1. General Principle and Legal Framework

According to Article 231 of the Turkish Civil Code (TMK), in the regime of participation in acquired property, “surplus value” is the amount remaining after debts related to each spouse’s acquired property are deducted from their total value, including amounts obtained from additions (TMK art. 229) and equalization (TMK art. 230). The Court of Cassation, in its established precedents (8th Civil Chamber 2015/21752, 2nd Civil Chamber 2007/1097), clearly states that for the calculation of the participation receivable, debts related to acquired property must first be deducted from these assets.

2. Principles of Debt Deduction and Calculation Method

In property division lawsuits, the deduction of debts is subject to specific procedures:

Priority of Debts Related to Property: Only debts related to acquired property subject to liquidation are deducted from the surplus value. For example, bank loans used for the purchase of real estate or a vehicle are considered “debts related to the property” (8th Civil Chamber 2013/18177

Debts Extending Beyond the Divorce Lawsuit: Loan installments and interest extending beyond the date when the property regime ended (when the divorce lawsuit was filed) are considered the personal debt of the indebted spouse. These debts are deducted from the market value of the property on the date of liquidation to determine the surplus value (8th Civil Chamber 2013/17841, 8th Civil Chamber 2014/21623

Market Value Principle: When deducting debts, the market value of the asset at the liquidation date (closest to the decision date) is taken as the basis. The debt amount is calculated by proportioning the unpaid portion of the total loan debt to the total debt and multiplying this ratio by the current market value (8. HD. 2015/9219 , 8. HD. 2016/14161

Equalization: Payments made from a spouse’s personal property to acquired property (e.g., payment of a loan with inheritance or donation from a father) are deducted from the value during liquidation by considering them as a debt through an equalization account (8. HD. 2015/21752, 8. HD. 2020/2692).

3. Non-Deductible Debts (Personal Debts)

Every debt places the relevant asset segment under obligation. In this context:

Personal Commercial Debts: Tax, SGK, or bank debts arising from a spouse’s personal commercial activities cannot be deducted from the value of the asset if they are not directly related to the acquisition of the asset subject to liquidation (2. HD. 2023/5357

Personal Loans: Consumer loans taken for ordinary needs or credit card debts within the marital union are considered general personal debts in asset division and are not deducted from the value of a specific asset (8. HD. 2011/4378

Debts Owed to Third Parties: Personal debts used in the acquisition of real estate but not considered the real estate’s own debt (e.g., personal debts like an Oyak loan) cannot be deducted from the market value (2. HD. 2009/650

4. Debt Status in Company Liquidation

In the liquidation of companies, when calculating the company’s equity, bank loans, promissory notes, trade debts, tax, and social security debts listed under liabilities are deducted from the total value. However, the participation claim is calculated based on the remaining “equity” after these debts are deducted (2. HD. 2023/5357 , 8. HD. 2015/3085 )

5. Secondary Source Assessment

In the decision numbered 2014/25256 E. of the 8th Civil Chamber of the Supreme Court, it was emphasized that the liquidation of the property regime is not a right in rem, but a monetary claim. In this context, while it is stated that the parties can regulate their mutual debts; it is observed that the defendant’s defenses that “the plaintiff’s debts were paid with the sale proceeds” were not accepted as a direct deduction item in the liquidation account without clarifying the nature of the debt (personal or related to acquired property).

Conclusion

In a property division lawsuit, a spouse can deduct existing debts related to acquired assets (loan, mortgage, etc.) from the surplus value calculation. When performing the calculation, the outstanding debt burden remaining after the divorce case and personal property contributions (equalization) are deducted from the asset’s valuation closest to the decision date; the other spouse’s right to a participation claim arises at half the remaining net amount (surplus value). However, personal business debts unrelated to the acquisition of the property, gambling debts, or general consumer loans cannot be deducted in this calculation. A written proposal.

Boşanma davasında kredi borçları mal paylaşımında düşülür mü?

Evet, yalnızca edinilmiş mala doğrudan bağlı olan kredi borçları (örneğin ev veya araç kredisi) artık değer hesabından düşülür. Boşanma davası açıldıktan sonra ödenen taksitler ise kişisel borç sayılır ve indirim konusu yapılamaz.

Eşin ticari borçları veya kredi kartı borçları mal paylaşımını etkiler mi?

Hayır. Şahsi ticari borçlar, vergi–SGK borçları, kredi kartı ve tüketici kredileri, belirli bir mala bağlı değilse mal paylaşımında düşülemez. Yargıtay, bu borçları kişisel borç olarak kabul etmektedir.

Artık değer nasıl hesaplanır, hangi tarih esas alınır?

Artık değer; malın karar tarihine en yakın sürüm değerinden, mala ilişkin borçlar ve denkleştirme kalemleri düşülerek hesaplanır. Bu net tutarın yarısı, diğer eşin katılma alacağıdır.

Why is Expert Legal Support Necessary?

In divorce cases, property division is one of the types of lawsuits where the most mistakes are made in practice and which can lead to irrevocable loss of rights. Specifically; distinguishing which debt falls under acquired property and which under personal debt, correctly offsetting debts incurred after the divorce filing date, technically auditing market value, equalization, and addition items with expert reports, and preventing incorrect debt deductions regarding company shares, commercial enterprises, and real estate requires expertise.

An incorrectly initiated lawsuit or an incomplete objection can lead to years of litigation, high fees and expenses, and the loss of hundreds of thousands or even millions of TL in participation claims.

For this reason, working with an experienced team in Istanbul, especially in the areas of Tuzla divorce lawyer, property division lawyer, and family law, is critically important. 2M Law Firm, based in Istanbul, offers strategic and technical litigation management based on Supreme Court precedents in divorce cases, property division and participation claim cases, and liquidation files involving company shares and real estate, in Tuzla, Pendik, Kartal, Maltepe, Kadıköy and all districts on the Anatolian Side.