Strategic Asset Protection: Blocking Fraudulent Transfers & "Mal Kaçırma" (Asset Hiding) in Turkish Divorce

In the volatile environment of divorce litigation, a common tactic involves one spouse rapidly depleting or transferring assets to lower the settlement pool—a practice known in Turkish law as "Mal Kaçırma." This guide outlines the immediate legal mechanisms available to freeze assets, secure the family home, and "claw back" property transferred to third parties.

The "Mal Kaçırma" Phenomenon: Recognizing the Threat

In Turkish Family Law, the division of property is generally deferred until the divorce decree is final. This interim period creates a window of vulnerability where a spouse may attempt to liquidate assets to avoid sharing their value.

Common tactics include:

• Selling real estate to friends or relatives at suppressed prices.

• Emptying bank accounts.

• Transferring vehicle titles to third parties.

  
  

To ensure the eventual "Participation Claim" (the monetary settlement) is actually collectible, the plaintiff must move from a passive stance to active asset preservation immediately upon—or even before—filing for divorce.

The First Line of Defense: Preliminary Injunctions (İhtiyati Tedbir)

The most effective tool to stop the bleeding of assets is the Preliminary Injunction. This is a court order that freezes specific assets, preventing their sale or transfer during the litigation process.

When a property division lawsuit is filed, the plaintiff can simultaneously request this injunction from the Family Court. If granted, the court sends a notification to the relevant authorities (such as the Land Registry or Traffic Registry) to place a block on the asset’s record.

• Real Estate: A "tedbir" on the title deed ensures the property cannot be sold to a third party without court permission.

  
  

• Scope: This protects the "pot" of money from which the final settlement will be paid, ensuring the defendant does not render themselves artificially insolvent.

  
  

Securing the Home: The "Family Residence" Annotation

A specific and powerful protection exists for the couple's primary residence, known as the Family Residence Annotation (Aile Konutu Şerhi). This is distinct from a general injunction and is often easier to obtain.

Regardless of which spouse holds the title deed to the home, the other spouse has the right to limit its disposition. By applying to the Land Registry Directorate (Tapu Sicil Müdürlüğü), a spouse can have this annotation placed on the property record.

The Legal Effect: Once this annotation is active, the owner-spouse is legally paralyzed regarding that property; they cannot sell, mortgage, or rent out the family home without the explicit, written consent of the other spouse. This is a critical stopgap to prevent a spouse from selling the house out from under the family while the divorce case is pending.

The "Clawback": Recovering Assets Sold Before the Divorce

A common concern is: "What if my spouse already sold the car or the apartment just before filing for divorce?"

Turkish Civil Code (TMK) anticipates this bad faith behavior. The law dictates that any assets disposed of within one year before the divorce filing—specifically to reduce the other spouse's share—or any transfers made with the express intent of hiding assets (regardless of timing), are legally treated as if they still exist.

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1. The Add-Back Calculation

Even if the asset is physically gone (sold), its market value is added back into the calculation of the "acquired property" pool.

1. Example: If a husband sells a car worth 500,000 TL for 100,000 TL to a friend to hide money, the court ignores the sale price. It calculates the division based on the current market value of the car as if it were still in the husband's possession.

   
   

2. Third-Party Liability

If the spouse who sold the asset does not have enough remaining money to pay the settlement, the law allows the plaintiff to go after the third party who bought the asset.

• Condition: The court must establish that the transfer was a fraudulent attempt to deplete assets.

  
  

• Procedure: Initially, the court calculates the debt owed by the ex-spouse. If that spouse cannot pay (insolvency), a separate lawsuit can be directed at the third party who benefited from the fraudulent transfer to recover the missing amount.

Special Case: Adultery and Asset Reduction

While generally rare in modern no-fault systems, Turkish law retains a punitive financial measure for adultery. If a divorce is granted specifically on the grounds of Adultery (Zina) under TMK Article 161, the court has the discretion to alter the standard 50/50 split.

The judge may decide to reduce or completely eliminate the cheating spouse's "Participation Claim" (share of the surplus value).

Note: This penalty applies only to the "profit" (participation claim). It does not eliminate the cheating spouse's right to their own "Contribution Claim" (money they explicitly invested into an asset). For example, if an adulterous spouse paid 50,000 TL toward a house, they can still demand that capital back, but they may lose their share of the house's appreciation.

Strategic Takeaway

In Turkish divorce litigation, the preservation of the financial status quo is as important as the divorce itself. Waiting until the final decree to look for assets is often too late. High-net-worth individuals must utilize Family Residence Annotations immediately and file for Preliminary Injunctions concurrently with the property division lawsuit to prevent irreversible loss.

🛠️ Step-by-Step Action Plan: How to Protect Your Assets

Based on the strategies above, here is your immediate checklist to stop asset hiding:

Step 1: Secure the Family Home (Aile Konutu Şerhi) Go to the Land Registry (Tapu) immediately with your marriage certificate. File a request for a "Family Residence Annotation." This physically blocks the sale of your home.

Step 2: File for Preliminary Injunction (İhtiyati Tedbir) Work with your lawyer to submit a petition to the Family Court. Request a freeze on all bank accounts, vehicles, and real estate to prevent transfers during the lawsuit.

Step 3: Initiate a Clawback Investigation If assets are already gone, instruct your lawyer to trace transfers made in the last 1 year. The court can calculate these back into your settlement pool.

FAQ: Asset Protection & "Mal Kaçırma" in Turkey

How can I stop my spouse from selling our home during the divorce?

You must immediately apply for a "Family Residence Annotation" (Aile Konutu Şerhi) at the Land Registry. This legal block prevents your spouse from selling, renting, or mortgaging the matrimonial home without your explicit written consent, even if the title deed is solely in their name.

What is a "Preliminary Injunction" (İhtiyati Tedbir) and how do I get one?

A Preliminary Injunction is a court order that freezes assets to prevent "Mal Kaçırma" (Asset Hiding). You can request this from the Family Court when filing your property division lawsuit. It blocks the sale of cars, real estate, and sometimes freezes bank accounts to ensure the final settlement can be paid.

My spouse sold assets just before filing for divorce. Is it too late?

No. Turkish Civil Code allows for a "Clawback." Any assets disposed of within one year prior to the divorce filing with the intent to reduce your share, or any transfers made purely in bad faith at any time, are calculated as if they still exist. The court adds their value back into the settlement pool.

Can we recover assets transferred to friends or relatives?

Yes. If the court determines that a transfer to a third party (like a sibling or friend) was a fraudulent attempt to hide assets, and if your ex-spouse cannot pay your settlement share, legal action can be taken against that third party to recover the missing value.

Does adultery affect the division of assets in Turkey?

Yes, under specific conditions. If the divorce is granted on the grounds of Adultery (Zina), the judge has the discretion to reduce or completely eliminate the cheating spouse's "Participation Claim" (their share of the surplus value acquired during marriage).

🛡️ Protect Your Financial Future Today

If you suspect your spouse is hiding assets or planning to sell shared property, time is your enemy. Once an asset is sold to a third party, recovering it becomes significantly harder and more expensive.

At Istanbul Attorneys, we specialize in high-stakes divorce litigation and asset protection for international clients. We can move quickly to file for Preliminary Injunctions and secure your rights before it’s too late.

Don't wait until the bank account is empty.

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