Marriage is not only a personal relationship but also a legal institution that gives rise to significant financial consequences between spouses. The management, use, and distribution of property acquired by spouses during marriage upon the termination of the marriage is determined by the rules governing matrimonial property regimes. Under Turkish law, matrimonial property regimes between spouses are regulated under Articles 202 to 281 of the Turkish Civil Code No. 4721. The legislator has left the regulation of spouses’ property relations to their free will to a certain extent and has allowed them to enter into matrimonial property regime agreements.
Matrimonial property regime agreements are family law contracts that enable spouses or persons intending to marry to choose one of the optional matrimonial property regimes regulated by law, change the existing property regime, or make certain specific arrangements within the limits permitted by law.
I. The Concept of Matrimonial Property Regimes and the Statutory Property Regime
Pursuant to Article 202 of the Turkish Civil Code, the statutory matrimonial property regime applicable between spouses is the regime of participation in acquired property. If the spouses have not concluded any agreement, this regime applies automatically from the date of marriage.
Under the regime of participation in acquired property, each spouse retains ownership of his or her personal property, while the other spouse acquires a right to a participation claim in respect of property acquired during the marriage. This system is based on the principle of economic solidarity between spouses and is the most commonly applied matrimonial property regime in practice.
However, within the framework of the contractual freedom granted by law, spouses may choose a different matrimonial property regime. Agreements concluded for this purpose are referred to as matrimonial property regime agreements.
II. Legal Nature of Matrimonial Property Regime Agreements
A matrimonial property regime agreement is a contract regulating the property relations of spouses with characteristics specific to family law. Pursuant to Article 203 of the Turkish Civil Code, a matrimonial property regime agreement may be concluded either before or after marriage. The parties may only choose, modify, or terminate one of the matrimonial property regimes regulated by law.
These agreements are not subject to complete freedom of contract. The parties may not create a new matrimonial property regime that is not provided by law. They may make a selection or introduce certain modifications only within the limits established by law.
III. Capacity to Conclude a Matrimonial Property Regime Agreement
Pursuant to Article 204 of the Turkish Civil Code, a matrimonial property regime agreement may only be concluded by persons with the capacity of discernment.
Such agreements are considered among rights that are strictly personal in nature. Therefore, the agreement must be signed personally by the parties.
As an exception, the law requires legal representatives to participate in the agreement in certain circumstances.
In this context:
- Minors who have been granted permission to marry,
- Persons under guardianship,
- Persons placed under restriction by a court decision,
may not conclude a matrimonial property regime agreement on their own. The participation or consent of a parent or guardian is mandatory for these individuals to enter into a property regime agreement.
IV. Form of Matrimonial Property Regime Agreements
Matrimonial property regime agreements are formal contracts. Pursuant to Article 205 of the Turkish Civil Code, a matrimonial property regime agreement must be signed before a notary public in order to be valid. Furthermore, the parties may declare in writing the matrimonial property regime they have chosen at the time of their marriage application.
The formal requirement regulated by law is mandatory in nature. Therefore, matrimonial property regime agreements made in ordinary written form are invalid. For a matrimonial property regime agreement to be considered valid, it must either be signed before a notary public or be declared in writing during the marriage application process.
The purpose of the formal requirement is to ensure that the parties’ intentions are clearly expressed, to prevent future disputes, and to provide legal certainty.
V. Optional Matrimonial Property Regimes
The Turkish Civil Code regulates three optional matrimonial property regimes.
A. Separate of Property Regime
Under the separate property regime, each spouse is the sole owner of his or her own assets. No joint ownership or participation claim may arise in respect of property acquired during the marriage. Each spouse manages, uses, and disposes of his or her own property independently.
This regime is particularly preferred by persons engaged in commercial activities, professionals exposed to significant financial risks, and those remarrying.
B. Property Regime of Shared Separation
The property regime of shared separation is a mixed system situated between the separate property regime and the regime of participation in acquired property. Although property remains individually owned during the marriage, certain assets allocated to family use are shared upon the termination of the marriage.
In practice, this regime is preferred less frequently than the other regimes.
C. Community of Property Regime
Under the community of property regime, all assets other than the spouses’ personal property constitute community property. The spouses have rights over community property similar to joint ownership without division.
