For spouses who have decided to bring the marital union to an end, uncontested divorce is the method that closes the dispute in the shortest time and at the lowest cost. The fact that it may be concluded in a few hearings, as against the course of contested proceedings spread over months and sometimes years, and that it does not heighten the tension between the parties, has made this route the most frequently used form of divorce in practice.
Even so, "reaching agreement" is not on its own sufficient. The liquidation of the matrimonial property regime, alimony, damages and the position of the children must be settled by agreement just as much as the divorce itself; and the resulting text must pass the court’s approval. The role of the judge at this point is not to ratify the will of the parties unconditionally, but to review it.
In this briefing note we address, from a practical standpoint, the statutory basis of uncontested divorce, the conditions required, the content the protocol must carry, the arrangements relating to custody and alimony, the heading of damages, and the court in which the action is to be brought.
What Is an Uncontested Divorce?
Spouses who reach a shared conviction that the marriage can no longer be carried on may bring the union to an end by mutual agreement, without entering into lengthy contested proceedings. The short duration of the method, the limited costs and the fact that it bruises the parties less in emotional terms keep the rate at which it is preferred high. The statutory framework of the institution is drawn in the third paragraph of Article 166 of the Turkish Civil Code No. 4721:
Turkish Civil Code No. 4721, Art. 166(3)
"If the marriage has lasted at least one year, the marital union shall be deemed to have broken down irretrievably where the spouses apply jointly or where one spouse accepts the action of the other. In this case, in order for a divorce decree to be granted, it is essential that the judge, hearing the parties in person, be satisfied that their wills have been freely declared and find appropriate the arrangement to be accepted by the parties concerning the financial consequences of the divorce and the situation of the children. The judge may, taking into consideration the interests of the parties and of the children, make such amendments to this agreement as are deemed necessary. Where these amendments are also accepted by the parties, divorce shall be decreed. In this case, the provision that the admissions of the parties do not bind the judge shall not apply."
As is apparent from the wording of the provision, a decree of uncontested divorce depends on the fulfilment of a series of conditions that complement one another. In what follows we set out these conditions one by one and describe the operation of the process step by step.
Conditions of Uncontested Divorce
Turkish Civil Code No. 4721, Art. 166(3) makes the court’s power to decree an uncontested divorce conditional upon four fundamental requirements being present together. The absence of even one of these requirements may lead to the rejection of the claim.
The Marriage Having Lasted at Least One Year
For the uncontested route to be available, at least one year must have passed since the date of the marriage. This is the first matter the judge examines in the file; if the period has not been completed, the action is dismissed.
What is decisive here is the moment from which the period is to be calculated. The date on which the official marriage was solemnised is taken as the basis for the calculation. The period spent under a religious marriage ceremony before the official marriage, which is widely encountered in society, cannot be added to this one-year period.
The Spouses Applying to the Court Jointly
The action is either brought before the family court by the joint petition of the spouses, or it takes on an uncontested character where the divorce action brought by one of the spouses is accepted by the other. Just as the application may be made by the parties in person, there is no obstacle to its being conducted through a lawyer.
Preparation of the Divorce Protocol
The backbone of the process is the divorce protocol. It is compulsory that this formal text, which sets out in writing the financial and personal rights of the spouses after the separation, be submitted to the court. The protocol is the legal document establishing that the parties have reached agreement both on the divorce and on the consequences the divorce will produce.
The headings expected to be regulated in the uncontested divorce protocol may be listed as follows:
- Arrangement concerning the matrimonial property regime: the principles on which the property acquired during the marriage is to be divided
- Damages: whether there is a claim for pecuniary or non-pecuniary damages and, if so, its scope
- Alimony: the amount and method of payment of poverty alimony in favour of a spouse and of child support in favour of a child
- Provisions concerning the children: where there is a child of the marriage, with which parent custody is to remain and the framework of the personal relationship to be established with the party who does not assume custody
- The will to divorce: declarations by the spouses, leaving no room for hesitation, that they wish to bring the marriage to an end
The text must reflect the joint will of the spouses and must be signed by both of them; a protocol bearing only the signatures of counsel is not regarded as valid. The court, on the other hand, is under no obligation to adopt the arrangements in the protocol as they stand. The judge may amend the text, having regard to the interests of the children and the economic circumstances of the spouses. If the proposed amendments are accepted by the parties, divorce is decreed; if they are not accepted, the claim may be rejected and the dispute moves into the channel of contested divorce.
