Liquidation of the matrimonial property regime after divorce

1. INTRODUCTION AND METHOD

Actions for the liquidation of the matrimonial property regime are, on the surface, the most "mathematical" area of family law, yet in reality they are the area in which mistakes are most often made. The source of error is usually not ignorance of the substantive law but the carrying of three basic misconceptions into practice:

First misconception: Assuming that the liquidation operates in rem. The participation claim is a personal claim. It is not a half share of the land registry title. It is a claim for money corresponding to half of the value to be determined by the court.

Second misconception: The oversimplification that "everything acquired during the marriage is split fifty-fifty". What is shared is neither the asset itself nor its gross value. It is the net surplus remaining after equalisation and the set-off of debts.

Third misconception: Treating company and inheritance items wholesale as "personal property" and leaving them out of the action. Personal property itself falls outside the liquidation. However, the income from personal property (Article 219(4) TMK) is acquired property, and in most cases this income, accumulated over the life of the regime, represents the main economic value.

This study proceeds along these three axes. Under each heading it first sets out the normative framework, then the settled practice of the Court of Cassation, and finally what specifically needs to be done at the petition stage and the court-appointed expert stage.

Note on the appellate chamber: Appeals on points of law in matrimonial property cases were heard by the 2nd Civil Chamber of the Court of Cassation until March 2009, and by the 8th Civil Chamber from March 2009 until 1 July 2021. Under decision No. 196 of the First Presidency Board of the Court of Cassation dated 22 June 2021, they have again been heard by the 2nd Civil Chamber since 1 July 2021. Case-law research should therefore consider the decisions of both chambers together. It should also be checked separately whether the 2nd Civil Chamber has continued to follow the 8th Civil Chamber's decisions.

2. SEPARATING THE TIME PERIODS

The first task, before the liquidation calculation begins, is to divide the marriage into time periods. Each asset is subject to the regime in force on the date on which it was acquired.

Point at which the matrimonial property regime ends (Article 225 TMK):

• On death → date of death

• Where another matrimonial property regime is chosen → date of the agreement

• On divorce, annulment of the marriage or a court-ordered switch to separation of property → filing date of the action (not the date of judgment or the date on which it becomes final)

This distinction is the point most frequently overlooked in practice. Assets acquired after the filing date of the divorce action fall outside the scope of the liquidation. Claims relating to them arise not from family law but from the general provisions, and the Family Court does not have jurisdiction over them. Indeed, the Court of Cassation has treated it as a ground for reversal where a claim concerning a vehicle purchased in the defendant's name after the filing date of the divorce action was characterised as a family law dispute.

Practice note: In cases involving both pre-2002 and post-2002 acquisitions, the petition should state, separately for each immovable property or vehicle, the date of acquisition and the corresponding type of claim. It is normal in the same case to seek a "contribution claim" for one immovable property and a "participation claim" for another, and the calculation methods for each are different.

3. ASSET GROUPS: THE DISTINCTION BETWEEN ACQUIRED PROPERTY AND PERSONAL PROPERTY

3.1. Acquired property (Article 219 TMK)

Acquired property consists of the assets that each spouse obtains for consideration while the regime continues. The Code gives examples in five sub-paragraphs:

1. Acquisitions in return for work – salary, wages, self-employment earnings, business profits, board attendance fees, premiums, bonuses

2. Payments by social security / social assistance institutions and benefit funds

3. Compensation paid for loss of capacity to work (pecuniary damages)

4. Income from personal property ← This sub-paragraph is the key provision in company and inheritance cases

5. Assets replacing acquired property (substitute assets)

The list is illustrative, not exhaustive. Any asset not listed as personal property falls into the acquired property group.

3.2. Personal property (Article 220 TMK) – an exhaustive list

1. Items serving exclusively for the personal use of one of the spouses

2. Assets that belonged to one of the spouses at the start of the matrimonial property regime, or that a spouse later obtained by inheritance or otherwise without consideration

3. Claims for non-pecuniary damages

4. Assets replacing personal property

Article 220(2) TMK treats all assets owned before the marriage (or before 1 January 2002) as personal property, regardless of how they were acquired. The Assembly of Civil Chambers of the Court of Cassation (HGK) emphasised the same point in its decision E. 2020/8-458, K. 2021/889 of 1 July 2021: all assets owned by the spouses at the start of the regime are treated as their personal property.

However long the period of de facto cohabitation before the civil marriage, assets acquired during that period are personal property. Neither a period of engagement nor a period of de facto cohabitation brings forward the start of the regime.

3.3. Special calculation rule for social security payments (Article 228(2) TMK)

For lump-sum payments and compensation for loss of capacity to work, the Code lays down a special calculation rule. Suppose a life annuity had been granted instead of these payments. The capitalised value, as at the date on which the matrimonial property regime ended, of that annuity for the period from then onwards is taken into account as personal property. The remainder is acquired property. In cases involving a retirement bonus, a lump-sum payment or incapacity compensation, an actuarial court-appointed expert should be requested to draw this distinction.

3.4. Burden of proof and presumptions (Article 222 TMK) – the provision that decides the fate of the case

The presumption in Article 222(3) TMK is the strongest procedural weapon available to the claimant's counsel. The claimant does not bear the burden of proving that the asset is acquired property. The defendant spouse who asserts that it is personal property must prove this with conclusive and credible documents free of any sham. When assessing a personal-property defence, the Court of Cassation looks for objective evidence such as bank transfer receipts, sale agreements and records showing the flow of funds, and does not regard witness testimony as sufficient.

Moreover, a participation claim carries no contribution requirement. It makes no difference to the outcome whether the claimant worked or put money towards the acquisition of the asset. A contribution is required only for value-increase share claims and pre-2002 contribution claims.

4. THREE SEPARATE HEADS OF CLAIM AVAILABLE ON LIQUIDATION

In practice these three heads of claim are frequently confused with one another and are sometimes grouped together under a single head. However, their legal grounds, burdens of proof and calculation methods differ, and they must be pleaded in the alternative/cumulatively.

4.1. Contribution claim (pre-2002 period)

• Legal ground: Article 170 of Law No. 743 (TKM) + general provisions of the TBK by reference under Article 5 TMK (agency without authority / unjust enrichment / contribution)

• Condition: The claimant must have actually contributed money or labour measurable in money to the acquisition of the asset. Where there was no donative intent.

• Calculation: Contribution ratio × market value of the asset

• Court of Cassation practice: Some decisions have treated a housewife's domestic labour as a contribution, but proof of a contribution measurable in money remains essential. The Court of Cassation requires the spouses' employment periods and income documents to be obtained in full. It also requires two categories of expenditure to be determined, having regard to each spouse's habits and economic and social status: personal expenditure, and the expenditure the husband may have incurred because of his duty to maintain the household (2nd Civil Chamber, E. 2022/7888, K. 2023/5951, 6 December 2023).

4.2. Value-increase share claim (Article 227 TMK)

Where one spouse has contributed, without any consideration or without adequate consideration, to the acquisition, improvement or preservation of an asset belonging to the other spouse, that spouse has a claim on liquidation for the resulting increase in the asset's value, in proportion to the contribution.

