Limitations of Ownership Rights, Precautionary Measures and Liquidation Regime at the Intersection of Family Law and Real Property Law

LIMITS OF THE RIGHT TO PROPERTY, INJUNCTION PROBLEMS, AND LIQUIDATION REGIME IN THE AXIS OF FAMILY LAW AND REAL PROPERTY LAW

1. INTRODUCTION

In the Turkish legal system, the right to property is the most comprehensive real right guaranteed by Article 35 of the Constitution and Article 683 of the Turkish Civil Code (TCC). However, this right is neither absolute nor unlimited. In particular, the characterization of the "family" institution as the foundation of society (Constitution Article 41) has compelled the legislator to strike a delicate balance between the right to property and the principle of protection of the family. The most concrete and most dispute-generating manifestations of this balance are: the limitation of the power of disposition over the family dwelling, interim injunctions to be placed on real properties during divorce proceedings, and the liquidation of these real properties when the marital union ends.

This article aims to examine in depth these three fundamental areas where Family Law and Real Property Law conflict, within the framework of divergences of opinion in doctrine, the Court of Cassation's established and current case law, and procedural problems in practice.

2. FAMILY DWELLING PROTECTION AND LIMITATION OF THE RIGHT TO PROPERTY (TCC Article 194)

2.1. Legal Nature of the Concept of Family Dwelling

The regulation introduced by TCC Article 194 is a limitation on the legal capacity to act of the spouses. The legislator aimed to prevent the dwelling, which is the center of family life, from being disposed of or restricted with real rights through the unilateral and arbitrary actions of the owner spouse. The family dwelling is the place where the spouses carry out all their life activities, experience both joyful and sorrowful days, and concentrate their life activities. The Court of Cassation General Assembly defines the family dwelling not merely as a physical shelter but as the "spiritual and social center" of the family.

2.2. The "Explicit Consent" Requirement and Its Form

The law requires the "explicit consent" of the other spouse for the disposition of the owner spouse. While the law does not specify the form of this consent, Court of Cassation practice and doctrine accept that consent may be given at the time of the transaction or beforehand, as well as in the form of "ratification" (approval) after the transaction. However, consent must be "explicit"; implied consent (remaining silent) is not accepted as valid. A transaction conducted without obtaining consent is "pending void." The spouse whose consent was not obtained may file a lawsuit for annulment of the transaction.

2.3. Annotation in the Land Registry and Issue of Good Faith of Third Parties (Conflict with TCC Article 1023)

The most debated dimension of family dwelling protection is the situation of third parties where there is no "family dwelling annotation" in the land registry.

Divergence of Opinion in Doctrine:

• Absolute Nullity View: Some writers argue that TCC Article 194 is of mandatory nature and that a transaction conducted without obtaining consent is invalid regardless of whether there is an annotation in the land registry. According to this view, the family dwelling characteristic is a quality "attached to the property" and the principle of reliance on the land registry should not operate here.
• Principle of Reliance on the Land Registry (Protection of Good Faith) View: The dominant view and current Court of Cassation practice take TCC Article 1023 as the basis. Accordingly, the acquisition of ownership or another real right by a third party in good faith reliance on the registration in the land registry is protected.

Court of Cassation Practice: After years of uncertainty, and influenced by the Constitutional Court, the Court of Cassation 2nd Civil Chamber has established the following case law: If there is no family dwelling annotation in the land registry, the question of whether the third party who purchased the real property or established a mortgage on it is "in good faith" is examined. If the third party knows or is in a position to know that the real property is a family dwelling (for example, if the expert appraisal report of banks states that a family is living in the dwelling), they are considered to be in bad faith and the transaction is annulled. However, if the third party is in good faith, their acquisition is protected.

"Since there is no annotation in the land registry regarding the real property being a 'family dwelling' on the date of sale, the acquisition of defendant... is protected if they are in good faith (TCC Article 1023). Because Article 194/3 of the Turkish Civil Code has not introduced an exception to the principle of reliance on the land registry... Since the existence of good faith is the rule, the obligation to prove that defendant... is in bad faith falls on the one who asserts this."

2nd Civil Chamber 2025/674 Case, 2025/1154 Decision.

This decision demonstrates how vital it is for the non-owner spouse to go to the land registry and have the family dwelling annotation entered. Although the annotation is "declaratory" rather than "constitutive," it is the most powerful tool that neutralizes third parties' claims of good faith.

3. PROBLEM OF PLACING INTERIM INJUNCTIONS ON REAL PROPERTIES DURING DIVORCE PROCEEDINGS

When a divorce action is filed, the parties' greatest concern is the attempt to conceal assets. However, in Turkish legal practice, obtaining injunctions on real properties within a divorce action is far more difficult than generally assumed.

3.1. CCP Article 389 and the "Subject Matter of the Dispute" Criterion

CCP Article 389/1 regulates that an interim injunction may only be granted "with respect to the subject matter of the dispute." The Court of Cassation interprets this article extremely narrowly. The subject matter of the divorce action is the fault status of the parties and the fundamental breakdown of the marital union; it is not the ownership of real properties. As a result of the divorce action, the judge cannot render a judgment ordering "That real property shall be given to the plaintiff" (cannot render a judgment in rem). The judge may only render judgment regarding divorce, compensation, and alimony.