This regime establishes the strongest economic union between spouses. However, due to the complex consequences it may produce regarding management and disposition powers, it is used only to a limited extent in practice.
VI. Limits of Freedom of Contract
Although matrimonial property regime agreements under Turkish law are based on the parties’ will, freedom of contract in this field is not absolute. Due to the close relationship between family law and public order, the parties’ autonomy is subject to various limitations.
A. Principle of Limitation to Statutory Regimes
Pursuant to Article 203 of the Turkish Civil Code, spouses may choose only one of the matrimonial property regimes regulated by law. These are:
- The regime of participation in acquired property,
- Separate property regime,
- Property regime of shared separation,
- The community of property regime.
It is not possible for the parties to create a new matrimonial property regime unique to themselves. For example, agreements providing that all income earned during the marriage shall be shared according to specific percentages or that all property shall be transferred directly to one spouse upon divorce are not considered legally valid.
B. Prohibition of Contradiction with Mandatory Rules
Matrimonial property agreements may not contain provisions contrary to mandatory rules of law. The parties cannot make arrangements that differ from matters conclusively regulated by law.
For example:
- Completely depriving one spouse of his or her liquidation claim,
- Eliminating minimum rights protected by law,
- Introducing provisions that destroy the essence of the liquidation rules,
Are deemed invalid.
C. Protection of Personality Rights
Matrimonial property regime agreements may not contain provisions that violate personality rights. Arrangements restricting the spouses’ fundamental rights and freedoms are invalid.
For example:
- Requiring one spouse to waive their right to work,
- Agreeing that a spouse will not practice a certain profession,
- Restricting freedom of residence or movement,
cannot be included in a matrimonial property regime agreement.
D. Inadmissibility of Regulating Other Family Law Institutions
A matrimonial property regime agreement may contain provisions only concerning property relations. The parties may not make binding arrangements concerning other areas of family law.
Accordingly:
- Determining which spouse will be granted custody in the event of divorce,
- Determining with which parent the child will reside,
- Regulating how personal contact will be established,
- Determining the amount of child support to be awarded by the court,
cannot be determined with a matrimonial property regime agreement.
E. Restrictions Concerning Maintenance and Compensation Rights
In practice, parties often wish to include provisions stating that neither spouse will claim post-divorce maintenance. However, as a general rule, a prior waiver of maintenance rights that have not yet arisen and are likely to arise in the future is not considered valid.
Similarly, provisions aimed at completely eliminating future claims for pecuniary or non-pecuniary damages arising from divorce are subject to judicial scrutiny.
F. Principle of Good Faith and Public Order Review
Matrimonial property regime agreements must comply with the principle of good faith set forth in Article 2 of the Turkish Civil Code. Contractual provisions that place one spouse in an excessively disadvantageous economic position, provisions signed under pressure, or constitute an abuse of rights may be subject to judicial review.
In situations that application of a matrimonial property regime agreement results in consequences that are manifestly contrary to equity, the judge may assess the matter in light of general legal principles.
Consequently, although matrimonial property agreements provide the parties with a broad area of autonomy, contractual freedom is more limited than in ordinary contracts governed by the law of obligations due to the public order nature of family law. Spouses may regulate their property relations, but they may not make arrangements that circumvent mandatory legal provisions, personality rights, or the fundamental principles of family law.
VII. Termination of a Matrimonial Property Regime Agreement
A matrimonial property regime agreement may terminate as a result of:
- The spouses choosing a new matrimonial property regime,
- Divorce,
- Annulment of the marriage,
- The death of one of the spouses,
- Transition to an extraordinary matrimonial property regime by court order.
Following the termination of the matrimonial property regime, liquidation proceedings are carried out and the parties’ mutual claims are determined.
Conclusion
Matrimonial property regime agreements are important institutions of family law that enable spouses to regulate their property relations in accordance with their own needs and expectations. Although freedom of contract is recognized under Turkish law, this freedom is limited by law. Spouses may choose only one of the matrimonial property regimes regulated by law and enter into these agreements in compliance with the formal requirements prescribed by law. In particular, the consequences of choosing the separate property regime, property regime of shared separation, or the community of property regime should be carefully considered. Therefore, obtaining legal advice during the preparation of matrimonial property regime agreements is of great importance in preventing future disputes.