1. Introduction and General Legal Framework 

Transfers of immovable property made by one of the spouses with the aim of asset concealment before or during a divorce case are fundamentally addressed in the Supreme Court’s practice on two different legal grounds: “general collusion” in accordance with Article 19 of the Turkish Code of Obligations (TBK) no. 6098 (former Article 18 of BK), and the concept of “added value” in accordance with Article 229 of the Turkish Civil Code (TMK) no. 4721. Supreme Court decisions determine the validity of such sales and the procedure for their inclusion in asset sharing according to the specific characteristics of the concrete case and the nature of the lawsuit filed.

2. Validity of Sales and Allegation of Collusion 

According to the Supreme Court’s practice, if a spouse transfers their immovable property immediately before or during a divorce case, and if this does not reflect the true intention of the parties and is solely aimed at obstructing the rights of the other spouse, it is considered “collusive” (sham).

Criteria for Sham Transaction (Collusion): In the decisions of the 17th Civil Chamber and the 4th Civil Chamber of the Supreme Court of Appeals; the sale being made a very short time before or during the divorce case, the exorbitant difference between the sale price and the real value of the immovable property, and the transfer being made to close relatives (sibling, brother-in-law, mother, etc.) or close friends are considered strong evidence of a sham transaction. (Yargıtay 17. HD-2017/1923 K, 4. HD-2020/1738, 17. HD-2016/14276).

Invalidity/Nullity: If the sham transaction is proven, the transaction made is fundamentally considered invalid. However, the Supreme Court of Appeals emphasizes that this invalidity should not result in the complete cancellation of the land registry record and registration in the name of the previous owner, but rather have a limited effect that protects the rights of the creditor spouse.

3. Inclusion of Values in Property Sharing Without Cancelling the Sale (Turkish Civil Code Art. 229) 

In the decisions of the Supreme Court of Appeals, it is explicitly accepted that the values of the transferred immovable properties can be included in the property sharing (right to participate in acquired property) calculation, without the need to cancel the sales.

Concept of Value to be Added: According to Turkish Civil Code Art. 229/2, transfers made by one spouse with the intention of reducing the other’s right to participate in acquired property are considered as “value to be added” in the liquidation. The 8th Civil Chamber of the Supreme Court of Appeals states that in this case, a decision cannot be made for the cancellation of the land registry and its registration, but that the value of the transferred property will be taken into account as if it existed at the moment the property regime ended (Yargıtay 4. HD-2011/8323, 8. HD-2016/20857).

Calculation Method: For these types of transfers, calculations are made based on the fair market value (current market price) at the date of liquidation (decision), taking into account the characteristics of the immovable property at the date of transfer (Supreme Court 8th Civil Chamber-2017/12991, 2nd Civil Chamber-2023/5632)

Burden of Proof: In transfers made very close to the date of the divorce case, the intention to conceal assets can be presumed, and the burden of proving the contrary falls on the transferring spouse (Supreme Court 8th Civil Chamber-2018/10352).

4. Annulment of Disposition and Analogous Application of EBL Article 283/1

The Supreme Court has adopted a solution in title deed annulment lawsuits filed due to collusion, which aims for the creditor spouse to collect their receivable, rather than a complete change of ownership.

Seizure and Sale Authority: If it is established that the plaintiff spouse has a contribution share or a right to claim participation, the 17th and 4th Civil Chambers of the Supreme Court state that Article 283/1 of the Enforcement and Bankruptcy Law (EBL) should be applied by analogy, without the need to annul the title deed registration. In this context, the ownership of the immovable property continues to remain with the third party, but the plaintiff spouse is granted “authority to demand seizure and sale” over that immovable property, limited to the amount of the awarded claim (Supreme Court 17th Civil Chamber-2015/13050, 4th Civil Chamber-2013/3286, 17th Civil Chamber-2018/4903).

Condition of Legal Interest: For this lawsuit to be filed, it is a prerequisite for the plaintiff spouse to have a finalized or pending claim (compensation, alimony, participation claim) as a result of a divorce case. An annulment decision due to collusion cannot be made without determining the existence of the claim; therefore, the property regime case is usually made a “preliminary issue” (Supreme Court 17th Civil Chamber-2017/1923, General Assembly of Civil Chambers-2023/618).

5. Competent Court and Procedure

Division of Jurisdiction: Lawsuits for cancellation of title deed and registration based on the legal ground of general collusion (Turkish Code of Obligations Art. 19) should be heard in general courts (Civil Courts of First Instance). In contrast, receivable lawsuits arising from the liquidation of the matrimonial property regime fall within the jurisdiction of the Family Court (Supreme Court 8th Civil Chamber-2011/3625 4th Civil Chamber-2020/1290).