For this reason, the Court of Cassation finds it unlawful to place injunctions on the defendant's real properties in a divorce action for the purpose of guaranteeing (securing collection of) future compensation and alimony receivables that may be awarded. This situation places plaintiff spouses at serious risk of victimization.

"According to procedure, an injunction decision may only be given with respect to the subject matter of the dispute (CCP Article 389/1). Even if it is for the purpose of securing the compensation and alimony rights of a secondary nature linked to divorce — which may be awarded if a divorce decision is rendered — in the plaintiff's divorce case, an injunction cannot be placed on the real property registered in the defendant's name."

2nd Civil Chamber 2014/24739 Case, 2015/10135 Decision.

3.2. Legal Paths to Overcome the Injunction Obstacle

The alternative legal paths that lawyers may resort to in order to overcome this strict stance and protect the real property are as follows:

A. TCC Article 199: Limitation of the Power of Disposition If the defendant spouse is concealing assets in a manner that endangers the family's economic existence, the judge may be requested to "limit the power of disposition" pursuant to TCC Article 199. This is not an interim injunction in the CCP sense but a protective measure specific to Family Law. The matter that must be proven here is the defendant's bad faith dispositions and that the family's economic future is at risk.

B. Filing a Matrimonial Property Regime Liquidation Action The most effective method is to file a "Matrimonial Property Regime Liquidation (Participation Receivable)" action together with or immediately following the divorce action. The subject matter of this action is directly the monetary value of the assets. The Court of Cassation 8th Civil Chamber is more receptive to placing injunctions on real properties in matrimonial property regime actions. However, even here, the plaintiff is generally asked to deposit a security.

C. Request for Family Dwelling Annotation If the real property is a family dwelling, having the annotation entered pursuant to TCC Article 194 is the least costly and most powerful method of protection. This annotation makes the transfer of the real property practically impossible until the divorce decision becomes final (because finding a buyer becomes difficult or the land registry officer seeks consent).

4. VALUATION OF REAL PROPERTY IN MATRIMONIAL PROPERTY REGIME LIQUIDATION AND THE MOMENT OF LIQUIDATION

With the finalization of the divorce decision, the matrimonial property regime ends (TCC Article 225). In the Regime of Participation in Acquired Property, the other spouse acquires the right to a "Participation in Residual Value Receivable" with respect to real properties acquired within the marital union. The greatest legal debate in this process is which date's value of the real property shall be taken as the basis.

4.1. Distinction Between Moment of Liquidation and Moment of Valuation

Legally, the matrimonial property regime ends on the date the divorce action is filed. That is, assets acquired after this date do not enter into the liquidation. However, when determining the value of a real property that enters into liquidation, not the value on the date the divorce action was filed but the market value at the date of the decision in the liquidation action (closest to the decision) is taken as the basis (TCC Article 235/1).

This distinction is of vital importance. In countries with high inflation such as Turkey, divorce cases may last 3-5 years. If the value on the date the action was filed were taken as the basis, the creditor spouse would suffer a major loss of rights. By adopting the "market value" (fair market value) principle, the Court of Cassation ensures that the economic equivalent of the property right remains current.

"When calculating the value increase share and the amounts of participation in residual value receivables, the market (fair market) value at the date of liquidation of the asset existing at the time the matrimonial property regime ended, according to its condition at that date, is taken as the basis (TCC Articles 227/1, 228/1, 232 and 235/1). According to Court of Cassation practice, the date of liquidation is the date of the decision."

8th Civil Chamber 2016/549 Case, 2016/13580 Decision.

4.2. Issue of Preliminary Question

For the matrimonial property regime action to be heard, finalization of the divorce decision is required. Because the matrimonial property regime ends with the divorce. If the divorce action is rejected, the matrimonial property regime liquidation action also becomes "moot." For this reason, courts open the matrimonial property regime action but make the outcome of the divorce action a "preliminary question." In this process, the placement of injunctions on real properties from the matrimonial property regime file is the most strategic move protecting the rights of the plaintiff spouse.

5. CONCLUSION AND EVALUATION

The intersection area of Family Law and Real Property Law is a structure shaped by dynamic court decisions rather than static rules.

1. Limit of Ownership: The family dwelling regulation is the most serious limitation placed on the right to property. However, the principle of reliance on the land registry (TCC Article 1023) may weaken this protection. For this reason, having the "annotation" entered is not a preference but a necessity.
2. Injunction Problem: The inability to place injunctions for "collection security" in divorce actions is an important gap in our legal system. The Court of Cassation's narrow interpretation of CCP Article 389 gives bad faith spouses the opportunity to conceal assets. The way to neutralize this risk is to operate TCC Article 199 or to simultaneously file a matrimonial property regime action.
3. Fair Liquidation: The principle of "fair market value at the date of decision" in the liquidation of real properties is the most important tool for achieving economic justice.

In conclusion, in the divorce process, real property law is not a process to be conducted by merely looking at land registry records. The broad discretionary authority of the family court judge (TCC Article 4), the Court of Cassation's search for balance between formal reality and substantive justice, and lawyers' strategic moves (choosing the correct type of action, relying on the correct injunction article) are the main factors that determine the outcome of the process.