Precedent-setting ruling from the Court of Cassation for property division cases!

The 2nd Civil Chamber of the Court of Cassation, which has issued a significant ruling regarding property division (liquidation of the matrimonial property regime) cases filed after divorce, stated that for transfers between spouses to be considered a gift, "the intent to gift must be clear and leave no room for doubt."

According to information obtained from the Case Law Bulletin Application, the court of first instance, which heard the case regarding the liquidation of the property regime in Kuşadası, took into account the statements in the divorce file and ruled that the transfer made was in the nature of a gift. For this reason, the court decided that the cooperative share should be considered personal property and rejected the plaintiff's claim for participation receivables.

The attorney for the plaintiff husband, who objected to the decision of the court of first instance, filed an appeal within the legal timeframe. However, the 18th Civil Chamber of the İzmir Regional Court of Justice found the appeal objections unfounded and rejected the application on its merits.

Thereupon, the plaintiff's attorney filed an appeal with the Court of Cassation, arguing that the transfer made by his client could not be characterized as a gift. The file was moved to the 2nd Civil Chamber of the Court of Cassation for review.

After reviewing the file, the 2nd Civil Chamber of the Court of Cassation emphasized the principle that "in the liquidation of the property regime, for a transfer to be evaluated as a gift, the intent to gift must be clear and leave no room for doubt." The ruling further stated, "According to our Chamber's practices, if there are no statements or behaviors that reveal an intent to gift in a way that leaves no room for doubt, the mere act of transferring real estate registered in the name of the plaintiff to the defendant and registering it in the defendant's name is not sufficient on its own to be accepted as a gift. In this regard, in the case at hand, it is understood that the statements in the petition and the response do not carry the quality of showing an intent to gift, and that the real estate was registered in the name of the defendant spouse based on solidarity arising from the relationship and mutual trust. Therefore, the court's acceptance that the real estate was gifted to the defendant without considering this aspect was erroneous and required reversal." The decision was subsequently overturned.

Evaluating the subject, Fatih Karamercan, one of the lawyers of the Istanbul Bar Association, stated the following:

"In practice, spouses often have real estate registered in the name of the other spouse based on solidarity arising from marriage and mutual trust. The established practice of the Court of Cassation does not include the transactions in question within the scope of a gift unless another concept, word, or phrase that would suggest a gift is encountered within the scope of the file, and it requires the intent to gift to be revealed in a way that leaves no room for doubt. The aforementioned reversal decree of the 2nd Civil Chamber of the Court of Cassation is appropriate as it is in accordance with equity and doctrinal views."

News Source: İHA