18 Apr Receivable Claim Arising From The Property Regime Between Spouses
In the Turkish Civil Code, the system in which financial relations between spouses are regulated is called “property regime”. The legal regime under which the property, such as money, Securities and real estate owned by the spouses before marriage or acquired during marriage, the management of the property, the rights and powers of the spouses over each other’s assets and the responsibilities of the debts shall be understood between the spouses.
During the continuation of the property regime, one spouse has the right to participate in the acquired property owned by the other spouse at half of its residual value.In the liquidation of the acquisition regime, “values to be added” are taken into consideration when calculating the amount to be added to the residual value. 229 Of The Turkish Civil Code. by Article; in the year before the end of the property regime of one of the spouses without the consent of the other spouse, other than the usual gifts, gratuitous gains and transfers made by the other spouse during the continuation of the property regime with the intention of reducing the participation will be included in the liquidation as if existing at the end of the property regime.
The court decision may also be brought against third parties who benefit from the acquisition or transfer, provided that the case has been notified to them. In this case, 241 of the same law subsequently against the third party.229.whether the acquisition or transfer conditions in the article have been realized or not, the subject of re-investigation will not be made.
The sample Supreme Court decision on the issue is as follows:;
T.C. Supreme Court 8. Department of law E. 2017/12991 K. 2017/11707 T. 28.9.2017
“Case: at the end of the trial between the parties and the case described above, the court decided to dismiss the case and upon the appeal of the sentence by the plaintiff’s attorney, the Department reviewed the file and considered the need.
Decision: the plaintiff … attorney requested and sued the claimant that the claim of 150.000.00 TL be taken from the defendant and given to the plaintiff because of the real estate acquired in the marriage union.
The defendant … his attorney pleaded guilty.
The court has decided to dismiss the case. The sentence was appealed by the acting plaintiff.
It is up to the judge (HMK m no.6100) to make legal qualifiers and to determine the articles of the law to be applied. 33). According to the manner in which the claim is put forward, the case is now related to the request that it will participate in the value.
During the continuation of the property regime, in the acquired property owned by one spouse, the other spouse has the right to participate at half the residual value. The residual value will be added to the value (TMK m. 229) and equalization (TMK m. 230) of the spouse’s acquired property, including the amounts obtained (TMK m. 219) the total value of the residual value (TMK m. 231) the right to be credited to the other spouse over half (TMK m. 236/1). Participation is a right arising from the law, and it is not necessary for the spouse claiming this right to have income or to contribute to the acquisition, improvement or protection of such property.
In the liquidation of the acquisition regime, “values to be added” are taken into consideration when calculating the amount to be added to the residual value. 229 Of The Turkish Civil Code No. 4721. according to the article, one of the spouses in the year before the end of the property regime without the consent of the other spouse, other than ordinary gifts made by the other spouse during the continuation of the property regime without provision for the transfer of the other spouse to reduce the participation will be included in the liquidation as if The court decision may also be brought against third parties who benefit from the acquisition or transfer, provided that the case has been notified to them. In this case, 241 of the same law subsequently against the third party.229.whether the acquisition or transfer conditions in the article have been realized or not, the subject of re-investigation will not be made.
In such disputes; firstly, 229 by the defendant spouse. the purpose and direction of the article should be investigated and determined whether the acquisition or transfer has been made. If the court understands that the acquisition or transfer has been made without provision, it should be decided whether the claimant party has the right to participate in the calculation made by accepting the present property, if any, and that the amount should be collected from the defendant spouse. The release value at the decision date is based on the status of the transferred assets at the transfer date (TMK m. 235/2).
A person who claims that a particular property belongs to one of the spouses is obliged to prove his claim. The property which cannot be proved which of the spouses belongs to is considered to be their share property. All the goods of a spouse are considered to be acquired property until proven otherwise (TMK m. 222).
If the above value determination, determination and calculations are necessary, the expert expert or expert experts should also be assisted.
As for the concrete case; spouses, married on 17.11.1975, 29.08.2012 on the acceptance of the divorce case on the provision, 26.01.2015 on the final divorce. The property regime ended as of the date of the divorce proceedings (TMK m. 225 / son). Since it is not suggested that another property regime is chosen by contract, the separation of goods from the date of marriage until the date of 01.01.2002, when TMK No. 4721 came into force (TKM No. 743 m. 170), from this date until the end of the goods regime, the regime of participation in acquired goods is valid (law No. 4722 m. 10, TMK m. 202/1). 13 parcel No. 336 subject to liquidation immovable Island, purchased on 27.02.2004 of possible answers is true between spouses, the spouse registered in the name of the defendant, the defendant real estate 12.02.2008 the spouse on a joint daughter …..transferred through sale to. In the liquidation of the property regime, provisions relating to the regime to which the spouses are attached are applied (TMK m. 179).
Review in accordance with the legal regulations and principles described above;
The title deed records, the parties and the witness statements and the entire scope of the file are examined together, the defendant’s real estate subject to liquidation is the joint daughter of the parties about four years before the divorce proceedings …..’a sold, there has been unrest between the parties since 2007 and since 2009 they have been separated and…..’in his statement as a witness,’ he inherited the estate from his mother in the deed, he was seen to declare that he did not sell.Transfers made by one of the spouses with the intention of reducing the participation of the other spouse during the continuation of the property regime are included in the liquidation as if they were present at the end of the property regime (TMK m.229). So, in court, the witness … .’s declaration that it did not purchase the real estate, considering the entire scope of the file and the unrest between the fixed parties, that the transfer of the real estate was not a real sale and TMK 229. since it is understood that the value to be added in accordance with the article should be decided on the receivables by taking into consideration the value of the property at the date of transfer and taking into consideration the value at the date of liquidation, it was against the procedure and the law to be decided in writing by the erroneous evaluation of the
Conclusion: provisional 3 of HMK No. 6100 for the reasons shown above of the appellate provision..article 428 of Humk No. 1086 by dispatch. it was decided unanimously on 28.09.2017 that the court of Cassation may request a correction of the decision within 15 days of the notification of the Court of Cassation in accordance with Article 440/I of Humk and that the advance fee may be returned to the appellant if requested.”
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