Property Regime, Participation in Which the Claim Will Be Received, The Spouse Does Not Need to Contribute to the Decision of the Supreme Court

T.C
SUPREME
8. law office
MAIN NUMBER: 2017/16895
DECISION NO: 2018/1753
DECISION DATE: 07.02.2018
COURT : Family Court
TYPE OF CASE : Liquidation of the Property Regime

>>THE PROPERTY REGIME IS A RIGHT ARISING FROM THE LAW TO PARTICIPATE, AND THE SPOUSE WHO CLAIMS THIS RIGHT DOES NOT NEED TO HAVE INCOME OR CONTRIBUTE TO THE RECOVERY, IMPROVEMENT OR PROTECTION OF SUCH ASSETS.

SUMMARY: During the continuation of the property regime, one spouse has the right to participate in the acquired property owned by the other spouse at the rate of half of the residual value. Participation in residual value receivable;

of the values to be added(TMK 229.m) and without equalization(TMK 230.m) the acquired property of the spouse, including the amounts obtained(TMK 219.m) from the total value, the residual value remaining after the debts related to these goods are issued (TMK 231.m) it is the right of the other spouse over half of the receivable (TMK 236/1.m).Participation is a right arising from the Law that he will receive, and the spouse who claims this right does not need to have income or contribute to the acquisition, improvement or protection of such assets.

When calculating the amount of receivables for participation in residual value, the release (fair) values of the goods that were available at the time of the end of the goods regime, depending on their condition on this date, but on the date of liquidation, are taken as a basis (TMK 227/1, 228/1, 232 and 235/1. m). According to the Supreme Court practice, the date of liquidation is the date of the decision.

A person who claims that a certain property belongs to one of the spouses is obliged to prove his claim. The goods that cannot be proved to belong to which of the spouses are considered to be in their shared ownership. All the property of a spouse is considered acquired property until proven otherwise (TMK 222. m).

At the end of the trial between the parties and in the case described above, the Court decided to partially accept the case, and upon appeal of the verdict by the plaintiff’s attorney and the defendant’s attorney, the Department examined the file, Decisively considered.

decision

The plaintiff … Öztürk has requested receivables with the liquidation of the property regime due to the immovable property specified in the lawsuit petition.

The defendant …his attorney has defended the dismissal of the case.

Upon the decision of the court to collect TL 17,261.50 from the defendant with partial acceptance of the case; the judgment was appealed by the plaintiff’s attorney and the defendant’s attorney. before the date of 01.01.2002, the Turkish Civil Code numbered 743 (TKM) was in force
during the period, the regime of legal Decoupling of property between spouses was valid(TKM 170 m). Since there is no regulation on the liquidation of the property regime in the TCC, the dispute regarding the liquidation of the property assets acquired by the spouses during this period is subject to Article 5 of the same law.by considering the general provisions of the Code of Obligations with the sending of the article, the calculation method of “contribution share” should be resolved according to the rules. Because the Code of Obligations has been accepted as a complement to the Civil Code (eBK 544, TCO 646 m). In the regime of separation of goods; spouses have the authority to save on their own property and the right of usufruct, and the administration of their property belongs to him (TKM 186 / 1 m). The property, income and earnings of each of them are their personal property (TKM 189 m). In order for a woman or husband to request that he will receive a contribution due to his contribution to the assets acquired by the other during the continuation of the property regime, he must necessarily contribute with the material or service value that can be measured in money or money. A collective contribution is made to the property subject to liquidation purchased during the period in which the property separation regime applies, other assets other than regular income (such as jewelry, inheritance, donations, etc.) and
when the claim is made; the ratio of the value of the assets used in the contribution against the entire price of the goods subject to liquidation on the date of purchase is determined, and the amount of the claimant’s spouse’s contribution share is determined by multiplying this contribution ratio found by the release (fair) value of the goods subject to liquidation on the date of the lawsuit.

During the continuation of the property regime, in the acquired property owned by one spouse, the other spouse has the right to participate in receivables at the rate of half of the residual value.

To participate in the residual value; from the values to be added (TMK 229.m) and without equalization(TMK 230.m) the acquired property of the spouse, including the amounts obtained(TMK 219.m) from the total value, the residual value remaining after the debts related to these goods are issued (TMK 231.m) it is the right of the other spouse over half of the receivable (TMK 236/1.m).A right arising from the Law to participate
there is no need for the spouse claiming this right to have income or to contribute to the acquisition, improvement or protection of such assets. When calculating the amount of receivables for participation in residual value, the release (fair) values of the goods that were available at the time of the end of the goods regime, depending on their condition on this date, but on the date of liquidation, are taken as a basis (TMK 227/1, 228/1, 232 and 235/1. m). According to the Supreme Court practice, the date of liquidation is the date of the decision. A person who claims that a certain property belongs to one of the spouses is obliged to prove his claim. The goods that cannot be proved to belong to which of the spouses are considered to be in their shared ownership. All the property of a spouse is considered acquired property until proven otherwise (TMK 222. m).

