Under the Turkish Civil Law the spouses are free to make agreements about the Marital property. Prenuptial Agreements in Turkish Law can be made before, during or after marriage. In the old Civil Code there was 3 types of regimes. These were; separation of assets, partnership of assets and community property.
According to the Art. 202 of Turkish Civil Law No.4721 “Implementation of Regime of participation on acquired properties is fundamental regime for spouses. Spouses may accept the other regimes indicated in law by the prenuptial agreement.”
Therefore, in the new Turkish Civil Law there exist two kinds of Marital Law; Legal Marital Property System and Contractual one. The legally supposed regime is “participation on the acquired assets” ” in which each of the spouses equally participates and benefits from the assets acquired after the marriage. If the spouses do not have an agreement about Marital Property, the rules of participation on the acquired assets are applied in the division of matrimonial property. If the spouses do not want to be subject to legal system then they have an option either separate property regime, shared separate property regime or community of property regime.
What are the acquired assets and personal assets under the Turkish Civil Law?
1. Acquired assets: the acquired assets for each of member of the couple are as follows:
* Salary or wages received from work or employment.
* Payments made by social security institutions.
* Disability compensation.
* Personal assets, such as rental income or profits from stocks.
* Assets that can be substituted for acquired assets.
2. Personal assets:
The personal assets for each member of the couple are as follows:
* A good that is for the sole use of one of the spouses.
* Assets owned prior to marriage.
* Assets that were acquired after the marriage through a donation or will.
* Assets that can be substituted for the personal assets.
Pursuant to the Art. 203 of the Turkish Civil Code, “The Agreement on Marital Property can be made before or after the marriage. Parties may choose, change or remove the marital property regime within the scope of the Law.”
There is a two option for the form of the Marital Property Regime Agreement in the Art.205 of the TCC. The Agreement of Marital Property Regime the agreement can be made at a notary public. The agreement may either be filled out or approved by a notary. As a second option, spouses may declare which Marital Property Regime that they choose during the marriage application. If spouses decide to choose marital property regime during the marriage application, they shall inform the registrar of marriage in written form. In order to ensure the validity of the agreement we strongly recommend our clients to make this agreement before a Turkish notary.
If spouses choose separate property regime with a prenuptial agreement pursuant to the Art. 242 of Turkish Civil Code, each spouse can protect his/her usufruct, management and disposition rights on his/her own properties within the legal limits. In this type of regime each spouse will be liable for his/her own debts with his/her own property and in case of divorce, spouses will not have any claims on each other’s property.
However the provisions of prenuptial agreement must be carefully regulated. Because, the financial matters issued by the prenuptial agreement and expected to result in case of divorce is binding for the parties but pursuant to the Supreme Court’s application, if the judge does not find the prenuptial agreement acceptable and fair due to the differences between the financial conditions of the parties on the day the agreement was issued and on the day of divorce, these arrangements in the prenuptial agreement will not be valid. In that case, the court can decide different arrangements than the arrangements provided in the prenuptial agreement in order to protect unfairly treated spouse. Since the institution of marriage is related directly with the public policy, the judge has an absolute authority on it, therefore the conditions provided in the prenuptial can be binding if deemed appropriate by the judge. Thus, according to the Turkish Civil Law and Supreme Court’s decisions spouses can only choose one of Marital Property Regime indicated in the Law. Other financial regulations in the prenuptial agreement will not be valid.