The Obligation of the Spouses to Attend the Hearing in Person
For the court to be able to approve an uncontested divorce, it is essential that the spouses be present at the hearing in person. The judge can assess whether the divorce claim has been expressed of free will only by hearing the parties directly. The attendance of counsel alone at the hearing is therefore not regarded as sufficient; the spouses are required to appear before the court. If attendance is not secured, the action may be dismissed or the process may turn into a contested divorce.
While the statements are being taken, the judge also weighs whether the will to divorce has been formed under pressure. A conclusion that the parties are not acting of free will, or that the agreement submitted is not appropriate, may result in the rejection of the claim.
The Judge Not Finding the Will to Divorce Appropriate
Whether an uncontested divorce can be completed quickly and without difficulty depends on the will to divorce being freely declared and on the agreement submitted being found appropriate by the court. The judge is not bound to accept every application as it stands; the judge is under an obligation to be satisfied that the will is free and to review the conformity of the agreement with the law, with equity and with the interests of the children.
The Protocol Not Being Found Appropriate and Amendments Being Proposed
The text submitted by the spouses is, as far as the court is concerned, in the nature of a non-binding draft. The provisions relating to custody, child support and the division of property are examined meticulously by the judge. If the conclusion is reached that the agreement causes disproportionate detriment to one of the spouses, or that it does not have regard to the interests of the children, the text may be amended.
The typical examples in which this assessment arises in practice are as follows:
- Where custody has been left to one parent but the protocol makes no provision at all for the personal relationship between the child and the other parent,
- Where the child support agreed for the child falls far short of meeting even the child’s minimum needs,
- Where the division of property places one of the spouses in serious economic difficulty,
The judge proposes a correction to the protocol in order to protect the rights and interests of the parties and of the children. Where the proposal is adopted by both spouses, a divorce decree is granted. Where, by contrast, one of the spouses is unwilling to accept the amendment, the uncontested divorce claim may be rejected and the file begins to be conducted as a contested divorce.
Rejection of the Uncontested Divorce Claim
A favourable outcome to the action depends on the will being free, on the parties being present at the hearing and on the protocol being drawn up in conformity with the law. The judge reviews the fairness of the process, amends the text where it is considered necessary, or rejects the claim altogether. A decision of rejection is most often encountered in the following situations:
- The protocol being incomplete or unbalanced: All the consequences of the divorce must be settled by agreement. A gap under the headings of alimony, custody or the matrimonial property regime, or a text causing disproportionate detriment to one of the spouses, may constitute a ground for rejection of the claim.
- The will to divorce not in fact coinciding: The judge assesses the determination of the spouses, whether they are under pressure, and any indications that one of the parties does not in truth wish to divorce. If the conclusion is reached that consent is not complete, the claim is rejected.
- Failure to attend the hearing in person: Since it is compulsory that the free declaration of will be stated before the judge, the absence of the spouses from the hearing may result in the dismissal of the action.
- The one-year period not having expired: Since the Turkish Civil Code No. 4721 makes uncontested divorce conditional upon the marriage having lasted at least one year, applications made before the period is completed are rejected.
Rejection of the claim does not mean a loss of rights. The spouses may, if they wish, bring a contested divorce action, or they may complete the missing conditions and apply once again by way of uncontested divorce.
Custody of the Child in an Uncontested Divorce
In files in which there is a child of the marriage, the spouses are expected to make a mutual arrangement as to how custody is to be exercised.
