Bringing the marital union to an end without contest affords the parties a marked advantage both in terms of time and in terms of the strain involved. Uncontested divorce is the method that allows spouses to shorten the proceedings by reaching agreement in advance on the headings capable of giving rise to dispute. This route can be opened, however, only where a number of conditions laid down in the Turkish Civil Code No. 4721 are met. First of all, the marriage is required to have lasted at least one year. In addition, there must be a complete agreement as regards the financial consequences of the divorce, the custody of the children and the other legal matters.
In practice, this agreement is not left to oral declaration but is set down in a written text. That text is drawn up under the heading "Uncontested Divorce Protocol" or "Divorce Agreement" and is submitted to the court bearing the signatures of both spouses. The judge’s function here is twofold: on the one hand the judge reviews the conformity of the provisions of the protocol with the law, and on the other the judge assesses whether the spouses have expressed this will freely. Where the review is concluded favourably, the action is most often decided at a single hearing.
In this briefing note we address the legal nature of the protocol, the requirements of form it must satisfy, the headings that must without fail be present in its content, and the additional arrangements left to the preference of the parties.
The Legal Nature of the Protocol
In legal terms the protocol is characterised as a contract specific to family law. When the text created by the spouses of their free will is submitted to the court it passes through the judge’s examination; where approval is given, it acquires legal validity and becomes an inseparable part of the judgment delivered. The fact that the parties have reached agreement is not, however, regarded as sufficient for validity on its own; the content of the text must also be free of any contravention of public order, of morality and of the law.
The protocol, having entered into the body of the court judgment upon approval, acquires an enforceable character. That legal remedies may be pursued against a party acting contrary to the obligation undertaken is the natural consequence of this character. It is for this reason important that a document of such high binding force be drafted in detail, with a clarity that leaves no room for hesitation, and in a manner that has regard to the rights of both parties.
Requirements of Form Sought in the Protocol
The protocol is a written document showing that the spouses have reached agreement both on the divorce and on the legal consequences the divorce will produce. The Turkish Civil Code No. 4721 has not laid down an express rule of form for this document; practice nevertheless accepts, as a settled requirement, that the text be drawn up in writing and signed by both spouses.
Being Drawn Up in Written Form
Although the legislature has not expressly made writing compulsory, the courts expect spouses wishing to benefit from the provisions on uncontested divorce to submit the protocol to the file in writing. Oral agreements or informal understandings carry no value before the court.
Bearing the Signatures of the Spouses
The personal signatures of both spouses must appear at the foot of the text. The signatures of third parties, or of the parties’ lawyers alone, do not satisfy this condition. Even where the protocol has been prepared with the assistance of a lawyer, its validity depends on the spouses signing in person.
Conformity with the Law, Morality and Public Order
The content of the text must be in conformity with the law, with morality and with public order. This criterion is reviewed from three separate angles:
- Provisions contrary to morality must not be included. Compelling one of the spouses to accept terms that are irreconcilable with human dignity or that demean them is regarded as contrary both to morality and to the law.
- Arrangements conflicting with public order are not valid. Public order denotes the body of rules securing the general interest of society and the fundamental principles of law; an arrangement for custody or alimony that harms the rights of the child, for instance, exceeds that limit.
- The text must be compatible with the statutory provisions on the subject, foremost among them the Turkish Civil Code No. 4721.
The Mandatory Elements of the Protocol
Whether a protocol can be assessed by the court within the framework of Article 166(3) of the Turkish Civil Code No. 4721 depends on two things: the spouses setting out their will to divorce without hesitation, and their having reached agreement on the fundamental headings relating to the legal consequences of the divorce.
The document is subject to conditions both of form and of substance, and it is a statutory requirement that these conditions be met in full in the particular case. Texts that do not comply with the principles laid down in the Code may be treated by the court as invalid, and the parties may equally be asked to correct them.
