MUTUAL DIVORCE

MUTUAL DIVORCE CASE

Divorce proceedings are regulated in two ways under the Civil Code: firstly, consensual divorce, and secondly, contested divorce. In this article, we will focus on consensual divorce.

An uncontested divorce is a type of divorce case filed by both parties who have agreed on all the consequences of the divorce with the aim of ending the marriage.

Divorce by mutual consent is regulated in Article 166, Paragraph 3 of the Turkish Civil Code. According to this article, a marriage lasting at least a certain number of years is required to initiate this type of divorce. Whether this period has been met is investigated ex officio by the judge. If, after this period has been met, one spouse initiates a divorce case and the other spouse accepts, or if both spouses apply together, the marriage is considered fundamentally broken. In this case, the judge must hear both parties before granting a divorce. It is crucial that the judge personally hears both parties, ascertains that they have freely expressed their intentions, and approves the arrangement agreed upon by the parties regarding the financial consequences of the divorce and the children's situation. The judge considers the interests of the parties and their children and may make changes to the agreement where deemed necessary. If these changes made by the judge are accepted by the parties, a divorce is granted.

The conditions for an amicable divorce can be listed as follows:

1 – The marriage between the spouses must have lasted one year or more. The provisions for consensual divorce do not apply to marriages that have lasted less than one year.

2 – Spouses wishing to divorce must either file for divorce together in court, or one spouse must file for divorce and the other spouse must accept.

2 – The spouses must be heard in person by the judge. After hearing them, the judge must be convinced that the spouses made their statements of their own free will.

4 – The agreed divorce protocol prepared by the spouses must be approved by the judge.

WHERE IS THE LAWSUIT FILED?

The competent court for disputes arising from family law is the family court. In places where there is no family court, the competent court is the civil court of first instance. The authorized court is the court of the place of residence of one of the spouses or the court of the place where the spouses lived together for the last six months prior to the lawsuit.

HOW TO FILE A LAWSUIT?

An uncontested divorce case is initiated by submitting a petition to the competent family court, including an agreed-upon divorce protocol prepared by the parties. Upon filing the case, the court prepares a preliminary hearing report. The hearing date is then communicated to the parties. To ensure the case is concluded in a single hearing as quickly as possible, a divorce lawyer should be contacted within one month of the filing date to schedule the hearing.

 

In addition to being submitted in writing to the court, an amicable divorce settlement agreement can also be submitted orally. There are mandatory elements that must be included in this agreement submitted to the court. These are:

• Financial and economic consequences of divorce (compensation, alimony, and liquidation of property regime)
• The status of joint (shared) children, i.e., custody

THE SITUATION OF THE JOINT CHILDREN

The spouse granted custody of the children is responsible for the education, care, and upbringing of the minor child. They do not need the consent of the other spouse to fulfill these responsibilities; they can do so without the consent of the other spouse.

Another aspect that needs to be addressed in an amicable divorce settlement is the child visitation rights of the parent who does not have custody. Details such as when, how, and where these visits will take place must be regulated.

The spouse who is not granted custody of the minor child is required to contribute to the child's expenses. This is regulated by Article 188/2 of the Turkish Civil Code, known as child support. The amount of this support and when it will be paid must be specified in the divorce settlement agreement. The judge requests that the parties clarify these matters. If the parties cannot fully agree on these points, the judge will make an arrangement on these matters and submit it for the spouses' approval.

An important point to emphasize here is that the spouse granted custody of the child must act in the best interests of the child. If this does not happen, a new custody decision will be made, and a guardian will be appointed by the court to represent the child.

FINANCIAL AND ECONOMIC CONSEQUENCES OF DIVORCE

This section also covers alimony, material and moral compensation, and the liquidation of marital property regimes.

In an agreed divorce settlement, it is not mandatory to request compensation for material and/or moral damages. Similarly, arranging the liquidation of the marital property regime is not compulsory.

Non-essential elements such as compensation and property regimes are subject to the judge's assessment.

WHAT HAPPENS IF THE MANDATORY ELEMENTS OF THE AGREED DIVORCE PROTOCOL ARE NOT MET?

During the trial, the court evaluates the aspects related to the amicable divorce agreement. If it is determined that the conditions are not met, the filed cases are not dismissed; instead, they are converted into contested divorce cases and brought before the courts.