This study has been prepared in line with the Supreme Court’s decisions regarding the legal nature and principles of sharing of severance pay and retirement bonus acquired during or after the marriage union in the liquidation of the property regime.

1. Principles of Severance Pay Sharing

According to Supreme Court decisions, severance pay is generally considered acquired property under Article 219/1 of the Turkish Civil Code (TMK) no. 4721, within the scope of “acquisitions in return for work“. However, not all of this compensation is subject to sharing in every case; it is mandatory to make a distinction based on the property regime applicable to the periods worked:

Temporal Distinction: Severance pay accrued for the period of employment falling under the Turkish Civil Code (TKM) No. 743 (prior to 01.01.2002) is considered “personal property” (TKM Art. 170, 189). The portion corresponding to the employment period after 01.01.2002 falls under the “acquired property” (TMK Art. 219/1) category.

Proportional Method: If the spouse’s employment period spans both regimes (separation of property and participation in acquired property), proportionality should be applied based on the employment duration and income status for each period, and the amounts of personal and acquired property should be determined separately.

Liquidation Condition: For severance pay to be subject to liquidation, it must exist at the time the property regime ends (TMK Art. 235/1) or have been used to acquire another asset (immovable property, vehicle, etc.).

Situation in Case of Death: If the property regime has ended with the death of one of the spouses, the severance pay of the deceased spouse entirety is considered acquired property. In this case, since there will be no remaining life expectancy after the termination of the property regime, the upfront capital value calculation under Article 228/2 of the Turkish Civil Code (TMK) is not performed, and the entire compensation is included in the liquidation as surplus value.

2. Principles of Retirement Bonus Distribution

Although retirement bonus is considered “acquired property” within the scope of payments made by social security or social assistance institutions in accordance with Article 219/2 of the Turkish Civil Code (TMK), a special calculation method specified in Article 228/2 of the TMK is applied during its liquidation:

Distinction Between Personal and Acquired Property: In lump-sum payments such as retirement bonuses, if a lifelong annuity (pension) had been granted by the relevant institution instead of a lump-sum payment, whatever the capitalized value of the annuity for the subsequent period would have been at the date the property regime ended, that amount is separated as “personal property.” After deducting this amount of personal property from the total payment, the remaining portion is considered “acquired property” (surplus value) kis considered.

Calculation Criteria: When performing this calculation, the spouse’s average remaining life expectancy is determined using TRH 2010 or PMF life tables. The upfront capital value corresponding to the period after the date the property regime ended (date of divorce lawsuit) is considered personal property and excluded from liquidation.

Timing: It is essential that the retirement bonus was received during the continuation of the matrimonial property regime. In some decisions, it has been stated that if the retirement date falls after the termination of the matrimonial property regime, the other spouse cannot claim rights over this bonus.

3. OYAK and Similar Institutional Payments

Retirement benefits, pre-accumulation fund reserves, and similar payments received from institutions like OYAK are also evaluated within the scope of Articles 219 and 228/2 of the Turkish Civil Code (TMK). While payments received within the marital union and proven to have been spent for ordinary needs may be excluded from liquidation, for portions existing in the system or converted into assets, a claim for participation is ruled based on the acquired property portion, by calculating the aforementioned present capital value.

4. Secondary Source Assessment

The following additional points have been emphasized in decisions of a secondary source nature:

If the retirement bonus is used for the purchase of real estate or a vehicle, the relationship between the date of payment and the date of acquisition of the property should be examined. According to the ordinary course of life, it should be assumed that a retirement bonus received shortly before the acquisition of real estate was used for the purchase, and this amount should be taken into account in the calculation of the contribution share/participation claim, by making a distinction between “personal property” or “acquired property.”

It is considered that general statements in amicable divorce protocols, such as “we have no claims against each other regarding financial matters,” will not constitute an obstacle to claiming these receivables, as long as they do not contain an explicit waiver regarding the liquidation of the matrimonial property regime and retirement bonuses.

If a property was acquired with a retirement bonus received during the period when the separation of assets regime was in effect, this situation should not be seen as a “donation” but as a contribution made within the scope of marital solidarity, and it should be included as the personal property of the spouse who received the bonus when calculating the contribution share.

