When the Matrimonial Property Regime Becomes Cross-Border: Which Law Applies, and Which Connecting Factor at Which Date?

When the Matrimonial Property Regime Becomes Cross-Border: Which Law Applies, and Which Connecting Factor at Which Date?

When a matrimonial property regime becomes cross-border—because the spouses have different nationalities, live in different countries over time, or hold assets in more than one jurisdiction—the core question is often: which law governs the property regime? The answer matters because the governing law determines how assets are classified (marital/acquired vs. personal), how the liquidation account is built, and which claims (such as participation or contribution-based claims) can be pursued when the marriage ends through divorce, death, or annulment. In such cases, the connecting factors under Turkish private international law (MÖHUK) can decisively shape the outcome.

1) Start by clarifying scope: what does the property regime law govern?

Property regime law typically covers the rules on management of assets during marriage, liability for debts, and liquidation at the end of the marriage. Even if an asset (for example, a piece of real estate) is located in Turkey, the question “how is this asset treated in the liquidation balance?” is primarily a property regime question.
At the same time, issues relating to rights in rem (such as registration, transfer formalities, and the land registry process) may still be governed by the law of the place where the property is located. That is why cross-border files require a clean distinction between (i) the liquidation logic under the property regime and (ii) local rules on title/registration and enforcement.

2) Which law applies? First step: did the spouses make a valid choice of law?

Under the MÖHUK approach, a key starting point is whether the spouses made a choice of law within the permissible limits. This choice is usually embedded in a marital property agreement concluded before or during the marriage. In practice, the real questions are: “Is there a choice?”, “Is it valid?”, and “What does it cover?”
If a valid choice exists, courts generally give priority to it—while still being mindful that certain effects may be contested if the choice is invoked in a way that harms third parties (such as creditors).

3) If there is no choice, which connecting factor applies—and why “the date” is crucial

If the spouses did not choose a governing law, the connecting rule operates in a step-by-step (cascade) structure. In practice, the most decisive point is that several of these steps focus on the situation at the time the marriage was concluded. In other words, the “which date” question often leads back to the marriage date as the reference point.

Typical connecting factors assessed around that reference moment include:

• Do the spouses share a common nationality? If yes, this is frequently the primary connecting factor.
• If there is no common nationality, where was the spouses’ common habitual residence at the time the marriage was formed (the factual center of their shared life)?
• If neither provides a clear answer, the analysis may move toward the jurisdiction with the closest connection to the spouses and the relationship, based on the overall facts.

For this reason, cross-border strategy should treat the marriage date as a milestone and document nationality and factual residence at that time with strong evidence: passports, residence permits, address registrations, employment records, utility bills, children’s school records, and consistent travel/residency patterns.

4) If Turkish law applies: the internal timeline and the 01.01.2002 turning point

If the applicable law ends up being Turkish law, the “which date” question has a second layer: the internal Turkish legal timeline. A key practical turning point is 01.01.2002, when the Turkish Civil Code regime changed the default approach for many couples. Broadly stated:

• For periods before 01.01.2002, the applicable default regime for many marriages was different (commonly separation of property, depending on the context).
• For periods after 01.01.2002, the statutory default regime is generally participation in acquired property, unless the spouses validly choose another regime by agreement.

Accordingly, in liquidation practice, the acquisition date of each asset, the marriage date, and the date (if any) of the marital property agreement can all become decisive for the final calculation.

5) Practical strategy: manage cross-border risk from the outset

In cross-border marriages, the most effective approach is to reduce uncertainty early:

• A marital property agreement can clarify governing law and, where appropriate, organize evidence and disclosure principles (asset lists, notification mechanisms, documentation standards).
• If assets are spread across multiple countries, remember that liquidation analysis and actual enforcement/registration can proceed under different legal systems.
• Arguments on habitual residence and the marriage-date connecting factors should be supported with documentary proof, not assumptions.