Setting Out the Will to Divorce
The spouses must state in the protocol that they have decided to divorce of their own will, without being under pressure, threat or any form of coercion, and must declare that decision expressly before the court. The validity of an uncontested divorce depends on the will being expressed at the hearing in person. The judge makes the necessary assessment at the hearing in order to determine whether the will to divorce has been formed freely.
Determining Custody
The arrangement in the protocol concerning the custody of the children of the marriage must be clear and free of hesitation. As regards the Turkish Civil Code No. 4721, the starting point of a custody arrangement is the best interests of the child.
In taking their decision, the spouses must have regard to the physical, mental and social development of the child. Where there is more than one child of the marriage, custody must be determined separately for each of them. The framework of the personal relationship that the parent not assuming custody will establish with the child must also be written into the text.
It should be recalled that the judge is not bound by the parties’ agreement on custody; the judge may, having regard to the interests of the child, decide of their own motion in a different direction. For this reason, in making the arrangement the child’s education, health, social environment and relationship with their parents must be assessed together.
Personal Contact with the Child
So that the parent who does not obtain custody may establish regular and healthy contact with the child, a plan for personal contact must be included in the protocol.
This plan must be constructed on the basis of the best interests of the child; the child’s age, educational situation, social development and needs must be taken into account. The days and hours on which contact is to take place, and with which parent the child is to stay during special periods such as holidays and religious festivals, must be shown clearly in the text.
Where the court does not find the agreed arrangement appropriate to the interests of the child, it has the power to amend it. In preparing the protocol, an arrangement should therefore be preferred that will not adversely affect the mental and physical development of the child.
Poverty Alimony
Poverty alimony is the financial support provided by one spouse to the spouse who is left in the economically weaker position after the divorce. Under the Turkish Civil Code No. 4721, the party who will fall into poverty by reason of the divorce may, provided that their fault is not graver than that of the other party, request alimony in order to provide for their subsistence.
It is important that this heading be regulated clearly in the protocol. Whether there is a claim for alimony and, if there is, which spouse will pay what amount and at what intervals, must be set out in detail. The period for which payment is to continue may also be agreed.
If the parties have agreed that no alimony is to be paid, this too must be written explicitly in the text. The way is thereby closed to disputes that might arise at a later stage. The subject is of a breadth that calls for a separate examination of the conditions of poverty alimony.
Pecuniary and Non-Pecuniary Damages
The protocol must show clearly whether there is a claim for pecuniary and non-pecuniary damages between the parties. If damages are sought, the amount to be paid and whether payment is to be made in a lump sum or in instalments must be set out in detail. If an agreement has been reached that no damages will be sought on either side, this too must appear in the text. Pecuniary and non-pecuniary damages in a divorce action is a heading that calls for detailed treatment in its own right.
Optional Arrangements That May Be Added to the Protocol
The protocol is not confined to the mandatory elements alone; the parties may also carry into the text certain additional matters on which they have reached agreement. These arrangements determine rights and obligations in greater detail and thereby help to prevent disputes that might arise after the divorce.
Provided that they are not contrary to the law, to morality or to public order, the following headings may be included in the protocol.
Child Support
It is not compulsory for child support to be regulated in the protocol. It is nevertheless advisable to include this heading, so as to secure the child’s maintenance and educational expenses.
The Educational and Health Expenses of the Children
Alongside child support, it may be agreed by which party and in what manner the child’s private school, course, health insurance or medical treatment costs are to be met. Further additional arrangements may also be made for items such as scholarships, private tuition or the costs of education abroad.
Division of Property
The parties may shape the arrangement concerning the division of property in the protocol. The division of property covers the apportionment between the spouses of the assets acquired during the marriage and is, as a rule, determined according to the provisions on the matrimonial property regime.
The items that may be regulated under this heading are as follows:
- Items of jewellery: It may be agreed how gold, jewellery and similar items are to be divided. Although settled practice accepts that these items belong to the wife, where the parties have agreed upon a division other than this, that choice must be written explicitly in the protocol.
- Household goods: The fate of the furniture, white goods, electronic devices and kitchen equipment used jointly by the spouses may be determined. These goods may be divided between the parties or may be sold and the proceeds shared. If one of the spouses is to continue living in the residence, it must be clarified to whom the right to use the goods is left.