Formula:

Contribution Ratio = Contribution Amount ÷ Value of the Asset at the Date of Contribution

Value-Increase Share = Contribution Ratio × Market Value of the Asset AT THE DATE OF LIQUIDATION

• If the value of the asset has decreased, the original amount of the contribution is taken as the basis (Article 227(2)).

• The spouses may exclude or modify the value-increase share by written agreement (Article 227(3)).

• The value-increase share arises where personal property is used to contribute to the other spouse's asset. Typical examples are real estate purchased in the husband's name with money the wife received from her family, and one spouse selling a car owned while single and adding a storey to a house belonging to the other spouse.

4.3. Participation claim in the net surplus (Articles 231 and 236(1) TMK)

• Condition: Only that the asset is acquired property. No contribution is required.

• Share: Half of the net surplus (Article 236(1)). The spouses' claims are set off against each other.

• Temporal scope: 1 January 2002 (or the date of marriage) – the date on which the matrimonial property regime ended.

Key distinction:

5. CALCULATION SCHEME FOR THE PARTICIPATION CLAIM

To review a court-appointed expert's report, check whether the sequence below has been followed exactly. Many Court of Cassation reversals arise from steps being skipped or taken out of order.

Step 1 — Identifying and classifying the assets

Each spouse's assets are divided into four groups:

• Husband's acquired property / Husband's personal property

• Wife's acquired property / Wife's personal property

Where there is doubt, the presumption in Article 222(3) TMK applies (the asset is deemed acquired property).

Step 2 — Equalisation (Article 230 TMK)

If a spouse has paid debts relating to personal property out of acquired property, or debts relating to acquired property out of personal property, equalisation may be claimed on liquidation. Equalisation is calculated taking into account any increase or decrease in value (Article 230(3)).

Example: If the property tax and renovation costs of a house received by inheritance were paid out of salary income, the amount paid is subject to equalisation in favour of the acquired property group.

Step 3 — Values to be added back (Article 229 TMK)

Values that are taken into account as if still present, even though they have in fact left the assets:

1. Gratuitous dispositions, other than customary gifts, made without the other spouse's consent within one year before the matrimonial property regime ended (time-limited; no intent required)

2. Transfers made during the regime with the intention of reducing the other spouse's participation claim (no time limit; intent must be proven)

Values to be added back are calculated on the basis of their value at the date of transfer (Article 235(2) TMK).

Timing is critical: a sale to a third party made after the date on which the divorce action was filed is not a value to be added back under Article 229 TMK, because the transfer took place after the regime had ended. In that case, other legal routes should be considered instead of Article 229, if their conditions are met (sham transactions (muvazaa) under Article 19 of the Turkish Code of Obligations (TBK), or actions to set aside dispositions under Articles 277 et seq. of the Enforcement and Bankruptcy Law (İİK)).

Step 4 — Set-off of debts against the relevant group (Articles 230(1)–(2) and 231(1) TMK)

A spouse's debt is charged to the property group to which it relates; a debt that cannot be attributed to either group is deemed to relate to acquired property.

Practical example: instalments of a bank loan used to buy real estate that fall due after the date the divorce action was filed are treated as the debtor spouse's personal property and are deducted from the net surplus calculation (Court of Cassation, 8th Civil Chamber, E. 2013/16653, K. 2013/18672). Decisions rendered without apportioning loan payments between the periods before and after the filing date are being reversed.

Step 5 — Determining the net surplus (Article 231 TMK)

NET SURPLUS = (Market Value of Acquired Property

+ Values to Be Added Back

+ Equalisation Claim)

− Debts Relating to Acquired Property

A deficit is disregarded (Article 231(2)). In other words, if the net surplus is negative it is taken as zero; one spouse's debt is not passed on to the other.

Step 6 — Participation claim and set-off (Article 236(1) TMK)

Each spouse is entitled to half of the other spouse's net surplus. The mutual claims are set off against each other, and judgment is given for a single net balance.

Step 7 — Time and basis of valuation

In practice, this is the technical point that generates the most reversals:

Under the Court of Cassation's consistent practice, the date of liquidation is the date of judgment; the court-appointed expert must establish the market value as at the date closest to the judgment. Giving judgment on the basis of a value determined at an on-site inspection long before the date of judgment is a ground for reversal (current practice as reflected in Court of Cassation, 2nd Civil Chamber, E. 2025/2543, K. 2026/2267, 26 February 2026). If a new judgment is to be given after reversal, the value must be updated to the date closest to the post-reversal judgment; in an inflationary environment, updating by reference to the consumer price index (TÜFE) is also used.

Example (condition/value distinction): if a car was undamaged on the date the divorce action was filed and is later involved in an accident, this does not affect the scope of liquidation; the basis is the market value, at the time of liquidation, of the car in its undamaged condition as at the filing date.

6. COMPANY SHARES: CAPITAL INCREASES, DIVIDENDS AND INCREASES IN VALUE

This topic is the economic centre of gravity of the issue, and in practice it accounts for the largest number of reversals for incomplete examination.

6.1. The basic distinction: when was the share acquired?

Assembly of Civil Chambers of the Court of Cassation (HGK), E. 2020/8-458, K. 2021/889, 1 July 2021 is the reference decision on this distinction. In summary, the decision held that the 98% shareholding the spouse held before the marriage (in a company incorporated on 08.09.1999) was personal property; stated that the other spouse had no claim arising from liquidation over company shares constituting personal property; but ruled that, absent an agreement to the contrary, the income attributable to the spouse's shareholding in the company for the period from the formation of the marriage to the date the divorce action was filed is acquired property and, if still in existence, may be the subject of the liquidation action.

6.2. The HGK's four-stage investigation directive

In that decision, the work the court must carry out when investigating the income from a share constituting personal property was set out in the following order:

1. Whether the company made a profit between the date of marriage and the date the matrimonial property regime ended;

2. If it made a profit, whether a dividend (temettü) was paid to the spouse;

3. If paid, whether that amount still exists or has been converted into any investment;

4. If no dividend was paid, whether the profit was used as an investment in the company.

If a dividend was paid or the profit was used as an investment in the company, the real value these amounts had reached as at the date the matrimonial property regime ended is determined and taken into account in the liquidation.

If a paid dividend no longer exists when the regime ends: a reasonable amount accepted as having been spent on family expenses is determined by reference to the evidence gathered, the family's economic and social status, its standard of living and the ordinary course of life, and is deducted; the remaining amount is then taken into account in the liquidation.

For these assessments, a panel consisting of a financial adviser, a banker and an accounting expert should be requested.

6.3. Capital increases: the source is decisive

The core question is this: is a share obtained by a spouse as a result of a capital increase acquired property? The answer depends on the source from which the increase was made.

Capital increase from internal resources → bonus shares are acquired property

If a capital increase was made from internal resources arising during the period in which the regime applied — prior years' profits, reserves, cost/value increase funds, revaluation funds — the bonus shares allotted to the spouse are acquired property.

The reasoning runs along two lines, both of which lead to the same result:

• These shares are, in substance, undistributed profit added to capital; as income from personal property they fall within Article 219(4) TMK;

• Alternatively, they are treated as value replacing acquired property under Article 219(5) TMK.

It should be noted that, despite being called "bonus" (free) shares, these shares are not in fact free; their price is the undistributed profit. They therefore do not fall within the "gratuitous acquisition" exception in Article 220(2) TMK.

