ENTRANCE
The family home is subject to special protections during divorce proceedings, particularly within the framework of the right to economic security and housing. This article examines the right to remain in the home during divorce from the perspective of the “non-tenant spouse” from normative, doctrinal, and judicial perspectives.
DEVELOPMENT
1-) Legal Basis: Protection of the Family Residence
A-) TMK Article 194 and TCC Article 349
According to TMK Article 194/I, in a family residence provided through a lease agreement, the lease agreement cannot be terminated or the occupant cannot be evacuated without the express consent of the spouse who is not the tenant.
B-) Rights of the Spouse Who is Not a Party to the Contract
According to TCC Article 194/III, the non-tenant spouse may become a party to the contract by notifying the lessor; in this case, he/she assumes the rental obligation.
TMK Art. 194/III”If the family home is rented by one of the spouses, the spouse who is not a party to the contract becomes a party to the contract by notifying the lessor, and the spouse who notifies the other spouse
shall be jointly and severally liable.”
2-) Divorce and Right to Remain in Residence
A-) Justified Termination and Protective Measures
There are legal obstacles to the spouse who leaves the house during the divorce or separation process from terminating the lease agreement with the aim of victimizing the other spouse.
B-) Staying in the House by Judge’s Decision
In the event of divorce, the judge may, taking into account the spouses’ social and economic circumstances, order the non-tenant spouse to remain in the family home. In this case, the rights of the landlord are protected by relevant regulations.
3-) Family Residence Notation in the Land Registry and Its Effects
-According to TMK Article 194/III, in case the family residence is rented, the non-tenant spouse can have the family residence entry added to the land registry.
-This annotation protects the legal status of the real estate and has a protective nature in transactions between spouses.
4-) Request of the Spouse Who is Not a Party to the Lease Agreement to Become a Party to the Agreement
Article 194 of the Turkish Civil Code is as follows;
“One of the spouses cannot terminate the lease agreement regarding the family residence, transfer the family residence or limit the rights on the family residence without the express consent of the other spouse.
A spouse who is unable to provide consent or who is not given consent without a justifiable reason may request the intervention of a judge.
A spouse who does not own the property designated as a family home may request the Land Registry Directorate to place the necessary annotation regarding the property in the land registry. However, for a family home annotation to be placed, one spouse must be the owner of the property.
If the family home is rented by one of the spouses, the spouse who is not a party to the contract becomes a party to the contract by notifying the lessor, and the spouse who notifies is jointly and severally liable with the other.”
As can be seen, according to this regulation, the family home may not always be owned by one spouse. Sometimes, the family home may be provided through a lease agreement executed by one of the spouses. In cases where the family home is provided through rent, the spouse who is not a party to the lease agreement may become a party to the lease by notifying the landlord.
-According to the Supreme Court decisions, the signature of the tenant spouse alone is not sufficient for the eviction undertaking; the consent or signature of the non-tenant spouse is required.For this to happen, a lawsuit must be filed to determine the leased property as a family residence before the eviction undertaking’s issuance date. Lawsuits filed after the enforcement proceedings and the lawsuit date do not affect the eviction decision.
5-) Responsibility of the Spouse Who Acquires Tenancy Status
The non-tenant spouse becomes a party to the lease agreement by notifying the landlord. This is because marriage or the residence’s status as a family home does not automatically make the other spouse a party to the lease agreement. Our law does not impose a time limit for this notification. However, notification must be made before the family home status and marital union end, or before the landlord terminates the lease. This notification must be made by the other spouse to the landlord. The landlord has no right to object to this situation. In other words, the spouse automatically becomes a party to the lease agreement upon notification. This is in accordance with Article 194/Final Provision of the Turkish Civil Code.
The consequences of the other spouse becoming a party to the lease through this notification are regulated by Article 194 of the Turkish Civil Code. The spouse who becomes a party to the lease agreement, provided that they notify the landlord, is jointly liable to the landlord along with the tenant spouse.
FREQUENTLY ASKED QUESTIONS ABOUT A NON-TENANT SPOUSE CONTINUING TO OWN THE RESIDENCE AS A TENANT DURING THE DIVORCE PROCESS
1-) If the family residence is rented, how can the non-tenant spouse become a party to the contract?
