T.C. SUPREME
8.Legal Department
Mainly: 2014/1952
Decision: 2014/4774
Decision Date: 20.03.2014
CLAIM OF RECEIVABLES-CONTRIBUTION OF THE PLAINTIFF WITH MONEY FOR THE SALE OF JEWELRY AND REAL ESTATE TRANSFERRED THROUGH INHERITANCE, WHILE THE DEFENDANT’S CLAIMS THAT THEY CONTRIBUTED WITH MONEY FOR THE SALE OF FIELD ANIMALS CANNOT BE PROVEN – THE PROVISION IS BROKEN
Abstract: from the scope of the file, the plaintiff’s contribution with money for the sale of jewelry and real estate transferred through inheritance, and the defendant’s claims that his father contributed with money for the sale of field and animals could not be proven. In this case, requests and defenses related to the share of increase in value should not be valued.
(4721 P. K. m. 5, 202, 220, 225, 232, 235, 236, 240, 499, 575, 639, 641, 642, 658) (743 S. K. m. 170) (4722 P. K. m. 10) (6098 P. K. m. 146) (818 P. K. m. 125)
Sue: P. Y. with S. Y. Bursa 1 on the acceptance of the claim of receivables between them. 11.12.2012 day issued by the Family Court and 1431/1209 decision of the Supreme Court to examine the plaintiff’s attorney and the defendant’s attorney during the duration of the request; the file was examined, considered necessary:
Decision: attorney of the plaintiff, 903 Islands acquired in the marriage union and registered in the name of the defendant spouse, 29 parcels and the building built on it, although the cost was paid by the parties 3. 16 JH 461 license plate registered on behalf of the person to purchase the vehicle in exchange for the work of the surrogate income, trappings and the share of the inheritance avengalen from his father due to the conversion of money by explaining that he contributed, with more rights reserved 85,000 TL. he requested that the contribution be paid to the plaintiff with the collection from the defendant, along with the interest that he would receive a share of participation and an increase in value.
The defendant defended the dismissal of the case by stating that the nizali building was built with his own savings and that he made a profit by doing additional work outside of working hours, despite the fact that he had a regular job.
The court ruled that the plaintiff’s surplus amount was 85,000 TL. after it was decided that the contribution and participation share would be received from the defendant and given to the plaintiff; the provision was appealed by the plaintiff’s attorney and the defendant’s attorney.
The parties were married in 1987, and the marriage union ended with the adoption of the divorce case filed on 21.09.2010 and its finalization on 25.02.2013. 903 Islands registered with the nature of the land subject to the lawsuit, which is determined to be a 4-storey building, are registered in the deed on behalf of the defendant on 27.05.1997 by selling 29 parcels. If the dispute is a vehicle with license plate 16 JH 461, H. G. by registration on 04.11.2004, 3 on 06.10.2008. sold to a person.
179 of TMK. according to the article, in the liquidation of the property regime, the provisions relating to the regime to which the spouses are attached shall be applied. Since it is not suggested that another property regime was chosen between the parties, from the date of marriage to 01.01.2002, 743 numbered MK 170. according to Article “separation of goods”, from this date to the date of filing a divorce case, where the regime of participation in goods acquired between spouses ends, and 202 of TMK 4721. according to the provision of the article, the legal “participation in acquired goods” regime applies.
The property regime between spouses is 225/2 of TMK. according to the article, the divorce was terminated as of the date of filing. Plaintiff party niza issue 2005 model vehicle non-litigation H. G. although it was registered on behalf of 04.11.2004, the price was paid by cashing the previous vehicles and the remaining part was paid by withdrawing the loan, the name appears to be maliki registration due to the possibility of discounted purchase, within the knowledge of the defendant during the actual separation period of the vehicle. by 3. he asked the person to participate by informing them that he had been sold, that the sale money remained in the defendant’s seven. The defendant has stated that he personally paid for the vehicle. Although nizali car 3. although it is registered in the name of the person, there is no dispute that the registration is in form and that the price is paid in the Union of marriage. During the period when the regime of participation in acquired goods is valid; 222/3 of the TMK. according to the provision of the paragraph, all goods acquired by a spouse in the Union of marriage are considered acquired goods until proven otherwise. Despite the presumption of acquired goods brought in the specified article, the spouse who claims that this goods are not acquired goods, are personal goods or have contributed from the group of personal goods is obliged to prove it. In a concrete case, according to the scope of the file, the witness statements and the fact that it cannot be proven otherwise, it is necessary to accept that the nizali vehicle is acquired property. However, it is understood from the petition of the defendant’s attorney dated 14.02.2011 that the vehicle subject to the lawsuit was sold on 06.10.2008 and the sale money was spent by the defendant. 229/2 and 235/2 of TMK, the court heard.according to the article, it is not correct to establish a provision in the expert report that the value of the vehicle on what date it is based on, while the plaintiff should calculate the participation of the plaintiff by determining the value of the vehicle on the date of transfer.
