According to Article 228 of the Turkish Civil Code No. 4721:
The personal properties and acquired properties of the spouses are separated according to their state at the time of the termination of the marital property regime.
As the provision indicates, the distinction between the personal and acquired properties of spouses during the liquidation of the property regime is based on the state of these properties at the time of the regime's termination. An exception to this rule is the values to be added. The values to be added are those not present in the property of the spouses when the regime of participation in acquired property ends but are to be included in the liquidation as if they were present, provided they meet certain conditions set by the legislator. This legal arrangement aims to protect the interest of the spouse who may be disadvantaged due to transactions made against each other's benefits. The legal regulation concerning the values to be added is provided in Article 229 of the Turkish Civil Code. Article 229 of the Civil Code is mandatory and aims to protect the spouse adversely affected by such transactions.
I. Values to be Added and Their Conditions
Article 229 of the Turkish Civil Code, titled "Values to be Added," is as follows:
The following are added as values to the acquired properties:
Gratuitous transfers made by one of the spouses without the consent of the other spouse within one year before the termination of the marital property regime, excluding ordinary gifts,
Transfers made by a spouse during the continuation of the property regime with the intent to reduce the other spouse's claim for participation.
In disputes related to such transfers or acquisitions, the court decision can be asserted against third parties who benefit from the transfer or acquisition, provided that they have been notified of the lawsuit.
As seen in the article, the values to be added are regulated under two different paragraphs. Each item will be examined separately along with its conditions.
A) Conditions and Values to be Added According to TMK (Turkish Civil Code) Article 229/1-b.1
1) One of the Spouses Must Make a Gratuitous Transfer, Excluding Ordinary Gifts.
According to TMK Article 229/1-b.1, not all gratuitous transfers are added as values to the acquired properties, only those with specific characteristics.
A gratuitous transfer is where one of the spouses, without any counter-performance, provides a material benefit to a third party's property at the expense of their acquired property or prevents a benefit to their own acquired property. The typical example of a gratuitous transfer is a donation. Other examples include establishing a foundation, giving a dowry to a third party, providing start-up capital, or saving a third party from debt.
Dispositions upon death cannot be considered as values to be added. The reason is that gratuitous transfers can only be inter vivos transactions. Dispositions upon death cannot be inter vivos transactions, and thus cannot be considered as values to be added.
In addition to the concept of gratuitous transfer, the concept of ordinary gift should also be mentioned. The law brings up the value to be added in the case of extraordinary gifts. So, what is meant by an "ordinary gift"? The law does not define how "ordinary gift" should be understood. Whether a gratuitous transfer is an ordinary gift or not will be considered in terms of both the motive behind the transfer and its financial value. The financial situation of the person making the transfer will also be decisive. For example, a very wealthy person gifting a car to a sibling as a wedding present could be considered an ordinary gift.
If the person making the transfer does it as a moral duty or as a form of assistance in accordance with the customs and traditions of their community, then this transfer can be considered as an ordinary gift. In the decision of the Turkish Supreme Court 8th Civil Chamber, 2018/14261 E., 2018/18229 K., dated 06.11.2018, it is stated:
"Considering the entire file, the court has determined that the debts of the defendant's son İsmail were incurred during the marriage, and it is not proven that the plaintiff made donations to the defendant's son. As it cannot be proven and alleged that there was a gratuitous transfer or transfer made with the intention of reducing the other spouse's claim for participation (TMK Article 229), it cannot be shown that the plaintiff has a claim right for the payments allegedly made for the debts of the defendant's son alone. The payments are considered to have been made in solidarity arising from the marriage. Therefore, the court should have decided to reject the case in this respect, and the decision to the contrary is erroneous and necessitates reversal."
As understood from the decision, the Supreme Court has accepted that the money given to the son of the spouse was made in solidarity arising from the marriage, concluding that the spouse's intention was to help and stating that the money cannot be considered as a value to be added.
2) One of the Spouses Must Make the Gratuitous Transfer Without the Consent of the Other Spouse.
Article 229/1-b.1 of the Turkish Civil Code (TMK) clearly states that a gratuitous transfer can be considered a value to be added to the settlement if it is made without the consent of the other spouse. Indeed, it would be illogical and potentially contradictory for a spouse to consent to a gratuitous transfer and later claim it as a value to be added.
Regarding the form of consent required from a spouse, the law does not specify any particular form; hence, consent can be either explicit or implicit. It can be in the form of permission or approval.
