Ensuring The Protection on Matrimonial Home: Should The Principles Established under English Law Be Introduced into Turkish Law?

Abstract

Article 194 of Turkish Civil Code establishes the mandatory rule that when either of the spouses enters into transaction considering the matrimonial home, it should obtain the other spouse’s express consent for this transaction to be valid. This consent is required for the protection of matrimonial home as it is the property where spouses reside and live in together. The same protection is also provided under English law by the equity based undue influence doctrine. In applying this doctrine, English courts considered the balance between the parties of the transaction that regards matrimonial home accordingly set of principles are established in by the House of Lords in Royal Bank of Scotland v Etridge for parties to follow in order to strike this balance and to protect the spouse against the prospect of other spouse’s undue influence. Principally, these principles aim to make sure that the consent is given by exercising free will. In the light of these, this paper will seek an answer to the question: whether common law-like principles should be introduced into Turkish law for the purpose of ensuring the protection of the parties as well as the matrimonial home?