Spouse's consent a must for surety.
In real life, the matter is related to a change in the Turkish Code of Obligations (TBK). The new code created big problems for businessmen, who are now being asked to get their spouses' consent.
The Turkish legal system allows each spouse to enter into any legal transaction with a third party. Earlier, the surety-ship of each spouse was considered valid and did not require the consent of their spouse according to the Turkish Civil Code or the TBK.
The new law adopted a special disposition for the surety. The TBK aims to provide new limits on the liability of surety providers in order to protect their rights against beneficiaries -- primarily banks. In the event that the surety provider is a real person, another requirement provided under the new TBK is the approval of the surety provider's spouse. Accordingly, the first paragraph of Article 584 of the new TBK, which is in line with Article 194 of the Turkish Civil Code, regulates the main principle according to which either spouse can be a surety only with the written consent of the other spouse. However, spouses can live separately for two reasons. One of them is a judicial separation: According to the Turkish Civil Code, spouses can demand a separation or divorce. Where only judicial separation is asked for, the judge cannot grant a divorce. The judge must grant a judicial separation if the conditions are met. Where the suit is for a divorce, the judge may only grant judicial separation if reconciliation between the spouses seems probable. In these cases the judge can grant a judicial separation.
The second possibility for a separate life is based on Article 197 of the Turkish Civil Code. According to this article, a spouse is entitled to the right for a separate life so long as his or her personality, economic security or the welfare of the family is seriously imperiled by a continuance of life in common. In these cases, spouses may live and organize their lives separately and, accordingly, can sign a surety-ship contract independently. In the second paragraph the legislature regulates the other possibilities in which the consent of the other spouse is not required. When the article is analyzed, it can be concluded that the persons who can sign a surety-ship contract without their spouses' consent have a secondary legal (de jure) liability for the debts of the company or that business practice (de facto) demands them to have this kind of liability. For instance, the partner of a collective company has secondary liability for the debts of the collective company; to obtain a loan contract, banks demand, almost without exception, that the manager or the members of the board of directors of a corporation become jointly and severally surety.
If I may interpret the wording of the relevant article, the approval of the other spouse is not required for amendments adopted after the guarantee agreement that do not result in the increase of the amount under the responsibility of the guarantor, change the ordinary guarantee into a joint guarantee or significantly increase securities provided under the guarantee agreement against the guarantor.
Pursuant to Article 603 of the new TBK, the above explained validity requirements listed for the surety (i.e., form requirements, capacity for being a surety provider and consent of spouse) will also be applicable to the other agreements titled differently, including but not limited to guarantee documents, in which real persons provide personal security for third-party debts. This provision aims to provide protection to real persons and does not affect corporate guarantees.
Consequently, the new legislation appears to be partly driven by social policy, as it requires the written consent of the spouse of a natural person agreeing to act as a surety. Spousal consent is also sought where the amount or nature of the surety contract is being amended. With these dispositions, the legislature wishes to protect conjugal union and welfare.
NOTE: Berk Ecektir is a Turkish lawyer and available to answer questions on the legal aspects of living and doing business in Turkey. Please kindly send inquiries to email@example.com. If a sender's letter is published, names may be disclosed unless otherwise is expressly stated by the sender.
DISCLAIMER: The information provided here is intended to give basic legal information. You should get legal assistance from a licensed attorney at law while conducting legal transactions and not rely solely on the information in this column.
BERK EcEKTyR (Cihan/Today's Zaman) CyHAN
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