PRINCIPLES
Pursuant to Article 179 of the TCC, the provisions regarding the regime to which the spouses are bound shall apply in the liquidation of the property regime. Accordingly, the liquidation of a property acquired during the period of separation of property shall be governed by the rules regarding the separation of property regime, and if it was acquired during the period of the regime of participation in acquired property, i.e. after 01.01.2002, the rules regarding the legal property regime shall apply.
In case of transition to the extraordinary property regime, i.e. separation of property, liquidation shall be made according to the regime valid in the previous period. (Art.212) Pursuant to the law of enforcement, when divorce and annulment lawsuits filed before the entry into force of the civil code are concluded with acceptance, proceedings shall be carried out according to the liquidation and separation of property regime. (Art.10/2 of the Law No. 4722) In the event that the nullity of the marriage is decided, the provisions regarding divorce shall also apply to the liquidation of the property regime. (Art.158/2 and Art.160)
-Acquired assets existing at the time of the termination of the property regime (when the divorce case is filed) are taken into account (Art. 235)
-The value of the acquired goods at the time of liquidation shall be included in the receivable.
-The value of the goods to be added is calculated based on the date of transfer of the goods. However, this practice is not fair since it is a regulation in favor of the malicious disposer. The 8th Civil Chamber of the Court of Cassation has produced a solution in the form of the present value of the property at the time of transfer.
-In order to be able to speak of liquidation, the marriage union and the property regime must end with death, divorce, annulment or transition to another property regime.
-Liquidation may be requested by spouses or heirs.
-The moment of liquidation refers to the time when the liquidation is actually made.
-The liquidation is based on the market value of the goods (Art.232)
-If special circumstances so require, the calculated value shall be increased by an appropriate amount (Art. 234)
-The living conditions of the surviving spouse, the purchase value of the agricultural enterprise, the investments made by the spouse or his/her financial situation are considered special circumstances.
-Each spouse shall recover the property of the other spouse (Art. 236).
SAMPLE LAWSUIT PETITION
…….. Family Court on Duty
CLAIMANT: xxxx (Turkish ID Number)
ADDRESS:
VICE PRESIDENT
ADDRESS:
DEFENDANT:YYYY(TCKN)
ADDRESS
CASE:Liquidation of Property Regime
SUBJECT: Claims for Contribution Share, Value Increase Share and Participation Claims.
EXPLANATIONS:
The parties were married on 1.1.1983 and there is a divorce case between them …. There is a divorce case pending at the Family Court ….. Since the divorce case was filed on 20.01.2021, the properties between the date of marriage and the date the divorce case was filed constitute the claims for the liquidation of the property regime.
The parties did not conclude any property regime agreement when they got married and thereafter. Since their marriage covers the periods before and after the Turkish Civil Code in force, the applicable property regime must be determined in accordance with Article 10/1 of the Implementation Law 202/1 of the Turkish Civil Code.
For this reason, the regime of separation of property is valid for the properties between the dates of marriage 1.1.1983 and 31.12.2001, and the regime of participation in acquired property is valid for the properties between the dates of 1.1.2001 and the date of filing the divorce case. In this context, we concretize our claims as follows:
1- Although there is a shop purchased by the defendant in his name in 1982, we do not have any claim regarding this shop since it was acquired before the marriage. However, there is a claim for participation receivable from the rental income of this shop at …., which is deposited in … bank.
2- On the other hand, the plaintiff has a contribution claim on the apartment registered as … in the title deed, which was also purchased in the name of the defendant in 1998 by selling and using the jewelery of the plaintiff.
3- Since the plaintiff contributed to the land acquired on behalf of the defendant in 2008 and registered as … in the title deed, with 50.000 TL received from his father, there is a claim for an increase in value due to the existing land.
4-The claimant has a 50 percent participation claim on the … license plate vehicle acquired in 2019 and registered in the name of the defendant, when the regime of participation in acquired property was valid within the marriage union.
EVIDENCE Population Family Registration Table, Land Registry and Traffic Registration Records, Witness
LEGAL REASON: Article 227, Article236, Article339 and related legislation
Request and Conclusion: For the reasons explained above,
With the liquidation of the property regime of the parties and the opportunity provided by Article 107 of the CCP, without prejudice to the right to claim and sue for the excess,
1-For the time being, 1000 TL participation receivable for the rental income deposited to … bank on behalf of the defendant,
2-For the time being, for the apartment registered as … in the title deed in the name of the defendant, 1000 TL contribution share receivable,
3- TL 20.000 for the land registered as …. in the title deed on behalf of the defendant for the time being,
4- For the vehicle with the license plate number … registered in the name of the defendant, for the time being, 10.o00 TL participation share receivable shall be ruled and given to the plaintiff,
5-To apply interest from the date of the lawsuit for the contribution share receivable and from the date of the decision for other receivables,
6-With the immovables subject to the lawsuit are concrete and the claims for receivables have been determined, we request a preliminary injunction to prevent the sale and transfer of all immovables and vehicles to third parties in line with the Supreme Court Decisions. 28.06.2021
Counsel for the Plaintiff
Atty. ZZZZZ
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