Dividing Household Items and Jewelry in Divorces

Dividing Household Items and Jewelry in Divorces. Within the systematics of Turkish Family Law, the liquidation of the matrimonial property regime and the consequent division of movable goods upon the termination of the marital union constitute one of the most debated areas in both doctrine and practice. Although the “Participation in Acquired Property Regime,” adopted with the entry into force of the Turkish Civil Code (TMK) No. 4721 in 2002, envisaged a structure based on the economic partnership of spouses within the marital union, the legal status of “household goods” and “jewelry” (ziynet – wedding ornaments) has been shaped by a specific case law that goes beyond this general regime. In particular, the years 2023 and 2024 are accepted as a milestone in which the 2nd Civil Chamber of the Court of Cassation made radical changes in its established precedents, shifting from gender-based “allocation” criteria to new criteria based on “ownership and belonging.”

This report examines the legal status, presumptions of ownership, burden of proof distribution, trial procedures, and valuation issues during the enforcement phase regarding household goods (white goods, furniture, electronics) and jewelry (gold, jewels, cash ornaments) in depth and with academic rigor, in the light of the decisions of the Court of Cassation Assembly of Civil Chambers (HGK) and current chamber precedents. The report analyzes not only the existing set of rules but also the legal logic, sociological reasons, and practical impact behind these rules.

1. The Place of Property Regimes and the Concept of Goods in Turkish Law

To understand the distribution of household goods, it is essential to first grasp the systematics of the property regime in the TMK. Under TMK Art. 202, unless there is a contract to the contrary between the spouses, the “Participation in Acquired Property Regime” applies. This regime provides for the equal sharing (participation in the surplus value) of assets (acquired property) obtained by the spouses during the marriage by “giving their counterparts” (labor, salary, commercial earnings) in the event of divorce. However, the legislator has excluded some goods from sharing by deeming them “Personal Property” under TMK Art. 220. The fundamental dispute regarding household goods and jewelry is knotted at the point of whether these goods are “acquired property” or “personal property.”

In the practice of the Court of Cassation, movable goods are handled in two main categories:

1. Ordinary Household Goods: Furniture, white goods, home textiles, etc., used for the maintenance of the marital union and sustaining the common life.
2. Jewelry (Ziynet) Items: Gold, foreign currency, and jewelry possessing economic value, pinned on the spouses during the wedding ceremony or within the marital union.

Both categories are subject to different legal regimes in terms of rules of proof, statute of limitations, and presumptions of ownership. In the following sections of our report, this distinction will be examined in depth within the axis of current Court of Cassation decisions.

2. Legal Status, Ownership, and Liquidation of Ordinary Household Goods

Household goods are movables that constitute the physical space of the marital union and are allocated for the common use of the spouses. In actions for the recovery of household items (Eşya Alacağı Davası) filed with or after the divorce case, the issue of who owns these items and how they will be shared is determined according to the parameters of “time of acquisition” and “source of finance.”

2.1. Determination of Ownership According to Time of Acquisition

When determining the ownership of household goods, the Court of Cassation scrutinizes the relationship between the date the item was purchased and the date the payment was made. This analysis determines whether the item is personal property or acquired property.

2.1.1. Purchases Completed Before Marriage

Household goods purchased by one of the spouses before the establishment of the marital union (civil marriage ceremony) and paid for entirely with their own personal savings or with the support of their family have the status of “Personal Property” of that spouse. Pursuant to TMK Art. 220/2, asset values belonging to one of the spouses at the beginning of the property regime are personal property by law.

Such items are not subject to the liquidation of the property regime (sharing). In the event of divorce, the party who owns the item may demand the return of this item in kind from the other spouse. The other spouse has no right to demand “participation receivables” or “value increase share receivables” on this property. For example, a television bought and paid for by the husband before marriage, or a bedroom set brought by the woman as a dowry (çeyiz) and purchased by her family, is absolutely personal property.

2.1.2. The Critical Distinction: Goods Purchased Before Marriage but Paid for During Marriage

This is one of the most frequently encountered and legally disputed issues in practice. Parties often purchase household goods, pay in installments, or incur debt via credit cards during the engagement period, but these debts are paid with salaries or other income after the marital union is established.