Even if the increase resolution was adopted after the regime ended, the result is the same if the funds underlying the increase arose during the regime.

Capital increase from external resources (paid-in) → look at the source of payment

In a capital increase paid in cash through the exercise of pre-emption rights, where the subscription price is:

• funded from acquired property → the new shares are acquired property;

• funded from personal property → the new shares are value replacing personal property (Article 220(4)); however, if there is a transfer between personal property and acquired property, equalisation (Article 230) comes into play;

• in the case of mixed funding → a proportional apportionment is made.

Here, by virtue of the presumption in Article 222(3) TMK, the burden of proof lies on the spouse claiming personal property, who is expected to demonstrate the flow of funds through bank records.

Nature of company profit

Under the Court of Cassation's settled practice, profit derived from a company's commercial activity is acquired property. If the profit is not distributed but added to capital, the resulting increase in the value of the share is also subject to liquidation. Indeed, the 8th Civil Chamber has stated that, although shares are not as a rule treated as acquired property, income from the shares characterised as profits saved over the years is as a rule to be treated as acquired property (Court of Cassation, 8th Civil Chamber, E. 2012/5212, K. 2013/3549, 14 March 2013).

Liquidation shares in partnerships that have been wound up, by contrast, are not in the nature of a profit share; therefore, if the share itself is personal property, the liquidation share is also treated as personal property.

6.4. The distinction between industrial and cyclical increases in value

If the value of a share constituting personal property at the date of liquidation is higher than its value at the start of the regime, the difference is split into two components:

• Cyclical increase in value: an increase independent of the spouse's efforts, such as inflation, market conditions or sector growth → remains attached to personal property (an increase in the value of personal property within the meaning of Article 220(4)).

• Industrial (organic) increase in value: an increase resulting from the company's activity, reinvestment, undistributed profit and the spouse's personal labour → enters the liquidation as acquired property.

The panel of court-appointed experts must make and give reasons for this distinction expressly; decisions rendered without it are being reversed for incomplete examination.

6.5. Criteria for valuing the company

The Court of Cassation does not accept determining share value on the basis of book value or nominal capital value. In its decision of 7 March 2022 (E. 2021/8768, K. 2022/2077), the 2nd Civil Chamber found it erroneous to award half of the capital value of the company shares subject to liquidation. Likewise, in its decision E. 2021/5380, K. 2022/2492, the 2nd Civil Chamber stated that, for the defendant's shareholding in a company incorporated during the marriage, the value should first be determined by reference to the company's condition at the date the matrimonial property regime ended; then, taking the consumer price index (TÜFE) into account, the market value at the date of liquidation (the date closest to the judgment to be given after reversal) should be established; and the participation claim should be calculated on half of the net surplus determined on that value in proportion to the defendant's shareholding constituting acquired property.

Valuation methodology (what to ask of the court-appointed expert):

1. The adjusted book value should be determined by deducting the company's liabilities from its assets;

2. For fixed assets whose condition at the date of liquidation has changed from their initial condition, their initial values should be deducted and their market values at the date of liquidation added;

3. The company should be valued using the going-concern value method;

4. Net losses for the period should be set off;

5. Prior years' profits, profit reserves, whether a capital increase was made in each year, whether dividends were added to capital, whether there was distributable profit, and whether dividends were converted into investment should each be determined separately;

6. If a capital increase was made, it should be determined whether it was funded from acquired property;

7. The position of the sector in which the company operates, the size of the company and its growth rate should be taken into account;

8. The distinction between cyclical and industrial increases should be made.

6.6. Assets registered in the name of the company as a legal entity — the boundary line

Critical rule: liquidation is carried out over the assets of the defendant spouse. Real estate registered in the name of the company as a legal entity is not among the defendant spouse's assets; no participation claim can be asserted directly over such real estate. In the Court of Cassation's words, there can be no participation claim in respect of real estate that belongs to the company and is not registered in the defendant's name.

Instead, the real estate on the company's balance sheet is included in the valuation when calculating the value of the spouse's shareholding in the company. In other words, the real estate is reflected in the liquidation not directly but indirectly, through the value of the share. Failure to draw this distinction correctly when structuring the statement of claim results in the claim being dismissed.

Piercing the corporate veil can arise only exceptionally, and only where sham dealing is established in line with the strict standard of proof applicable to it.

6.7. Payment in company shares (Article 239(1) TMK)

The participation claim may be paid in kind or in cash. Under Article 239(1) TMK, the debtor spouse may discharge the debt arising from the participation claim by transferring part of their company shareholding to the creditor spouse. However, in payment in kind the market value of the assets is taken as the basis, and the economic integrity of units dedicated to the practice of a profession and of businesses is taken into account. This is not a right the creditor spouse can demand; it is a form of payment the debtor spouse can offer.

7. ASSETS ACQUIRED BY INHERITANCE

7.1. The basic rule and the real dividing line

Under Article 220(2) TMK, assets acquired by inheritance, gift or any other gratuitous means are personal property and are not included in the net surplus calculation. In practice, however, the real significance of this rule lies in the following distinction:

The inheritance itself is personal property; the income from the inheritance is acquired property (Article 219(4) TMK).

For this reason, the approach of "it was inherited, so it falls outside the liquidation" leads to a serious loss of rights in most cases.

7.2. Item-by-item classification

7.3. Proving the replacement link

The defence that an asset represents value replacing personal property is the defence that fails most often in practice, because the flow of money must be traceable without interruption. The date on which the inherited immovable was sold, the sale price, the account into which that price was paid, the date on which the new asset was purchased and the account from which payment was made must all be documented. The longer the interval and the more the money is mixed with other funds, the more the replacement link is broken, at which point the presumption in Article 222(3) TMK applies and the asset is deemed to be acquired property.

Partial replacement: If an immovable worth TRY 2,500,000 is purchased with TRY 1,000,000 of inherited money, 40% of the immovable is value replacing personal property and 60% is acquired property; the participation claim is calculated solely on the 60% portion, as half of the net surplus. The Court of Cassation requires the personal-property contribution to be separated out proportionately.

7.4. The other shares where one share is an heir's personal property

In Court of Cassation practice, where, for example, a 2/3 share in an immovable has passed by inheritance/gift, it is accepted that the claimant has no claim arising from the liquidation over that 2/3 share, which constitutes the defendant's personal property; by contrast, a participation claim may be calculated in respect of the remaining share acquired for consideration. For this reason, the share ratios and grounds of acquisition (sale / inheritance / gift / partition) shown in the land registry record must be examined one by one.

7.5. Termination by death: double liquidation

Where the matrimonial property regime ends upon the death of one of the spouses, the matrimonial property regime is liquidated first, and the estate is then wound up and the inheritance distributed (double liquidation). The surviving spouse's participation claim is a debt of the estate and must be paid before the inheritance is distributed. Because the surviving spouse is also an heir, the capacities of creditor and debtor partly merge. The Court of Cassation accepts that the two liquidations may be carried out simultaneously and has developed a practice under which the court may, of its own motion, deduct the surviving spouse's inheritance share from the participation claim. Legal scholars criticise this practice on the ground that the liquidation of the matrimonial property regime must be carried out before and independently of the liquidation of the estate.

