Constitutionality Review

The Contested Provision

In the impugned provision, incomes of personal properties are considered to be acquired property in the regime of participation in acquired property.

Grounds for the Request for Annulment

In the application lodged with the Constitutional Court, it has been maintained in brief that in the Turkish Civil Code no. 4721 (“the Law no. 4721”), the legal property regime is envisaged to be the regime of participation in acquired property, and unless otherwise specified in an agreement, this property regime would be applied between the parties; that the personal properties are listed in limited number and in a very restricted manner in the Law; and that the provision, which envisages that incomes of the personal properties listed in a highly restricted manner would be made subject to participation claim, amounts to an interference in the right to property without a reasonable ground. It has been further asserted that private ownership is almost abandoned between the spouses, and common understanding prevailing in the socialist countries is adopted; and that granting such a financial right to the other spouse would hinder civil marriages. It has been accordingly argued that for these reasons, the provision setting out that incomes of personal properties are also considered, without existence of a reasonable and acceptable ground, to be acquired properties contravenes Articles 2 and 35 of the Constitution.

The Constitutional Court’s Assessment

In brief, the Constitutional Court has made the following assessments:

The provision was also examined under Articles 13 and 41 of the Constitution for being related thereto.

It is clear that a single property regime which would be envisaged to be the legal property regime would fail to satisfy needs of all family types as the society is comprised of individuals whose world-views, opinions as to marriage and monetary issues, expectations from marriage, needs and wishes are completely different from each other and of different types of families formed by these individuals.

Accordingly, the legislator established different property regimes such as “separation of property”, “shared separation of property” and “community of property” according to different expectations. Spouses may prefer one of the property regimes specified in the Law before or after getting married by means of making a property regime agreement, may revoke or alter this agreement. In this respect, it is sufficient for the spouses to make a property regime agreement in a notary office pursuant to Article 205 of the Law or to make the written agreement concluded by and between them notarized.

Unless otherwise agreed, with a view to preventing a legal gap to occur with regard to financial relations between the spouses, the legislator has adopted the “regime of participation in acquired properties” as the legal property regime in Article 202 of the Law. As per Article 218 of the Law, the regime of participation in acquired properties contains the acquired properties and personal properties of each of the spouses. In another words, all asset values in the legal property regime are either personal property or acquired property. Any third group of property does not exist in this regime. In principle, this regime is based on the principle that during the continuation of the property regime, the spouses’ assets are independent and separate from each other and that the properties acquired following marriage would be shared between the spouses, as is the case with the regime of separation of properties. When the regime of acquired property ends, all properties acquired by the spouses during the property regime are considered to be acquired property, except for those accepted as personal properties, and subject to division in half.

In the article including the impugned provision, it is specified that the acquired property is asset values which are acquired by each spouse during the continuation of this property regime by means of making payment and acquired goods are listed therein. The provision in dispute sets out that incomes of the personal properties would be accepted as the acquired properties in the regime of acquired property. In Article 220 of the Law no. 4721, personal properties are listed as the material which is for the personal use of only one of the spouses, the asset values which belong to one of the spouses at the beginning of the property regime or which are subsequently acquired by one spouse by inheritance or in any other means through acquisition free of charge, non-pecuniary damage claims and values substituting for personal properties. In pursuance of Article 685 of the Law no. 4721, an owner of a property is the owner of the yields of this property. In this sense, the yield means natural or legal outputs acquired periodically and other returns acquisition of which are deemed appropriate by virtue of custom according to the aim allocated to the property. Incomes of the personal properties which are gained by the spouses during the property regime in this way shall be accepted as acquired property and shall be accordingly subject to division in half between the spouses.

It has been revealed that the provision interferes in the right to property by means of according a right, in half, to the other spouse over the incomes of personal properties gained throughout the marriage. Although there is interference in this right due to this provision for setting out that incomes of personal properties would be divided between the spouses, this interference does not impair the very essence of the right as the owner’s right to property over the incomes of his/her personal properties as it is not completely eliminated in legal terms. Therefore, what must be assessed is whether this interference is based on a legitimate aim and whether the restriction is compatible with the requirements of a democratic society and the principle of proportionality.

 It is explicit that the impugned provision has been formulated for public interest with a view to protecting the family especially the women by means of allowing for joint division of incomes acquired from personal properties throughout the marriage given the other spouse’s contribution in and support for the values acquired by the spouse after the marriage. It has been also observed that the provision provides for a fair and balanced system for attaining the aim that the spouses would cover the expenses of the union of marriage, which is jointly steered by the spouses, with their labour and assets in proportion to their capacity. Therefore, it cannot be concluded that the interference in the right to property due to this provision does not pursue a legitimate aim.

On the other hand, the regime of participation in acquired properties is a legal property regime which would be applicable when the spouses have not preferred one of the property regimes specified in the Law no. 4721 by means of making an agreement for property regime. Within the framework of the importance attached by the legislator to the union of marriage, the legislator has made a choice within the scope of its discretionary power with a view to preventing occurrence of a legal gap in cases when the spouses have not determined the property regime and has considered incomes of personal properties as acquired property in case of termination of the regime of participation in acquired properties which would be applicable in such a case. Furthermore, the legislator has enabled the spouses to alter the legal property regime in question by means of adopting another property regime through an agreement for property regime before and/or during their marriage and, as explicitly specified in Article 221 of the Law, to agree that incomes of personal properties would not be included in the acquired properties while the regime of acquired property is in force. Having regard to all these arrangements as a whole, it is explicit that the interference in the right to property is reasonable and acceptable. Therefore, this provision does not, in any aspect, contradict the requirements of a democratic society and the principle of proportionality.

Consequently, the Constitutional Court has found the impugned provision not in breach of the Constitution and dismissed the request for annulment thereof.