The Constitutional Court rejected the cancellation request for the subsection (4) of the second paragraph of Article 219, which envisages the proceeds of personal property as acquired property in the invoicing regime adopted by the Turkish Civil Code in its meeting dated 14.12.2016.

Objection Rule

The objection clause is that the proceeds of the personal property are foreseen as acquired property in the invoicing regime acquired in the rule.

Application Rationale

In the application decision, it is stated in summary that the law no 4721 defines the legal property regime as the participation of the acquired property, unless the contrary is determined by the contract, between the parties the income of the personal property which is considered as limited and very limited, The right to property shall be treated as an intervention without reasonable justification for the right of property to be taken into consideration, that the spouses have abandoned private property in their ownership and adopted a common understanding in the socialist countries and that such recognition of a financial right would prevent official marriages, It is contrary to Articles 2 and 35 of the Constitution that the rule governing the recognition of the proceeds of personal property as acquired goods without a justifiable reason.

The Court's Assessment

The Constitutional Court has summarized the following evaluations within the scope of these claims:

The rule has also been examined in terms of articles 13 and 41 of the Constitution because of its interest.

It is clear that a single commodity regime as a legal property regime can not meet the needs of all family types, as the society is born of individuals whose worldview, marriage and monetary considerations, expectation from marriage, needs and desires are completely different from each other and the different family types that these individuals form.

In this context, the legislator has specified different property regimes such as "property allocation", "shared property allocation" and "property partnership" according to different expectations. The spouses may choose, remove or change one of the property regimes specified in the Law by the provision of the property regime before or after marriage. In accordance with Article 205 of the Act, it is sufficient for the spouses to make a property registration agreement in the notary or to affirm the notarial contract between them.

In cases where the accused has not been decided, the lawmaker has adopted the regime of "acquisition of acquired property" as a legal property regime in Article 202 of the Law in order to prevent a legal gap in terms of financial relations between spouses in the event of a family union. According to Article 218 of the Law, the invoicing regime, which is acquired, encompasses the personal property of each of the acquired assets and partners. In other words, all property values ​​in the legal property regime are either personal property or acquired property. A third group of goods can not be mentioned. This regime is basically based on the principle of separation of goods as well as the fact that the assets of the spouses remain independent and separate from each other and the goods acquired after marriage are shared during the continuation of the property regime. When the acquired property ends, all the goods obtained by the spouses during the period of the property are accepted as acquired goods, except for the goods considered as personal goods, and they are subjected to half-share.

The objection clause is deemed to be the property of the acquired property in which it is stated that the acquired property is the value of the property obtained by giving the counter value of the property during the continuation of the property. In the rule of objection, it is foreseen that the income of the personal property will be the acquired property in the acquired property regime. Personal goods in Article 220 of Law no 4721; Goods used solely for the personal use of one of the spouses are shown as values ​​of property acquired by the spouse of one of the spouses at the beginning of the property regime or acquired by a spouse after inheritance or in any form without compensation for spiritual indemnity and personal property substitutes. According to Article 685 of Law No. 4721, one thing is owned, and its products are also owned. The product is natural or legal products obtained periodically and other products which are deemed appropriate to be obtained from him according to the purpose of customizing something. The income of the spouse's personal property acquired in this way during the period of property shall also be considered as acquired goods and shall be subjected to half-way sharing between spouses.

It is understood that the rule interferes with the right of property by granting half of the income of the personal property within the marriage partnership. Although there is interference with this right by envisaging that the proceeds of personal property be distributed among the spouses, there is no interference with the inherent right of ownership of the personal property of the property as a whole. Whether this intervention, which should be assessed for this reason, is based on legitimate aims, whether the restriction is in conformity with the requirements of democratic society order and the principle of proportionality.

It is clear that the objection is that in the value of one of the spouses after marriage, the other partner's contribution is deducted for the sake of public welfare, in particular for the protection of women, by foreseeing the common sharing of the income of the personal property within the marriage union, assuming support. It also appears that the rule provides for a fair and balanced system for the expenditure of the marriage union, which is managed jointly by spouses, to achieve the purpose of participation of labor and assets in proportion to the strength of the spouses. For this reason, it can not be said that the interference with the right of property is not based on a legitimate aim.

On the other hand, the acquisition regime of the acquired property is the regime of the legal property which will be valid when the spouses do not determine any of the property regimes specified in the Law no. 4721 by making the property regime agreement. The legislator has made a preference within the discretionary power to prevent a legal gap in cases where the spouses do not set the estate regime on the basis of their importance to the marriage institution and in this case the income of the personal property is accepted as the acquired property in the liquidation procedure of the acquired property. However, the legislator is of the opinion that the spouses should be allowed to change the legal regime by accepting a different commodity regime before the marriage union and / or while the marriage union is in progress, and as it is clearly stated in Article 221 of the Act It was also possible to determine whether the proceeds of personal goods would not be included in the acquired property. When all these regulations are evaluated together, it is clear that the interference with the property right is reasonable and acceptable. Therefore, there is no contradiction in the rule with the requirements of the democratic society order and the principle of proportionality.

As a result, the objection rule was not found to be contrary to the Constitution and it was decided to reject the cancellation request.

This press release has been prepared by the Secretary-General for the purpose of informing the public and is not binding.