TERMS AND LEGAL DETAILS OF A MARRIAGE AGREEMENT IN TURKEY

LEGAL CONCEPT OF PROPERTY REGIME AND TYPES OF PROPERTY REGIMES IN TURKEY

The set of rules that regulate the rights and obligations of spouses over their respective assets before or during the continuation of marriage, as well as the disposal of these assets in the event of divorce, is referred to as the “property regime“. Additionally, legal procedures are carried out to select and/or modify the applicable property regime through marriage agreements. However, it is important to note that marriage contract in Turkey is not a commitment to each other’s behavior; it is a contract made to regulate property.

These contracts, which are referred to colloquially as “marriage agreements” have a legal equivalent called “property regime contracts” in the Turkish law. Before answering the question of what is premarital agreement is, it is important to have a good understanding of the concept of property regime and the types of property regimes specified in the law. The legislator has introduced four different property regimes. The types of property regimes specified in the law are as follows:

1. Regime of Participation in Acquired Property: This is the legal property regime recognized in the Turkish Civil Code. In other words, unless spouses specify a property regime through a premarital agreement in Turkey, the regime of participation in acquired property applies by default. In this regime, all assets acquired after marriage are considered joint property regardless of the contribution of each spouse, and they are divided equally between the spouses in the event of divorce.
2. Separate Property Regime: In the separate property regime, each spouse retains management, utilization, and disposal rights over their own property within legal limits. In other words, whatever belongs to each spouse remains as their own property after divorce.
3. Regime of Shared Separate Property: The regime of shared separate property is a special type of separate property regime. In this regime, after divorce, each spouse remains the owner of their own property. However, unlike other property regimes, there is a partial liquidation process. This means that each spouse retrieves their own property. When the regime of shared separate property ends, the spouse who proves its superiority can request the transfer of the property held in joint ownership, along with other measures, by receiving the equivalent of their share at the time of payment.
4. Community of Property Regime: The community of property regime encompasses joint property as well as the personal property of spouses. In this regime, spouses have joint ownership over all assets, whether they are joint or personal property. In the event of divorce, spouses have rights over all assets regardless of whether they are personal or joint property.

Considering that spouses may have different familial and economic needs, the legislator has provided the opportunity for them to choose a property regime that suits their needs and, to a limited extent, modify the content of this regime when necessary. Spouses can choose one of the separate property, shared separate property, and community of property regimes by making a premarital agreement in Turkey. However, if they do not make this choice, they will be subject to the legal property regime of participation in acquired property.

WHAT IS PREMARITAL AGREEMENT AND MARRIAGE CONTRACT REQUIREMENTS? HOW TO MAKE A MARRIAGE CONTRACT IN TURKEY?

One of the most frequently asked questions by spouses is how to make a marriage contract in Turkey. There are specific conditions for the legal validity of this contract, and the conditions for a marriage contract are detailed in the Turkish Civil Code.

• Capacity to Make a Premarital Agreement in Turkey: One of the conditions for a marriage contract in Turkey is that the parties must have legal capacity. It can only be established by individuals with full or limited legal capacity. Restricted or underage individuals can make this contract with the approval of their legal guardians. The contract can only be signed between spouses or couples intending to get married. If one of the spouses lacks the capacity for discernment, a property regime contract cannot be made. If one spouse later loses their capacity for discernment, the legal representative of the incapacitated spouse can request a transition to separate property regime from the court (Article 206/2 of the Turkish Civil Code). In this case, the other spouse also has the right to apply to the court for a decision on separate property.
• Content of the Marriage Contract in Turkey: The content of the contract must be determined in accordance with legal regulations. The chosen property regime from those mentioned in the law (separate property, shared separate property, community of property) must be specified in the contract.
• Notarization of the Marriage Contract: The conditions for a marriage contract in Turkey to be valid require notarial approval. This process must be carried out at a notary and should include the drafting or certification stages. A document prepared and signed by hand is not legally valid. For a spouse who is a foreign national and does not speak Turkish, it is necessary to sign the marriage contract at a notary with a sworn translator present. It is important to inform the notary about the sworn translator before going to the notary.
• Signing of the Marriage Contract: It is mandatory for the spouses to sign the marriage contract in Turkey for its validity. If one or both of the spouses lack legal capacity, their appointed legal guardians are responsible for signing on their behalf.

WHERE IS A MARRIAGE AGREEMENT MADE?

The form of a marriage agreement is determined with the aim of protecting the interests of the spouses, resolving disputes regarding the property regime, and ensuring clarity. In line with this, a premarital agreement in Turkey must be drafted or certified under the supervision of a notary public (Article 205/1 of the Turkish Civil Code). In other words, no other competent authority can approve or register the conditions of a marriage contract in Turkey. Additionally, since Turkish Consulates have notarial authority, it is accepted that these contracts can also be prepared at consulates.

As stated in Article 205 of the Turkish Civil Code, at the time of marriage, spouses can inform the marriage officer in writing about which property regime they have chosen. This is important to fulfill the formal requirement of the marriage contract.

