Common housing family residence

"JOINT HOUSING" TO WHICH THE LEAVING SPOUSE IS INVITED

Although there is no specific definition of the concept of joint housing in the Turkish Civil Code No. 4721, a definition is used in the justification of the TMK as "A place full of memories where spouses carry out all their life activities, direct their lives accordingly, live in bitter and sweet days."

The 2nd Civil Chamber of the Supreme Court used a definition as follows in one of its decisions: "Family residence is the place where the spouses carry out all their life activities, live their bitter and sweet days, and concentrate their life activities."

With the light we get from the justification of the article and various definitions of the Supreme Court; It will be possible to express the joint residence as "a house where the spouses live with their children, if any, and where they live all their life activities, where everyone looking from the outside can easily understand this situation, and which meets their shelter needs."

According to TMK Article 186"Spouses choose the house they will live in together." If there is a disagreement between the spouses regarding choosing the joint residence, they must request the Family Court to determine the joint residence.

Divorce due to abandonment One of the conditions for filing a divorce case based on abandonment, which we mentioned in detail in our article titled; The abandoning spouse is invited to the common residence with a proper warning and the invited spouse does not return to the common residence within a period of 2 months, starting from the notification of the notice to the abandoning spouse. The joint residence to which the deserting spouse is invited must have certain qualities, primarily in terms of being independent and livable.

While explaining the concept of independent co-housing; It is also useful to examine it under the headings of physically independent housing and psychologically independent housing.

1. Physically Independent Housing: Whether the joint residence to which the deserting spouse is invited has certain sections (toilet, bathroom, kitchen, bedroom, etc.) that must be present in order to be livable. If necessary, it should be determined by exploration. For example, if houses opening to a common garden use a common toilet, independent housing cannot be considered.

2. Spiritually Independent Housing: In the joint residence of the spouses, where they live with their children, if any, an independent residence cannot be mentioned if, apart from the spouses and children, parents, siblings or adult children from previous marriages live in the same house. In daily life, we see that one of the spouses (usually the husband) continues to live in a household after marrying his parents, due to both economic and socio-cultural reasons or some obligations. This does not always affect the independence of shared housing. Living in the same household between parents who have no other place or opportunity to go, who have no one else to look after, and who are in need of care, will not affect the independence of the shared residence.

Again, if we consider family apartments as a very common living arrangement in some regions; If the spouses have different apartments within the apartment, the fact that the parents or another relative lives on the lower floor or the upper floor will not affect the independence of the shared residence. However, even if they have different apartments, if most of the daily activities (meals are eaten together and only go to their own homes to sleep) are done together, in such a lifestyle, we can no longer talk about a spiritually independent shared residence. If this or a similar situation exists, it should be clearly stated in the invitation notice sent to the abandoned spouse that this lifestyle has ended and that the old practices will no longer be included in the event of his/her return.

The Effect of Family Apartments on Residential Independence According to the Supreme Court

According to the decision of the 2nd Civil Chamber of the Supreme Court of Appeals numbered 2014/3925 E. 2014/22327 K.;

"… It is undisputed that the house to which the defendant was invited is an "independent section" on the third floor of an apartment building. The fact that the plaintiff's parents live in the apartment on the lower floor of the same building does not eliminate the moral independence of the house to which the defendant is invited. The house is physically independent. The defendant's abandonment of the common house in 2007 was due to the intervention of her husband's family living in the same building in the marriage, unless there are serious reasons and evidence that the same events will repeat if she complies with the invitation. "In that case, the warning is valid and there is not enough evidence and facts to accept that the defendant is right in not complying with the warning. In this regard, it was not found right to reject the case based on the justification of abandonment, although a divorce should be decided."

It was decided that living as an individual in a family apartment does not violate the physical and moral independence of housing. This is the well-established idea. However, according to the opinion of one of the members in his opposing vote for the said decision, this situation undermines the moral independence of the house. In daily life, we witness that problems that can be solved by agreement between the spouses, often due to the fact that the families exhibit interventionist attitudes (making decisions about their marriage by superseding the will of the spouses), even simple problems are no longer solvable, but have become an inextricable tangle of problems. A large percentage of the reasons for divorce occur due to third party intervention in the marriage. Therefore, we agree with the opinion of the 2nd Civil Chamber member of the Supreme Court of Appeals in the dissenting opinion.

Dissenting Vote Letter

"From the scope of the file, it is understood that before the defendant left the house, there were arguments between the defendant and the plaintiff's family, that the plaintiff's family did not want the defendant, and that they even got angry when the defendant became pregnant, that the apartment where the joint residence of the parties is located was a family apartment, that the brother and his family lived on the 1st floor, the plaintiff's father and his wife lived on the 2nd floor, and the parties lived on the 3rd floor, and that no one other than family members lived in the apartment.

As it stands, it is not possible to say that the house to which the defendant was invited has moral independence. I believe that the defendant is right in not returning to the shared residence where he was previously subjected to intervention, where it is highly likely that he will be subjected to intervention again if he returns, and where he does not have moral independence.

For the reasons I explained above, I am of the opinion that the local court decision should be approved as I think it is in accordance with the procedure and law. For this reason, I do not agree with the opinion of the valuable majority to overturn it."