The Decision on Custody
The spouses may agree that custody be left to the mother or to the father, or that joint custody be established. That agreement is not, however, decisive on its own; in framing the custody order the judge is obliged to have regard to the best interests of the child. Which parent is the more suitable as regards the physical, mental and social development of the child is a matter for the court’s appraisal. The spouses’ custody agreement takes effect only where the court finds it appropriate.
Joint Custody and Financial Obligations
Although joint custody is a contested institution in Turkish law, there are examples of the courts deciding in that direction. If the spouses reach agreement on joint custody, the manner in which the child’s educational expenses, social life and basic needs are to be met must also be shown clearly in the protocol.
Determining the Personal Relationship with the Child
Just as important as the question of which parent is to have custody is the nature of the relationship the party not assuming custody will establish with the child; this too is among the critical headings of an uncontested divorce. The days on which and the conditions under which contact is to take place must be settled by the spouses and entered in the protocol.
The matters to be observed in arranging the personal relationship with the child are as follows:
- Overnight contact: It must be determined whether, once the child reaches a certain age, the child will spend certain days with the other parent.
- The place of contact: Whether the meeting is to take place at the home in which the child lives, at a neutral venue, or at another address may be settled by the spouses.
- The criterion of age-appropriateness: Short contact at frequent intervals may be envisaged for children in the younger age group, and longer and more flexible arrangements for older children.
- Holidays and special periods: It must be established in advance with which parent the child is to be at weekends, on public holidays, on religious holidays and during the summer period.
- Days and time slots: The days on which and the hours between which the parent who does not obtain custody is to see the child must be written explicitly.
The court passes the agreed arrangement for the personal relationship through the filter of the best interests of the child. If the conclusion is reached that the envisaged arrangement will adversely affect the mental, physical or social development of the child, the judge may make an amendment under this heading.
Division of Property in an Uncontested Divorce
The parties must set out, leaving no room for hesitation, whether they waive their claims over the movable and immovable assets acquired during the marriage. If it is declared that no division of property will be sought on either side, the existing items of property must be shown one by one. A general waiver declaration of indeterminate scope may not be regarded as legally sufficient, since waiver of an asset of whose existence one is unaware is inconceivable.
Where, for instance, one of the spouses is unaware of an immovable registered in the name of the other or of savings held in a bank account, a waiver text drafted in general terms may turn into a source of dispute at a later stage. For this reason, the provisions concerning the matrimonial property regime must appear in the protocol in detailed and explicit form, and whether the parties are to raise claims against one another within the scope of the liquidation must be expressed clearly.
In conclusion, although it is not legally compulsory that the division of property be included in the protocol, doing so is of great importance in preventing disputes that may arise subsequently. Spouses who cannot reach agreement on the division of property during the divorce process retain the right to bring a separate action for the liquidation of the matrimonial property regime after the divorce. Where agreement cannot be reached, the division may turn into contested proceedings in its own right.
Alimony in an Uncontested Divorce
Alimony is among the headings on which agreement must without fail be reached and reflected in the protocol. The court examines the alimony arrangement agreed by the spouses and approves it to the extent that it finds it lawful. If, by contrast, the conclusion is reached that the amount determined causes disproportionate detriment to one of the parties or is irreconcilable with equity, the judge may intervene. Two types of alimony arise in an uncontested divorce.
Poverty Alimony
This is the alimony that the spouse who will fall into economic difficulty by reason of the divorce may request from the other spouse in order to provide for their subsistence. In determining the amount, the economic and social circumstances of the parties are taken as the basis. Whether poverty alimony is to be paid and, if so, its amount and duration must be shown in the protocol in a manner leaving no room for hesitation.
If the spouses have agreed that neither will seek alimony from the other, this too must be written explicitly in the text. Otherwise, a fresh action claiming alimony may arise after the divorce.
Child Support
Where there is a child of the marriage, the parent who does not assume custody is obliged to contribute to the child’s maintenance and educational expenses; this contribution is termed child support. The scope of the maintenance is established on the basis of the child’s basic needs, having regard to the child’s age and educational situation.