The Court of Cassation’s approach to this issue is based on a mathematical “Equalization” (Denkleştirme – TMK Art. 230) calculation:

• The Rule: The ownership of a good is deemed to belong to whoever holds the invoice or possession. However, payments made from the other property group (acquired property group) for the acquisition of this good or the payment of its debt are taken into account.
• Application: Even if the item was purchased before marriage, if its installments were paid from “acquired property” (e.g., spouses’ salaries) within the marital union, the other spouse also acquires a right over this item. However, this right is not in the form of a partnership in the ownership of the item, but in the form of a “receivable right” in proportion to the price paid.
• Sample Case Analysis: The husband bought a sofa set worth 50,000 TL one month before getting married. He paid a 10,000 TL down payment from his own savings. The remaining 40,000 TL was paid in 10 installments after marriage from the salary earned by the husband.
  • Analysis: The sofa set may be registered in the husband’s name (he holds the invoice). However, 80% of the price (40,000 TL) was covered by acquired property (salary). In case of divorce, the woman can demand a “participation receivable in the surplus value” on half of this 40,000 TL portion (20,000 TL). If this calculation is not made, the economic labor of the marital union would be unfairly shifted to the assets of a single spouse.

2.1.3. Goods Acquired Within the Marital Union

All household goods (furniture, curtains, carpets, white goods, electronics) purchased after the date of marriage and paid for with the spouses’ income, salaries, or commercial earnings are accepted as “Acquired Property” pursuant to TMK Art. 219.

It does not matter in whose name the invoice is issued here. The Court of Cassation accepts that goods purchased within the marriage are bought for common life and, unless proven otherwise, their source is acquired property. In the liquidation of these goods, the current market value (rayiç bedel) of the goods is determined, and the total value is shared equally. However, in practice, the items are usually left with whoever has them (or whoever will continue to use them), and half of the value is paid to the other spouse in cash.

2.2. Invoice, Dowry Deed, and Possession in Terms of Law of Evidence

In household goods cases, the answer to the question “whose property is it” is given with evidence. Under the Code of Civil Procedure (HMK), the burden of proof lies with the claimant.

1. Invoice: An invoice is the strongest written evidence creating a presumption of ownership. However, an invoice is not an absolute title deed; proof to the contrary is possible (e.g., proving with bank receipts that the invoice is in the husband’s name but the payment was made by the woman’s father).
2. Dowry Deed (List of Items): These are deeds listing the items brought by the bride from her father’s home, common in Turkish customs and traditions, and signed by the parties (bride, groom, sometimes family elders). The Court of Cassation views duly signed dowry deeds as conclusive evidence. Items written in the dowry deed are accepted as belonging to the woman and brought to the home at the beginning of the marriage. Unless the signature under the deed is denied or its forgery is proven, the court bases its decision on this list.
3. Expert Examination and Wear and Tear: Determining the value is a critical stage in goods receivable cases. If the “return in kind” of the goods is not possible (sold, lost, worn out), the return of the value comes to the agenda.
   • Depreciation (Wear and Tear): In the current precedents of the Court of Cassation, it is emphasized that “duration of use” and “wear and tear share” should be taken into account in the calculation of item prices. That is, the plaintiff cannot demand the “brand new” price of a sofa set used for 5 years. The expert must calculate the “second-hand market fair value” or “worn state” of the item as of the lawsuit date.
   • Right to Object: The defendant party may object to the values determined in the expert report by stating “these items were very old, they are not worth this much” or “they had become scrap due to use,” and the Court of Cassation requires these objections to be taken into account and a re-evaluation to be made.

3. Legal Revolution in the Distribution of Jewelry (Wedding Ornaments)

The most radical change in Turkish judicial practice recently has occurred regarding the ownership of wedding ornaments, known as jewelry (ziynet). The decisions rendered by the 2nd Civil Chamber of the Court of Cassation in 2023 and 2024 have dismantled the decades-long “allocation to woman” doctrine and replaced it with the “whoever it was pinned on owns it” principle, which is more complex but more in line with the general principles of property law.

3.1. Historical Background: “Woman’s Assurance” Doctrine (Old Practice)

Until the recent past (approximately mid-2023), the Court of Cassation Assembly of Civil Chambers and relevant chambers characterized jewelry pinned at the wedding as a “donation made to the woman.” According to this view; even quarter gold coins, money, and bracelets pinned on the groom were considered to belong to the woman unless there was an agreement to the contrary. The rationale was that jewelry was the woman’s future economic assurance and that customs and traditions were in this direction. Only items that were “impossible for a woman to wear and use” (e.g., a men’s wristwatch) were left to the man.