As for the concrete event; the spouses were married on 01.08.1988 and divorced with the finalization of the provision on the acceptance of the divorce case filed on 11.06.2012. The property regime has ended as of the date the divorce case was filed (TMK 225 / latest). Since it is not claimed that another property regime has been selected by the contract, the separation of property from the date of marriage until 01.01.2002, when TMK No. 4721 entered into force (TKM No. 743 170.m), from this date until the end of the goods regime, the regime of participation in the acquired goods is valid (10 of the law No. 4722, TMK 202/1.m). The information and documents between the file and the circulation records brought from incomplete 1225 ada 1 parcel numbered Decommissioned immovable property in which the defendant has 647/2400 shares, 334/2400 shares are 19.07.2002
on the date of the divorce case, it was registered on behalf of the defendant through the zoning application, with the official deed dated 17.12.2002, 313/2400 shares were acquired by the defendant through purchase and were registered on behalf of him as 647/2400 shares by monotheism with the ancient share.
then on 02.07.2012 3.it is understood that it is transferred to the person by sale.

According to the court, the defendant has a 647/2400 share in real estate, 334 shares were acquired by the parties before marriage and are personal property, but the plaintiff’s share from the real estate in this period … was also used in the purchase of 334 shares, so the plaintiff’s contribution to the 334 share is 10/100, the real estate is 3.the value of the 02.07.2012 date of sale to the person is 60.000 TL, the value of the 334 shares that are personal property is 31.845TL, the amount of the plaintiff’s contribution of 10% is 3.184TL, 313 shares were acquired on 17.12.2002, are in the nature of acquired property, 313 the value of the share is 28.155-TL, in accordance with the law, the plaintiff will receive 1/2 of the participation, which is 14.077,50-TL, the total receivable of the plaintiff is 17.261,50-TL, on the grounds that the partial acceptance of the case has been decided on this amount, but there is no possibility to agree with this opinion. Firstly, it is not clear how the share values are determined with the contribution rate of 10% for 334 shares. The description of aftermarket offerings discrimination, the plaintiff in the petition, inherited from Father, it …’s was sold in 1995 or 1996, if immovable, handed it to his brother from the sale proceeds, after falling to his share, and his mother’s shares fell transfer to a bank branch business by combining the grant amount and the mother to him, then pulling this money out of the bank in 1996, the subject matter of the case took immovable, he claimed that the purchase price of the real estate was paid with the mentioned inheritance money and loans that his mother had taken from the Istanbul branch of the Ziraat Bank at different times and requested that Işbank and Ziraat Bank records be brought. However, any investigation by the court regarding the bank records in question has been made. As explained above, it is understood that 313/2400 of the 647/2400 shares in the real estate subject to the lawsuit were acquired by the defendant through the purchase of an official deed dated 17.12.2002, although our apartment requested to bring the land registry records showing all the revenges from the first formation of the real estate, despite the fact that the records of the 334/2400 shares prior to zoning were not sent, the date of the first acquisition of this share it has not been determined. According to the land registry record between the file, it is understood that the plaintiff’s father has 1/2 share in the immovable property numbered 5299 parcel in the village of Decoy … and this share was sold on 28.08.1996.

The defendant party argued that the immovable property subject to the lawsuit was purchased in 1997, and the plaintiff did not have any contribution. According to the memorandum of discovery, the title deed owners use the independent sections in the building that fall to their share, in exchange for the share sold by the defendant, the top
it is understood that the independent section on the floor was seen to be used, but since the door was not opened despite the knocking, a report was made on the independent section on the lower floor. The discovery made on another immovable other than the immovable subject of the case
it was not considered correct to base the report on the result. Apart from this, since the immovable stock subject to the lawsuit is registered on behalf of the defendant on the divorce case date when the property regime ends, the calculation should be made on the value on the liquidation date, while the court 3.it is also not correct to calculate the value on the date of 02.07.2012, which is the date of sale to the person.

The business case by the court that need to be made immovable immovable because it is understood that the subject matter of what is the first facility in 334/2400 share transfer deed in a way that shows all the records from the date of registration on the basis of the underlying documents and formal contracting tedavull the tables and bring in the initial acquisition of the shares the subject of proceedings in immovable 334/2400 determine the date, also the evidence of the plaintiff that the plaintiff is based on the bank records, or to send and deliver on time to allow for the side of the first out of the case with the date of acquisition of the immovable immovable sale date, bank account transactions compare, the subject of the case is the share registered on behalf of the defendant on the independent section corresponding to the expert experts on the subject of the discovery of the immovable property regime of the termination of the divorce case on the date of the case
according to the state at the date of liquidation (the previous decision corruption, but the new value from the date of the decision after the break outdated) version (current) determine the value, accordingly, the plaintiff’s claims of the above-mentioned principles and the principles for the calculation within the framework of an expert’s expert to control a favorable report in a proper manner will receive the vested rights of the parties according to the situation after evaluating all the evidence according to the results of consideration of decision-making consists of. As such, it was not correct that the decision was made in writing with incomplete examination.

CONCLUSION: Since the appeals of the plaintiff’s attorney and the defendant’s attorney are in place for the reasons described, the Provisional 3 of the HMK of the judgment is accepted. see also HUMK’s Article 428. it was unanimously decided on 07.02.2018 that the parties may request correction of the decision against the announcement within 15 days from the notification of the Court of Cassation Chamber decision in accordance with Article 440 / I of the HUMK.

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