The necessity and procedure of filing a property sharing lawsuit together with a divorce lawsuit
1. General Rule and Nature of the Lawsuit
According to Supreme Court decisions, the lawsuit for the liquidation of the property regime (property sharing) is not mandatory to be filed together with the divorce case. The liquidation of the property regime is not an accessory (ancillary) lawsuit to the divorce case. Therefore, spouses can request the liquidation together with the divorce case, or they can file it as a separate lawsuit within the statute of limitations after the divorce decree becomes final (Supreme Court General Assembly of Civil Chambers-2019/335 K, 2024/7 .
2. Procedure in Case of Joint Filing and the “Prejudicial Question” Application
When a property sharing lawsuit is filed together with a divorce lawsuit, or while the divorce lawsuit is pending, the procedure that courts must follow has been clarified by Supreme Court precedents:
Obligation of Severance/Separation: If a divorce lawsuit and a property regime lawsuit have been filed together, the property regime lawsuit must be severed (separated) and registered under a separate docket number (Supreme Court General Assembly of Civil Chambers-2017/1673 , 2nd Civil Chamber-2009/7767).
Prerequisite for Admissibility: For a decision to be made on the liquidation of the property regime, it is a condition that the property regime between the spouses must have ended. Pursuant to Article 225/2 of the Turkish Civil Code (TMK), if a divorce decision is rendered, the property regime ends as of the date of the lawsuit. However, for the liquidation to be carried out, the finalization of the divorce decree is a “prerequisite for admissibility” (Court of Cassation 3rd Civil Chamber-2024/2885 , 8th Civil Chamber-2013/23669 K).
Preliminary Issue: In the separated property regime lawsuit, the outcome of the divorce lawsuit must be made a “preliminary issue”. If the divorce lawsuit is rejected, the property regime will not end, and thus the liquidation lawsuit will also be rejected; if the divorce is accepted and finalized, the merits of the liquidation lawsuit will be proceeded with (Court of Cassation 8th Civil Chamber-2013/11522 K, 2nd Civil Chamber-2022/8976).
3. Statute of Limitations Periods
Although two different approaches are observed in the decisions of the Court of Cassation regarding the statute of limitations, the current and predominant view adopts the 10-year period:
10-Year General Statute of Limitations: According to the current decisions of the General Assembly of Civil Chambers of the Court of Cassation and related chambers, receivable lawsuits arising from the liquidation of the property regime are subject to a 10-year general statute of limitations period in accordance with Article 146 of the TCO (Turkish Code of Obligations). This period begins to run from the date the divorce decree becomes final (Court of Cassation General Assembly of Civil Chambers-2017/1673 K, 8th Civil Chamber-2016/6818 K, 2nd Civil Chamber-2022/11249 K).
1-Year Period (Previous Practice/Exceptional Decisions): Although a 1-year statute of limitations period has been applied in some decisions by reference to Article 178 of the TCC (Turkish Civil Code) (Court of Cassation 8th Civil Chamber-2009/6109 , 2009/4306), current jurisprudence indicates that this period does not cover property regime cases.
4. Consensual Divorce and Property Division
Spouses can also agree on the liquidation of the property regime in a consensual divorce case. However, the mere fact that the parties have divorced by agreement does not mean that they have liquidated the property regime between them. If there is no explicit waiver or arrangement regarding the property regime in the divorce protocol or statements made during the hearing, it is possible to file a liquidation lawsuit after the divorce (Court of Cassation General Assembly of Civil Chambers-2024/78. 8th Civil Chamber-2016/21959 .
5. Secondary Sources and Special Cases
The following points have been evaluated as secondary sources within the scope of limited information and special circumstances in the decision texts:
Foreign Court Decisions and Recognition/Enforcement: In divorce decrees obtained from foreign courts, the 10-year statute of limitations for the property regime liquidation lawsuit does not begin from the date the foreign judgment becomes final, but from the date on which the “recognition or enforcement” decision in Turkey becomes final. If a liquidation lawsuit is filed in Turkey before the recognition/enforcement process is completed, the outcome of the recognition lawsuit should be made a preliminary issue.
Determination of Lawsuit Date: In cases filed concurrently with a divorce lawsuit and later separated, the date taken as basis for statute of limitations and accrual of rights is not the date of separation, but the initial lawsuit date when the claim was put forward together with the divorce lawsuit (Supreme Court 2nd Civil Chamber-2022/11249 ).
Lack of Legal Interest: Property regime liquidation lawsuits filed when there is no pending divorce case or while the marriage is ongoing are rejected on the grounds of lack of legal interest or failure to meet the prerequisite of foreseeability (Supreme Court 17th Civil Chamber-2016/2835
Mal paylaşımı davası boşanma davasıyla birlikte açılmak zorunda mı?
Hayır. Yargıtay’ın yerleşik içtihatlarına göre mal rejiminin tasfiyesi davasının boşanma davasıyla birlikte açılması zorunlu değildir. Mal paylaşımı davası, boşanma davasının fer’îsi (eki) değildir. Boşanma kesinleştikten sonra, zamanaşımı süresi içinde ayrı bir dava olarak da açılabilir.
Boşanma davası devam ederken mal paylaşımı davası açılırsa ne olur?
Bu durumda mahkeme, mal paylaşımı davasını tefrik eder ve boşanma davasının sonucunu bekletici mesele yapar. Boşanma davası reddedilirse → mal rejimi sona ermeyeceği için tasfiye davası da reddedilir. Boşanma kabul edilip kesinleşirse → mal paylaşımı davasının esasına girilir.
Mal paylaşımı davası için zamanaşımı süresi kaç yıldır?
Güncel ve baskın Yargıtay uygulamasına göre 10 yıllık genel zamanaşımı uygulanır. Bu süre, boşanma kararının kesinleştiği tarihten itibaren işlemeye başlar.
Eski bazı kararlarda geçen 1 yıllık süre, artık mal rejimi tasfiyesi davaları için geçerli kabul edilmemektedir.
Why Is Expert Lawyer Support Necessary?
Property division lawsuits are, in practice, among the most technical family law cases that do not tolerate errors. Specifically, the following risks are involved:
Lack of legal interest due to filing the property division lawsuit at the wrong time
Mismanagement of separation, preliminary issue, and finalization processes
Incorrect calculation of the statute of limitations
Loss of rights due to vague waiver clauses in the uncontested divorce protocol
Failure to establish the strategic link between the divorce lawsuit and the property division lawsuit
Therefore, working with an experienced law firm, especially in the field of Tuzla divorce lawyer, Tuzla property division lawyer, and Tuzla family lawyer, prevents irreversible loss of rights. Across Istanbul, particularly in property division and divorce cases focused on Tuzla, Pendik, Kartal, Maltepe, and the Anatolian Side, the handling of the case by a team specialized in this area is of critical importance. In this context, 2M Hukuk Law Firm, which stands out with its expertise in divorce and matrimonial property regime liquidation cases, manages the process securely with strategic case management in accordance with Supreme Court precedents.
A property division lawsuit does not have to be filed concurrently with a divorce
If filed concurrently, separation + preliminary issue is applied
The 10-year statute of limitations begins when the divorce becomes final
Wrong procedure = significant loss of rights
Working with an expert family law attorney is a necessity