7.6. Relationship with sham transfers by the deceased (muris muvazaası)

Setting aside sham transfers made by the deceased is the subject of an action for cancellation of title and re-registration, which is a separate type of action from the liquidation of the matrimonial property regime. However, a share that returns to the estate as a result of the setting aside of the deceased's sham transfer and passes to the spouse as heir is characterised as personal property; the income from that share during the regime, on the other hand, is acquired property. If one action needs to await the outcome of the other, a request for it to be treated as a preliminary question (bekletici mesele) should be made.

8. LEGAL INTEREST AND PROCEDURAL PRECONDITIONS FOR BRINGING THE ACTION

8.1. The source of legal interest

Legal interest is a procedural precondition under Article 114(1)(h) of the Code of Civil Procedure (HMK) and is considered by the court of its own motion. In an action for the liquidation of the matrimonial property regime, legal interest rests on four separate grounds:

1. The claim does not come into being and become enforceable by itself. The participation claim arises as at the date on which the matrimonial property regime ends; however, its amount can be determined only through court proceedings and examination by a court-appointed expert. Neither the land registry, bank records nor the trade registry show this claim. The creditor spouse holds no document that could be enforced without a court judgment.

2. The right is personal, not a right in rem; the asset itself therefore cannot be reached. The creditor spouse cannot sell an immovable registered in the defendant's name, cannot have a mortgage registered over it and cannot claim its rental income. The only way to realise its economic value is to obtain a judgment and proceed to enforcement.

3. Interrupting limitation and preventing assets from being put out of reach. Under Article 154 of the Turkish Code of Obligations (TBK), bringing the action interrupts limitation; in addition, an interim injunction sought together with the action prevents the assets subject to liquidation from being transferred to third parties. This protection cannot be obtained without bringing the action.

4. A declaratory action cannot be brought. Under Article 106(2) HMK, there is no legal interest in bringing a declaratory action where an action for performance can be brought. A stand-alone request for a "declaration that the asset is acquired property" is dismissed for lack of legal interest. The request must always be framed as a claim for payment (performance).

8.2. Termination of the matrimonial property regime — a procedural precondition

The termination of the matrimonial property regime is a procedural precondition of the liquidation action. A liquidation action brought before the regime has ended may be dismissed on procedural grounds.

In practice, there are two scenarios:

• Brought together with the divorce action: The court orders the claims to be severed and treats the divorce judgment becoming final as a preliminary question. In its decision of 27 June 2012, E. 2012/8-268, K. 2012/420, the HGK held that the matrimonial property regime ends on the date on which the divorce action is filed and that the claim arises as at that date, but that, for the right to be exercised and liquidation to be ordered, the divorce action must have succeeded and become final.

• Brought after the divorce has become final: This is the safest route.

The liquidation of the matrimonial property regime is not ancillary (accessory) to the divorce; it is an independent action. It therefore need not be ruled upon in the divorce judgment and may be brought as a separate action.

8.3. Subject-matter and territorial jurisdiction

• Subject-matter jurisdiction: Family Court (Article 4 of Law No. 4787). Where there is no family court, the civil court of first instance sits as a family court.

• Territorial jurisdiction (Article 214 TMK):

1. Termination by death → court of the deceased's last domicile

2. Divorce / annulment / separation of property by court order → the court with jurisdiction over those actions (Article 168 TMK: the domicile of either spouse or the place where they last lived together for at least six months)

3. All other cases → court of the defendant spouse's domicile

This jurisdiction rule is not exclusive; an objection to jurisdiction that is not raised in time will not be heard.

8.4. Limitation

The law lays down no specific limitation period. According to the settled case law of the Court of Cassation, Article 146 TBK applies by analogy and the period is 10 years. This period also applies to the value-increase share claim.

Starting point:

Warning: The Court of Cassation has changed its position on the starting point of limitation in the past; there are older decisions and minority opinions favouring the application of the one-year period in Article 178 TMK. Some legal scholars also argue that the date on which the liquidation ended should be taken as the basis. To eliminate this risk, it is recommended that the action be brought as soon as possible after the divorce judgment becomes final and, in cases brought late, that a defence based on the date of finality be prepared against any limitation objection.

8.5. Type of action: action for an unquantified claim

In Court of Cassation practice, actions for the liquidation of the matrimonial property regime are regarded as actions for an unquantified claim by their nature (Article 107 HMK). This is because, at the time of filing, the claimant cannot objectively determine the extent of the other spouse's assets or their market value at the liquidation date.

The practical consequences are as follows:

• The action may be brought by stating a provisional ("for now") value in the statement of claim; it cannot be said that the relief sought is unclear (there is no breach of Article 119(1)(ğ) HMK).

• Once the amount has been determined by the expert report, a petition to increase the claim is filed; no limitation objection can be raised in respect of the increased portion (limitation was interrupted on the filing date).

• A court decision deeming the action not to have been brought, after compelling the claimant to specify the claim and pay the balance of the court fees, is a ground for reversal.

Difference from a partial action: In a partial action, a limitation objection can be raised in respect of the portion added by amendment (ıslah); in an action for an unquantified claim, it cannot. It is therefore vital that the statement of claim expressly states that the action is an action for an unquantified claim.

Rights to the excess: Under long-established case law, if rights to the excess are not reserved in the statement of claim, the claim is deemed limited to the amount stated and the excess waived; a subsequent amendment petition is disregarded (Court of Cassation, 8th Civil Chamber, E. 2010/5567, K. 2011/2071). Including the wording "as the value of the claim for court fee purposes, reserving our rights to the excess" in the petition should be standard practice.

8.6. Principle of party presentation — no ex officio investigation

This action is subject to the principle of party presentation; the court is under no obligation to investigate of its own motion. In the words of the Court of Cassation: the court's task is to write to institutions such as the land registry, the traffic registry, the trade registry and the tax office regarding the assets expressly identified by the claimant and the assets that can be identified from the information given in the statement of claim, and to decide on the basis of the evidence submitted by the parties (Court of Cassation, 8th Civil Chamber, E. 2016/6356, K. 2017/7557).

Consequence: The liquidation is not universal. The defendant is liable only for the claim calculated on the assets that are the subject of the action. An abstract request for "the claim arising over all of the defendant's assets" has no effect. The assets must therefore be listed individually in the petition at the level of block/parcel, licence plate, registry number and account number, and letters to the relevant authorities (müzekkere) should be requested for those that are unknown.

8.7. Effect of an uncontested divorce protocol

The protocol is not required to contain provisions on the matrimonial property regime; the division of assets may be left outside the protocol. However, if the protocol provides that "the assets have been divided and there is no claim regarding acquired property" and the judgment has become final, a liquidation action brought subsequently will be confronted with that statement. The Court of Cassation has issued decisions treating statements made in divorce proceedings, such as "I have no claim to any belongings from the other party", as a judicial admission and conclusive evidence. For this reason, when an uncontested divorce protocol is being prepared, the wording relating to the matrimonial property regime must be drafted with great care, and any rights to be reserved must be stated expressly.

On the other hand, the Court of Cassation may also find it wrong to dismiss the action outright on the basis of the protocol and the judicial admission; it requires the evidence to be gathered within the framework of the claims and defences and a decision to be given on the merits. The assessment is made according to the scope of the specific statement.

