May One of the Spouses Invalidate a Hypothec Established on the Matrimonial House?

“Matrimonial house” is regulated sententiously in the provision that entered into force under the article 194 of the Turkish Civil Code numbered 4271. Therefore; it is observed, both under the statutory text and in the jurisprudences of the Supreme Court of Appeals, that the concept of matrimonial house is interpreted quite broadly and that any settlement where family life is lead jointly is considered as matrimonial house and that the family institution is tried to be taken under protection.

In our newsletter, we will scrutinize first the wide range pertaining to the matrimonial house and then, the matter “explicit consent of the nonowner spouse” which is one of the conditions for validity of establishment of hypothec on the matrimonial house.

What is matrimonial house?

For the concept of matrimonial house, legal definitions are provided both in the preamble of the Turkish Civil Code numbered 4271 and in the jurisprudences of the Supreme Court of Appeals, and it will be appropriate to define this concept briefly as “it is the place where a family keeps living during the marriage”. The Code determines that the spouses should act jointly in making a decision and performing a transaction for the matrimonial house.  Thus, it is aimed to ensure the continuity of the marriage and it is also aimed to ensure that the family institution is not harmed.

The following provision is contained in first paragraph of the article 194 of the Turkish Civil Code, which regulates the concept of matrimonial house: “In the absence of the relevant explicit consent granted by the other spouse, neither of the spouses may terminate a lease agreement related to the matrimonial house, transfer the matrimonial house, nor restrict the rights on the matrimonial house”. When the statutory provision is reviewed, it is understood that a specific definition is not made in respect of the matrimonial house. Therefore; all kinds of houses, in which the family can keep living during the marriage, may be considered as a matrimonial house.

For matrimonial house, it is observed that the following definition is provided in the preamble of the Code: “Matrimonial house is a space full of memories, where the spouses carry out all life activities, direct their lives accordingly and in which they experience the bitter and sweet days”. So then, a matrimonial house may be an apartment flat or it may be a detached villa, or even a structure consisting of one room, as long as the family leads family life and accumulate memories inside this structure.  

Is it legally possible to argue invalidity of a hypothec established without obtaining the nonowner spouse’s consent?

It is observed that an owner spouse establishes hypothec on such real estate in favor of another person or entity or either as a collateral of the personal loan facilities made available to the owner spouse or as a collateral of the loan facilities made available to that spouse in the business life. Regardless of the reason for which the hypothec is established, it is necessary to obtain the nonowner spouse’s explicit consent if the real estate is a matrimonial house. In case this consent is not obtained, it is possible for the nonowner spouse to file a lawsuit for cancellation of the hypothec and it is possible for the judge to order cancellation of the hypothec at the end of the judicial proceedings.

For the matrimonial house on which hypothec is established, the nonowner spouse may file a lawsuit for cancellation (deletion/removal) of the hypothec, arguing that the nonowner spouse does not grant consent for the establishment of the hypothec. Even though the lawsuit will be filed by the nonowner spouse, the burden of proof that the spouse’s consent has been obtained at the time of the establishment transaction pertaining to the disputed hypothec shall lie with the person/entity in favor of whom the hypothec has been established. In practice and in the jurisprudences of the Supreme Court of Appeals, “the absence of the spouse’s consent” is adopted as an absolute justification for cancellation of the hypothec. 

Thus, in its decision numbered 2017/2-2934 E. – 2017/1556 K. and dated 06.12.2017, the Assembly of Civil Chambers of the Supreme Court of Appeals clarifies this matter as follows: “In this respect, since there is no improperness in the local court’s order for cancellation of the hypothec on the ground that the hypothec has been established in violation of the article 194/1 of the Turkish Civil Code without knowledge and approval of the plaintiff spouse for the real estate about which there is no hesitation that it bears the characteristics of a matrimonial house, the local court’s decision of insistence in this direction is acceptable.”

Is it possible to cancel the hypothec even if the annotation “matrimonial house” is not put on the title deed registry?

The following provision is contained in the second paragraph of the article 194 of the Turkish Civil Code: “The spouse, who is not the owner of the real estate allocated as the matrimonial house, may submit a request before the title deed registry office for the grant of the annotation necessary in respect of the house”. To interpret this provision, such annotation that would be put on the title deed registry represents an arrangement made in order that the good faith third parties do not suffer a loss of right. This is because; in case of absence of an annotation, in the title deed registry, stating that the real estate is a “matrimonial house”, any transactions carried out for the good faith persons who do not know that the real estate is a matrimonial house will maintain their validities in legal terms. If, at the time of establishment of the hypothec, the title deed registry does not contain an annotation that the real estate is a “matrimonial house”, it is likely for the hypothec establishment transaction to be considered as valid in cases where the person/entity, in favor of whom the hypothec is established, is not expected to know that the relevant real estate is a matrimonial house.

In conclusion, the lawmaker regulates the concept of matrimonial house, leaving a broad margin of interpretation further to the significance of the family life. Considering also the significance of the family life, it is prescribed that the spouses should act jointly on the matrimonial house, and the validities of the transactions are made conditional upon the nonowner spouse’s consent. Such explicit consent may be declared verbally or in writing; however, should be in writing in terms of proof. In the case of absence of the explicit consent, the court may order annulment of the hypothec establishment transaction, as this is the case with every transaction carried out. In this regard, it will be proper to assess each concrete case separately, carry out the correct legal assessment for each concrete case and take steps accordingly, since each case has a specific characteristic.