Nature of Personal Right: The right to a share in acquired property and the right to a contribution are of the nature of a “personal right” and do not directly confer a right of ownership (in rem right). For this reason, even if there is an allegation of property concealment, it is essential to establish a judgment for the collection of the receivable instead of direct cancellation of the title deed (Supreme Court 17th Civil Chamber-2016/811).

6. Information Obtained from Secondary Sources Decisions that qualify as secondary sources provide the following additional contexts regarding the matter:

When an allegation of collusion is made in sales made during a divorce case, it has been emphasized that the courts first examine procedural deficiencies (such as address notification, completion of fees, etc.) and that the merits cannot be entered before these deficiencies are remedied (Supreme Court 4th Civil Chamber-2021/18247, 8th Civil Chamber-2015/22053).

In some cases, if a spouse’s transfer of immovable property is characterized as a “donation” or an “unrequited acquisition made with the aim of saving the marital union,” this property is considered personal property and may lead to the dismissal of the property division lawsuit (Supreme Court General Assembly of Civil Chambers-2014/46 ).

In lawsuits filed with an allegation of collusion, if the plaintiff spouse waives their rights arising from the liquidation of the matrimonial property regime, it is observed that the lawsuit for the cancellation of the sale is dismissed on the grounds that there is no “legal interest” remaining (Supreme Court 4th Civil Chamber-2020/854 ).

Conclusion: According to Supreme Court practice, sales made during the divorce process with the aim of evading assets can be invalidated due to collusion; however, this invalidation is usually applied not by annulling the title deed but by granting the creditor spouse the authority to seize and sell, in accordance with Article 283/1 of the EBL. On the other hand, even without annulling the sale, the value of the immovable property under Article 229 of the TCC can be included in the property division calculation as an “added value” and a monetary claim can be awarded based on this value. In both cases, the existence of a concrete claim by the plaintiff spouse and the proof of the opposing party’s intent to evade assets are fundamental conditions.

Boşanma davası açılmadan hemen önce yapılan taşınmaz satışı geçerli midir?

Hayır, her durumda geçerli kabul edilmez. Eğer satış, diğer eşin mal paylaşımından doğan haklarını engelleme amacıyla ve gerçek iradeyi yansıtmadan yapılmışsa, Yargıtay uygulamasında muvazaalı işlem olarak değerlendirilir ve hukuki sonuç doğurmaz.

Taşınmaz üçüncü kişiye satıldıysa tapu iptal edilir mi?

Genellikle hayır. Yargıtay, çoğu durumda tapu iptali yerine TMK m.229 kapsamında “eklenecek değer” kabulüyle taşınmazın bedelinin mal paylaşımına dahil edilmesini veya İİK m.283/1 kıyasen uygulanarak haciz ve satış yetkisi verilmesini tercih etmektedir.

Taşınmazın değeri hangi tarihe göre hesaplanır?

Taşınmazın devir tarihindeki nitelikleri, ancak tasfiye (karar) tarihindeki rayiç değeri esas alınır. Bu yöntem, Yargıtay’ın yerleşik içtihatlarıyla kabul edilmiştir.

Mal kaçırma kastını kim ispatlamak zorundadır?

Boşanma davasına çok yakın tarihte yapılan devirlerde mal kaçırma kastı karine olarak kabul edilir. Bu durumda, aksini ispat yükü taşınmazı devreden eşe aittir.

Why is Expert Legal Support Necessary?

Allegations of asset concealment, sham transactions, and liquidation of marital property regime during the divorce process are highly technical types of lawsuits that require correctly distinguishing between Article 229 of the Turkish Civil Code (TMK) (added value) and Article 19 of the Turkish Code of Obligations (TBK) (sham transactions), accurately determining whether the lawsuit should be filed in a Family Court or a Civil Court of First Instance, and establishing correct legal strategies such as a claim for receivables or an attachment-sale authorization analogous to Article 283/1 of the Enforcement and Bankruptcy Law (İİK) instead of a title deed cancellation lawsuit. Due to the wrong type of lawsuit, lack of legal interest, incorrect proof strategy, improper management of preliminary issue decisions, or failure to object to expert reports in a timely and correct manner can lead to lawsuits lasting years, high fees and expenses, and irreparable loss of rights. Therefore, especially in divorce and property division cases handled in large and busy judicial districts such as İstanbul, Tuzla, Pendik, Kartal, Maltepe, Ataşehir, Kadıköy, Bakırköy, Beşiktaş, and Üsküdar; working with an expert lawyer who is well-versed in Supreme Court jurisprudence and combines knowledge of family and commercial law is vitally important. Indeed, in practice, proceeding with firms such as 2M Hukuk Law Office, which stands out with its experience in this field, ensures that the process is concluded quickly, securely, and without any loss of rights.