The family residence refers to the shared living space chosen by spouses during their marriage, where they live together and carry out their family life. This residence is not merely a place of shelter; it also serves as a center that ensures the social, psychological, and economic security of the spouses and their children, if any. This special status, safeguarded under Article 194 of the Turkish Civil Code, is intended to preserve family unity and prevent one spouse from making unilateral property transactions that could affect the other. Thus, the concept of the family residence represents not only a physical dwelling but also a constitutional right related to the protection of the family.
Which Properties Qualify as a Family Residence?
A family residence is defined as the immovable property where the spouses actually live and that has become the central hub of their family life. A property purchased as a summer house, a timeshare, or for investment purposes alone does not qualify as a family residence. The property must be actively and physically used by the spouses and their children, if applicable. In cases where spouses work in different cities or live elsewhere temporarily, the home accepted as the main center of family life can still be regarded as the family residence.
Properties That Qualify as Family Residences:
- Detached house: If it is the permanent joint living space of the spouses, it is a family residence.
- Apartment unit: If spouses reside together in the unit, it qualifies.
- Rented house: Regardless of ownership, if it is leased by one spouse and used jointly, it qualifies.
- Cooperative housing: If shared family life occurs here, it qualifies.
- House owned by a non-owning spouse's family: If the couple lives there regularly and together, it can gain family residence status.
Properties That Do Not Qualify:
- Summer homes: Used for holidays and not for permanent living.
- Timeshares: Used periodically and not as a permanent living space.
- Investment properties: If not physically occupied by the couple.
- Vacant or unused properties: Not protected under family residence regulations.
Legal Ownership and Its Effects
The title ownership of the property designated as the family residence does not affect its legal status. Whether the property is owned by one spouse, rented, or acquired by donation, the key factor is its dedication to family life. The owning spouse cannot unilaterally take decisions concerning the family residence. Transactions such as sale, rental, mortgage, or encumbrance are only valid if the other spouse gives explicit consent. Otherwise, the transaction may be deemed invalid or subject to cancellation.
Types of Lawsuits Related to the Family Residence
The following legal actions may be initiated concerning family residences:
- Title cancellation and registration lawsuit (against unauthorized sales)
- Transaction annulment lawsuit (e.g., mortgage or sale without consent)
- Annotation request for family residence
- Removal of family residence annotation
- Preliminary injunction request (to prevent the transfer of the property)
Which Court Is Competent?
The competent court depends on the nature of the lawsuit:
- Family Court:
- Preventive requests related to family residence (annotation, consent requirements)
- Claims arising from marital obligations
- Personal relationship and matrimonial duties between spouses Legal basis: Law No. 4787 on the Establishment, Duties, and Procedures of Family Courts
- Civil Court of First Instance:
- Title cancellation and registration lawsuits
- Lawsuits for invalidation of transfers to third parties
- Lawsuits against land registry offices or third parties even after annotation
In areas without family courts, these matters are handled by the Civil Court of First Instance.
Annotation of Family Residence and Protection in the Land Registry
Registering a family residence annotation in the land registry protects the non-owning spouse against third parties. The non-owning spouse may apply to the land registry to declare the property as the family residence, which is then recorded in the registry. After this annotation, the owning spouse cannot take legal action (e.g., sell, lease, mortgage) without the explicit consent of the other spouse. Although the lack of annotation does not remove the legal protection of the family residence, annotation provides a stronger defense against third-party bad-faith actions. If a transaction occurred before annotation but the residence status is proven, annulment may still be pursued.
Process of Annotating the Family Residence in the Land Registry
The spouse applying for the annotation must usually provide the following documents:
- Family registry copy
- Marriage certificate
- Proof of residence
- Copy of title deed
- Petition
The application is made directly to the relevant land registry office. Once the documents are submitted, the annotation is recorded in the land registry. This is a free procedure and does not require notarization. The officer processes the annotation based on documents showing the home is used as a family residence. After registration, the owning spouse may no longer take unilateral actions.
Consequences of Transactions Without Spousal Consent
If the owning spouse sells, transfers, or mortgages the family residence without the other's consent, the transaction becomes legally defective. The non-consenting spouse may file a lawsuit to annul the transaction. If there is no annotation in the land registry, a third party unaware of the residence status and acting in good faith may be protected. However, if annotation exists, good faith is invalidated, and annulment becomes possible. Therefore, annotation not only secures spousal rights but also offers significant protection against third parties.
Judicial Decisions and Practice
According to the Court of Cassation, a residence does not need to be registered in the land registry to qualify as a family residence; actual use is sufficient. For example, a rented home listed under one spouse's name but used jointly still qualifies. In annulment cases for transactions without consent, courts investigate whether the property was used for family life. If this is proven, the transaction may be annulled.
Conclusion
The concept of the family residence provides special legal protection to support the integrity of the marital union. This protection not only balances power between spouses but also secures children's right to shelter. A spouse must obtain the other's explicit consent to make decisions concerning the family residence. The non-owning spouse has the right to request a family residence annotation, which strengthens protection against third parties. These legal provisions are fundamental to ensuring fair and balanced marital relations in society.
Originally published April 21, 2025.
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.