9. COURSE OF THE PROCEEDINGS: STEP-BY-STEP PROCEDURE

1. Preparation (pre-action)

• A copy of the divorce judgment bearing the annotation of finality is obtained.

• Preparations are made to obtain land registry, TAKBİS (land registry information system), vehicle registration, trade registry, MERSİS (central registration system), tax office and bank information.

• The limitation period is calculated.

2. Statement of claim

• It is stated that the action is an action for an unquantified claim; a value for court fee purposes is given; rights to claim any excess are reserved.

• The assets are listed item by item, together with their acquisition dates.

• The participation claim / value-increase share / contribution claim are pleaded on a tiered basis and separately.

• A request for an interim injunction is made together with the statement of claim.

• Requests for court letters (müzekkere) are drafted (land registry, vehicle registration, trade registry, banks, Social Security Institution (SGK), tax office).

3. Preliminary order (tensip) and interim measures

• The court considers the request for interim measures together with its preliminary order; against security, it may order an annotation on the land registry/vehicle registration record and a freeze on bank accounts.

4. Exchange of written pleadings and preliminary examination

• The defendant's personal property defence and limitation defence take shape at this stage.

• At the preliminary examination hearing, the matters in dispute are identified and the evidence is determined.

5. Preliminary question (where the divorce is pending)

• The court waits for the divorce judgment to become final.

6. Gathering of evidence

• Responses from the relevant institutions are added to the case file.

• In company-related cases, trade registry records, general assembly/partners' board resolutions, capital increase resolutions, balance sheets and income statements for all years, profit distribution resolutions, tax returns and accounting records are called for.

7. On-site inspection and expert examination

• An on-site inspection (keşif) is carried out for real estate and market value is determined close to the judgment date.

• For the company, the appointment of a panel comprising a certified public accountant, an accounting expert and, where necessary, a banking expert is requested.

• Objections to the report and requests for a supplementary report are filed within the time limit.

8. Increase of the claim

• After the report, a petition increasing the claim is filed under Article 107(2) of the Code of Civil Procedure (HMK); the balance of the court fees is paid.

9. Judgment

• The mutual claims are set off and judgment is given on a single balance.

• Interest runs from the judgment date.

10. Appeals

• Appeal (istinaf) → appeal on points of law (temyiz) (Court of Cassation, 2nd Civil Chamber).

• If a new judgment is to be given after reversal, an update of the valuation should be requested.

Note on mediation: Whether claims arising from the liquidation of the matrimonial property regime fall within mediation as a procedural precondition is disputed in light of the list in Additional Article 1 of the Law on Mediation in Civil Disputes (HUAK), and local practice may vary. Before filing, the practice of the relevant courthouse should be checked; in case of doubt, recourse to voluntary mediation should be considered on grounds of procedural economy.

10. WHICH ASSETS CAN BE CLAIMED? — SCOPE AND LIMITS

10.1. Claimable items

10.2. Non-claimable items

• Items for personal use (clothing, personal care products, personal electronic devices)

• Claims for non-pecuniary damages

• Assets existing at the start of the regime and their replacement values

• The inherited or gifted assets themselves

• Assets registered in the name of the company as a legal entity (reflected indirectly in the value of the shares)

• Assets acquired after the regime ended

• Jewellery (ziynet eşyası): Since wedding jewellery is, as a rule, regarded as personal property, it is the subject not of the liquidation of the matrimonial property regime but of a separate action for the return of jewellery (ziynet alacağı davası). Likewise, each spouse may at any time, before or after the end of the regime, claim their personal belongings; such a claim cannot be treated as a contribution claim, value-increase share or participation claim (Court of Cassation, 8th Civil Chamber, 11 April 2011).

• Compensation and maintenance: These are ancillary to the divorce and rest on separate legal grounds.

11. LIQUIDATION OF REAL ESTATE: WHY "HALF THE VALUE" RATHER THAN "HALF THE PROPERTY"?

This is the most frequently misunderstood aspect of the issue and should be made clear when advising clients.

11.1. Statutory rationale

When the matrimonial property regime ends, the rights that arise for the spouses or their heirs as a result of the liquidation action are the contribution claim, the value-increase share and the participation claim in the net surplus. As a rule, one spouse cannot claim ownership or any other right in rem over assets belonging to the other. The right granted to the spouse or heirs requesting liquidation is a personal claim, not a right in rem.

Legal basis: Court of Cassation Decision on the Unification of Case Law dated 7 October 1953 and numbered 8/7, Articles 227(1), 231, 236(1) and 239(1) TMK.

11.2. How the calculation works — four stages of narrowing

It is normal for the amount claimed to come out lower than half of the property's market value. The reason is that the calculation narrows in four stages:

(1) MARKET VALUE of the property at the liquidation (judgment) date

↓ minus

(2) DEBTS relating to the property (outstanding loan, mortgage burden, acquisition costs)

↓ minus

(3) The share attributable to the PERSONAL PROPERTY CONTRIBUTION ratio

(inherited money, pre-marital savings, proceeds of sold personal property)

↓ minus/plus

(4) EQUALISATION adjustment (Article 230 TMK)

↓

= NET SURPLUS attributable to this property

↓ × 1/2

= PARTICIPATION CLAIM

Worked example:

While half of the property's market value is TRY 5,000,000, the amount to be awarded is TRY 3,250,000. The difference of TRY 1,750,000 results from the set-off of debt and the personal property contribution.

11.3. The two-tier rule on the valuation date — a reminder

• The condition of the asset: its state on the date the matrimonial property regime ended (the date of the divorce action) (number of floors, zoning status, damage, land registry classification)

• The value of the asset: liquidation = market value at the judgment date

This distinction ensures that improvements made after the date of the action (for example, a floor added later or a zoning change) do not benefit the claimant; conversely, it ensures that any increase in market value after the date of the action does benefit the claimant. In inflationary periods, this second consequence favours the claimant and should always be asserted.

11.4. Method of payment and deferral of payment (Article 239 TMK)

• The participation claim and the value-increase share may be paid in kind or in cash; for payment in kind, market value is taken as the basis, and regard is had to units devoted to the exercise of a profession and to the economic integrity of businesses (Article 239(1)).

• If immediate payment would cause serious hardship for the debtor spouse, the debtor spouse may request that payment be deferred for a reasonable period (Article 239(2)). This is a defence to be considered by counsel for the debtor spouse.

• Unless otherwise agreed, interest runs from the end of the liquidation; where circumstances so require, security may be demanded from the debtor (Article 239(3)).

The judge does not rule "sell the house and split the proceeds" — that is the subject of an action for partition (izale-i şüyu). The judge orders the debtor spouse to pay a specific amount; how the debtor spouse finances that amount (sale, loan, etc.) is their own choice.

12. WHY THE SPOUSE NOT ON THE TITLE CANNOT BECOME A REGISTERED CO-OWNER, AND TWO EXCEPTIONS

12.1. The rule

A spouse whose name does not appear in the land registry cannot be registered as a co-owner as a result of the liquidation action; they cannot request cancellation of the title and registration in their name.

