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Marital home TKM. mad. 194

Old 24-03-2006, 15:12   #1

Varsayılan Marital home TKM. mad. 194

The facts of the case, the time scale and the legal discussion can be summarized as follows:

The husband bought the marital home before the marriage and brought it into the marriage which took place in 2002. The spouses lived there together with a child and, later on, with the husband's brother.

Early 2004 the wife fled from home after being alledgedly battered by the husband. Mid 2004, when he received requests for alimony and child support, the husband "sold" the home to his brother basically for no compensation. With respect to the personal status of the seller, the notary contract states "not married". The transfer of the real estate has not been recorded in the registry yet. A month later, the wife filed for divorce. Another month later, the wife challenged the real estate contract between the husband and his brother based on Art. 194 turk. CC. Divorce was granted a year later.

The proceeding about the marital home is still pending and it is that case I need some legal

The defendant husband's brother argues that,

(a) at the time of the real estate contract between him and his brother, the wife had left the marital home for good, as evidenced by her absence of half a year and by her filing divorce a few weeks after the contract, thus the home was no longer the marital home, therefore Art. 194 CC does not apply;
(b) In addition, she would have had the right to file for restrictions based on Art. 194 para 3 CC in the real estate registry while she was still residing at home, but in absence of such registration she has no right to challenge the sales contract;
(c) Finally, even if she may have had the right to challenge the contract, this right has expired by now on the date of the divorce. Since the property has been brought into the marriage by the husband, it is not subject to any restrictions.

The plaintiff wife argues that,

(a) the prohibition to sell the marital home of Art. 194 CC is not related to property rights or to the marital gains but is an independent right of its own;
(b) the prohibition to sell the marital home without consent is statutory and absolute and remains in existence, as long as the marriage is not divorced because the parties, at any time, could decide otherwise, reconcile and, return to the marriage. This does not impose undue hardship on the owner of the home because on good grounds shown, the court may always grant leave to sell;
(c) According to Art. 194 para 4 CC a spouse becomes co-contractor of a lease, a legal act which even creates burdens on third parties and which remains in effect without any time limitation, since the contract itself undergoes a legal change. If even legal relationships with other parties are changed without limitations, this must be true even more between the spouses themselves when the issue concerns not a lease but the property rights;
(d) The wife may have had the right to record her rights in the real estate registry but failing to do so does not help the defendant. Recordings in the real estate registry serve to protect the good faith of third parties. As brother of the plaintiff's husband who had even been living with the couple he had full knowledge of the marriage and the real estate being the marital home so that there was no good faith to protect, as evidenced more by him concurring with his brother to give a false statement to the notary of the seller not being married. Furthermore, the sale has not been recorded so he cannot claim any rights.
(e) Now that the former spouses are divorced and since there being no restriction recorded in the registry, the plaintiff's former husband may possibly have the right to sell the real estate to any third party without interference. But, this fact does not heal a contract which was made before the divorce
was even filed. Generally, a contract that is null and void is not healed by subsequent events. In addition, to allow a divorce to heal a contract made before that time would render legal protection by Art. 194 useless.

Any thoughts? If you could cite any Turkish case law to your opinion, I would be very much oblidged.

Thank you very much in advance.
Old 25-03-2006, 13:22   #2
Av. Bülent Sabri Akpunar


Dear Questioner,
I want to make some points clear for you:
1. The house is a "marital house" regardless of it was acquired before or after the 2002 law reform. If the spouses have lived within the house as a marital home, then no more legal requirements are necessary to evidence that it was so.
2. As the plaintiff wife legally claims, the house with a restrictive note on its land registry exhibiting that it was the conjugal home does not solely lead to the conclusion that it is a mandatory requisitie, but it is only a precaution to prevent the good faith on the part of the 3rd parties.
3.As the TCC Art. 194/1 stipulates that "A spouse cannot , without the absolute consent of the other spouse, restrict the rights or assign its title or terminate a lease contract of a marital house."
In line with the said provision, in case a marital house was assigned to a 3rd party regardless of an open consent of the other spouse, then he/she may ask for the determination of the illegality of the transaction, termination of the contract and withdrawal of its title of the seller spouse.
4. A temporary injunction order to prevent the defendant spouse to make transactions on the house shall be obtained from the cvourt will be fine.

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