As for appeals from the point of view of real estate, it was determined that nizali real estate was taken during the period when the property separation regime between spouses was valid, and the building on it was partially built after 01.01.2002 during the period when the property separation regime between spouses was valid. As of the date of purchase of the land and some construction, between the parties 743 numbered MK 170. since the property separation regime applies in accordance with the provision of the article, the dispute for this period will be resolved by taking into account the general provisions of the Code of Obligations. Accordingly, if the spouses ‘ contribution to the acquisition of each other’s assets is proven, the right to receive at the rate of contribution arises. During the period in which MK 743 is in force and legal separation of goods between spouses is valid before 01.01.2002, the husband and husband must make a contribution by putting a material value that can be measured in money or money in order to request compensation from the other in exchange for contributions. In a concrete case, it is necessary to accept that the plaintiff contributed, since when the scope of the file and the working documents are examined, it is determined that the plaintiff also worked. In the expert report based on the ruling, documented income between the file and the defendant’s MK.152. according to the article, it was reported that the contribution rate of 50% was appropriate for the claimant due to the maintenance obligation. Although the court did not bring the plaintiff’s income information for some years and the contribution rate was not taken into account, since the plaintiff did not have a clear appeal in this direction, this issue was not made a reason for the violation.
A part of the construction on nizali real estate is fixed after 01.01.2002 in the Union of marriage. The relevant part of the case relates to participation. In the marriage, after 01.01.2002, it is possible to request that the other spouse receive half of the residual value arising from the law on the assets acquired on behalf of one of the spouses (231, 236/1 of the TMK.m.). 222 of TMK. according to the article, a person who claims that a particular property belongs to one of the spouses is obliged to prove his claim. All property of a spouse must be considered acquired property until proven otherwise. In terms of participation, it also does not matter whether the requesting spouse works or makes any contributions. Participation is due to the law. In such cases, the values to be added (TMK’s m. 229) and without equalization (TMK’s m. 230) of the acquired goods, including the amounts obtained (m. 219) the residual value remaining after subtracting the debts related to the property from the total value (m of the TMK. 231) over half (TMK’s m. 236/1) and 227 of the TMK. in accordance with the provisions of articles; the goods of others to obtain personal property or a spouse’s income, or the improvement or protection without suitable compensation contributed if the contribution during the liquidation value of this property to increase in value at a rate resulting in the increase in the share of receivables must be determined. From the scope of the file, the plaintiff’s contribution with the sale money of jewelry and real estate transferred through inheritance; the defendant’s claims that his father contributed to the sale of farm animals could not be proven. In this case, requests and defenses related to the share of increase in value should not be valued.
The work to be done by the court; first of all, explaining how much of the plaintiff’s request will receive a contribution, how much will receive participation; Bursa 6 in terms of the section that is excluded from the request by the plaintiff. According to the Family Court’s 2013/ 33 main file, additional litigation has reportedly been filed, after which the above-mentioned considerations are taken into consideration and, if necessary, a report from an expert expert, determining that the plaintiff will receive participation in terms of parts built after 01.01.2002 on nizali vehicles and real estate; in terms of the ground value of the land built on the nizali and the part related to the construction made before 01.01.2002, it is determined that the contribution will be received on the basis of the contribution rate excluded from distortion, it is taken into account that the plaintiff requests interest, the claim that the contribution will be received from the date of the lawsuit, the claim that the subject will receive participation will be executed from the date of the provision, the receivables that will receive contribution and participation will be specified separately in the provision and the provision will be established according to the result.
According to the admission, although it is not correct to decide the divorce case without waiting to be finalized, this issue was not made due to the determination that it was finalized after the date of sentencing.
Provisional 3 of HMK 6100 in terms of receivables determined for the carriage of a provision not in accordance with the provisions of procedure and law by the acceptance of the appeals of the attorney of the plaintiff and the deputy of the defendant for the reasons described above. article 428 of Humk No. 1086. according to Article 6100, HMK’s temporary 3. by sending the article 388/4 of the Humk (HMK.m 297 / O) and HUMK.in accordance with article 440/I of the Supreme Court, it was unanimously decided on 20.03.2014 that a request for correction of the decision can be made within 15 days from the notification of the decision and the return of 24.30 TL of advance expenses to the plaintiff on request.