What Is A Marriage Contract? How To Make A Marriage Contract?
WHAT IS A MARRIAGE CONTRACT?
The marriage contract is popularly known as the contract in which the parties determine the consequences of divorce by agreeing between them before establishing the marriage union. However, the marriage contract is not a contract in which the parties can determine all the consequences of divorce or set rules within the marriage union. The marriage contract is regulated in the Turkish Civil Code as a property regime contract. This contract serves to solve the problems of property division that may arise in the future in the event of the dissolution of the marriage.
Although there is the principle of freedom of contract in our law, some limitations are imposed by law. Accordingly, the subject of the contract must not be contrary to the mandatory provisions of the law, must not be contrary to public order, must not be contrary to personal rights and the subject of the contract must not be impossible. Subject to these conditions and only as specified in the law, the parties may conclude a contract between them.
IS A MARRIAGE CONTRACT LEGAL?
The marriage contract must meet some conditions required by the law. Today, sometimes the parties may put forward conditions and make promises to each other before marriage. For example, while the parties have no joint children before the marriage, if it is agreed that the custody of the children will be given to the mother if a divorce occurs or that the other party will not be able to claim compensation if one of the parties commits adultery, these clauses will be legally invalid. As a matter of fact, it is not legally possible for individuals to waive their unborn rights.
The main contract that can be validly made, popularly known as the marriage contract, is the property regime contract stipulated in Article 203 of the Turkish Civil Code. In 2002, with the amendment made in the Turkish Civil Code, the regime of participation in acquired property was adopted for the property in the marriage union. However, the spouses can always change this property regime by making a contract. The provisions that the parties may agree upon and conclude a contract may be about the property regime to be applied after the divorce.
WHAT IS A PROPERTY REGIME AGREEMENT?
The property regime agreement is a voluntary agreement regulated in the Turkish Civil Code, which couples can make at any time before or after marriage. In the contract to be made by the parties; issues such as which of the spouses will own the ownership and management of the goods they own or will own, who will use these goods, which of the spouses will benefit from the income of these goods, and how the goods will be shared in cases where the marriage ends.
By law, it is essential to apply the regime of participation in acquired property between the spouses. When the marriage contract is not made by the spouses, the regime of participation in acquired property, i.e. the legal property regime, will be valid. However, spouses may accept one of the other regimes specified in the law by organising a property regime agreement between them. The parties can only choose, remove or change the property regime they want within the limits written in the law.
WHAT ARE THE CONDITIONS OF MARRIAGE (PROPERTY REGIME) AGREEMENT?
There are some conditions that the parties must have in order to conclude a marriage (property regime) agreement. These conditions are regulated in the law under the title of capacity to contract. Accordingly, the property regime contract can only be concluded by those who have the power of discernment. Minors and restricted persons must obtain the consent of their legal representatives in order to conclude a marriage contract. Contracts made by persons who do not have the capacity to contract are legally invalid.
In addition, the property regime agreement does not come into effect with the signature of the parties between themselves. The contract must be concluded in the competent authority in accordance with the law and under legal conditions.
WHERE AND HOW IS THE MARRIAGE (PROPERTY REGIME) AGREEMENT MADE?
Property regime agreement can be made with the consent of the parties before or after marriage. The marriage contract, as it is popularly known, is made at the notary public in the presence of the parties. The property regime agreement made at the notary can be made in the form of regulation or approval. Apart from this, the parties may also notify in writing which property regime they have chosen during the marriage application.
It is mandatory for the parties to sign the property regime agreement made at the notary public. In the absence of the signature of one of the parties, the contract in question will be deemed legally null and void. If the party making the marriage contract is minor or restricted, it is obligatory for their legal representatives to sign the contract.
WHAT ARE THE TYPES OF PROPERTY REGIME THAT CAN BE SELECTED IN THE PROPERTY REGIME AGREEMENT?
The types that can be chosen in the property regime, in other words, in the marriage contract, other than the regime of participation in acquired property, which is the legal property regime, are limited in the Turkish Civil Code. Spouses may choose one of the regimes listed in the law with their own consent. These are the regime of separation of property, the regime of separation of property with sharing and the regime of property partnership.
Separation of property regime: It is regulated in Article 242 of the TCC. In the separation of property regime, there is no distinction between personal property and acquired property, and the income earned by the spouses is accepted as their personal property.
Separation of property regime with sharing: It is regulated under Article 244 of the TCC. Property acquired after the establishment of the regime of separation of property with sharing and dedicated to the common use and benefit of the family, as well as investments aimed at securing the economic future of the family or the values that replace them, are shared equally between the spouses in the event of the termination of the property regime.
Property partnership regime: It is regulated under Article 256 of the TCC. The community of property regime covers the partnership property and the personal property of the spouses. General community of property covers income other than the personal property of the spouse. Neither of the spouses can dispose of the partnership property on their own.
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