Participation-in-Acquired-Property Regime and Its Liquidation: Participation Claim and Increase-in-Value Share

Under TMK m.219, acquired property consists of assets a spouse obtains during the marriage for consideration. Earnings from work, payments from social-security institutions, income from personal property, and assets replacing acquired property all qualify as acquired property.

Personal property under TMK m.220 includes items used exclusively by one spouse, property owned before the marriage, property acquired by inheritance or otherwise without consideration, and claims for non-pecuniary damages. Only acquired property is subject to liquidation.

In liquidation, debts attributable to each spouse's acquired property are deducted from its total value to determine the residual value (TMK m.231). Each spouse is entitled to a participation claim equal to one-half of the other's residual value (TMK m.236/1).

The participation claim is, as a rule, a monetary claim; it does not give rise to in rem rights. The spouses may agree on a different proportion by contract; however, in divorce based on adultery or attempt on life, the judge may equitably reduce or extinguish the share of the spouse at fault (TMK m.236/2).

TMK m.227 grants a spouse who has contributed — without or below adequate consideration — to the acquisition, improvement or preservation of the other's property a claim, on liquidation, for the increase in value of that property proportional to the contribution. Where there is a loss of value, the original value of the contribution is taken as the basis.

The increase-in-value claim is calculated by reference to the asset's value at the time of liquidation. A different proportion may be agreed in writing between the spouses.

The contribution must be evidenced by bank records, loan-payment receipts, invoices, land-registry documents or witness testimony; mere allegations of family solidarity do not give rise to a claim in every case.

Actions for liquidation of the matrimonial property regime are heard by the Family Court. The action may be brought together with the divorce action or separately after the divorce becomes final. A ten-year limitation period is generally accepted in practice for the participation claim; however, the starting date and the nature of the claim must be assessed on the facts (TMK m.5 referring to TBK m.146).

In family-law matters, the legal assessment is made by taking into account the fault of the parties, the best interest of the children, their economic circumstances, and the lawfulness of the evidence. Message records, witness statements, bank transactions, medical reports and police reports become effective only when submitted in proper form.

Claims for divorce, support, custody, compensation and division of matrimonial property may produce independent outcomes. The petition must therefore clearly set out which claim is based on which facts and which evidence.

In disputes concerning children, the court takes into account the child's physical, emotional, educational and social needs rather than the parties' assertions. Social-investigation reports, school arrangements, health condition and the parents' communication style play an important role in the court's assessment.