In the Court of Cassation's succinct words: since the spouses' rights arising from the liquidation of the matrimonial property regime are not rights in rem but claims based on a personal right, it is the participation claim, not the asset itself, that may be demanded; cancellation of land registry entries and registration cannot be requested (Court of Cassation, 8th Civil Chamber, E. 2010/6851, K. 2011/3476).

To the same effect: Court of Cassation, 8th Civil Chamber, E. 2017/8486, K. 2019/1291 — the first-instance court's decision ordering cancellation of the title and registration in the claimant's name was reversed on the ground that the right arising from the liquidation of the matrimonial property regime is not a right in rem but a personal claim.

Further: a request for cancellation of the land registry entry for property acquired in the defendant's name during the marriage and its registration in the claimant's name was dismissed, as no request relating to a participation claim had been made either. Save in exceptional cases, the liquidation creditor cannot claim a right in rem; however, if the debtor spouse so wishes, they may agree to pay their debt in kind until the action is concluded.

12.2. Pleading strategy: alternative (terditli) claims

If the claim is framed solely as cancellation of title and registration, the action is dismissed in its entirety, and limitation continues to run in the meantime. Therefore:

The correct framing:

1. Primarily, the participation claim / value-increase share (claim for performance) — the main claim

2. If a claim in rem is to be asserted, only where the conditions of an exception are met and on a secondary basis

The Court of Cassation has held that, where the claim for cancellation of title and registration is dismissed, the failure to consider the alternative second claim in the petition (the participation claim) is a ground for reversal (HGK decision published by the Adana Bar Association). In other words, where alternative claims have been pleaded, the court cannot confine itself to dismissing the first claim; it must rule on the second, whether in the claimant's favour or not.

12.3. Two exceptions

a- The surviving spouse's right over the residence and household goods (Article 240 TMK)

If the matrimonial property regime has ended by death, the surviving spouse may, so as to be able to maintain their former way of life, request that they be granted, over the residence that belonged to the deceased spouse and in which they lived together, a usufruct or a right of residence, set off against their participation claim and, if that is insufficient, against payment of the difference. Where there are justified reasons, ownership of the residence may be granted instead of a usufruct or right of residence, at the request of the surviving spouse or of the deceased spouse's statutory heirs. The same option is available for household goods.

This provision applies only in the event of death; it does not apply on divorce. The fact that the family home is not registered in the land registry as an independent unit does not prevent it from being determined to be the family home.

b- Overriding interest in co-owned property (Article 226(2) TMK)

Where there is an asset held in co-ownership, one spouse may, by proving that they have an overriding interest and paying the other spouse's share, request that the asset be allocated to them undivided. This is not "becoming a registered co-owner" in the full sense; it is the consolidation of an existing co-ownership in a single pair of hands.

13. ASSET DISSIPATION: VALUES TO BE ADDED BACK AND ACTION AGAINST THIRD PARTIES

13.1. Article 229 TMK: values to be added back

The following assets are taken into account as if they still existed at the time the matrimonial property regime ended:

1. Gratuitous dispositions, other than customary gifts, made without the other spouse's consent within one year before the end of the regime;

2. Transfers made while the regime subsisted with the intention of reducing the other spouse's participation claim.

The second limb is not subject to any time limit, but intention must be proven. When assessing whether intention has been proven, the court considers factors together, such as whether the transfer was made to a close relative, whether payment of the price can be shown, how close the transfer date was to the divorce proceedings, whether the transferee had the means to pay, and whether the transferor continued to use the property.

Key procedural rule: Under the final paragraph of Article 229 TMK, the court's judgment may also be relied on against third parties who benefited from the disposition or transfer, provided that they were given notice of the action. The legal consequence of such notice is that, if an action for payment is later brought against the third party under Article 241 TMK, the question of whether the conditions for the disposition or transfer under Article 229 were met will not be re-examined (Court of Cassation, 8th Civil Chamber, E. 2017/11052, K. 2019/2009). For this reason, notice of the action must always be given to the third party.

13.2. Article 241 TMK: action against third parties

If, at liquidation, the debtor spouse's assets or estate are insufficient to pay the participation claim, the creditor spouse or their heirs may bring an action for payment, limited to the shortfall, against third parties who benefited from dispositions or transfers falling within Article 229.

Important limits:

• This action may be brought in respect of transfers that qualify as values to be added back under Article 229 TMK. A transfer made after the date on which the divorce action was filed takes place after the regime has ended. It therefore does not count as a value to be added back under Article 229 and cannot form the basis of an Article 241 action.

• Even if the third party is named as a defendant in the liquidation action, the court cannot annul the disposition; only the defendant spouse is liable for the participation claim awarded.

• Time limit: The right of action lapses one year after the date on which the claimant learned that their rights had been impaired and, in any event, five years after the matrimonial property regime ended (Article 241(2) TMK). This is a preclusive period, not a limitation period, and the court applies it of its own motion.

13.3. Comparison of the remedies

14. REDUCTION OR REMOVAL OF THE SHARE (ARTICLE 236(2) TMK)

"Where the divorce is granted on grounds of adultery or an attempt on life, the judge may, on an equitable basis, reduce or remove the share of the net surplus of the spouse at fault."

Conditions for application (cumulative):

1. The participation in acquired property regime must apply between the spouses. The optional regimes have no concept of net surplus, so the provision does not apply to them. Likewise, this provision cannot be used to reduce a contribution claim relating to the period before 2002.

2. The divorce must have been granted solely on the ground of adultery (Article 161 TMK) or attempt on life (Article 162 TMK) and must have become final. The provision does not apply to divorces based on general or other grounds, such as Article 166(1)–(2) TMK (irretrievable breakdown of the marriage) or Article 163.

3. The spouse at fault must have a participation claim in the net surplus. The share of a spouse who has no such claim cannot be reduced.

4. Reduction or removal may be ordered only against the spouse at fault. The provision does not apply to a claim for which the spouse at fault is the debtor. Legal scholars criticise this point and note that the provision mostly operates to the detriment of women.

5. The decision must be equitable and reasoned.

Defence strategy: The legal ground of the divorce judgment is decisive in the liquidation proceedings. Counsel for the defendant spouse should file evidence of the article on which the divorce judgment is based. Counsel for the claimant spouse should defeat the Article 236(2) defence by showing that the divorce was based on a ground other than adultery or attempt on life. Where the divorce was not based on adultery or attempt on life, the Court of Cassation has reversed judgments that dismissed the action on Article 236(2) grounds.

15. INTERIM INJUNCTION STRATEGY

In a liquidation action, the interim injunction is often more decisive than the merits, because a judgment obtained at the end of the action is worth nothing in practice if the debtor spouse's assets have been emptied in the meantime.

Legal basis: Article 389 et seq. of the Code of Civil Procedure (HMK). An interim injunction may be granted in respect of the subject matter of the dispute.

Measures that may be requested:

• An annotation prohibiting transfer on the land registry records of immovable property

• An annotation on the vehicle registration records

• A freeze on bank accounts

• Placing safe-deposit boxes and gold in safekeeping

• Injunctions over the company share and over the shareholder's financial rights attached to the share

Where the line falls for companies: The assets subject to liquidation are the company shares held in the defendant spouse's name and the shareholders' financial rights attached to those shares. The company's own assets belong to a separate legal person. The injunction request should therefore be directed at the spouse's share and the rights attached to it, not at the company's assets. Courts reject requests for injunctions over company assets under the principle of separate legal personality.