For example, if one spouse explicitly consents to the other spouse providing start-up capital to a child from a previous marriage, or indirectly shows support through their actions or contributes from their personal property, then this can be considered as implied consent. In such a case, the consenting spouse cannot later claim this capital as a value to be added.
3) The Gratuitous Transfer Must Be Made Within One Year Before the End of the Marital Property Regime.
The period is explicitly specified in TMK Article 229/1-b.1, and there is no doubt regarding this timeframe. The starting point of this period is based on the date the marital property regime ends.
The circumstances ending the marital property regime are regulated in Article 225 of the TMK, titled “Moment of termination.” According to this article:
The marital property regime ends upon the death of one of the spouses or the adoption of another marital property regime.
In cases where a court ends the marriage due to annulment or divorce, or decides to switch to separation of property, the property regime ends as of the date of the lawsuit.
For instance, if one of the spouses dies on 01.05.2021, the property regime ends on the date of death. Therefore, gratuitous transfers made within one year before this date can be considered as values to be added if other conditions also exist.
As the law stipulates a one-year period, gratuitous transfers made more than one year before the termination date of the marital property regime cannot be considered under TMK Article 229/1-b.1.
TMK Article 229/1-b.1 does not differentiate between a debt-creating transaction and a disposition transaction. There have been different views on whether only a debt-creating transaction within the one-year period is sufficient or whether a disposition transaction is also required. It should be noted that if both the debt-creating and disposition transactions occur simultaneously, there will be no problem. The issue arises when these two transactions occur on different dates, and it is uncertain which transaction date should be considered for the one-year period. For example, the promise of a donation (a debt-creating transaction) might have been made before the one-year period, but the actual transfer (a disposition transaction) could occur within that year. According to the dominant view in the doctrine, considering the purpose of the provision, the date of the disposition transaction should be the basis (Suat Sarı, Participation in Acquired Property as a Legal Marital Property Regime in Marriage Union, 1st Edition, Istanbul, Beşir Bookstore, 2007, p.193).
B) Conditions and Values to be Added According to TMK Article 229/1-b.2
1) One Spouse Must Make a Transfer with the Intent to Reduce the Other Spouse's Claim for Participation.
Under TMK Article 229/1-b.2, "Transfers made by a spouse during the continuation of the marital property regime with the intent to reduce the other spouse's claim for participation" are considered as values to be added. As the wording of the article suggests, unlike TMK 229/1-b.1, the term "transfer" is used instead of "gratuitous transfer." This clause encompasses all types of transfer transactions.
A transfer refers to the passing of a right to another person's property through a disposition transaction. For example, if a spouse enters into a sales agreement to sell an acquired property to a third party and carries out this transaction, it is considered a transfer and will be included as a value to be added in the liquidation of the marital property regime.
The term "transfer" mentioned in the article should be interpreted broadly. A disposition transaction does not only imply the transfer of a right but also its limitation, such as through a usufruct. Therefore, if a spouse grants a usufruct right to a third party on a property registered in their name with the intent to reduce the other spouse's claim, this situation should also be evaluated under TMK 229/1-b.2.
In the decision of the Turkish Supreme Court 8th Civil Chamber, 2015/117 E., 2015/1517 K., dated 26.01.2015, it is stated:
"The contents of the file, the court documents, and the evidence were evaluated by the Court, and it was determined that 10,000 TL of the money acquired during the marriage was lent by the plaintiff-defendant husband to his brother-in-law in 2005, and it was understood from the witness statements that this money was not repaid. It was also determined that this issue was one of the main reasons for the divorce of the parties. Considering that half of the acquired money belongs to the co-plaintiff wife (woman) under the provisions of Articles 229 and 231 of the TMK, the appeal of the plaintiff Hasan's lawyer regarding this part of the court decision is rejected, and the decision regarding the claim for participation is AFFIRMED..."
In this decision, the Supreme Court considered the money lent by the spouse to a third party as a value to be added.
In another decision, the Turkish Supreme Court 8th Civil Chamber, 2016/12636 E., 2018/2050 K., dated 13.02.2018, stated:
"From the information and documents in the file, it is understood that 106,120.96 Euros were withdrawn from the account at the Central Bank by the defendant husband on 01.02.2012, a short while before the divorce date 20.03.2012, which ended the marital property regime. According to TMK's Article 229/2, transfers made by a spouse during the continuation of the marital property regime with the intent to reduce the other spouse's claim for participation shall be added as values to the acquired properties. Therefore, it must be assumed that the money withdrawn from the bank was still in the possession of the defendant at the end of the marital property regime, considering the ordinary course of life. Given these explanations, considering the defendant withdrew the money with the intent to reduce his participation claim, the aforementioned 106,120.96 Euros should be accepted as a value to be added for liquidation purposes, and the claim for participation should be determined accordingly for account number 47676, but the decision to exclude this money from the claim was a reason for reversal."
