Marital Share in Acquisitions under the Application of the Hardship Provision in Article 236(2) of the Turkish Civil Code: A Comparative Legal Analysis

Abstract

This paper examines the provision in Article 236/2 of the Turkish Civil Code (TCC), which differs from Article 215 of the Swiss Civil Code (SCC). In cases of divorce due to the specific grounds of adultery or endangerment of life, this provision provides the jugde with the discretion to reduce or nullify the participation of the culpable spouse in the surplus of the other spouse on equitable grounds within the ordinary matrimonial regime of participation in acquisitions (Errungenschaftsbeteiligung). To improve understanding, a brief overview of the grounds for divorce in Turkish law, in comparison with Swiss law, is provided within the context of the Swiss Civil Code’s reception in Turkey. The discussion then addresses scholarly opinions on Article 236/2 TCC, along with a critical analysis of this provision’s legal basis. By examining the current case law, the impacts and challenges in applying this provision are highlighted. Finally, it is considered whether an unjust participation share could also be denied without applying the hardship clause, based on the prohibition of abuse of rights, illustrated by an example from Swiss case law. The paper concludes with a recommendation to revise Article 236/2 of the Turkish Civil Code. © 2025 Istanbul University Press. All rights reserved.