Proportionality: An interim injunction secures the right and claim to be obtained at the end of the action, so it must be proportionate to that right and claim. Courts partly reject excessive injunction requests, and such requests increase the security that must be provided.

16. INTEREST, COURT FEES AND ATTORNEY'S FEES

16.1. Interest

• Starting point: Under Article 239(3) TMK, unless otherwise agreed, interest runs from the end of the liquidation. In Court of Cassation practice, the liquidation date is the judgment date. Statutory interest therefore applies to the participation claim from the judgment date.

• Rate: Statutory interest (Article 1 of Law No. 3095).

• Interest must be claimed: The statement of claim must expressly request interest. Because the court cannot award more than is claimed, the judge cannot award interest of their own motion.

• The same principle applies to the value-increase share.

• In an inflationary environment, no interest runs for the period up to the judgment date, so the claimant's real protection lies in updating the value to the judgment date. Claimants should therefore press persistently for a current valuation.

16.2. Court fees and attorney's fees

• Actions for a contribution claim, a value-increase share or a participation claim are subject to proportional court fees and proportional attorney's fees.

• Where the action is brought as an action for an unquantified claim, court fees are calculated on the value stated in the statement of claim. After the expert report, the balance of the fees is paid when the claim is increased.

• If the right to claim any excess is not reserved, the claim is deemed limited to the amount stated and any later increase is disregarded.

17. CONTRACTUAL PLANNING OPTIONS

Particularly for clients who own companies or expect a significant inheritance, contractual planning before any dispute arises is far more effective than a liquidation action.

17.1. Article 221 TMK: designating personal property by a matrimonial property agreement

By a matrimonial property agreement, the spouses:

• that assets arising from the exercise of a profession or the operation of a business, which would otherwise form part of acquired property, are to be treated as personal property;

• that income from personal property is not to form part of acquired property

may so agree.

The second option goes to the root of the problem examined in sections 6 and 7 of this article. Dividends on a company share and rent from an inherited immovable property are acquired property only because "nothing to the contrary has been agreed". If the matrimonial property agreement provides otherwise, this income also remains personal property. Indeed, the decision of the Assembly of Civil Chambers of the Court of Cassation (HGK) also used the words "since nothing to the contrary was agreed" deliberately.

17.2. Article 227(3) TMK: removing or modifying the value-increase share

The spouses may, by written agreement, waive the value-increase share or change its proportion.

17.3. Articles 237–238 TMK: modifying participation in the net surplus

• The spouses may change the proportion of participation in the net surplus by a matrimonial property agreement (Article 237(1)).

• Such arrangements cannot impair the reserved portions of children who are not children of both spouses, or of those children's descendants (Article 237(2)).

• In cases of divorce, annulment of the marriage or a switch to separation of property by court order, a contractual arrangement on participation in the net surplus takes the place of the statutory rule, unless otherwise provided (Article 238). In other words, the contractual provision also applies on divorce.

17.4. Form

A matrimonial property agreement must be drawn up or certified by a notary. Alternatively, the chosen regime may be declared in writing when applying to marry (Article 205 TMK).

18. PRACTICAL TOOLS

18.1. Pre-action checklist

Regime and timing

☐  Date of marriage

☐  Have acquisitions before and after 1 January 2002 been distinguished?

☐  Is there a matrimonial property agreement? (enquiry with notaries)

☐  Date the divorce action was filed (= date the regime ended)

☐  Date the divorce judgment became final (= start of the limitation period)

☐  Legal ground for the divorce (Article 236(2) TMK risk)

☐  Does the consensual divorce protocol contain any statement on the matrimonial property regime?

Asset inventory

☐  TAKBİS / land registry search: acquisition date and basis of acquisition for each immovable property

☐  Vehicle registration records

☐  Trade registry / MERSİS: shareholding records, date of incorporation, capital increase resolutions

☐  Bank accounts, safe deposit boxes, investment accounts

☐  SGK (social security) and BES (private pension) records

☐  Tax office filing records

☐  Have transfers made within 1 year before the end of the regime been screened?

☐  Transactions suspected of being intentional transfers (transfers to relatives, sales at undervalue)

Structure of the claim

☐  Has it been stated that the action is an action for an unquantified claim?

☐  Have the rights to claim the excess been reserved?

☐  Are the participation claim / value-increase share / contribution claim pleaded separately and sequentially?

☐  Have interest and its start date been claimed?

☐  Is an interim injunction requested?

☐  Is notice to third parties required? (last paragraph of Article 229 TMK)

18.2. Questions to put to the court-appointed expert (company files)

1. What is the company's date of incorporation, and how has the defendant's shareholding percentage developed over the years?

2. Did the defendant hold the share at the start of the matrimonial property regime? If so, at what percentage?

3. Were any capital increases carried out during the regime? If so, what was the source of each increase: internal sources (prior-year profits, reserves, value-increase fund, revaluation fund) or external sources (paid in cash)?

4. For externally funded increases, from which account and on what date was payment made? Was the payment funded from acquired property or personal property?

5. How many bonus shares accrued to the defendant as a result of increases from internal sources, and what is their value as at the liquidation date?

6. Did the company make a profit in each year of the regime? What were the annual profit figures?

7. Were profits distributed? If so, what dividend amounts were paid to the defendant, and on what dates?

8. Did the dividends paid still exist on the date the matrimonial property regime ended? Were they converted into an investment? If so, into which asset?

9. If profits were not distributed, were they used as investment in the company? Under which items?

10. What was the company's position (assets/liabilities, fixed assets, equity) on the date the matrimonial property regime ended?

11. What is the company's market value as at the liquidation date (the date closest to the judgment) under the going-concern method? How were the adjusted book value and the current market value of the fixed assets calculated?

12. How much of the increase in share value is cyclical, and how much is industrial/organic? On what data is this distinction based?

13. What were the market values of the immovable property and vehicles among the company's assets as at the liquidation date?

14. If the dividends paid no longer exist, what reasonable amount can be accepted as having been spent on family expenses, having regard to the family's economic and social status and standard of living?

18.3. Sample relief sought

RELIEF SOUGHT: For the reasons set out above and those to be taken into account by the court of its own motion;

1. First, by way of interim injunction, that an annotation preventing transfer to third parties be entered in the land registry record of the immovable property registered in the defendant's name at … Province, … District, Block …, Parcel …, in the vehicle registry record of the vehicle with registration plate …, and on the share of … in … Ltd. Şti. and the property rights attached to that share,

2. That, upon the liquidation of the participation in acquired property regime between the parties;

   2.1. a participation claim in the net surplus in respect of the immovable property registered in the defendant's name at Block …, Parcel … (Articles 231 and 236(1) TMK),

   2.2. in the alternative, a value-increase share claim arising from our client's contribution from personal property to the acquisition of that immovable property (Article 227 TMK),

   2.3. a contribution claim in respect of immovable property No. … acquired before 1 January 2002,

   2.4. in respect of the defendant's share in … Ltd. Şti., a participation claim over the dividends and the bonus shares arising from undistributed profits added to capital attributable to the period from the date of marriage to the date on which the matrimonial property regime ended (Article 219(4)–(5) TMK),

   2.5. a participation claim over the rental income earned during the regime from immovable property No. … acquired by the defendant through inheritance (Article 219(4) TMK),

   2.6. taking into account the values to be added back (Article 229 TMK) in respect of transfers made within one year before the end of the matrimonial property regime and/or with the intention of reducing our client's participation claim;

of the total claim so calculated, TRY … for now, as the value of the action for court fee purposes, reserving our rights to claim and sue for the excess, (this action is an action for an unquantified claim; Article 107 of the Code of Civil Procedure (HMK)) be collected from the defendant together with statutory interest running from the date of judgment and paid to our client,

3. That the costs of the proceedings and the attorney's fee be borne by the defendant; and we respectfully request, on behalf of our client, that judgment be given accordingly.