In this decision, the Supreme Court considered the money withdrawn by the spouse, which could not be proven to have been transferred to another party, as a value to be added.
For a transfer to be considered as a value to be added under TMK (Turkish Civil Code) Article 229/1-b.2, the law requires that the transferring spouse had the intention of reducing the other spouse's claim for participation. If such intent is not present during the transfer, the transferred property cannot be considered as a value to be added. It is important to note that this intention must exist only in the transferring spouse; the intent of the other party in the transaction is irrelevant. The intent here refers to the transferring spouse knowing and wanting that the transfer will reduce the other spouse's claim for participation.
The Turkish Supreme Court has acknowledged the intent to reduce the other spouse's claim for participation in cases where a transfer is made shortly before a divorce lawsuit. In the decision of the Supreme Court 8th Civil Chamber, 2016/7259 E., 2017/8502 K., dated 07.06.2017, it is stated:
"The Court decided to reject the claim regarding the property sold before the end of the marital property regime, stating that the conditions stipulated by the law were not met. The property in question, registered in the name of the defendant spouse, was sold approximately six months before the divorce lawsuit. It is not consistent with the ordinary course of life that the proceeds from the sale of the property could have been spent within such a short period of six months. The defendant spouse failed to prove that the sale proceeds were spent reasonably. Therefore, it must be accepted that the defendant spouse disposed of the property with the intention of reducing the plaintiff spouse's claim for participation, and the property should be included in the liquidation as if it were present at the end of the marital property regime. The Court should have determined the plaintiff spouse's claim for participation regarding this property and issued an acceptance decision."
Spouses might consider disposing of their properties when they foresee their marriage heading towards divorce. The primary intent here is to leave the other spouse without any property or at least to minimize their claim after the liquidation. The Supreme Court suggests that the transferring spouse has to prove that the transfer was not made with the intent of reducing the other spouse's claim for participation.
In another decision, the Supreme Court stated:
"The lawsuit concerns the claim for participation of one spouse. The property in question was acquired by sale during the marital property regime and registered in the name of the defendant. This property was sold by the defendant to their aunt shortly before the first divorce lawsuit dated 18.02.2005, which was ultimately rejected. After the first divorce lawsuit, the parties never reunited, and they divorced following the second lawsuit dated 03.07.2009. Considering that the property was disposed of shortly before the first divorce lawsuit and the parties never reunited after that lawsuit, it must be accepted, according to the ordinary course of life, that this transfer was made with the intent to reduce the other spouse's claim for participation. The absence of the proceeds (sale price) at the end of the marital property regime does not prevent the claim for participation in the increased value. Therefore, this transferred property should be considered as an 'added value,' and the plaintiff's claim for participation in the increased value should be adjudicated, if necessary, after an appraisal and expert examination."
In this decision, the Supreme Court acknowledged the intent to reduce the other spouse's claim for participation in a transfer made shortly before a divorce lawsuit.
Spouses may transfer their assets to close relatives such as parents, siblings, etc., as a precaution before divorce. The Turkish Supreme Court has stated that in such cases, the transferring spouse is still considered to have the intention of reducing the other spouse's claim for participation. In the decision of the Supreme Court 8th Civil Chamber, 2013/23346 E., 2015/6789 K., dated 25.03.2015, it is stated:
"Even though according to Article 235/1 of the TMK, only the properties existing at the end of the marital property regime are included in the liquidation, the defendant's attorney claimed in a petition dated 14.05.2007 in the divorce case file that the property registered in the defendant's name was transferred to her mother as a precaution for fear that it would be taken away by her husband. Although the property was registered in the name of a third party by sale on 15.10.2003, it must be accepted, in line with the explanations above, that the transfer was made with the intention of reducing or eliminating the defendant spouse's claim arising from the liquidation of the marital property regime. Therefore, it was deemed appropriate to include the property in the liquidation, accepting that it belonged to the defendant."
This decision implies that even if the property was transferred to a third party after being transferred to the mother as a precaution, the court considered it as an action with the intent to reduce or eliminate the other spouse's claim.
