What Is the Situation of Company Shares in Divorce?

 

  1. What is Regime of Participation in Acquired Property?

In the Turkish Civil Code Number 4721, unlike the previous Civil Code, the legal property regime between spouses is regulated as the “regime of participation in acquired property”. The Turkish Civil Code, in which the legal property regime between spouses is accepted as the regime of participation in acquired property, entered into force on 1 January 2002. The thing to note here is:

  • As a rule, in marriages made after January 1, 2002, the legal property regime between spouses is the regime of participation in acquired property.

 

  • In marriages made before January 1, 2002, if the spouses did not choose any property regime, the regime of participation in the acquired property will be applied as of January 1, 2002. However, the “Separation of Estates Regime” will be valid until 31.12.2001, the goods on the spouses will be counted as personal property and will not be taken into account in the calculation of residual value in the liquidation of the property regime.

 

According to Article 218 of the Turkish Civil Code, “The regime of participation in acquired property covers acquired property and personal properties of each of the spouses.”

  1. What is Acquired Property?

According to Article 219 of the Turkish Civil Code, “Acquired property is the asset values ​​that each spouse obtains by giving effort during the continuation of this property regime.” As can be understood from the provision of the article, in order for a property to be considered an acquired property, it must be acquired during the property regime and must be acquired in return for labor.

According to Article 219 of the Turkish Civil Code, “The acquired property of a spouse is particularly as follows:

  1. Acquisitions that correspond to his work,
  2. Payments made by social security or social assistance institutions and organizations or ballot box that established for the purpose of helping personnel and the like,
  3. Compensation paid due to loss of working power,
  4. Income from personal property,
  5. Values ​​in lieu of acquired property

 

 

  1. What is Personal Property?

According to Article 220 of the Turkish Civil Code, “The following are personal property as per the law:

  1. Items for personal use of one of the spouses,
  2. Assets owned by one of the spouses at the beginning of the property regime or acquired by a spouse subsequently through inheritance or any other way of gratuitous acquisition,
  3. Non-pecuniary damages,
  4. Values ​​in lieu of personal property.”

 

According to Article 221 of the Turkish Civil Code, “Spouses may accept that the assets that should be included in the acquired goods arising from the performance of a profession or the activity of the enterprise, with the property regime contract, will be considered personal property.

Spouses may also decide that the income of personal property will not be included in the acquired goods with the property regime agreement.”

 

  1. What Will Be The Status Of The Company Shares In Divorce?

 

If the price of the company shares is paid before the date of marriage, these shares will be considered as personal property, if paid in a marriage union, they will be considered as acquired property.

 

Although the company shares paid for before the marriage date are considered as personal property, the income from these company shares can be subject to the liquidation of the property regime. Because in accordance with the Turkish Civil Code, the income of personal property is also considered as acquired property. For example, income from company shares considered personal property; dividend payments paid for stocks; assets of the company; The property regime between spouses will be subject to liquidation. However, since the liquidation shares in the dissolved partnerships will not be considered as income, they are considered personal property and will not be subject to liquidation (Acabey, 509).

 

In the liquidation of the regime of participation in acquired property, spouses can request participation receivable. In other words, while the company shares paid for before the marriage date are considered the personal property of each spouse, the income, profit shares and dividends obtained from them can be claimed within the scope of participation receivables, since they are considered acquired property. According to Article 236 of the Turkish Civil Code, “Each spouse or his heirs shall be entitled to half of the residual value of the other spouse.” According to Article 231 of the Turkish Civil Code, “The residual value is the amount remaining after deducting the debts related to these goods from the total value of the acquired goods of each spouse, including the amounts obtained from addition and equalization.”

 

Another claim that spouses who divorced after January 1, 2002 can claim is the share of value increase. According to Article 227 of the Turkish Civil Code, “If one of the spouses has contributed to the acquisition, improvement or protection of a property belonging to the other he/she will have the right to receivable in proportion and this receivable is calculated according to the value of that property at the time of liquidation; In the event of a depreciation, the initial value of the contribution is taken as the basis.” In other words, if the other spouse contributes to the acquisition and improvement of this company on the company owned by one of the spouses and if she/he proves this contribution, it is possible to claim the increase in value.

 

The profit on the year-end balance sheet of the company, which is personal property, is the acquired property. If this profit is not distributed and if it is added to the capital, it is called “reserve funds” and “reserve funds” are considered as acquired property. Another point to note is that the figures shown in the company’s balance sheet are gross, so they are first converted to net and the amount found is subject to liquidation.

 

 

 

 

 

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