The divorce process presents many emotional and legal challenges for couples. Chief among these challenges is the status of the shared residence. Considering the standard of living and housing costs, especially in large cities like Antalya, the issue of vacating a shared residence during the divorce process can be critical for both parties. The question of who will use the shared residence and how it will be used is a crucial issue that frequently arises during or after the divorce case is concluded. In this article, we will examine in detail the legal basis for evicting a shared residence through enforcement proceedings in Antalya during the divorce process, the legal basis, and the practical steps involved.
The Legal Nature and Importance of Shared Residence in the Divorce Process
Shared housing, the foundation of a marriage, enjoys special protection under the Turkish Civil Code (TCC). This space, where the parties live together and conduct their family life, is often the subject of disputes during divorce proceedings. The property may be owned by one spouse, jointly owned, or used under a lease agreement. In any case, when divorce proceedings are filed, the court will determine the status of the property through interim measures.
Family Residence Annotation and Protection
One of the most important legal characteristics of a shared residence is its “family residence” status. According to Article 194 of the Civil Code (TCC), a spouse cannot terminate the lease agreement concerning the family residence, transfer the family residence, or limit rights over the family residence without the express consent of the other spouse. This article specifically prevents disposition of the residence without the consent of the other spouse, even if the title deed is registered in the name of one spouse. This protection is further strengthened by the inclusion of a “family residence annotation” in the land registry. During the divorce process, eviction from a residence with a family residence annotation is not possible without a court order. This annotation plays a vital role in preventing any hardship suffered by the spouse, especially in the rapidly appreciating housing market in Antalya.
Court Decision to Evacuate Shared Residence: Interim Measures
Whether or not a divorce case is filed, one spouse may request that the other spouse be removed from the shared residence or that the residence be allocated to them. These requests are considered by the court as “interim measures.” Articles 169 and 197 of the Civil Code grant the judge broad authority in this matter.
Allocation Decision Made by the Court
While the divorce case is ongoing, the court may issue a provisional order determining which spouse will be allocated the shared residence, taking into account the parties’ living conditions, the children’s best interests, their financial situation, and the property’s ownership status. This decision is typically made to meet the housing needs of the spouse with custody, the less financially disadvantaged spouse, and the children. For example, in a divorce case in Antalya, factors such as proximity to the children’s school or the mother’s responsibility for childcare may influence the decision to allocate the residence to the mother. This court-issued allocation order is a decree and enforceable document.
Implementation of the Eviction Decision through Execution
A court-issued decision allocating a shared residence or removing the other spouse from the residence is not automatically enforceable. Enforcement must be pursued for this decision to be effectively implemented. The Enforcement and Bankruptcy Law (EBL) regulates the enforcement of court decisions. Eviction orders issued in divorce cases are also pursued through writ enforcement.
How to Initiate Enforcement Proceedings?
Once the eviction decision issued by the court becomes final, or even before it becomes final, the decision may be subject to a writ of execution. The spouse or representative in favor of the decision may initiate enforcement proceedings by applying to the authorized Enforcement Office with a copy of the decision. The petition must clearly state the address of the residence to be evicted, the date and number of the decision, and the eviction request. The Enforcement Offices affiliated with the Antalya Courthouse are the authorities for such applications.
Procedures to be Performed by the Enforcement Directorate
After receiving the eviction request, the Enforcement Office serves a copy of the court order and the writ of execution on the spouse who is being evicted. The writ of execution states that the debtor (the spouse to be evicted) must vacate the property within a specified period (usually seven days) or face forced eviction. If the property is not vacated within this notice period, the creditor (the spouse requesting eviction) may request a forced eviction from the Enforcement Office.
Evacuation Process Completed
At the creditor’s request, the enforcement office, accompanied by law enforcement officers (police or gendarmerie), goes to the residence to carry out the eviction. During the eviction, the belongings in the residence may need to be identified and moved in a report. The cost of moving the belongings is generally covered by the party requesting the eviction, but these costs may be claimed by the other party later. If the spouse being evicted resists, law enforcement officers have the authority to use force. In metropolitan cities like Antalya, the planning and implementation of such procedures can take a certain amount of time due to the Enforcement Office’s workload.
Things to Consider and Possible Problems in Enforcement Proceedings
Evacuating a shared residence through foreclosure during a divorce is a delicate process, with both legal and practical details. It’s important to pay attention to certain key points and be prepared for potential problems.
Children’s Interests and Release
If the spouse whose release is requested has custody of the children, the eviction must be conducted in the children’s best interests. The court, or the enforcement office, will take this into consideration when issuing an eviction order to protect the children’s right to housing and their psychological well-being. Issues such as the availability of alternative housing may be important to prevent the children from suffering.
Alimony Obligations and Eviction
Along with the eviction order, the court may also determine the alimony obligation for the spouse or children who will remain in the residence. The allocation of the residence can often affect the alimony amount. The burden of finding a new residence and the rental costs of the evicted spouse are factors to be considered in determining the alimony amount.
Status of the Lease Agreement
If the shared residence is occupied by a lease, the termination or transfer of the lease may be an issue during the divorce process. According to Article 194 of the Civil Code (TCC), termination of the lease requires the consent of the other spouse, regardless of whether the family residence is registered. The court’s allocation decision may also affect the lease agreement, and issues such as who pays the rent may be regulated by this decision. Eviction may also affect the rights of the landlord; therefore, the landlord may need to be notified and involved in the legal process.
Legal Support in the Shared Housing Eviction Process in Antalya
Evacuating a shared residence during a divorce requires expertise due to both the complexity of the legal procedures and the emotional tension between the parties. When navigating this process in Antalya, it’s crucial to be knowledgeable about local court practices, the functioning of enforcement offices, and current Supreme Court decisions.
A qualified legal professional ensures the swift, efficient, and legal completion of the eviction process, ensuring the best possible protection for their client’s rights. They offer professional guidance at every stage, from preparing the petition and taking interim measures to initiating enforcement proceedings and ultimately carrying out the eviction. They also assist in developing strategies to counter potential objections or legal actions taken by the opposing party.
Eviction from a shared residence during a divorce is a highly sensitive and complex issue, with both legal and human aspects. It’s crucial that every step taken during this process be planned legally, fairly, and in a way that protects the interests of both parties. Especially in a dynamic city like Antalya, the support of a qualified divorce lawyer is essential to properly manage the legal process, prevent potential loss of rights, and ensure the least stressful process. Working with an experienced legal professional in this field will ensure your rights are protected and the eviction process is concluded legally.