Division of Property on Divorce: Participation in Acquired Property and the Participation Claim (Civil Code Arts. 202–236)

How is the spouses' property divided when a marriage ends? Unless the spouses chose another property regime, the regime of participation in acquired property applies. Under this regime, assets remain with whoever owns them; when the marriage ends, an accounting is made and each spouse acquires a claim to half of the other's net acquired value (artık değer). This article summarises the framework of Arts. 202–236 of the Turkish Civil Code (TMK) No. 4721 and the Court of Cassation's approach to proof and limitation.

1. The statutory regime

Participation in acquired property is the default between spouses (Art. 202/1). Spouses may choose one of the other regimes provided by law by a property regime contract. The regime covers acquired property and each spouse's personal property (Art. 218).

2. Acquired property and personal property

Acquired property (Art. 219)	Personal property (Art. 220)
Values obtained for consideration during the regime: earnings from work, social security and fund payments, compensation for loss of earning capacity, income from personal property, and substitutes for acquired property	Items for exclusively personal use; values belonging to a spouse at the start of the regime or later obtained by inheritance or gratuitous acquisition; claims for non-pecuniary damages; substitutes for personal property

3. Proof: who proves personal property?

• Whoever claims that a given asset belongs to one spouse must prove it; assets whose owner cannot be proved are treated as co-owned (Art. 222/1–2).
• All of a spouse's assets are presumed to be acquired property until the contrary is proved (Art. 222/3). The 2nd Civil Chamber of the Court of Cassation applies this rule (E.2023/9429, K.2024/7887).
• A spouse who claims property is personal must therefore prove it was obtained by inheritance or gratuitously, or that it replaces personal property. In one case the Court of Cassation stated that, for a tractor that was acquired property on its date of acquisition, the burden of proving otherwise lay on the defendant, that apart from abstract witness statements there was no concrete and convincing evidence, and found it wrong to treat the tractor as personal property on witness statements alone (E.2023/7543, K.2024/2917). In another, a property acquired after 01.01.2002 was acquired property by the statutory presumption, but the defendant was found to have proved it was acquired gratuitously and the decision was upheld (E.2022/10210, K.2024/636).

4. End of the regime: the date the action is filed on divorce

The property regime ends on the death of a spouse or the adoption of another regime. Where a court annuls the marriage, ends it by divorce or orders separation of property, the regime ends with effect from the date the action was filed (Art. 225). Acquired property existing when the regime ended is accounted for at its value at liquidation (Art. 235/1). Property acquired after the filing date does not enter the accounting.

5. Net acquired value and the participation claim

• Net acquired value is what remains of the total value of each spouse's acquired property after deducting the debts relating to it (Art. 231).
• Each spouse or their heirs is entitled to half of the other spouse's net acquired value; claims are set off (Art. 236/1).
• On divorce for adultery or attempt on life, the judge may reduce or remove the guilty spouse's share of the net value as fairness requires.

6. Share in increased value

If one spouse has contributed, without any or adequate consideration, to the acquisition, improvement or preservation of an asset belonging to the other, they are entitled on liquidation to a claim in proportion to their contribution for the increase in value of that asset (Art. 227/1). Spouses may by written agreement waive the share in increased value or change the proportion.

7. Property acquired before 01.01.2002

The participation regime came into force on 01.01.2002. According to reasoning set out in a General Assembly of Civil Chambers decision, for property acquired before that date the separation-of-property regime under the former Code No. 743 applies between the spouses; for such assets a contribution claim (katkı payı alacağı), not a participation claim, may arise, and the general provisions of the Code of Obligations apply (HGK, E.2019/238, K.2022/319). The date each asset was acquired is therefore the starting point in your file.

8. Limitation: one year or ten?

For claims such as poverty alimony and pecuniary and non-pecuniary damages arising from divorce, the one-year period in Art. 178 TMK applies. For actions for liquidation of the property regime, the General Assembly of Civil Chambers has stated that, since Law No. 4721 contains no separate limitation rule for them, the general ten-year period of the Code of Obligations No. 6098 applies by way of Art. 5 TMK. The 8th Civil Chamber reasoning quoted in that decision is likewise that limitation in liquidation actions is ten years under Art. 146 of the Code of Obligations (HGK, E.2022/1205, K.2023/1188). The 8th Civil Chamber has stated that although in its earlier practice it accepted a one-year period for a regime ended by divorce, it changed its view in line with the General Assembly's case law (E.2020/317, K.2020/5382). The period and when it starts should still be assessed on the facts of each case.

9. What to do

• Document each asset's date of acquisition, in whose name and from what source it was acquired (land registry record, bank slips, inheritance or gift documents).
• If you will argue an asset is personal property, collect concrete documents showing the source of payment; witness statements alone may not be enough.
• Property regime claims may be brought together with the divorce action or separately; bear in mind the importance of the filing date for when the regime ends. A file-specific assessment is needed for time limits and procedure.
• For general information on the divorce process, see our articles on uncontested and contested divorce and divorce and custody in Yalova. For inherited property, see certificate of inheritance and compulsory share.
• If you would like your file assessed, you can book an appointment or reach us on the contact page.

This article is prepared for general information and does not replace legal advice. Every file is different, and rights can be lost if time limits are missed.