Marital Property Rejimes And The Comparison Of The Right Of Contribution Claim And The Increased Value Claim 09 December 2021

There are two basic marital property regime models in our law. The first of these is the separation of estates model. In this marital property regime model, spouses have the rights over the property they acquired during the marriage union on their own. At the end of the seperation of estates regime, the spouses do not have any real or personal rights over each other's property values. Another is the community of goods model. According to the Turkish Civil Code, “Acquired property is the asset values that each spouse obtains during the continuation of this marital property regime.” Upon termination of the acquired property, the spouses have the right to take back their personal property. The regime of participation in acquired property has a significant difference from the seperation of estates regime. This difference is that when the regime of participation in acquired property ends, each spouse has a legal right to claim half of the surplus value calculated on the basis of the acquired properties of the other during the marital property regime.

In the event that an optional marital property regime agreement meeting certain form of conditions is not signed by the spouses within the scope of the current legal regulations, the regime of participation in acquired property is applied between the spouses as required by law. The incrased value claim is a right to claim that the other spouse can demand for his/her contribution to the assets, which he/she does not give up in return. The incrased value claim does not have the characteristics of a real right, it is a relative right and can only be claimed against the other spouse.

On the other hand, the approach of the Court of Appeal regarding the claimability of the contribution made by the spouse's family to the other spouse's assets within the scope of article 227 of Turkish Civil Code is that the contribution made by the spouse's family can be subject to the demand for a share in the incrased value claim  only if that the contribution made by the spouse's family is made on behalf of the spouse.

The right of contribution claim is the equivalent of the contribution made during the periods when the separation of estates regime between the spouses is valid. In the case of the right of contribution claim filed by the non-owner spouse against the owner spouse, the plaintiff; claims that he/she also contributed to the acquisition, improvement or protection of the property owned by the defendant. As a result, the non-owner spouse has a claim. The basis of the claim for contribution may be the money, labor and material spent for the purchase, repair, improvement, protection and similar purposes of the subject property. For example, this contribution can be in many different ways, such as giving the plaintiff's salary or wages, self-employment earnings to the defendant; paying the bank debt or cooperative membership dues and installments, giving jewelery and so on. In the case of the right of contribution claim, one spouse must contribute to the property of the other and be able to prove this contribution concretely. In this context, taking care of the housework and taking care of children by the non-working spouse cannot be considered as a contribution to the property acquired by the other spouse. However, according to the jurisprudence of the Court of Appeal, it is possible for one of the spouses to request a contribution if they have works that exceed the limits of ordinary family cooperation.

There are differences between the increased value claim and the right of contribution claim in various aspects. In the case of the right of contribution claim, the value of the property subject to the case is taken as the date of the case, while in the case of the increased value claim, the value of the property at the date of liquidation is taken. Although the nominal value guarantee exists in the increased value claim, it is not in question in the right of contribution claim. Also in the right of contribution claim cases, interest is charged from the date of the argument, while in the increased value claim, interest is charged from the decision date.

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1} ZEYTİN, Zafer, THE RELATIONSHIP of THE RIGHT OF CONTRIBUTİON CLAİM AND THE INCREASED VALUE CLAIM, Electronic Journal of Social Sciences, ISSN:1304-0278, Spring-2011, Vol:10, Issue:36, p. 301.
² ZEYTİN, Zafer, p. 300.
³ DEMİR, Mehmet, ACCORDİNG TO THE TURKISH CIVIL CODE EQUALIZATION CLAIM AND THE INCREASED VALUE CLAIM IN THE REGIME OF PARTICIPATION IN ACQUIRED PROPERTY, TBB Journal, Issue 61, 2005, p. 293.
⁴ KILIÇ, Ezgi, p .8 & Court of Appeal 8. CD., E. 2016/9822 K. 2018/16651 T. 02.10.2018 (www.lexpera.com)
⁵ Kılıç, Ezgi, p. 24.
⁶ ŞİMŞEK, Mustafa, MARITAL PROPERT REGIME CASES IN PRACTICE, p. 389-390.
⁷ Kılıç, Ezgi, p. 16-17.