Fraudulent Transfers in Divorce: Burden of Proof and Protecting the Participation Claim

The Temporal Scope of the Regime of Participation in Acquired Property

Under the Turkish Civil Code, unless spouses choose another regime when marrying, the statutory regime of participation in acquired property has applied since 1 January 2002. Property acquired after that date is subject to liquidation; property acquired before it is, as a rule, personal property.

How Property Before and After 2002 Is Distinguished

A marriage beginning before 2002 does not prevent the regime of participation in acquired property from applying to the period after that date; a separate contribution assessment is made only for the pre-2002 period. Where no concrete contribution from before that date is asserted, property acquired during that period is treated as personal property.

When the Property Regime Ends

The date used in the liquidation calculation is not the date the divorce judgment becomes final, but the date the divorce action was filed. Assets acquired or disposed of after that date do not, as a rule, affect the liquidation calculation — though, as explained below, the rules on fraudulent transfers are an important exception to this.

Burden of Proof and Presumptions

Whether an asset is acquired or personal property directly determines the outcome of a liquidation dispute. The law grants one party a significant evidentiary advantage on this point.

The Presumption of Acquired Property

Under Articles 222 and 223 of the Civil Code, everything a spouse owns is presumed to be acquired property until proven otherwise. This presumption significantly eases the position of the spouse claiming a participation share: the burden of proof falls not on the claimant, but on the party asserting that an asset is personal property.

The Burden of Proof for a Personal-Property Claim

Absent a contrary statutory provision, each party must prove the facts underlying their own claim. A claim that an asset is personal property must be supported by concrete, credible written evidence, not witness testimony alone; otherwise the court continues to treat the asset under the presumption of acquired property.

The Presumption for Transfers from Parents

Where a transfer of property is made by a spouse's parents, it is presumed as a matter of fact to be a gratuitous transfer (a gift). A party asserting that the transfer was in fact a paid sale bears the burden of proving that.

What Is a Fraudulent Transfer ("Hiding Assets")?

Some spouses transfer assets to a third party during liquidation proceedings specifically to reduce the participation claim they would otherwise owe. The law provides a distinct safeguard against this conduct.

Article 229/2: Transfers Made to Reduce the Participation Claim

Transfers a spouse makes during the property regime with the intent of reducing the other spouse's participation claim are added back, as a value, to the transferring spouse's acquired property (Art. 229/2 Civil Code). For example, a transfer of real property to a third party during a period when the spouses were living apart may, depending on the facts, fall within this provision.

The Nature of a Sham-Transaction Claim and Legal Interest

Where it is alleged that a transfer was in truth a sham arrangement agreed between the parties, this allegation may also be the subject of a separate sham-transaction claim. A spouse seeking to collect the participation claim has a legal interest in bringing such an action, as they are harmed by the sham transaction.

Which Court Hears a Fraudulent-Transfer Claim?

A claim to add the value of a transfer made to reduce the participation claim back into the liquidation calculation is part of the liquidation action itself and is therefore heard by the family court. A general claim, independent of liquidation, seeking annulment of the transfer itself on grounds of a sham transaction (Art. 19 Code of Obligations) may instead fall within the jurisdiction of the civil court of first instance; which route applies depends on the nature of the claim in the specific case.

Does Liquidation Give a Proprietary Right or a Monetary Claim?

A common misunderstanding is assuming "half the asset belongs to me." Under settled Court of Cassation practice, a liquidation action does not, as a rule, give rise to a proprietary claim — a share of ownership in the asset itself. What may be claimed is only a monetary claim. The judgment awards a sum of money corresponding to a proportion of the asset's value, not ownership of the property.

As of Which Date Is Value Determined?

In calculating the participation claim, the assets existing at the date the property regime ended are taken as the basis, but their value is calculated not as of that date but as of the date of liquidation — that is, the date of judgment (Articles 227/1, 228/1, 232, and 235/1 Civil Code). This distinction matters: which assets exist is assessed as of the filing date, while their monetary value is assessed as of the date closest to judgment.

Interim Legal Protections During Liquidation

A party wishing to prevent an asset from being disposed of during the proceedings may apply for one of two different interim measures; which is appropriate depends on the nature of the claim.

When Is an Interim Injunction Appropriate?

