates and sale values are determined.
LAWSUIT : At the end of the trial held in the above-mentioned case between the parties, the Court decided to partially accept the case and to reject the claim for the surplus, and upon the appeal of the judgment with hearing by the plaintiff’s attorney and the defendant’s attorney, the request for hearing was rejected due to lack of expense, and the file was examined by the Chamber and the necessary was considered:
DECISION : The plaintiff requested the liquidation of the property regime and the receivables due to the assets specified in the petition.
The defendant attorney defended the rejection of the lawsuit.
The court decided to reject the plaintiff’s claim for contribution receivable due to waiver, to partially accept the plaintiff’s claim for contribution receivable, to collect the 437.569,70-TL receivable from the defendant together with the legal interest to be accrued from the date of the decision, and to reject the claim for excess; the judgment was appealed by the plaintiff’s attorney and the defendant’s attorney.
1-) According to the contents of the file, the case documents and the minutes of the proceedings, the available evidence has been evaluated and decided by the Court and there is no inconsistency in the decision, all the appellate objections of the plaintiff’s attorney and the defendant’s attorney other than the scope of the following paragraph have not been deemed appropriate.
2-) As for the objections of the defendant’s attorney regarding the immovable properties numbered 197 block 108 parcel and 233 block 22 parcel subject to liquidation and the … license plate vehicle;
It belongs to the parties to assert the material facts, and it belongs to the judge to make legal characterization and determine the applicable articles of law (Art. 33 of the CCP No. 6100). According to the way the claim is put forward, the lawsuit is related to the claim for participation in the residual value in terms of the assets subject to liquidation mentioned above.
The spouses were married on 13.12.2000 and divorced with the finalization of the judgment on the acceptance of the divorce case filed on 24.03.2008. The property regime ended as of the date the divorce case was filed (TMK 225/son). Since it was not claimed that another property regime was chosen by the contract, the separation of property regime (Article 170 of the TCC No. 743) is valid from the date of marriage until 01.01.2002, when the TCC No. 4721 entered into force, and the regime of participation in acquired property is valid from this date until the date of termination of the property regime (Article 10 of the Law No. 4722, Article 202/1 of the TCC). The immovable property numbered 197 block 108 parcel, the immovable property numbered 233 block 22 parcel and the vehicle with … license plate were purchased and registered in the name of the defendant spouse on 19.06.2006, 25.01.2008 and 31.12.2002, respectively, when the regime of participation in acquired property was valid between the spouses. In the liquidation of the property regime, the provisions regarding the regime to which the spouses are bound are applied (Article 179 of the Civil Code).
Even though the court has ruled half of the value of the immovable property numbered 197 block 108 parcel, immovable property numbered 233 block 22 parcel and the vehicle with … license plate as a participation claim based on the assumption that they are the acquired property of the defendant, it is not possible to agree with this opinion. Namely, in his defense, the defendant stated that the immovable property numbered 197 block 108 parcel was purchased with the proceeds from the sale of the immovable property numbered 106 block 1 parcel on 26.05.2006, which he acquired before the date of marriage, the immovable property numbered 233 block 22 parcel was purchased with the proceeds from the sale of the independent section numbered 24 in block 1072 parcel 134, which he also acquired before the date of marriage, and the … license plate vehicle was purchased with the proceeds from the sale of the parcels numbered 1153 block 3-4-5-6 belonging to his mother and the parcels located in … Neighborhood. Although the records of some of the immovables subject to the personal property defense were brought by the court, they were not evaluated, and the records of some of them were not brought. Therefore, the court did not sufficiently focus on the defendant’s personal property defense. After the records of all the assets alleged to have been sold are obtained by the court and the acquisition and sale dates and sale values are determined, the acquisition dates and acquisition values of the assets subject to liquidation are compared one by one and discussed and evaluated together with all the evidence shown by the parties, and a decision should be made according to the result by considering the acquired rights of the parties, but it is not correct to make a decision in writing with incomplete research and examination.
CONCLUSION : With the acceptance of the appeal objections of the defendant’s attorney for the reasons written in subparagraph (2) above, the judgment is hereby annulled pursuant to Article 428 of the Code of Civil Procedure No. 1086 by referring to the Provisional Article 3 of the CCP No. 6100. In accordance with Article 428 of the Code of Civil Procedure No. 1086 with reference to the Provisional Article 3 of the CCP No. 6100, all the appellate objections of the plaintiff’s attorney and the other appellate objections of the defendant’s attorney are rejected for the reasons written in subparagraph (1) above, the parties may request a correction of the decision within 15 days as of the notification of the Supreme Court of Appeals Chamber decision in accordance with Article 440/I of the Code of Civil Procedure, and the 29,20 TL advance fee shall be deducted from the approval fee and the remaining 6,70 TL shall be taken from the appellant plaintiffs, and the advance fee shall be returned to the appellant defendant if requested, 05. It was unanimously decided on 07.07.2018.