The joint residence is the place that serves as the center of family life, where the spouses and, if any, their children live together, share daily life, and experience both happy and challenging moments. This residence is considered a space that meets the family’s basic needs, providing shelter and the continuation of private life. A joint residence, known as the family residence, is the place where the spouses live together and maintain their life during the marriage. This residence may be rented, or it could belong to one or both of the spouses. Even if the residence belongs to a relative of one of the spouses, it may still be used as the family residence. Legally, whether the residence is rented or owned by one of the spouses does not change its status as the family residence. In all cases, this space, which is accepted as the family residence, is specially protected under the Civil Code.

1. Legal Status of the Family Residence and the Rights It Provides

The family residence is regulated in Article 194 of the Civil Code, which determines the rights and responsibilities of the spouses regarding this residence. According to this article, one spouse cannot make any disposition over the property used as the family residence or a rented residence without the explicit consent of the other spouse. Such dispositions include selling, transferring, terminating the lease agreement, or limiting the rights on the residence. If one spouse makes such actions without the consent of the other, these transactions are considered legally invalid.

To protect the family residence, a "family residence" annotation may be placed on the title deed. This annotation shows that the residence is used as the family residence and prevents one spouse from making decisions regarding the residence without the other’s consent. Additionally, if the family residence is rented, the spouse who is not a party to the lease agreement may notify the landlord to become a party to the lease, making both spouses jointly responsible for the rent.

2. Allocation of the Joint Residence in Divorce or Separation Cases

In divorce or separation cases, the court takes temporary measures to ensure the spouses' housing needs are met. Among these measures is the allocation of the joint residence to one of the spouses. According to Article 169 of the Civil Code, when a divorce or separation lawsuit is filed, the court takes temporary measures regarding housing, livelihood, property management, and child custody. These measures remain in place until the case is concluded.

The decision to allocate the joint residence to one spouse is generally made in favor of the economically or socially disadvantaged spouse. Especially women, due to their weaker economic position during the divorce process, the custody of children being granted to them, or the lack of alternative housing, may benefit from the allocation of the joint residence. In such cases, the court may decide to allocate the joint residence to the woman.

The allocation of the joint residence is implemented as a temporary measure during the divorce proceedings. During this period, the spouse to whom the residence is allocated has the right to live in the residence, and the other spouse’s right to use the residence is restricted. The decision is particularly made in favor of the spouse granted custody of the children, as the court’s primary objective is to maintain the children’s current living standards and meet their housing needs.

3. Issuance of the Decision to Allocate the Joint Residence

The decision to allocate the joint residence to one of the spouses is typically issued by the court in divorce or separation cases. The court makes this decision by considering the specific circumstances of the case and the situation of the parties involved. When issuing this decision, the court takes into account the economic conditions of the parties, child custody, housing needs, and other social factors.

• 3.1. Allocation of the Joint Residence in Divorce Cases

In divorce cases, the decision to allocate the joint residence to one of the spouses is frequently seen. Especially in contentious divorce cases, the court takes such measures to meet the spouses' housing needs. Since divorce cases often take a long time, it is important to secure the spouses' and children’s housing needs during this period. The court considers the economic conditions of the spouses, child custody, and other social factors when making the decision to allocate the residence.

• 3.2. Allocation of the Joint Residence in Separation Cases

Separation cases are those in which the spouses temporarily suspend their marital union. In these cases, as in divorce cases, the court takes temporary measures to meet the spouses' housing needs. During the separation proceedings, a decision to allocate the joint residence to one of the spouses can be made. This decision is generally made in favor of the spouse who is economically disadvantaged.

• 3.3. Restraint Order and Allocation of the Joint Residence

A restraint order is a measure aimed at preventing domestic violence. This decision is often used in cases of violence against women. A restraint order can be issued even if there is no divorce or separation case. Under this order, the violent spouse can be removed from the joint residence, and the residence can be allocated to the other spouse. In such cases, the court may decide to allocate the joint residence to the woman.

4. Issuance of the Allocation Decision

Decisions regarding the allocation of the joint residence to one spouse are typically made by the court during divorce or separation proceedings. When a divorce or separation case is filed, the court takes temporary measures to meet the housing needs of the spouses. The court may decide to allocate the joint residence to one of the spouses as part of these measures. When making this decision, the court considers the economic conditions of the spouses, child custody, and other social factors.

If no divorce or separation case has been filed, but there is an urgent situation such as domestic violence, the court may be approached for the allocation of the residence through a restraint order. The family court can decide to allocate the joint residence to one of the spouses, provided that the necessary conditions are met. In emergency situations, a temporary allocation decision may also be obtained through the prosecutor's office or law enforcement authorities.

5. Sale of the Allocated Residence

The allocation of the joint residence to one of the spouses is a temporary legal protective measure and does not affect the ownership rights. Therefore, even if a decision has been made to allocate the residence, the person who owns the property (one of the spouses or a third party) still has the right to sell or transfer the residence. For example, if the spouses live in a rented residence and it is allocated to the woman during divorce proceedings, the landlord may still sell or transfer the residence. The allocation decision does not limit the ownership right.

However, if the family residence belongs to one of the spouses and a "family residence" annotation has been placed on the title deed, the residence cannot be sold or transferred without the consent of the other spouse. The family residence annotation prevents one spouse from unilaterally disposing of the residence. If one spouse attempts to sell the property without the consent of the other, this transaction is considered legally invalid, and the non-owner spouse can file a lawsuit for the cancellation and registration of the deed.

6. Rental of the Allocated Residence

The main purpose of allocating the joint residence to one of the spouses is to meet the housing needs of the disadvantaged spouse during the divorce or separation process. Therefore, the residence allocated to the spouse must be used appropriately. If the allocated spouse does not live in the residence and moves elsewhere or attempts to rent it to others, the court may annul the allocation decision.

In this case, the other spouse may apply to the court handling the divorce case or the court that issued the restraint order to request the annulment of the allocation decision. The court has the authority to revoke the allocation decision, especially if it determines that the residence is not being used in accordance with its intended purpose.

7. Prevention of Possession in the Case of Allocation

A lawsuit for the prevention of possession is filed when there is illegal occupation or use of a property. However, the allocation of the joint residence to one of the spouses is a legal right, so it cannot be considered unlawful use. Therefore, the spouse to whom the residence is allocated has the right to live in the residence without violating the other spouse's ownership rights.

For example, if the joint residence belongs to one of the spouses, but the court has allocated it to the other spouse, the owning spouse cannot file a lawsuit for the prevention of possession. Since the allocation decision is a temporary measure during the divorce or separation process, it does not eliminate the ownership right but grants the use of the residence to the allocated spouse for a specific period.

8. Rent compensation fee in the Case of Allocation

Rent compensation fee is compensation requested for the unlawful use of a property. However, the allocation of the joint residence to one of the spouses is a legal right, so it cannot be considered unlawful use. Therefore, it is not possible to request a rent compensation fee during the period in which the residence is allocated during the divorce proceedings.

A claim for rent compensation may arise only after the allocation decision is revoked or after the divorce case is concluded. For example, if the divorce case ends and the allocated spouse continues to live in the residence, a rent compensation claim may be made.

9. Conclusion

The allocation of the joint residence to one of the spouses is a legal measure frequently used in divorce or separation proceedings. This decision aims to meet the housing needs of the disadvantaged spouse, especially in terms of economic or social factors. The allocation decision is a temporary measure and does not affect ownership rights. However, protective measures such as the family residence annotation may prevent unilateral disposal of the residence. Any legal issues arising during the allocation process are evaluated by the court, and the rights of the parties are protected.