Property Sharing in Divorce

2022-02-17T17:34:26+00:00 17 March 2021|

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It is necessary to determine two issues before filing a property sharing case. It is necessary to determine the date range that is the basis for the liquidation and the goods regime to be applied. The liquidation procedure is applied for the goods in the period between the beginning of the marriage union and the date when the divorce case was opened. With the entry into force of the new TMK on January 1, 2002, if no other property regime has been selected between the spouses, as a rule, the “Acquired property participation regime” is applied. For marriages that started before this date, as a rule, if no other elections were made, the “property separation” regime is applied.

WHEN SHOULD THE CASE OF SHARING GOODS SHOULD BE OPENED?

As a rule, the liquidation process of the goods begins with the termination of the marriage union with a court decision. Although it is possible to open a property liquidation case during the divorce case, technically, the divorce must first be finalized. If property sharing is requested with a divorce lawsuit petition, this part is separated by the court and the parties are given time to pay a proportional fee for this request. First of all, if the divorce case is opened; In the petition regarding the property-sharing case, the court and file information of the divorce lawsuit should be written.

One of the important issues is; While the power of attorney for divorce proceedings should have special authority, in cases related to the liquidation of property, colleagues can proceed with a general power of attorney.

When it comes to personal property;

1- Before the marriage union is established, the properties belonging to the parties

2- The goods acquired by one of the parties through inheritance or donation, which are the first things that come to mind here. As it is known, since the jewelry is the personal property of the woman, it is not included in the liquidation. Jewelry items can be the subject of a separate case. Since the jewelery items are considered to be the personal property of the woman, it is possible to demand them even while the marriage union continues.

3- Non-pecuniary damages

The goods listed above are not included in liquidation.

ACTION FOR PARTICIPATION RECEIVABLE

Until proven otherwise, all property in the marriage union is considered acquired property. The property regime between the parties continues from the date of marriage until the opening date of the divorce case. The case that is accepted as the basis is the case of participation receivable. Written procedure is applied in cases of liquidation of the property regime. Since this lawsuit is filed as an indefinite claim, it is subject to a relative fee. After the necessary calculations, the mortar is completed. Matters to be examined in the case of participation receivables;

“1- Goods available at the time of the case

2- Values ​​to be added: Until the lawsuit is filed, the savings, like a property sold or donated by one of the parties

3-Equalization: contributions made from personal property to acquired property “. If the goods are in debt; From the participation receivable, the debt is deducted and the main part called “residual value” is found. Another important point is that this lawsuit is a claim for debt. Deed is not treated like cancellation and registration. One of the parties pays the other in proportion to the value of the goods. The paying party can request time from the court. In this case, the party that will receive the payment has the right to demand interest and security.

VALUE INCREASE SHARE CASE

The party that contributes to the purchase and improvement of the goods from his / her personal property can open this case. A request can be made at the rate of contribution by calculating the value of the property at the time of liquidation.

Value of the Goods; It is taken into account with its state at the time of liquidation. For this reason, the date of discovery should be close to the date of the Court’s decision whenever possible.

CONTRIBUTION SHARE CASE

This case is in question in terms of marriages made before January 1, 2002. Just as in the Value Increase Share case; The party that contributes to the purchase and improvement of the goods from his / her personal property can open this case. Since the property separation regime is a regime based on who is registered on the property, it is a type of case that emerged by the Supreme Court case law in order to stretch the strict rules of the property separation regime. A request can be made at the rate of contribution by calculating the value of the property at the time of liquidation.

CONTRACTED DIVORCE

In cases where the marriage is terminated in the form of a Contracted Divorce, the protocol should be arranged in detail. The Court of Cassation considers the issues regarding the liquidation of the property not to be understood if there is a protocol in a generally valid manner and it is not regulated seriously and allows the filing of a lawsuit. In the liquidation case, another important point is whether the defendant will present his claims in the form of counter action or in the same case. The defendant party may accept the liquidation and present its own reasons. If a separate lawsuit is filed for the same goods, the case is combined.

SHARING OF GOODS IN TERMS OF COMPANY SHARES AND BUILDING COOPERATIVES

In terms of company shares; For the determination of dividend movements, status, shareholders and balance sheet, data of the period between the date of marriage and the date of divorce lawsuit should be requested from the Trade Registry Office.

In terms of Building Cooperatives; The calculation must be made separately by an expert for the membership period and the individual ownership period.

RESULT

Property sharing in divorce; It is important to obtain legal aid as there are many cases that need to be carefully examined in terms of both the progress of the trial and the collection of evidence.

Hunting. Cute GÜNGÖR

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