3.2. New Precedent Period (2024): Paradigm Shift

The process starting with the decision of the 2nd Civil Chamber of the Court of Cassation numbered 2023/5704 E., 2024/2402 K. has created a new legal standard in jewelry sharing. At the root of this change lies changing economic conditions, gender roles, and the desire to return to the essence of property rights. The new system is built on three basic categories:

3.2.1. Gender-Specific Jewelry (Allocation to Woman and Man)

This category corresponds to the only area parallel to the old system. If a piece of jewelry can inherently be used only by a certain gender, that jewelry is accepted to belong to that gender regardless of whom it is pinned on.

• Woman-Specific Jewelry: Bracelets, earrings, necklaces, solitaire rings, women’s necklaces, Trabzon sets, etc.
  • Legal Consequence: Even if a guest pins a bracelet on the groom’s arm or hangs a necklace around the groom’s neck during the wedding, these items are owned by the woman because they are “specific to women” by nature. It is not possible for the man to claim rights over these items.
• Man-Specific Jewelry: Men’s wristwatch, tie pin, men’s ring, cufflinks.
  • Legal Consequence: Even if these items are pinned on the bride (although contrary to the ordinary course of life), they are accepted to belong to the man.

3.2.2. Non-Gender-Specific Jewelry (Gram, Quarter, Full Gold and Cash)

The revolutionary change is here. Gram gold, quarter gold, half gold, full gold, Republic gold, and paper money are values that can be used as “savings instruments” by both genders and cannot be confined to one gender.

• New Principle: “Whoever It Was Pinned On Owns It”
  • The Court of Cassation now resolves the ownership of such jewelry through “possession” and “will to donate.”
  • A quarter gold coin seen pinned to the groom’s collar/ribbon in the wedding video is the groom’s personal property.
  • A quarter gold coin pinned to the bride’s sash or neck is the bride’s personal property.
  • The rule that quarter gold coins pinned on the groom also belong to the woman has been abandoned.

This situation significantly changes the financial balance of property division, especially in divorce cases. Because numerically, the vast majority of jewelry pinned at weddings (quarter gold, etc.) is usually pinned on the groom (due to the groom’s wider social circle, etc.). The new precedent ensures that the man protects these assets.

3.2.3. “Chest, Bag, Sack” Rule (Shared Ownership)

Situations where jewelry is not pinned on the spouses one by one during the jewelry ceremony but collected in a circulating bag, chest, or sack are frequently experienced. The Court of Cassation has developed a clear formula for this “mixed ownership” pool.

• Separation (Classification): When the chest is opened, the contents are classified. Those specific to women (earrings, bracelets) are separated and given to the woman. Those specific to men (cufflinks) are separated and given to the man.
• Common Pool (Non-Gender-Specific): For the remaining quarter gold coins, money, and gram gold, the assumption “It is not clear whom it was pinned on” operates. In this case, these values are accepted to be in the joint ownership (shared ownership) of the spouses.
• Result: 50 of the 100 quarter gold coins coming out of the chest are considered the woman’s, and 50 the man’s. This means abandoning the understanding in the old practice that “everything in the chest belongs to the woman.”

3.3. Exceptions: Agreement and Custom

These new rules determined by the Court of Cassation are in the nature of “subsidiary legal rules.” That is, the will of the parties or local rules can supersede these general principles.

1. Agreement (Contract): If the spouses have made a written or oral (provided it is proven) agreement such as “all jewelry belongs to the bride” or “we will buy a house with jewelry, it is common” while getting married or before/during the wedding, the court bases its decision on this agreement.
2. Customary Law: If the plaintiff or defendant claims that there is a different tradition in the region or family structure they belong to (e.g., “in our region, what is pinned on the man also belongs to the woman” or “jewelry is the father’s right”), they are obliged to prove this claim. Proof can be made with local experts, opinion leaders, or witnesses. However, the Court of Cassation places the burden of proof of the custom claim on the claimant and applies the general rules (the new precedents above) if it cannot be proven.

The table below summarizes this radical change:

4. Law of Evidence: Technology and Testimony

“Proof” is as decisive as “justification” in winning jewelry and goods cases. The Court of Cassation applies strict rules of proof, especially regarding the existence and ownership of jewelry.

4.1. Digital Evidence: Wedding Videos and Expert Examination

Since determining “what was pinned on whom” has gained vital importance with the new precedent, wedding CDs, videos, and photographs have become the “queen of evidence” of the case.