Furthermore, with the amendments made in the Marriage Regulation, individuals intending to marry are envisaged to inform the marriage officer in writing about which property regime they have chosen. However, the marriage officer does not have the authority to approve or draft the conditions of the marriage contract in Turkey. The marriage officer will record the previously prepared or approved document in the relevant section of the marriage register and send it to the relevant Population Registry Office.

NOTARY FEES FOR A PREMARITAL AGREEMENT IN TURKEY

The notary fees for a marriage contract can vary depending on the country and region. Therefore, it is important to consult a notary in your country or region to provide accurate fee information.

For example, in Turkey, as of 2023, the notary fee for a marriage contract is calculated based on a writing fee of 23.76 Turkish Liras (TL) for each page of the document, which includes both the original and the copies retained by the notary. In addition, a fixed registration fee of 7.42 TL is charged for documents requiring registration according to the law. Taxes and fees will also be applied in addition to these fees. As of 2023, the notary fee for a property regime contract with a relatively small number of pages will be around 1000-1500 TL.

However, this fee is subject to change, and the notary fee schedule may be updated. Therefore, it is recommended to obtain the most accurate information from a local notary or the official website of the Ministry of Justice.

IS MAKING A MARRIAGE AGREEMENT MANDATORY?

As with any type of contract, freedom of will is paramount in marriage contracts. The legislator does not make it mandatory to create a marriage contract. Therefore, one spouse cannot force the other to enter into a marriage contract.

While not obligatory, spouses can choose to determine the property regime by making a marriage contract in Turkey either before or during the marriage. They can sign a prenup after marriage. This determination can be made in the form of one of the property regimes recognized by law: community of property, separate property, or shared separate property. If such a contract is not made, it is assumed that the spouses are subject to the legal property regime of “acquired property regime.”

WHEN IS A MARRIAGE CONTRACT MADE?

Marriage contract in Turkey can be made before marriage, during the engagement period. Turkish Law allows parties to sign a prenup after marriage. A property regime contract between engaged individuals is considered a legally binding act subject to a marriage taking place. However, if the engagement ends for a reason other than marriage, the validity of the marriage contract conditions made during the engagement period no longer applies.

Making a marriage contract in Turkey before getting married is legally recommended, as it eliminates uncertainties about property division in potential divorce scenarios. This way, couples know they are legally protected when establishing their marriage, and they preemptively address potential future complications.

CAN A MARRIAGE AGREEMENT BE MODIFIED LATER?

The legislator, considering that spouses may have different familial and economic needs, allows for the selection of a property regime that suits these needs and permits limited changes to the content of this regime when necessary. After selecting one of the property regimes specified in the law, spouses can make changes within the limits set by the law or even abolish this regime.

For example, spouses can arrange the categorization of their assets in different ways within the limits set by Article 221 of the Turkish Civil Code. They can, for instance, determine that assets acquired due to the practice of a profession or the operation of a business will be considered personal property, or that the income from personal assets will not be included in the acquired property (Article 221/1, 221/2 of the Turkish Civil Code). They can also specify in advance through a marriage contract how the distribution of assets will be carried out in the event of divorce, and how much share each spouse will receive from which asset.

Additionally, if the spouses have chosen a regime of community of property, they can expand or narrow down the scope of the joint assets (Articles 258, 259 of the Turkish Civil Code); however, they cannot increase the acquired assets at the expense of personal property. Spouses can also determine the consequences of divorce through a premarital agreement in Turkey; however, according to Article 184/b.5 of the Turkish Civil Code, the validity of such an agreement is subject to the approval of the judge.

WHAT SHOULD BE INCLUDED IN A MARRIAGE CONTRACT IN TURKEY?

The content of a marriage agreement should be shaped according to the specific circumstances, expectations, and needs of the couple. The clauses of a marriage contract should be determined based on the needs and expectations of the spouses, and the contract should be drafted accordingly. However, generally, a marriage contract in Turkey may include the following clauses:

1. Identification of the Parties: Basic personal information of the parties signing the contract, such as names, surnames, dates of birth, and identification details.
2. Choice of Property Regime: The property regime determines the ownership and financial arrangements of the marriage. In this section, it should be specified which property regime the parties prefer (e.g., separate property, community of property, etc.).
3. Financial Support and Income Sharing: It covers the economic arrangements between the parties. This can determine how incomes and expenses will be shared in the event of divorce.
4. Identification of Assets Acquired During and After the Marriage: It should be indicated which assets are considered joint and which are considered separate.
5. Joint Accounts and Investments for the Marriage Union: Details regarding joint bank accounts, investments, and financial arrangements may be included in this section.
6. Amendments and Additional Provisions: Additional regulations and amendments according to the specific requests of the parties may be included in this section.
7. Validity and Approval of the Contract: Along with the signatures of the parties, provisions stating that the contract is accepted by the parties of their own free will should be added.

It is important to remember that since every couple’s needs are different, the clauses of a marriage agreement can be personalized. Additionally, the contract should comply with the law and should be made with the consent of both parties. Therefore, seeking professional advice from a premarital agreement attorney is important.

