Can a Husband and Wife Act as Guarantors Without Each Others Knowledge?

Can a Husband and Wife Act as Guarantors Without Their Knowledge? – Efes Law Firm

In contracts that can be described as economically risky, the creditor often requests guarantees such as a guarantor. So what is this guarantee? Can individuals act as guarantors without the consent of their spouses? We have summarized it briefly.

A guarantor is a third party in a contract between a debtor and a creditor who, in the event that the debtor fails to fulfill their obligations, undertakes to pay the debt. With the Turkish Code of Obligations The guarantor is liable in all cases only up to the maximum amount specified in the guarantee agreement.

Although there are many different types of guarantees, in practice we most frequently see ordinary guarantee and joint and several guarantee agreements.

Under a simple guarantee agreement, the creditor cannot pursue the guarantor without first demanding payment from the debtor. In other words, in a simple guarantee, the creditor must first approach the debtor, and only if the debt is not paid, should they approach the guarantor. The important thing here is for the creditor to be able to demonstrate that they have been unable to collect the debt from the debtor.

In cases of joint and several guarantees, the debt can be collected from the guarantor without even going to the debtor. However, for this to be possible, the debtor must be in default of fulfilling their obligation, the warnings given to the debtor must have been ineffective, or the debtor must be clearly insolvent.’

For a guarantee arrangement to be valid under the Turkish Code of Obligations, certain conditions must be met. These conditions are: the existence of a current and valid principal debt, the guarantee agreement being in writing, and obtaining the spouse's consent.

A guarantee agreement is not valid unless it is in writing and specifies the maximum amount for which the guarantor will be liable and the date of the guarantee. It is mandatory for the guarantor to state in their own handwriting in the guarantee agreement the maximum amount for which they are liable, the date of the guarantee, and, if they are a joint guarantor, that they are undertaking the obligation in that capacity or with any expression that implies this.

According to the Turkish Code of Obligations, one spouse can only act as a guarantor with the written consent of the other, unless there is a court-issued separation decree or a legally established right to live separately. While there are some exceptions to this rule, guarantee agreements made without the written consent of both spouses will not be valid.

As can be seen, under our legal framework, unless there is a court-issued separation decree or a legally established right to live separately, neither spouse can act as a guarantor without the other's written consent.

Except for the above, in the following cases, the consent of the other spouse will not be required for guarantees given by one spouse:;

1. Guarantees given by the owner of a commercial enterprise registered in the commercial registry, or by a partner or manager of a commercial company, in relation to the business or company,
2. Guarantees provided by tradesmen or artisans registered in the tradesmen and artisans registry in relation to their professional activities,
3. Guarantees to be provided for loans to be used under Law No. 5570 on Interest-Subsidized Loans and Profit-Sharing Supported Funds Provided by Publicly Owned Banks.

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