Unlike TMK Article 229/1-b.1, Article 229/1-b.2 does not contain any regulation about what happens if the other spouse consents to the transfer. If the other spouse consents to the transfer and then claims it as a value to be added, it could be considered as contradictory behavior and abuse of rights.
The Transfer Must Be Made During the Continuation of the Marital Property Regime.
Unlike TMK Article 229/1-b.1, Article 229/1-b.2 does not set a specific time limit for the transfer. Any transfer made with the intention of reducing the other spouse's claim for participation throughout the duration of the marital property regime can be considered as a value to be added in the liquidation.
For instance, consider a couple who married on 23.08.2010 and did not make any marital property regime agreement; thus, the legal regime of participation in acquired properties applies. Let's assume this regime ends with their divorce on 27.05.2018. If one spouse makes a transfer on 23.08.2011 with the intent of reducing the other spouse's claim, the other spouse could claim this as a value to be added.
Implementation of Addition and Some Issues
Under Article 229 of the Turkish Civil Code (TMK), the law does not prescribe invalidity as a sanction for transactions falling within the scope of values to be added. Instead, it specifies that these values will be added to the acquired properties in terms of value during liquidation. The addition means considering the actions of one spouse that reduce the other spouse's share in the liquidation and adding them back to the active side of the reducing spouse's account as if those assets had never been disposed of.
The burden of proving the existence of a value to be added lies with the spouse or heirs who claim it. According to Article 6 of the TMK titled “Burden of Proof”:
“Unless the law provides otherwise, each party is obliged to prove the existence of facts upon which they base their rights.”
The plaintiff spouse or heirs must prove that the transaction in question should be considered as a value to be added during liquidation.
Additionally, the plaintiff must prove that the transfer mentioned in TMK Article 229 was made with the intent of reducing the participation claim. However, the Supreme Court has suggested that the burden of proof shifts, particularly for transfers made shortly before the filing of a divorce lawsuit. In this context, the defendant spouse must prove that the transaction was not made with the intent of reducing the plaintiff spouse's claim for participation. In the decision of the Supreme Court 8th Civil Chamber, 2019/5822 E., 2019/11111 K., dated 10.12.2019, it is stated:
“The subject property was sold for 95,000.00 TL about three months before the divorce lawsuit was filed. The Court rejected the claim regarding the summer house because the entire sale amount of 95,000.00 TL was spent within this period and the plaintiff could not prove its existence at the time of the end of the marital property regime. However, it is evident that the remaining amount of 41,969.32 TL was not spent as claimed by the defendant. The Court should have adjudicated in favor of the plaintiff regarding this remaining amount, considering the claim, but it erroneously rejected the claim regarding the summer house, which necessitates reversal.”
Regarding the determination of the value of the property to be added, TMK Article 235 provides guidance. According to Article 235/1 titled “Valuation Moment”:
“Acquired properties existing at the time the marital property regime ends are included in the liquidation at their value at the time of liquidation.”
However, this general rule for liquidation has an exception for values to be added. In the second paragraph of Article 235, it states:
“The value of those to be added to the acquired properties in the account is calculated based on the date of the transfer of the property.”
Therefore, when considering the property as a value to be added during liquidation, it is included based on its value at the date of transfer, not its value at the time of the liquidation of the marital property regime.
As mentioned earlier, TMK Article 229 is mandatory. Therefore, the application of values to be added does not depend on a party's request; if the judge realizes from the case file that transactions falling under TMK Article 229 have been made, they should consider this matter on their own initiative. The Supreme Court has stated that local courts must consider values to be added on their own initiative. In the decision of the Supreme Court 8th Civil Chamber, 2016/8253 E., 2016/9070 K., dated 24.05.2016, it is stated:
“The Court's decision regarding the foreign currency and TL deposit accounts in the bank was not based on a comprehensive examination and the expert report obtained was not sufficient for a verdict. The Court should have investigated whether there were foreign currency and TL deposits in the accounts as of the date when the marital property regime ended on 26.3.2010, and if there were deposits entered into the accounts after that date, they should not be included in the liquidation. If there were deposits withdrawn before that date, it should be evaluated whether they fall under the category of values to be added under TMK Article 229/2, and if considered as such, they should be included in the liquidation, allowing the plaintiff to claim participation in the increased value. The Court's decision to reject the claim regarding the bank deposits without conducting a thorough investigation is contrary to procedural and legal principles, necessitating reversal.”
However, it should be noted that the judge will consider the values to be added based on the materials in the case file. The judge is not expected to conduct an investigation into matters not mentioned in the case.
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