MATTERS TO CONSIDER IN A MARRIAGE AGREEMENT

Marriage is one of the most significant steps in life, and a prenuptial agreement, which safeguards this union, regulates the future financial and property-related situations of couples. However, there are important considerations when preparing a marriage contract in Turkey. Matters such as the parties’ property regime, financial support, inheritance, and other significant expectations should be clearly stated. Additionally, the marriage agreement should be prepared in accordance with the applicable laws and the rights of the parties. This document holds great importance in establishing the foundation of a strong relationship and preventing potential disputes.

Below are some of the often overlooked and problematic aspects when drafting a premarital agreement in Turkey:

• Modification of the Property Regime Upon Request of One of the Spouses

Marriage agreements are generally established based on the mutual consent of the spouses. However, in some exceptional cases, a modification in the property regime can be made upon the request of one of the spouses. If one of these situations exists, the judge may, if the conditions are suitable, decide to transition the property regime between the spouses to a separation of property.

These situations are limited and regulated by Article 206 of the Turkish Civil Code, as follows:

• The property of the other spouse being burdened with debts or subject to attachment in the partnership,
• The other spouse endangering the interests of the applicant or the partnership,
• The other spouse unreasonably withholding consent for a transaction on the partnership’s assets,
• The other spouse avoiding providing information about property, income, debts, or partnership assets to the requesting spouse,
• The other spouse being consistently lacking capacity for discernment. (If one of the spouses consistently lacks discernment, their legal representative may request a decision for separation of property on these grounds.)

• What Happens in the Event of Death After Sign a Prenup After Marriage?

In the event of a spouse’s passing, the remaining spouse typically becomes both an heir and a party to the property regime. If the separate property regime is in effect, neither spouse has any rights over the other’s assets. However, under inheritance provisions, the surviving spouse’s inheritance status from the deceased spouse continues. This means that upon the termination of the marriage, the surviving spouse can receive their share in accordance with inheritance distribution rules, and may even make a claim as an heir even if such a claim does not arise.

• Can a Marriage Agreement Contain Provisions Regarding Alimony?

A prenuptial agreement cannot contain provisions that are contrary to mandatory legal provisions, morality, personality rights, or public order. Therefore, if a clause is added to the contract that limits a person’s right to alimony before this right even arises, this clause will be deemed invalid. Even a party entitled to spousal support cannot waive this right before it arises, of their own free will. Therefore, a premarital agreement in Turkey cannot eliminate alimony payments. Additionally, clauses aimed at satisfying the personal egos of the parties are considered to be limiting fundamental rights and freedoms and will be invalid.

• Can a Marriage Contract in Turkey be Conditional?

A marriage contract in Turkey cannot be made conditional on anything other than the choice of property regime. A document signed between spouses privately is not legally considered a prenuptial agreement. Apart from the choice of property regime, there is no authority to make any arrangements in the terms of a prenuptial agreement. Therefore, spouses do not have the right to establish rules, such as a penalty in case of infidelity, between themselves. A legally recognized marriage agreement has undergone specific legal procedures and is a document that protects the rights of the parties, and it does not allow for additional provisions beyond the choice of property regime.

DURATION OF A PRENUPTIAL AGREEMENT IN TURKEY

A prenuptial agreement is valid until it is annulled by a court decision. This means that the provisions of the agreement will be valid if the marriage ends (due to divorce or death). However, if the court determines that the agreement is invalid for any reason, it will become ineffective.

ANNULMENT OF A MARRIAGE CONTRACT IN TURKEY

There are specific conditions for the annulment of a premarital agreement in Turkey. One of the main conditions is the assertion of influence through deception, coercion, or violence in the formation of the agreement. In this case, spouses can file a lawsuit claiming the invalidity of the agreement.

However, there are some important points to consider:

• A lawsuit for annulment must be filed within 1 year from the date the agreement was made. If no lawsuit is filed within this period, the agreement remains valid.
• In cases where the agreement was made before a notary, there needs to be equally strong evidence to prove that the contested agreement is invalid. This means that concrete evidence must be presented to the court.

Under these conditions, spouses can request the annulment of a marriage contract in Turkey made under the influence of deception, coercion, or violence. However, it is important to make these requests in accordance with specific legal procedures.

IS IT PROBLEMATIC TO USE A SAMPLE MARRIAGE CONTRACT?

This article focuses on the formal marriage contract requirements and content details of property regime contracts. However, since each marriage has unique needs and circumstances, it is not possible for any standard sample to fit every situation. Therefore, when determining the make a marriage agreement, it is important for couples to first gain knowledge about the types of property regimes and decide which type is most suitable for them.

It cannot be guaranteed that a sample marriage contract will fit every situation, and as such, it should be carefully evaluated. Making a wrong choice can lead to difficult-to-recover losses in the future. Every marriage has its own set of unique factors and conditions, so it cannot be expected that every sample will be suitable for everyone.

At this point, we strongly recommend conducting thorough research before marriage and seeking assistance from a premarital agreement attorney. An expert family law attorney guides couples on the most suitable type of property regime for their specific situation, determines the terms of the marriage contract, and creates the clauses of the marriage contract in Turkey.