Bringing a marriage to an end is a process in which the parties are tested not only in legal but also in emotional terms. Where the spouses reach agreement in advance on the terms of the divorce, however, the proceedings are markedly shortened and the parties are spared a protracted dispute. The uncontested divorce action is a route that may be pursued, within the framework of Article 166(3) of the Turkish Civil Code No. 4721, where spouses whose marital union has lasted at least one year apply to the court by mutual agreement.
For this route to operate, it is not enough for the parties merely to say "we are divorcing". The uncontested divorce protocol is the document that gives concrete form to the agreement reached on headings such as alimony, custody, damages and property, and that constitutes the legal basis of the proceedings. It is this text that the court will review.
Below, the formal rules to which the protocol is subject, together with the article headings frequently used in practice, are addressed by reference to a specimen text.
Formal Requirements Applicable to the Protocol
The Code has not laid down a binding and strict rule of form for the uncontested divorce protocol. The courts nevertheless expect the text to be submitted to the file in written form, so that the proceedings may advance without doubt. For this reason, the drafting of the protocol by one of the spouses or, where they have counsel, by their counsel constitutes the first and decisive step of the process.
The agreement reached in the text on headings such as custody, alimony and the arrangement of property after the divorce must be expressed with a clarity that leaves no room for hesitation. If the parties appear before the judge with a text the judge will not approve, the uncontested divorce does not take place; the file turns into a contested divorce and may develop into far longer proceedings.
Specimen Protocol Text
UNCONTESTED DIVORCE PROTOCOL
…… ………. (Turkish ID No.: …………….) and …… ………. (Turkish ID No.: …………………), who married on …/…/…., have reached agreement on divorce within the framework of the terms set out below.
ARTICLE 1 – The Parties
Claimant Name and Surname : …….. …….. (Turkish ID No.: …………….)
Address : …………………
Respondent Name and Surname : …….. …….. (Turkish ID No.: …………….)
Address : …………………
ARTICLE 2 – Subject Matter of the Protocol
By reason of the disputes that have arisen between the parties, the marital union has broken down irretrievably and the continuation of the common life has become intolerable for both parties. They have resolved to bring their marriage, which has continued since …/…/…., to an end by way of uncontested divorce, of their free and joint will and without any pressure or coercion.
ARTICLE 3 – Custody of the Child of the Marriage
In accordance with the joint will of the spouses, the right of custody over their child of the marriage, …… …….. (Turkish ID No.: ………….), has been left to [Joint custody / The mother / The father].
ARTICLE 4 – Arrangement of the Personal Relationship with the Child
The child of the marriage, …… ……., will live in the same residence as the [MOTHER / FATHER] pursuant to the decision taken jointly by the parties. The personal relationship the child is to have with the other parent has been arranged as follows:
Example:
- During the summer holiday period the child will stay with the [mother / father] for a period of 1 month.
- The child will spend the first day of the religious holidays with the [mother / father].
- On the Saturdays falling in the 1st and 3rd weeks of each month, the child will be with the father between 10:00 and 18:00.
ARTICLE 5 – Alimony
The claimant ……. ………. has undertaken to make the following payments to the respondent ……. ………, beginning from the date on which the divorce judgment becomes final:
- TRY …….. (in words: ………… Turkish Lira) under the heading of poverty alimony,
- TRY ……… (in words: ………… Turkish Lira) under the heading of child support.
The alimony amounts so determined will be increased each year on the basis of the Consumer Price Index (CPI) rate.
ARTICLE 6 – Expenses Relating to the Child
6.1. The school fees, transport, canteen, stationery, private tuition and similar educational expenses arising throughout the period in which the child of the marriage is in education will be borne by the [MOTHER / FATHER / BOTH JOINTLY].
6.2. The private health insurance premiums and the health expenses of the child will belong to the [MOTHER / FATHER / BOTH JOINTLY] until undergraduate education is completed.
ARTICLE 7 – Pecuniary and Non-Pecuniary Damages
The claimant …… ……… has accepted and undertaken to pay the respondent ….. ……… pecuniary/non-pecuniary damages in the amount of TRY …….. (in words: ………… Turkish Lira).
That amount will be transferred, within 10 days of the divorce judgment becoming final, to the respondent ………’s account no. TR.. …. …. …. …. …. …. …, with the description "Pecuniary/Non-Pecuniary Damages" entered.
ARTICLE 8 – The Family Residence and Household Goods
The family residence in which the parties are currently living, together with all the goods located in that residence, has been allocated to the [MOTHER / FATHER / BOTH JOINTLY].
ARTICLE 9 – Division of Property
The parties have taken delivery of their personal belongings; they have reached agreement as regards items of jewellery, joint movables and household goods, and have mutually released one another in respect of these matters.
⚠ Note: A release clause means that the parties may not raise any future claim against one another under these headings. Clear language that leaves no room for doubt should therefore be preferred.
ARTICLE 10 – Use of the Surname
The respondent …… ………, following the divorce, will revert to the surname she bore before the marriage.
(Where she wishes to continue bearing the surname used during the marriage, permission must be obtained from the court.)
ARTICLE 11 – General Provisions
11.1. The parties have adopted of their free will all the arrangements contained in this protocol, which consists of 11 (eleven) articles.
11.2. The protocol has been drawn up in three (3) counterparts and signed by the parties irrevocably.
11.3. This protocol will take effect and produce results only if it is approved by the court. …/…/….
Claimant Respondent
……… ……… ……… ………
(Signature) (Signature)
Assessment
Although the headings set out above by way of example reflect the core elements of the protocol, every divorce file has circumstances of its own. Using a ready-made text as it stands may prepare the ground for unforeseen losses of rights and for disputes that are difficult to remedy afterwards. It is therefore important that the text be constructed according to the specific case and subjected to legal review.
The protocol is not merely a document recording the will to separate; it also regulates, in binding fashion, long-term obligations such as alimony, custody, damages and property.
Important Note: Our detailed assessments of the family law headings regulated in the uncontested divorce protocol may be reached under the following subject headings: To Whom Is Custody of the Child Granted on Divorce?, Establishing a personal relationship with the child, Joint Custody Orders on Divorce, Child Support – Conditions of Maintenance for a Child, Poverty Alimony and Its Conditions, Pecuniary and Non-Pecuniary Damages on Divorce, What Is the Family Residence?, The Regime of Participation in Acquired Property and the Division of Property, The Economic and Financial Consequences of Divorce, Can You Use the Surname of the Spouse You Have Divorced?
Independent Legal’s Assessment
Although an uncontested divorce appears rapid, the content of the protocol determines the framework of the disputes that will arise years later. The most common defect in practice is that, while the will to separate is written clearly, items such as the method by which alimony is to be increased, the payment schedule for the damages or the detail of the days and hours of the personal relationship are left uncertain. Every heading left uncertain may become the subject of a separate action.
In preparing the text, the following points in particular should be observed:
- Giving concrete form to the personal relationship by specifying days and hours appropriate to the child’s age and school calendar
- Showing alimony separately as poverty and child support items, and setting out the criterion for increase explicitly
- Recording in the text not only the amount of the damages but also their due date, the method of payment and the account details
- Specifying which items of property the release clause covers
- Ensuring that the arrangement for the family residence does not conflict with the land registry record and with actual use
- Raising the request concerning the surname separately in the protocol
Independent Legal provides advisory services in relation to the preparation of uncontested divorce protocols, the legal review of existing texts and the conduct of divorce proceedings.