• Court of Cassation’s Mandatory Ruling: The Court of Cassation considers it a ground for reversal if local courts make a decision based on a superficial examination of wedding images. The court must intrust the images to an expert witness (preferably a jeweler expert and image analysis specialist).
• Duty of the Expert: The expert must watch the video second by second; create a detailed inventory such as “at 01:15:20, a quarter gold coin with a red ribbon was pinned to the groom’s collar,” “at 02:10:05, a wide bracelet was put on the bride’s arm,” and calculate the values of these items on that day and on the date of the lawsuit. The court judgment must be based on the count in this technical report.

4.2. Principle of “Portability” and Claim of “Forced Taking”

Jewelry items are, by their legal nature, “light, portable, and personal” items. According to the established presumptions of the Court of Cassation, it is accepted that a woman who leaves the house or returns to her father’s house takes her jewelry with her in the ordinary course of life.

• Reversal of Burden of Proof:
  • If the woman claims that the jewelry is not with her and remained at home, she is obliged to prove this “extraordinary” situation.
  • Forced Taking / Fact of Violence: If the woman proves that she escaped from the house due to violence, in fear for her life, with her slippers or pajamas; that her husband prevented her from taking her belongings at the door, or that the jewelry was forcibly taken from her by the husband, the presumption is rebutted. A medical assault report, law enforcement minutes, shelter records, or witness statements seeing that moment are required for this proof.
  • If the woman says, “immediately after the wedding, my husband took the gold from my hands and put it in the safe,” and the divorce case was opened years later, she must prove that this gold has been in the husband’s dominion since that date.

4.3. Statements of Admission (Ikrar)

Pursuant to Article 188 of the Code of Civil Procedure (HMK), if one of the parties admits a fact against them before the court or in their petitions (admission), that fact ceases to be contentious and constitutes conclusive evidence.

• Example: If the defendant husband says in his response petition, “Yes, 10 bracelets were pinned on my wife at the wedding, but we sold them for debts,” there is no longer a need for the woman to prove (with video, etc.) that 10 bracelets were pinned at the wedding. The husband’s statement makes the existence of 10 bracelets certain. The discussion now focuses on the “obligation to return.”

5. Obligation to Return, Value Calculation, and Interest

The enforceability of the decision to be given by the court in jewelry and goods cases depends on the technical details of the decision. The Court of Cassation imposes very strict formal requirements on courts in this regard.

5.1. Condition of Alternative (Graduated) Claim

The plaintiff must state their claim in the petition in a graduated manner: “Primarily for the return of jewelry/goods IN KIND, and if this is not possible, for the payment of the value.” If the plaintiff directly asks for the value, the judge cannot rule for return in kind. If they only ask for return in kind and the items do not exist, there is a risk of the case being rejected (although the Court of Cassation requires the judge to remind the option of value due to the duty of enlightenment in this case).

5.2. Value Calculation Date: Lawsuit Date or Enforcement Date?

This issue is one of the most technical and critical parts of our report. Since jewelry (gold) is a commodity that constantly gains value, which date the value will be calculated based on creates a huge financial difference for the parties.

• Erroneous Practice: Local courts sometimes decide as “Collection of 50,000 TL, which is the value on the lawsuit date.” This causes the plaintiff to suffer great loss in an inflationary environment if the case takes 3-4 years (Gold price may multiply in 3 years).
• Correct Practice of Court of Cassation (HGK and 2nd HD):
  1. The court must decide on the “RETURN IN KIND of Jewelry” in the judgment.
  2. In the judgment clause, it should say “Collection of the value if return in kind is not possible,” but the amount of value should not be written.
  3. Enforcement (Execution) Phase: When the decision becomes final and is put into execution, Article 24 of the Execution and Bankruptcy Law (İİK) comes into play. The enforcement officer says, “Debtor, bring the gold in kind.” If the debtor cannot bring it, the enforcement officer asks for the current gold rate on that day (actual payment/enforcement date) from the exchange and makes the calculation based on the value on that day.
  4. Thus, the plaintiff collects the current value of the gold regardless of how long the lawsuit took. The Court of Cassation reverses decisions ruling for “value on the lawsuit date,” evaluating it as against the plaintiff and exceeding the demand.

5.3. Interest Start Date

If the value is to be collected, the start date of the interest to accrue is the lawsuit date(correction date for the amended part). This means that the plaintiff’s claim for “value if return in kind is not possible” will bear interest from the date of the lawsuit.

5.4. Spent and Cashed Jewelry

Scenarios where the husband cashes the wedding jewelry to buy a house, buy a car, pay wedding debts, or spend on the honeymoon are very common.