If the family residence is rented, how can the non-tenant spouse be a party to the contract?
The non-tenant spouse can become a party to the lease agreement (tenant) by giving unilateral written notice to the lessor; this is a special regulation of TCC article 349.
2-) What is the responsibility of the parties once the notification is made?
After notification, the spouse becomes a tenant; both in doctrine and in practice, it is accepted that the spouses are jointly and severally liable for the rent. The landlord must provide separate notices of termination to each spouse.
3-) Can the tenant spouse terminate the contract without the consent of the other spouse?
No. In a property rented as a family residence, the tenant cannot terminate the lease without the express consent of his or her spouse; if consent is not given, a judge’s intervention may be requested.
4-) Is it necessary to have a “family residence annotation” on the title deed for family residence protection?
Not required. The protection under Article 194 of the Turkish Civil Code (TMK) arises from the family residence status, even without an annotation; however, the annotation provides visibility to third parties and ease of proof. Furthermore, a family residence annotation cannot be placed on the title deed for a residence not owned by one of the spouses.
5-) Is the consent of the non-tenant spouse required for an eviction commitment (e.g., a commitment to vacate)?
Yes. If it is a family home, an eviction notice signed by only the tenant spouse is considered invalid without the express consent of the other spouse.For this to happen, a lawsuit must be filed to determine the leased property as a family residence before the eviction undertaking’s issuance date. Lawsuits filed after the enforcement proceedings and the lawsuit date do not affect the eviction decision.
6-) Who stays in the house during the divorce case?
The family court may decide to allocate the residence to one of the parties (usually the one who needs more protection) with a temporary measure within the framework of Article 169 of the Turkish Civil Code; the spouse allocated to the residence remains in the residence during the period of this decision.
7-) Will the protection of the family home continue once the divorce is finalized?
General rule: No. The protection provided by Article 194 of the Civil Code for the family home ends when the marriage ends. However, if a different right of use is granted by a divorce decree and/or measure/procedure, that provision applies.
😎 If the non-tenant spouse does not notify, will he/she still be protected?
Yes; according to Article 194 of the Turkish Civil Code, it is not possible to terminate the lease, transfer the family home, etc., without the spouse’s consent. However, failure to notify does not automatically confer tenancy status.
9-) To whom should the lessor send termination/notification notices?
If the non-tenant spouse has joined the contract with notice, termination and payment notices must be sent separately to both spouses.
10-) What is the purpose of the family residence annotation?
The family residence annotation creates a warning/disclosure effect towards third parties; it makes visible that the family residence-related transactions are dependent on the consent of the spouse and provides security in title deed transactions.
11-) What can the tenant spouse do if his/her spouse does not consent to the termination of the lease agreement?
If it is not possible to obtain consent or if consent is not given without justified reason, the tenant may request permission from the judge (TBK 349/2).
12-) How is the lease transfer/assignment done if it is a family residence?
The explicit consent of the spouse is also required for disposals such as the transfer of the lease agreement in the family home; otherwise, the disposal is subject to the protection of the family home.
13-) How can the family residence qualification be proven?
Actual family settlement can be proven through population records, residence, electricity, water, and natural gas subscriptions, neighbor declarations, and actual living relationships; annotations are not required.In order for a family residence annotation to be placed, one of the spouses must be the owner of the residence.
The Importance of Legal Support
Tenancy law, eviction cases, and contractual disputes require technical knowledge, legislative expertise, and in-depth expertise in judicial practices. While the legal provisions are clear, each case has its own unique circumstances, and even a small mistake can lead to loss of rights. Therefore, working with an experienced attorney from the beginning of the process is crucial to determining the right strategy, protecting your rights, and achieving the swiftest resolution.
It’s important to remember that every step taken during the litigation process has legal and financial implications. A professional lawyer will guide you not only in preparing the petition but also in gathering evidence, representing the court, negotiating, and pursuing potential alternative solutions.
In order not to risk your rights and to manage the process safely, it is recommended that you consult a specialist lawyer.