Turkey: Turkish Courts Change Their Approach To The Delicate Balance Of Protecting Matrimonial Homes

Last Updated: 25 January 2017
Article by Orçun Çetinkaya, LL.M., Burak Baydar and Hande Gürel

Most Read Contributor in Turkey, July 2017

First published by INSOL Europe in January 2017.

The Turkish Constitutional Court recently considered a claim1 seeking to remove a lien in favour of a bank, which the plaintiff's spouse had placed over the "matrimonial home" without her consent.

Traditionally, Turkish courts have ruled in favour of banks on this topic, reasoning that if the matrimonial home right is not annotated on the title deed, a bank's good faith must be protected. However, an April 2015 decision by the highest body within the Court of Cassation changed this reasoning, instead placing the onus on banks to act as prudent merchants and undertake necessary examinations of the relevant real estate to determine whether it is a matrimonial home.

However, in the case at hand, the Constitutional Court found that the decisions under appeal had been finalized before the change in judicial approach, so should stand in favour of the bank. Given the change in judicial sentiment though, banks should make best efforts to conduct investigations into whether the subject property is a matrimonial home, even if there are not notations on the property's title.

Legislative Provisions Regarding the Matrimonial Home

In 2002, the Civil Code introduced a limitation on actions regarding the matrimonial home, in order to protect the family life and the non-owner spouse. "Matrimonial home" is defined in the Civil Code's preamble as an area, filled with memories, in which a man and wife share their life in bitter-sweet days.

A spouse cannot transfer the matrimonial home, nor restrict any rights, without express consent from the other spouse (Article 195 of the Civil Code). Matrimonial home rights can be annotated to the title registry, allowing the non-owner spouse to claim his/her matrimonial rights against third-parties. However, if a third party acquires ownership or other limited property right by relying in good faith on the title registry, their acquisition will be protected (Article 1023 of Civil Code).

Analysis by Lower Courts

Discussions at lower court levels focused on whether to protect the bank's goodwill (since the matrimonial home right was not annotated to the property's title), or the plaintiff's right to a matrimonial home.

The First Instance Court (Izmir 13th Family Court) accepted the plaintiff's claim and ruled to discharge the lien. The Court determined the property was proven beyond reasonable doubt to be a matrimonial home and the bank could have learnt this fact via simple research during the lien procedures. Hence, the Court rejected the bank's good faith claim on the basis that it did not exercise the due care required from a prudent merchant.

The bank appealed the decision to the 2nd Civil Chamber of Court of Cassation in January 2012, which reversed the lower Court's decision. The reversal decision was finalized in April 2014. The Court noted that the parties must prove the matter in line with Article 6 of the Civil Code (claimant must prove his/her claim) and there had been no title annotation in this case. It held that the bank's good faith must be accepted because the plaintiff could not prove otherwise. The Court based its reasoning on Article 3 of the Civil Code which states that "where the law makes a legal effect conditional on the good faith of a person, there will be a presumption of good faith primarily."

The Judicial Approach to Matrimonial Homes

Traditionally, the Court of Cassation has ruled in favour of banks on this topic, reasoning that if the matrimonial home right is not annotated on the title deed, a bank's good faith must be protected.

However, in April 2015 the highest body within the Court of Cassation (the General Assembly of Civil Chambers; "General Assembly") ruled in one case that the matrimonial home has the feature of a house for family, regardless of whether this right is noted on the title.2 It went on to state that banks are expected to act as prudent merchants and make necessary examinations of the relevant real estate to determine whether it is a matrimonial home. In a dissenting minority opinion, certain judges stated that it is not possible in the regular flow of life for a spouse to be unaware that a lien has been placed over on the matrimonial home.

Therefore, the General Assembly recently altered the traditional judicial approach to matrimonial home cases.

Consideration by the Constitutional Court

The plaintiff applied to have the case reviewed by Constitutional Court. The Constitutional Court had jurisdiction to determine any violation of rights granted under the Turkish Constitution or European Convention on Human Rights. It cannot consider whether other courts have duly applied relevant legislation. The Constitutional Court's exclusive objective is to determine and abolish any violations of rights.

The Constitutional Court noted the right to receive respect for family life (Article 8 of the European Convention on Human Rights; Article 20 of the Turkish Constitution). It also noted that the Turkish Constitution requires the State to take necessary measures and establish necessary organizations to protect peace and welfare of the family (Article 41).

Hence, the Constitutional Court noted that the Constitution imposes both negative (Article 20) and positive (Article 41) obligations on the State, which are closely linked. When considering the State's obligation to protect family life, it is important to establish a balance between an individual's interests, public interest, as well as related legislation.

In the case at hand, the Constitutional Court concluded that the lower courts had adequately balanced party interests. Despite the General Assembly's April 2015 decision, the lower courts' decisions in the case at hand were made and finalized before this date. Therefore, the Constitutional Court held that the lower courts had not exceeded their judicial discretion and no violation had occurred regarding the right to respect for family life.

*            *            *

Despite consideration by a range of courts the concept of a matrimonial home is a relatively new legal institution for Turkey, compared with some other countries. The General Assembly's decisions are binding upon lower courts. Therefore, the recently altered precedent will become mandatory for merchants in future cases. Therefore, merchants (particularly banks) which intend to place lien over real estate in Turkey should be careful to conduct investigations into whether the subject property is a matrimonial home.

1. Decision Date 13 October 2016, Application Number: 2014/17751.

2. Decision dated 15 April 2015 and numbered 2013/2-2056, 2015/1201 K.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Hande Gürel
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.