Personal Property Must Be Proven With Concrete Evidence Other Than Witness Testimony
During the continuation of the marital 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 share in the increase in value is the other spouse’s claim on half of the increase in value (TMK Art. 231), which is the total value of the spouse’s acquired property (TMK Art. 219), including the amounts obtained from additions (TMK Art. 229) and equalization (TMK Art. 230), after deducting any debts related to this property. 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 Art. 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 m. 222).
If deemed necessary for the above valuation, determination, and calculations, assistance should be sought from an expert witness or expert witnesses specializing in the subject matter.
Example case:
The spouses married on January 22, 2007, and divorced when the judgment accepting the divorce case filed on September 19, 2008, became final on March 9, 2011.
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, Art. 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 provisions relating to the regime to which the spouses are subject shall apply to the liquidation of the property regime (Article 179 of the Turkish Civil Code).
The entire immovable property with parcel number 511, which is subject to liquidation, was acquired on February 19, 2008, when the community of acquired property regime was valid between the spouses. One-fourth share of the immovable property with parcel number 473 was acquired on April 30, 2008. and 1/4 share of the immovable property with parcel number 474 was purchased on 30.04.2008 and registered in the name of the defendant spouse.
The defendant claimed that the entire real estate with parcel number 511 subject to liquidation and 1/4 share of the real estate with parcel numbers 473 and 474 were purchased during the period when the community property regime was valid between the spouses, and that the real estate was purchased by the defendant’s father.
However, while the defendant was required to prove with concrete evidence that the properties were his personal property, it could not be proven with concrete and existing evidence other than the witness statement that the properties were purchased by the defendant’s father.
The court ruled that the entire property with parcel number 511 subject to liquidation and 1/4 share of the properties with parcel numbers 473 and 474 were acquired property.