- Movable and immovable property: It may be agreed how immovables such as a house, land or business premises, and vehicles, are to be divided. If the transfer of an immovable to one of the parties is envisaged, the method and timing of the transfer must be shown. If, within the scope of the liquidation of the matrimonial property regime, one of the parties is to come under an obligation to pay damages or to make a payment, this matter must also be entered in the text.
- Bank accounts and financial assets: It may be determined how the savings in joint accounts opened during the marriage are to be divided. If agreement has been reached over assets held in individual accounts, this too should be included. If one of the spouses is to make a particular payment to the other, the date and form of the payment must be written explicitly.
The Fate of the Family Residence
What is to become, after the divorce, of the family residence in which the spouses lived together within the marital union is one of the principal issues in the process. The protocol may settle to which party this residence is to be left, or how it is to be dealt with. The matters that may be made the subject of an arrangement may be listed as follows:
- If there is a loan secured on the residence, which spouse is to bear the payment obligation,
- If the residence is rented, to which party the lease agreement is to be transferred,
- If the residence is sold, how the sale price is to be divided,
- To which spouse the use of the family residence is to be left.
If there is no claim or dispute between the parties as regards the family residence, this circumstance must also be stated in the protocol. A clear and precise arrangement is of value in preventing disagreements that may arise in the future.
The Wife’s Use of the Surname Acquired by Marriage
Upon divorce the wife reverts, as a rule, to the surname she bore before the marriage. The wife may nevertheless wish to continue using the surname she bore during the marriage. This wish may rest on personal or professional grounds, and may equally arise from a desire to bear the same surname as the children of the marriage.
Where it is envisaged, as agreed in the protocol, that the wife is to continue using her married surname, a request for a change of name to that effect must also be put to the court alongside the divorce action, and the requisite court fee must be paid.
Where the wife remarries after the divorce, it is not possible for her to continue bearing the surname of her former husband. In that case either the surname of the new husband is taken or the maiden name alone is used.
Conclusion on the Process as a Whole
Uncontested divorce is a route that allows the marital union to be brought to an end quickly, harmoniously and with minimum conflict. Whether the process advances smoothly in legal terms and reaches a balanced outcome for the parties depends, however, on the spouses setting out their will to divorce clearly and reaching agreement on all the legal consequences of the divorce.
Not only the mandatory elements but also additional matters agreed between the parties themselves may enter the text. Regulating critical headings such as custody, alimony and the division of property in a balanced and clear manner makes it possible to forestall legal disputes that might arise in the future. So that the process may advance quickly and without difficulty, it is advisable that the protocol be prepared meticulously with legal assistance.
Independent Legal’s Assessment
The problem most frequently encountered in uncontested divorce files is that the protocol is prepared hastily and on the basis of template texts. The greater part of the disputes that emerge after proceedings concluded at a single hearing in fact stem from a sentence in the protocol having been left incomplete or open to more than one interpretation. Since it is most often impossible to reopen the content of the text for discussion once the judgment has become final, the care devoted to the preparatory stage determines the whole of the process.
In constructing the protocol in a concrete file, it is sound to prioritise the following headings in particular:
- Determining all the items relating to the financial consequences in numerical terms as regards amount, due date and method of payment
- Constructing the custody and personal relationship arrangement so as to accord with the interests of the child to a degree that does not call for the judge to intervene of their own motion
- Where claims for alimony and damages are waived, writing this in the text in a manner leaving no room for hesitation
- Where the transfer of an immovable is envisaged, stating the date of transfer, the costs and the parties to the land registry transaction
- Reviewing the consequences that the obligation relating to the family residence and to the housing loan will produce as against third parties
- Reflecting in the statement of claim those matters that call for a separate request and court fee, such as the wife’s use of her married surname
Independent Legal provides advisory services and conducts litigation at every stage of uncontested divorce proceedings, from the preparation of the protocol to representation at the hearing and the implementation of the judgment.