1. Basic Legal Presumption and the Nature of the Title Deed
According to Supreme Court rulings, the name under which an immovable property is registered in the title deed is not the sole determining criterion for the liquidation of the property regime and property distribution. Pursuant to Article 222/3 of the Turkish Civil Code (TMK), “all property of a spouse is considered acquired property until proven otherwise.” In accordance with this legal presumption, even if the title deed is registered in the name of one of the spouses, if the property was acquired during the period when the regime of participation in acquired property was valid (after 01.01.2002), it is, as a rule, considered “acquired property” that should be shared (Supreme Court 8th Civil Chamber-2015/11447, 2010/529).
2. Distinction Between Acquired Property and Personal Property
In court decisions, when determining the nature of property, the date and source of acquisition are primarily considered, rather than the name on the title deed:
Acquired Property: Assets obtained for consideration within the marital union are acquired property. Immovable properties appearing as “sales” in the land registry and acquired during the marital union are subject to a right to participate in the value of such property, unless proven otherwise (Supreme Court 8th Civil Chamber-2012/14238, 2015/21784 K).
Personal Property: Assets acquired before marriage, assets inherited, or assets obtained through gratuitous transfer (donation) are considered personal property and are excluded from division (TCC 220). For example, immovable property inherited from a father or donated to one spouse remains their personal property as long as it is registered in that spouse’s name in the land registry, and as a rule, the other spouse cannot claim rights over this property (Supreme Court 8th Civil Chamber-2010/5450 2018/1030).
3. Burden of Proof and Rebuttal of Presumption
In accordance with Articles 6 and 222/1 of the Turkish Civil Code (TMK), a spouse who claims that an asset is personal property must prove this claim with concrete evidence. If the land registry record appears as a “sale”, the party claiming that it is actually a “donation” or “in return for an inheritance share” must prove this with strong evidence. Abstract witness statements alone are not considered sufficient against official records (Court of Cassation 8th Civil Chamber-2013/3753 , 2014/17066 K). Furthermore, if a personal asset is sold and a new asset is acquired in its place (substitution), it is essential that the sale prices and the transfer are clearly proven for the new asset to also be considered personal property (Court of Cassation 8th Civil Chamber-2010/3421 Ka, 2012/14554 ).
4. Nature of the Right to Claim: Real Right vs. Personal Right
In the liquidation of the matrimonial property regime, the claim of the spouse who does not hold rights over the land registry record is “personal” (a right to claim) rather than “real” (transfer of ownership). The Court of Cassation emphasizes that spouses cannot directly claim ownership or cancellation and registration of title deeds for assets belonging to each other, but can request a “receivable from participation” or a “receivable from value appreciation share” based on the value of the asset (Court of Cassation 8th Civil Chamber-2016/18052 , 2013/11336). In this context, ownership remains with the person whose name is on the title deed; however, the other spouse is awarded a cash payment equal to half the value of the asset at the date of liquidation (Court of Cassation 2nd Civil Chamber-2022/10910).
5. Special Circumstances and Exceptions
Transfers Between Spouses: If one spouse transfers property registered in their name to the other spouse by showing it as a sale in the land registry, and if this transaction can be characterized as a “hidden donation” (if the intent to donate is proven), the property is then considered the personal property of the receiving spouse, and the transferring spouse cannot claim receivables (Supreme Court 8th Civil Chamber-2013/3394 ).
Registration in the Name of Third Parties: If the cost of the property was paid within the marriage, the fact that the property is formally registered in the name of a third party may not change its character as acquired property (Supreme Court 8th Civil Chamber-2014/1952 ).
6. Secondary Sources and Additional Context
In light of information from secondary sources, the following points are noteworthy:
Tax and Fee Applications: In a private ruling by the Revenue Administration, it was stated that assets acquired before marriage are personal property, but registrations made from one spouse to another by court order could be subject to land registry fees, being considered a “compensatory, remunerative transaction” (Private Ruling-04.01.2017).
Value Increase and Improvements: Even if a property is personal property (e.g., an inherited house), improvements made to it with income earned during the marriage (such as installing PVC windows, enclosing a balcony, etc.) or trees planted may give rise to the other spouse’s right to claim a “value appreciation share” (Supreme Court 8th Civil Chamber-2012/12531 K).
Procedural Elements: It is reminded that procedural actions such as waiver in matrimonial property regime cases will result in a final judgment and may prevent entering into the merits of the case (Supreme Court 8th Civil Chamber-2013/1230 ).
In conclusion; regardless of whose name the house is registered in, if it was acquired within the marriage and cannot be proven to be personal property, it is subject to property division (right to participate in acquired property). Even if the title holder retains ownership, they are obliged to pay half of the property’s value in cash to the other spouse.
Ev eşlerden birinin üzerineyse boşanmada paylaşım olur mu?
Evet. Yargıtay uygulamasına göre, tapu kimin adına kayıtlı olursa olsun, taşınmaz evlilik birliği içinde edinilmişse ve kişisel mal olduğu ispatlanamazsa edinilmiş mal sayılır ve katılma alacağına konu olur.
Boşanmada tapu kaydı kişisel mal olduğunu otomatik olarak ispatlar mı?
Hayır. Tapu kaydı tek başına yeterli değildir. Bir taşınmazın kişisel mal sayılabilmesi için; miras, bağış veya evlilik öncesi edinim gibi kişisel mal kaynaklarının somut delillerle ispatlanması gerekir.
Boşanmada diğer eş evin tapusunu isteyebilir mi, yoksa sadece para mı alır?
Mal rejimi tasfiyesinde talep ayni hak (tapu devri) değil, şahsi alacak hakkıdır. Yani tapu sahibinde kalır; ancak diğer eşe, evin tasfiye tarihindeki değerinin yarısı oranında katılma alacağı ödenir.
Why is Expert Attorney Support Necessary?
The issue of whose name the title deed is registered in is one of the most misunderstood and, consequently, one of the leading causes of loss of rights in divorce cases. Specifically;
the correct application of the presumption of acquired property under Article 222/3 of the Turkish Civil Code
proving whether a property is personal property or acquired property
technically asserting claims of hidden donation, substitute property, and share in increased value
correctly determining whether to file a title deed cancellation lawsuit or a lawsuit for participation claim
The risk of lack of legal interest due to the wrong type of lawsuit requires extremely technical evaluations.
An incorrectly structured property division lawsuit can lead to; the rejection of the title deed cancellation request, the non-calculation or incorrect calculation of the participation claim, and irreparable serious financial losses.
For this reason, in Istanbul, it is of vital importance to work with an expert lawyer, especially in Tuzla divorce law, property division law, and family law. 2M Law Firm, based in Istanbul, serves clients in Tuzla, Pendik, Kartal, Maltepe, Kadıköy and other important districts of the Anatolian Side;
Divorce cases
Division of property of real estate registered in title deeds
Claim for participation share and value increase share
It provides strategic and results-oriented legal services based on Supreme Court precedents in disputes concerning inheritance, gifts, and proof of personal property.