19. INDEX OF LEADING CASES

Company shares and dividends

• Assembly of Civil Chambers of the Court of Cassation (HGK), E. 2020/8-458, K. 2021/889, 1 July 2021: A share in a company incorporated before the marriage is personal property; however, as nothing to the contrary was agreed, the income from the share for the period from the establishment of the marital union to the date the divorce action was filed falls within acquired property and, if still in existence, may be the subject of the liquidation action. The four-stage method for investigating dividends.

• Court of Cassation, 2nd Civil Chamber, E. 2021/5380, K. 2022/2492: For a company incorporated during the marriage, the share value must be determined by reference to the company's position on the date the regime ended, updated to the liquidation date by CPI (TÜFE), and the participation claim calculated over half of the net surplus.

• Court of Cassation, 2nd Civil Chamber, E. 2021/8768, K. 2022/2077, 7 March 2022: Awarding half of the capital value of the company share is erroneous.

• Court of Cassation, 2nd Civil Chamber, E. 2007/12851, K. 2008/5837, 22 April 2008: A company share existing at the start of the regime is personal property; dividends received or earned on the share during the regime are acquired property.

• Court of Cassation, 8th Civil Chamber, E. 2012/5212, K. 2013/3549, 14 March 2013: As a rule, shares in companies are not treated as acquired property; however, the income from the shares, characterised as profits saved over the years, is as a rule treated as acquired property. No participation claim can arise over immovable property that belongs to the company and is not registered in the defendant's name.

No claim to a right in rem

• Court of Cassation, Grand General Assembly on the Unification of Judgments (YİBK), 8/7, 7 October 1953: The foundational authority.

• Court of Cassation, 8th Civil Chamber, E. 2010/6851, K. 2011/3476: The right is personal, not in rem; cancellation of title and re-registration in the land registry cannot be sought.

• Court of Cassation, 8th Civil Chamber, E. 2017/8486, K. 2019/1291: Ordering cancellation of title and re-registration is a ground for reversal.

Valuation and interest

• Court of Cassation, 2nd Civil Chamber, E. 2023/5385, K. 2023/3551, 4 July 2023: Criteria for taking the market value at the time of liquidation as the basis and for the start date of interest.

• Court of Cassation, 2nd Civil Chamber, E. 2021/5377, K. 2022/2456: Application of interest to the value-increase share and the participation claim, and its start date.

• Court of Cassation, 2nd Civil Chamber, E. 2025/2543, K. 2026/2267, 26 February 2026: The liquidation date is the date of judgment; a calculation based on a value from long before the date of judgment is erroneous. The fact that the family home is not registered in the land registry as an independent unit does not prevent a determination (Article 240 TMK).

• Court of Cassation, 8th Civil Chamber, E. 2013/16653, K. 2013/18672: Loan instalments falling after the date the divorce action was filed must be apportioned and treated as personal property.

Procedure

• Assembly of Civil Chambers of the Court of Cassation (HGK), E. 2012/8-268, K. 2012/420, 27 June 2012: The divorce action must be treated as a preliminary question whose outcome is awaited.

• Court of Cassation, 8th Civil Chamber, decision of 8 February 2016: Actions for the liquidation of the matrimonial property regime are, by their nature, actions for an unquantified claim; the action cannot be deemed not to have been filed on the ground that the claim was not specified.

• Court of Cassation, 8th Civil Chamber, E. 2016/6356, K. 2017/7557: The principle that the parties bring forward the facts and evidence; there is no obligation on the court to investigate of its own motion.

• Court of Cassation, 8th Civil Chamber, E. 2010/5567, K. 2011/2071: If the rights to the excess were not reserved, a petition to amend the claim (ıslah) cannot be taken into account.

• Court of Cassation, 2nd Civil Chamber, E. 2022/7888, K. 2023/5951, 6 December 2023: In a contribution claim, the calculation must take into account the spouses' periods of employment, income documents, habits and socio-economic status.

Asset concealment and third parties

• Court of Cassation, 8th Civil Chamber, E. 2017/11052, K. 2019/2009: Consequence of notice given under the last paragraph of Article 229 TMK: in the Article 241 action, the conditions of the disposition/transfer are not re-examined.

• Court of Cassation decision published by Karamercan Hukuk: A sale to a third party made after the date the divorce action was filed cannot be treated as a value to be added back under Article 229 TMK.

• 2025 Court of Cassation decision (injunction over company assets): The property subject to liquidation is the company share held in the defendant spouse's name and the property rights attached to the share; annulment of the disposition cannot be ordered in the liquidation action, and only the defendant spouse is liable for the participation claim; where the conditions are met, a separate action may be brought against the third party under Article 241 TMK.

Article 236(2) TMK

• Court of Cassation, 8th Civil Chamber, E. 2013/3343, 10 October 2013: For the article to apply, the divorce judgment must be based on the ground of adultery or attempt on life.

Limitation

• Assembly of Civil Chambers of the Court of Cassation (HGK): The limitation period for claims arising from the liquidation of the matrimonial property regime is 10 years under Article 146 of the Turkish Code of Obligations (TBK).

CONCLUSION: A TEN-POINT SUMMARY

1. Split the timeline. A contribution claim applies to the period before 1 January 2002, and a participation claim applies after that date. The regime ends on the date the divorce action is filed.

2. Use the presumption. Article 222(3) TMK provides that all property is acquired property unless proven otherwise. The burden of proof lies with the party asserting that an asset is personal property.

3. The income from personal property enters the liquidation, but the personal property itself does not. Company dividends, rent and interest all fall within Article 219(4) TMK.

4. In a capital increase, look at the source. Bonus shares issued from internal resources (profits, reserves) are acquired property. In an increase funded from external resources, the property group from which the payment was made is decisive.

5. Claim the value of the share, not the company's assets. There is no direct participation claim over real estate registered in the name of the legal entity. The real estate is instead reflected in the valuation of the share.

6. Inheritance is personal property, but you must prove the substitution link. As soon as the money trail is broken, the asset is deemed acquired property.

7. Seek a monetary claim, not a right in rem. A request for cancellation of title and registration in the land registry will be dismissed, so the claims must always be pleaded in the alternative.

8. The claim is to half of the net surplus, not half of the property. Debts and contributions from personal property are deducted, and value is determined as at the date of judgment.

9. File an action for an unquantified claim, reserve your rights to any excess, seek an interim injunction and give notice to third parties.

10. Interest runs from the date of judgment. For this reason, the real protection lies in updating the value to the date of judgment.