The amount, method of payment and duration of the child support must be regulated explicitly in the protocol. It may also be agreed that the amount be reviewed in future depending on changes in the child’s age and educational situation. The court has the power to vary the amount of maintenance, having regard to the best interests of the child.
Pecuniary and Non-Pecuniary Damages
Claims for damages must also be determined at the outset of the process and entered in the protocol. Unlike in a contested divorce, in an uncontested divorce damages can come before the court only by mutual agreement of the spouses. The claim is approved so long as it coincides with the will of the parties; where, however, the amount is excessively high or is irreconcilable with equity, intervention by the judge is possible.
Pecuniary Damages
If pecuniary damages are to be included in the protocol, it must be stated explicitly what the amount is, whether it is to be paid in a lump sum or in instalments, how the payment schedule is to operate, and whether payment is to be made through a bank or by hand.
If it has been agreed that neither party will seek pecuniary damages from the other, this intention too must be reflected in the text. Otherwise, a fresh action claiming pecuniary damages may be brought once the divorce has become final.
Non-Pecuniary Damages
Non-pecuniary damages are paid in order to make good the mental harm suffered by reason of adultery, violence or conduct injurious to honour. In an uncontested divorce, however, the spouses most often prefer to accelerate the process by choosing the route of mutual waiver rather than advancing such a claim.
Where the claim for non-pecuniary damages is waived, this too must be written explicitly in the protocol. Otherwise the way remains open for an action claiming non-pecuniary damages to be brought after the divorce.
Court with Subject-Matter and Territorial Jurisdiction
Court with subject-matter jurisdiction: The judicial body competent to hear uncontested divorce actions is the Family Court. In places where no family court has been established, these actions are heard by the Civil Court of First Instance in its capacity as a family court. For this reason, the competent judicial body must be correctly identified before the action is brought.
Court with territorial jurisdiction: Jurisdiction is regulated in Article 168 of the Turkish Civil Code No. 4721. Accordingly, an uncontested divorce action may be brought in the following courts:
- The family court of the place in which the spouses spent the last six months before the action together
- The family court at the domicile of either of the spouses
Since this rule of jurisdiction is not of a mandatory nature, the parties may also apply to whichever family court they wish. As there is no dispute between the parties in an uncontested divorce, it is assumed that no objection to jurisdiction will be raised, and the courts are able to accept files of this kind. It is therefore possible for the spouses to choose the court most convenient for the process, without being bound to a particular judicial venue.
Independent Legal’s Assessment
Although uncontested divorce is referred to in practice as the "easy action", a significant proportion of disputes arise after the divorce. The principal reason for this is that the protocol is drafted hastily and in general terms. Where the headings of the liquidation of the matrimonial property regime, waiver of alimony and damages are left incomplete, the parties may come before the court again within a short time even though the divorce has become final.
The second critical point is that the protocol is a text subject to review by the court. Provisions concerning the children in particular are assessed by the criterion of best interests, irrespective of the fact that the parties have agreed upon them. For this reason, in preparing the protocol regard must be had not only to the expectations of the spouses but also to the judge’s criteria of review.
In setting a road map in a concrete file, we recommend that the following headings be prioritised:
- Calculating the one-year period on the basis of the date of the official marriage and evidencing it by the civil registry record
- Listing the items of property one by one and avoiding general waiver declarations of indeterminate scope
- Where claims under the headings of alimony and damages are waived, writing that intention explicitly in the text
- Regulating the personal relationship with the child in full, in its dimensions of days, hours, holidays and overnight stays
- Showing the amount, due date and payment channel of payment obligations in a manner leaving no room for hesitation
- Planning in advance, as a matter of scheduling, for the obligation to be present at the hearing in person
Independent Legal provides advisory services and conducts litigation throughout the whole of the process, from the preparation of the protocol in an uncontested divorce to representation at the hearing and the liquidation of the matrimonial property regime after the divorce.