Status of Jewelry Items in the Event of Divorce
An ornament, made from precious metals like gold and silver, is defined as a decorative item worn by people. Judicial precedents from the Court of Cassation define these ornaments as gifts given to the groom and bride at weddings, categorized as decorative items.
There is no explicit provision in our law stating that the jewelry worn at weddings belongs to a particular party. Consequently, for many years, the question of the ownership of jewelry in divorce cases has sparked debates.
Previously, according to the jurisprudence of the Court of Cassation, the jewelry worn during the wedding was considered a gift to the woman, regardless of who put it on her, and was considered her personal property unless there was a contrary agreement. However, the recent precedents of the Court of Cassation have changed this viewpoint. According to these new precedents, all jewelry worn by the woman belongs to her. Among the jewelry worn by the man, items that are not specific to women will belong to the man, while items that are specific to women will belong to the woman. Even if jewelry worn by the man has characteristics typically associated with women (bracelets, necklaces, earrings, etc.), if the male spouse proves that there is no "local custom" indicating the ownership of woman-specific jewelry, then the woman-specific jewelry will also be given to the man. If the worn ornament can be used by both the man and the woman, then it will be considered the property of the man as it is not exclusively owned by the woman.
In the decision of the Court of Cassation General Assembly numbered 2017/1040 E., 2020/240 K. dated March 4, 2020, it is stated:
"… Jewelry; made from precious metals such as gold and silver; is defined as a decorative item worn by people. It is possible to define jewelry as gifts given to the bride and groom in relation to marriage. In this context, items such as bracelets, gold cuffs, necklaces, pendants, jewelry sets, wristbands, watches, earrings, and rings are considered as jewelry. In light of these explanations, when evaluating the specific case, unless there is a contrary agreement between the spouses or a local custom in this regard, a bracelet that qualifies as woman-specific jewelry is considered to be gifted to the female spouse, regardless of which spouse it was worn by during the marriage, and it becomes her personal property."
Dower receivable (jewelry claim) can be requested together with the divorce lawsuit or separately by filing a separate lawsuit following the finalization of the divorce case. The party from whom wedding jewelry or jewelry items were taken should, if possible, request the exact return of the jewelry items or, if not possible, a decision for the payment of their value. The request for the exact return of wedding jewelry or, if return is not possible, the payment of its value, is an independent claim that is not an integral part of the divorce and is of a separate nature. Therefore, when jewelry items are claimed in a divorce case, a separate proportional fee must be paid for this claim. It should also be noted that in a consensual divorce case, the parties can freely settle the matter of gold receivable by including it in the consensual divorce protocol.
In the decision of the 2nd Civil Chamber of the Court of Cassation numbered 2015/4638 K., it is stated:
"The plaintiff has requested not only divorce in the lawsuit petition but also a claim for jewelry receivable. The application fee paid upon filing the lawsuit covers all the requests in the lawsuit petition. The plaintiff's claim for jewelry receivable is not an integral part of the divorce and is subject to a separate proportional fee. Due to this claim, no proportional fee was collected when the lawsuit was filed, and this deficiency was not rectified during the trial proceedings. Subsequent procedures cannot be carried out without completing the proportional fee. Therefore, the plaintiff should be given a proper period to deposit the upfront portion of the proportional fee based on the value of the requested jewelry items, and once the fee deficiency is rectified (Act of Fees Article 30-32), the substance of this claim should be examined, and a decision should be made based on the outcome that will arise."
The court responsible for hearing a jewelry receivable lawsuit is the Family Court. According to the general jurisdiction rule in the Code of Civil Procedure, the competent court is the court of the defendant's place of residence. However, if the jewelry receivable case is filed together with a divorce case, then the courts designated as competent in the divorce case will also be considered competent for this case. Therefore, the court that will hear the jewelry receivable case is either the Family Court at the place of residence of one of the spouses or the Family Court at the location where the spouses have lived together for the last six months.
If the jewelry in question is not the jewelry worn at the wedding but rather gold or other valuables purchased by the spouses later for savings or investment purposes, then these items can be claimed through a "property division lawsuit" rather than a "return of jewelry lawsuit."
In accordance with Article 6 of the Turkish Civil Code, the burden of proof rests with the party making a claim or assertion that goes against the ordinary course of events. In a jewelry receivable case, evidence can include witness testimonies, oaths, expert reports, CDs, video footage, photographs, and similar materials.
Since jewelry items are considered personal property, they are not subject to property division. A woman always has the right to demand her wedding jewelry from her husband. However, she cannot claim back her wedding jewelry if she has given them to her husband, except in cases where they were given with the condition that they would not be returned. The burden of proving that they were given without the intention of returning them lies with the husband.
The Court of Cassation General Assembly, 2004/4-249 E., 2004/247 K., has stated:
"As indicated in established Court of Cassation decisions, jewelry items given to the woman during the marriage, regardless of who took them, are considered to be gifted to her and must be returned to her. However, if it is proven by the defendant that the jewelry items were given to the husband with the woman's request and approval and that the jewelry items were sold and spent for household needs, then the husband is exempt from returning the jewelry items. In the present case, it has been accepted by the defendant that the subject gold, which is determined to belong to the plaintiff, was sold by the defendant during the continuation of the marriage and spent for household needs. Since the defendant could not prove that the woman willingly gave the jewelry items, the defendant is obliged to return the subject jewelry items to the plaintiff."
Jewelry items not claimed in the divorce lawsuit petition cannot be subsequently claimed through an amendment to the petition (amendment request). In this case, instead of an amendment, a separate lawsuit for the jewelry items should be filed, and the newly filed lawsuit should be requested to be consolidated with the divorce case.
If the value of the jewelry items is being claimed, this claim must be made within a statute of limitations of 10 years, which starts from the finalization of the divorce case.
In the decision of the 6th Civil Chamber of the Court of Cassation numbered 2011/5634 K., it is stated:
"A property dispute (property claim) in this context is a claim of ownership, and the claim regarding the disputed property is either for its exact return or, if not possible, for the payment of its value as of the date of the lawsuit. If it is determined that the disputed property exists, and the dispute is based on property rights, the statute of limitations cannot be invoked since the dispute pertains to ownership. If it cannot be determined whether the disputed property exists, and the claim is related to compensation, the ten-year statute of limitations specified in the Turkish Civil Code should be applied, and in disputes between spouses, the provisions of the Turkish Civil Code should be taken into account."
Furthermore, it is necessary to mention that, as has become established in Court of Cassation decisions:
Jewelry expended for in vitro fertilization treatment must be returned to the woman.
In cases where jewelry is spent for honeymoon, wedding, or engagement purposes, even if consent and approval are obtained from the woman, it is necessary for the man to prove that the woman willingly donated the jewelry without intending to take it back.
Pınar Öksüz
References:
- DURAL, ÖĞÜZ, GÜMÜŞ, Turkish Private Law Volume III, Family Law, Filiz Kitapevi, Istanbul, 2016.
- Court of Cassation General Assembly Decision 2017/1040 E., 2020/240 K.
- Court of Cassation 2nd Civil Chamber Decision 2015/4638 K.
- Court of Cassation General Assembly Decision 2004/4-249 E., 2004/247 K.
- Court of Cassation 6th Civil Chamber Decision 2011/5634 K.
