Background
The plaintiff wife sought to have two rounds of company-share transfers annulled on the ground that they were sham transactions (muvazaa) designed to strip her of marital-property rights while divorce and property-division proceedings were pending before Istanbul Anadolu family courts. Her husband — the first defendant — had held stakes in two operating companies, Sarılar Fındık Dış Ticaret Ltd. Şti. and Hendek Sarılar Dayanıklı Tüketim Maddeleri Sanayi ve Ticaret Ltd. Şti. During the divorce litigation he transferred portions of the Sarılar Fındık shares on 29 November 2022 and the remainder, along with all Hendek Sarılar shares, on 1 September 2023 — all to his older brother, the second defendant.
The plaintiff alleged a systematic asset-stripping scheme. Real property acquired during the marriage had already been frozen by the family court’s injunction, so the husband could not alienate it. She contended that he therefore turned to his company shares and, after transferring those to his brother at nominal or non-market consideration, he further fabricated a 14,100,000 TL promissory-note debt and initiated enforcement proceedings against himself to encumber the frozen real estate — a parallel fraud claim litigated separately before Hendek 3rd Civil Court of First Instance (file 2024/170).
The plaintiff brought the present action before the Sakarya Commercial Court of First Instance (Asliye Ticaret Mahkemesi), invoking Article 19 of the Turkish Code of Obligations (TBK), which governs simulation and sham transactions, and requested that the share transfers be declared void and the shares re-registered in the husband’s name. The commercial court dismissed the case on 31 December 2024 for lack of subject-matter jurisdiction, holding that TBK Article 19 annulment claims belong before the general civil courts (Asliye Hukuk Mahkemesi), not a specialist commercial court. The defendants — not the plaintiff — filed this interlocutory appeal, asking the regional court to reverse the jurisdictional ruling and remit the case for a merits hearing before the commercial court.
The Court’s Holding
The Sakarya Regional Court of Appeals, 3rd Civil Chamber, unanimously dismissed the defendants’ appeal and affirmed the commercial court’s jurisdictional ruling. The appellate panel’s reasoning turned on the proper characterisation of the claim. Under Article 4/1-a of the Turkish Commercial Code (TTK), a dispute is a commercial case only if it arises from the commercial enterprises of both parties, or from a matter expressly regulated in the TTK itself. Under TTK Article 5/1, commercial courts have jurisdiction over all such commercial cases. A TBK Article 19 simulation claim, however, satisfies neither limb: it does not arise from the commercial enterprises of the parties, and the TTK contains no provision governing sham-transaction annulment. Accordingly, the general rule in Article 2 of the Code of Civil Procedure (HMK) applies, vesting jurisdiction in the general civil court.
The panel emphasised that the mere fact that the impugned transactions involved company shares does not transform the case into a commercial dispute. The core question — whether the transfers were simulated to defeat the plaintiff’s marital-property rights — is a civil-law issue rooted in the law of obligations, not in commercial law. The commercial character of the companies whose shares were transferred is irrelevant to the jurisdictional analysis when the underlying claim is a simulation action under TBK Article 19.
The appeal was rejected on the merits under HMK Article 353/1-b-1, meaning the panel found the first-instance ruling substantively correct rather than merely procedurally defective. The decision is final (kesin) pursuant to HMK Article 362/1-a and was signed electronically by all three judges and the clerk under Law No. 5070.
Key Takeaways
- A simulation/sham-transaction annulment claim brought under TBK Article 19 is not a commercial case within the meaning of TTK Articles 4–5, regardless of whether the underlying asset is a company shareholding.
- Subject-matter jurisdiction over TBK Article 19 actions lies with the general civil courts (Asliye Hukuk Mahkemesi), not with commercial courts (Asliye Ticaret Mahkemesi); filing in the wrong court results in a jurisdictional dismissal.
- A spouse’s systematic transfer of company shares to a family member during pending divorce and property-division proceedings may support a simulation claim, but the proper forum for that claim is a general civil court rather than a commercial court, even when the shares are in commercially registered entities.
- The defendants’ appeal was unusual: it was the alleged wrongdoers — not the plaintiff — who sought to keep the case in commercial court, illustrating how jurisdictional strategy can be wielded tactically in asset-stripping disputes.
Why It Matters
This decision clarifies a recurring jurisdictional ambiguity in Turkish civil litigation: when a spouse (or creditor) seeks to unwind fraudulent asset transfers under TBK Article 19, the commercial nature of the transferred asset — shares, partnership interests — does not pull the case into the specialist commercial-court track. Practitioners advising clients on marital-property protection or creditor-side fraud recovery must file TBK Article 19 simulation actions before general civil courts to avoid procedural dismissal and attendant delay.
The case also illustrates the practical stakes of forum selection in divorce-related asset-stripping disputes. By the time a jurisdictional error is corrected on appeal and the case is re-filed in the proper court, limitation periods, asset values, and evidentiary availability may all have shifted — precisely the delay a transferring spouse might seek to exploit. The appellate court’s affirmance, rendered final without further review, leaves the plaintiff to commence fresh proceedings in the correct forum.