How Assets Get Divided in Divorce

One of the legal consequences of divorce is the division of assets. In marriages, spouses have joint family ties, emotions as well as common economic benefits. Divorce also causes the dissolution of the economic partnership between the spouses. Assets acquired during the marriage shall be, in accordance with the criteria set forth in clause 26 of the Family (Marriage and Divorce) Law No. 1/1998, distributed among the parties in accordance with justice.

What are the assets subject to sharing and those which are not?

All property that is acquired during the marriage is considered marital property regardless of which spouse owns the property or in whose name that property is registered.

“Acquired property” can be defined as the assets that one of the spouses obtains during marriage. Clause 26 of the Family (Marriage and Divorce) Law No. 1/1998 defines the assets subject to sharing as follows.

“Any movable and immovable property registered, in the name of either of the parties or jointly or one pouse, registered within the country or abroad; payments made to the parties by the social security and social welfare institutions or organizations or to the staff; compensation paid due to loss of working power; revenues of their personal property; goods that are subject to division but have been disposed of no more than two years before the date of filing the divorce case; property obtained by substitution of any such property obtained during the marriage; obligations, debts or liabilities acquired during the marriage union and present on the date of the lawsuit.

Personal goods that are not acquired are not considered subject to division. Clause 26 (9) of the Family Law No. 1/1998, which describes the personal property, is as follows:

“Personal Property”

• Goods for personal use of one of the spouses;
• Goods belonging to one of the spouses at the beginning of the marriage or a spouse's inheritance, or in any way, the goods obtained free of charge or by way of gift;
• Non-pecuniary damage claims;
• Substitutes for personal goods.

For example;

• While any property purchased during marriage is subject to share, a property obtained from the family through a grant or an inheritance is not subject to share.
• While the retirement pension is subject to sharing, the non-pecuniary damages obtained through any lawsuit shall not be subject to share. For example, if a party has suffered an accident at work and has been entitled to compensation for the suffering or permanent damage caused by this accident, this compensation is not subject to share.
• While a house or any immovable property obtained by way of a grant or inheritance is not subject to division, any rental income from such house or immovable property is subject to sharing.

How can the assets be shared?

The Court takes into account clause 26 of the Law on Family (Marriage and Divorce) No. 1/1998 when deciding on the division of property. In the sub-paragraphs of clause 26, the criteria to guide the Court are specified. The Court is expected to make a fair decision taking these criteria into consideration. According to clause 26, the share of one side may not be more than 2/3 of the total value.

What are the criteria that the Court takes into consideration in the share of goods?

• Current income, acquisition capacity, property and material resources of the parties and the material benefits they may obtain in the near future;

• The material needs, obligations and responsibilities of the parties in the near future;

• The standard of living before the divorce;

• Contributions of the two parties, including services such as housework and child care for the welfare of the family during the marriage or after the marriage has ended;

• Physical and mental health of the parties;

• Age of parties and duration of marriage;

• Material needs of children;

• Children's income, acquisition capacity, ownership and other material resources;

• Even if they are over 18 years of age, the physical and mental insufficiency or disability of the children and the custody of the child and the material and non -material responsibility for the care of these children;

• Expectations of the Parties regarding the above (F), (G) and (Ğ) clauses;

• The situation of children during marriage and the parents expectations about their education;

• Contribution of the return of personal property of the parties in the acquisition of the assets subject to the share;

• Any other criteria the Court shall consider appropriate for this purpose.

One of the most significant factors in determining how to share an asset as per Family Law is  whether any or both of the spouses has made any contribution towards the acquisition of that particular property. This contribution may be made by either financially or through making effort for the benefit of the marriage. The criterion that should be taken as basis in this context is that there is justice in the division made by the Court.

The Court shall determine the monetary value of the immovable property at the date of hearing of the case and divide it among the parties according to the ratio determined.

In the sharing of movable goods, the value of the movable property can be determined and shared between the parties. The share can be made in the form of a repayment.