• General Rule: Jewelry items (whoever they belong to according to new rules) are the personal property of the owner. If these goods are spent by the other spouse, the spending spouse is obliged to return them.
• Defense of Donation: The husband usually makes the defense, “My wife gave it with her own consent, we supported the house, she did not want it back.” The Court of Cassation places the burden of proof on the husband here. The husband must prove with conclusive evidence that the woman “donated (granted) this gold not to be returned.”
  • The woman saying “okay, you can cash it” is not considered a donation; this is only consenting to the transaction, it is in the nature of lending.
  • Unless proven by witness or written document that the woman clearly said, “Let this gold be yours, I do not want it back,” the spent gold is considered the husband’s debt to the woman and must be returned.
• Effect on Property Regime: If jewelry was cashed and a house was bought, the woman can demand both “participation receivable arising from the property regime” (since it is acquired property) on this house and “jewelry receivable” (value increase share because she invested personal property in the house). These calculations are solved by experts through equalization.

6. Special Situations and Critical Scenarios

6.1. Wedding Jewelry Remaining with Mother/Father-in-Law

A situation frequently encountered in Anatolia is the taking of jewelry by the groom’s family for reasons of “security” or “tradition.”

• The Court of Cassation accepts that the woman can direct her lawsuit against the persons holding the jewelry. If the jewelry is with the mother-in-law and has not been returned, a “Claim of Ownership Lawsuit” (İstihkak Davası) can be filed against the mother-in-law.
• However, if the lawsuit is filed only against the husband, the husband cannot escape liability with the defense “the jewelry is not with me, it is with my mother.” The Court of Cassation states that the husband has an obligation to protect his wife’s jewelry (TMK Art. 185). Nevertheless, the fact of “keeping in custody” gains importance in new decisions; if the husband proves that the jewelry is not with him and is with his family and the lawsuit was not filed against them, a problem of hostility may arise. Therefore, directing the lawsuit to the family based on alternative or joint liability principles is a strategic move.

6.2. Binding Nature of Consensual Divorce Protocol

In uncontested divorce cases, the parties sign a protocol. If there is a clause in the protocol stating “the parties have no material-moral compensation, alimony, jewelry, and goods receivables from each other” and the decision has become final, this clause also covers jewelry (waiver). After the divorce is finalized, the woman cannot file a jewelry lawsuit saying, “I gave up but I regretted it”; the case is rejected due to res judicata. However, if the protocol states “rights regarding jewelry items are reserved” or the issue of jewelry is not mentioned at all (only divorce and custody are arranged), a jewelry lawsuit can be filed within 10 years after the divorce.

6.3. Statute of Limitations

Jewelry and goods receivable cases are subject to a 10-year statute of limitations starting from the finalization of the divorce decision (Turkish Code of Obligations Art. 146). This lawsuit can be filed while the divorce case is ongoing or after the divorce. However, the Court of Cassation states that this lawsuit is not an accessory to the divorce (not fer’i), but an independent lawsuit. Therefore, even if the divorce case is rejected, the jewelry lawsuit can continue to be heard and accepted.

7. Conclusion and Evaluation

The distribution of household goods and jewelry in Turkish family law is an area where legal techniques and rules of proof are applied down to the finest detail, beyond simple property sharing. The new case law system that the Court of Cassation has been trying to establish as of 2024 adopts the understanding of “property-based justice” instead of “blind protection.”

Key Findings:

1. In Furniture and Household Goods: The acquired property regime is essential. Whether the price was paid within the marriage is decisive rather than in whose name the item was purchased. Depreciation (usage cost) calculation is now taken into account more.
2. In Jewelry (Gold/Ornaments): “What is specific to the woman belongs to the woman, what is specific to the man belongs to the man. Non-gender-specific items (quarter, full, money, etc.) belong to whoever they were pinned on. Those collected in a bag/chest are common.” This new rule protects the husband’s property rights more than in the past.
3. In Proof: Wedding video analysis is mandatory. For the woman to rebut the “portability” presumption, she needs to prove the fact of “forced taking” or “violence” with concrete evidence.
4. In Enforcement: The decision of “Return in Kind” is the principal one. The value is calculated based on the market rate on the actual payment (enforcement) date, not the lawsuit date. This is the most important mechanism protecting the plaintiff in an inflationary environment.

It is essential for lawyers and parties to pay attention to these new distinctions when preparing petitions, to have video analyses done beforehand regarding “what was pinned on whom,” and to present their demands as alternative claims (return in kind/value) in order to prevent loss of rights. Strategies based on old precedents (e.g., “quarter gold pinned on the man also belongs to the woman”) have lost their validity in today’s litigation.