In conclusion; both severance pay and retirement bonus are subject to sharing (right of participation) in proportion to the parts corresponding to the duration of the marriage and the property regime in force. While a pre-2002/post-2002 distinction is made for severance pay; for retirement bonuses, the method of deducting the value (personal property) corresponding to the period of life after the termination of the property regime is applied.

Kıdem tazminatının tamamı boşanmada paylaşıma girer mi?

Hayır. Kıdem tazminatının tamamı her durumda paylaşıma konu edilmez. Yargıtay uygulamasına göre, tazminatın hangi dönemdeki çalışmaya karşılık kazanıldığı esas alınır. 01.01.2002 öncesine (mal ayrılığı dönemi) isabet eden kısım kişisel mal, bu tarihten sonraki çalışma süresine isabet eden kısım ise edinilmiş mal kabul edilir. Bu nedenle kıdem tazminatında dönemsel oranlama yapılması zorunludur.

Boşanma davasından sonra alınan emekli ikramiyesi paylaşılır mı?

Genel kural olarak hayır. Yargıtay’ın yerleşik kararlarına göre, emeklilik tarihi ve ikramiyenin fiilen alındığı tarih, mal rejiminin sona ermesinden sonraya denk geliyorsa, diğer eş bu ikramiye üzerinde hak iddia edemez. Ancak emekli ikramiyesi, evlilik süresinde alınmış ve malvarlığına dönüştürülmüşse (örneğin taşınmaz alımı), tasfiye hesabına dolaylı olarak dahil edilebilir.

Emekli ikramiyesi hesaplanırken neden “peşin sermaye değeri” düşülüyor?

Çünkü TMK m.228/2 gereğince, emekli ikramiyesi gibi toptan ödemeler, ömür boyu maaş bağlanması varsayımı üzerinden değerlendirilir. Mal rejiminin sona erdiği tarihten sonraki yaşam süresine isabet eden maaşın peşin sermaye değeri, kişisel mal sayılır ve tasfiye dışı bırakılır. Bu yöntem, Yargıtay tarafından hakkaniyete uygun zorunlu bir hesaplama yöntemi olarak kabul edilmektedir.

Anlaşmalı boşanma protokolünde “mali taleplerimiz yoktur” yazıyorsa sonradan tazminat veya ikramiye istenebilir mi?

Evet, mümkündür. Yargıtay kararlarına göre; anlaşmalı boşanma protokollerinde yer alan genel nitelikli “mali konularda talebimiz yoktur” ifadeleri, mal rejimi tasfiyesi, kıdem tazminatı veya emekli ikramiyesi bakımından açık ve bilinçli bir feragat içermedikçe, bu alacakların sonradan talep edilmesine engel değildir. Feragatın geçerli olabilmesi için açık, net ve tereddütsüz olması gerekir.

WHY IS EXPERT LAWYER SUPPORT NECESSARY?

The situation of severance pay and retirement bonus in the liquidation of the property regime is one of the most technical and unforgiving areas of family law.

In these files;

Correct separation of pre-2002 / post-2002 employment periods

Lump-sum capital value calculation according to TRH 2010 or PMF life tables

Accurate distinction between personal property and acquired property

It is essential to closely follow the constantly changing precedents of the Court of Cassation. An incorrect calculation or an incomplete claim can lead to irreparable loss of rights.

Therefore, especially in property regime liquidation cases seen in Istanbul, Tuzla, and the Anatolian Side, working with an expert family law attorney from the beginning of the process is of great importance.

Legal Support in Matrimonial Property Regimes and Liquidation Cases in Istanbul – Tuzla – Anatolian Side

In divorce and matrimonial property liquidation cases seen primarily at the Istanbul Anatolian Courthouse, as well as in Tuzla, Kartal, Pendik, Maltepe, and surrounding districts, technical calculations and defenses based on Supreme Court precedents play a decisive role.

2M Hukuk Law Office, which has extensive experience in this field;

Liquidation cases arising from severance pay and retirement bonus

Calculations for participation claims and contribution claims

Objections to expert reports and report auditing

provides results-oriented and meticulous legal consultancy on matrimonial property regime cases filed after amicable divorce.