Where ownership of the asset itself is in dispute — for example, where a notation is sought on the title deed to prevent transfer to a third party — an interim injunction may be requested. Where the aim is only to secure a monetary claim (the participation claim) over an asset whose ownership is not in dispute, precautionary attachment is considered the more suitable route.

Why Precautionary Attachment May Be More Suitable

For participation claims, which are monetary in nature, regional courts of appeal have held that precautionary attachment, rather than an interim injunction, should be used for assets whose ownership is undisputed. Which measure to seek in a given file depends on the nature of the action and whether an ownership dispute actually exists.

	Interim Injunction	Precautionary Attachment
When appropriate	Ownership/entitlement to the asset is disputed	Ownership is undisputed; only the claim needs securing
Example	A notation barring transfer on the title deed	Attachment of a bank account or other asset
Purpose	Preserving the disputed asset itself	Securing collection of the future judgment

The Effect of the 2026 Procedural Reform on Liquidation Actions

Law No. 7589, adopted on 16 July 2026 and published in the Official Gazette on 31 July 2026, made changes to the Code of Civil Procedure that also affect liquidation actions. Article 19 of the law repealed the indeterminate-debt action under Article 107 of the Code of Civil Procedure; in its place, a new fourth paragraph added to Article 109 allows a claimant in a partial action — one seeking only part of a divisible debt — to increase the amount claimed once, without being subject to the bar on expanding claims, before the taking of evidence concludes, with limitation for the increased portion deemed interrupted as of the filing date. This change matters directly for case types such as liquidation of the property regime, where the amount of the claim is often only clarified during proceedings through expert examination. In addition, under Article 147/3, the interval between hearings may no longer exceed three months. Indeterminate-debt actions filed before the law's effective date continue to be governed by the prior rules.

Common Mistakes

• Relying only on witness testimony to claim an asset is personal property, without written evidence
• Assuming that liquidation entitles a spouse to the property itself, or a specific share of it
• Taking no legal action on learning of a transfer and assuming the situation will resolve itself
• Treating an interim injunction and precautionary attachment as interchangeable
• Assuming a property's value is fixed as of the filing date, when the value actually used is as of the date of liquidation

Divorce Lawyer in Istanbul and Ankara: Acting on Fraudulent Transfers

Interim measures against transferred assets are requested from the court hearing the case, so where the divorce is filed matters. Under Article 168 of the Civil Code, that is where either spouse lives or where they last lived together for six months, which for many couples means Istanbul or Ankara. A divorce lawyer in Turkey registered with a Turkish bar can act before the courts in both cities.

We follow these files as a divorce lawyer in Istanbul and before the family courts in Ankara. See our divorce lawyer in Turkey page for the full process, and Division of a Mortgaged Home in Divorce for how a home with an outstanding loan is shared.

Conclusion

Under the regime of participation in acquired property, the burden-of-proof rules largely favour the spouse claiming a participation share — but taking advantage of that right requires correctly applying both the evidentiary presumptions and the safeguards against fraudulent transfers. Where there is a risk that an asset will be disposed of, applying for interim protection in time can directly affect the outcome of the case. Legal advice is important for determining the right strategy for the facts of a particular file.

Sources

Court/Chamber	Case No.	Decision No.	Date
Court of Cassation, 2nd Civil Chamber	2023/3779	2024/5474	09.07.2024
Court of Cassation, 2nd Civil Chamber	2023/8218	2024/3549	16.05.2024
Court of Cassation, 2nd Civil Chamber	2023/530	2024/891	15.02.2024
Court of Cassation, 2nd Civil Chamber	2023/3777	2024/1654	12.03.2024
Court of Cassation, 2nd Civil Chamber	2023/8704	2024/4334	06.06.2024
Court of Cassation, 2nd Civil Chamber	2022/6799	2023/5802	30.11.2023
Court of Cassation, 4th Civil Chamber	2022/9742	2024/3318	15.04.2024
Court of Cassation, 2nd Civil Chamber	2022/10392	2024/2452	16.04.2024
Court of Cassation, 2nd Civil Chamber	2023/4245	2024/4029	30.05.2024
Court of Cassation, 2nd Civil Chamber	2023/7071	2024/3441	14.05.2024
İzmir Regional Court of Appeal, 24th Civil Chamber	2024/1002	2024/867	17.05.2024