Introduction

This study analyzes, in light of the presented Supreme Court decisions, the question of whether parties can make claims against each other during or after the divorce process, despite the existence of a duly concluded separation of assets agreement between spouses. The examination separates the impact of the separation of assets regime on claims based on their type (claims arising from the property regime and claims incidental to divorce) , and outlines the procedures and conditions for making these claims.

1. Impact of the Separation of Assets Agreement on Claims Arising from the Property Regime

Supreme Court decisions accept the legal validity and binding nature of duly executed separation of assets agreements made (usually through a notary public). Such an agreement ensures that assets acquired by spouses during the marriage are considered their personal property and are not subject to property division in case of divorce.

Scope of the Contract and Waiver: It is emphasized that if a contract not only chooses the regime of separation of property, but also explicitly includes a waiver of rights arising from previous property regimes, the lawsuit for the liquidation of the property regime should be dismissed. This situation was clearly stated in the decision numbered 2024/5365 of the 2nd Civil Chamber of the Court of Cassation:”…that the parties, after choosing the separation of property contract, explicitly waived their rights arising from the liquidation of the previous property regime…”

Right to Contribution Claim: Despite the fundamental logic of the separation of property regime, the institution of “contribution claim” developed through the jurisprudence of the Court of Cassation constitutes an important exception. This right allows one spouse to claim compensation for the material contribution they made to the acquisition or improvement of a property owned by the other spouse. The conditions for this claim were detailed in the decision numbered 2021/1492 of the General Assembly of Civil Chambers: “A contribution claim… is a type of receivable arising from the liquidation of the property regime, calculated as compensation for the contribution of one spouse, with money or a material or service value measurable in money, to the acquisition, improvement, or preservation of property belonging to the other spouse while the marital union continues.” Proof of contribution is a prerequisite for the acceptance of this claim. The burden of proof lies with the spouse claiming to have made the contribution. Having a regular income and being employed can create a presumption of contribution (HGK-2023/1238).

2. Ancillary Claims in Divorce within a Separation of Property Contract (Alimony and Compensation)

A separation of property agreement does not affect claims for alimony for destitution, or material and moral compensation, which are among the financial consequences of divorce. These claims are independent of the property regime and are evaluated according to their specific conditions. The decision numbered 2024/3041 of the 2nd Civil Chamber of the Court of Cassation clearly sets forth this principle: > “…in our law, contracts made regarding divorcing without claiming alimony and compensation in the future have no legal basis, and that a right that has not yet arisen cannot be waived…”

Accordingly, even if a spouse has signed a separation of property agreement, they reserve the right to claim alimony for destitution if they will fall into destitution due to divorce, or material/moral compensation if the other spouse is at fault in the events causing the divorce.

3. Uncontested Divorce Protocols and Scope of Waiver

One of the issues that causes the most disputes in practice is whether the general statements contained in uncontested divorce protocols cover the liquidation of the property regime.

Broad Interpretation: In the decision numbered 2013/1601 of the General Assembly of Civil Chambers of the Court of Cassation, it was accepted that the general statement in the protocol, “the parties have no property claims,” also covered claims arising from the property regime and constituted a waiver in this regard.

Narrow and Explicit Interpretation (Predominant View): Conversely, numerous decisions by the 8th Civil Chamber of the Supreme Court and dissenting opinions in General Assembly of Civil Chambers (HGK) decisions argue against this view. According to this view, the liquidation of the property regime is not an accessory (fer’i) to divorce, but an independent lawsuit. BTherefore, for this right to be waived, the waiver must be extremely explicit. In decision no. 2012/5314 of the 8th Civil Chamber of the Supreme Court, this condition was stated as follows: “Since claims arising from the property regime are not accessory claims to divorce, if an agreement or protocol also covers property regimes, then items such as contribution shares or surplus value, which are movable and immovable property, must be explicitly listed individually, in separate clauses, in the protocol.” This view is also supported by the principle that “a right not yet born cannot be waived.” Because rights such as the right to participation claim become due upon the finalization of the divorce decision, and general waiver declarations made before this date may be considered invalid (Supreme Court 8th Civil Chamber – 2014/11905).

Conclusion

A property separation agreement is not an absolute impediment that completely eliminates spouses’ property claims during divorce. In light of the court decisions on which the report is based, the following conclusions have been reached:

Alimony and Compensation Claims: A property separation agreement does not prevent claims for poverty alimony and material and moral compensation. These rights cannot be waived in advance.

Property Regime Claims: As a rule, the agreement prevents claims such as “participation claims” arising from the regime of participation in acquired property. However, there are exceptions to this impediment.

Claim for Contribution: The most important exception is that one spouse can claim provable material contributions made to the other’s assets. This right is recognized by the Court of Cassation even for periods when the separation of assets regime was in effect.

Clarity of Waiver: For provisions regarding the waiver of rights arising from the matrimonial property regime to be valid in divorce settlement protocols or matrimonial property agreements, this waiver must be made in an extremely clear, precise, unconditional manner, specifying which asset values it covers. General and vague statements are not interpreted as a waiver, according to the prevailing view of the Court of Cassation.

Consequently, the existence of a separation of assets agreement does not mean that all kinds of claims will be rejected; each claim must be evaluated separately according to its nature, the clarity of the statements in the content of the agreement and/or protocol, and the current jurisprudence of the Court of Cassation on the matter. An article suggestion.

Why is Expert Lawyer Support Necessary?

Demands such as matrimonial property regime, contribution share receivable, alimony, and compensation are complex areas requiring technical knowledge and careful legal analysis, in accordance with both the provisions of the Turkish Civil Code and Court of Cassation precedents. Especially for spouses who have entered into a separation of assets agreement, which rights have completely ceased to exist and which ones continue to be protected often becomes clear only through the professional evaluation of an expert lawyer.

Mistaken declarations, misinterpreted protocols, or inadequately drafted waiver clauses during the divorce or matrimonial property regime liquidation phase can lead to irreversible loss of rights. Therefore, obtaining support from an experienced lawyer in family law and matrimonial property regimes, especially in regions such as Istanbul, Tuzla, Kartal, Pendik, Gebze, Tepeören, and Bayramoğlu, is of great importance for the correct management of the process.

In matters such as matrimonial property contracts or lawsuits for contribution shares, it is necessary not only to know the legislation but also to be able to interpret the current jurisprudence of the Court of Cassation. For this reason, adopting a strategic approach for each case according to its specific characteristics is indispensable for preventing loss of rights and achieving a fair outcome, thus requiring expert legal support.