What are the terms and conditions for an amicable divorce case, and how is the agreement prepared?

Divorce by mutual consent, regulated in Article 166, paragraph 3 of the Turkish Civil Code, is the fastest type of divorce, allowing the parties to finalize the process in a single hearing and as quickly as possible by fully agreeing on the financial and legal consequences of the marriage (custody, alimony, compensation, and property division).

Unlike contested divorce cases, this method, which doesn't involve determining fault between the parties, minimizes the psychologically draining process and significantly reduces litigation costs and duration.

What are the conditions required for an amicable divorce to take place?

1. The marriage must have lasted at least one year

To file for an amicable divorce, the marriage have lasted at least one year .

• In marriages lasting less than a year, an amicable divorce cannot be granted directly. In such cases, only a "contested divorce" lawsuit can be filed; however, if the parties agree and submit a protocol during the lawsuit, the process can proceed as if it were an amicable divorce.

2. The Parties' Personal Application to the Court or Declaration of Intent

It is possible for the parties to file for divorce by mutual agreement through their lawyers; however, the law requires both parties to attend the hearing in person. The judge must listen to both spouses in the courtroom and personally hear that their wills are expressed freely and without coercion.

3. Preparation of the Mutual Divorce Agreement

A complete agreement must be reached on all matters concerning the financial consequences of the divorce and the status of the children (if any). This agreement must be fully drafted and "Agreed Divorce Protocol ." This protocol, signed by both parties, becomes a legally binding agreement only if approved by the judge.

4. The Judge's Approval of the Protocol and Decisions

The judge must be satisfied that the parties have freely expressed their will and find the prepared protocol to be in the best interests of the children and the parties. If deemed necessary, the judge may request certain changes to the protocol, with the approval of the parties.

How does the process work?

1. Preparation of the Protocol: With the assistance of a specialist family law attorney, a protocol outlining all the rights and obligations of the parties is drafted and signed.

2. Filing the Lawsuit: The lawsuit petition and protocol are submitted to the relevant Family Court.

3. Hearing Date: The court will set a hearing date for the parties shortly.

4. Decision: During the hearing, the parties verbally confirm the protocol and their intention to divorce. The judge announces the divorce decree in the same session.

Is it possible to get a mutually agreed divorce before the first year of marriage is over?

According to the Turkish Civil Code, one of the fundamental conditions for filing an amicable divorce case is that the marriage must have lasted at least one year. But what happens if the one-year period hasn't yet passed and the spouses completely agree on a divorce? In this case, it's not possible to directly file a purely "amicable divorce" case in the legal sense.

However, this does not mean that couples who have been married for less than a year have to wait for years through long and exhausting contentious lawsuits to get a divorce. In practice, there are legal avenues and practical solutions used to overcome this problem.

What are the steps to take to get divorced before one year has passed?

1. Filing a Contested Divorce Case and Then Turning the Process into an Amicable One (The Practical Approach)

The law states that "an amicable divorce case cannot be filed before one year has passed," but it does not prevent the filing of a "contested divorce" case

• One of the spouses (or both by mutual agreement) files a contested divorce petition with the court.

• Once a lawsuit is filed, the court process begins.

• The parties may appear before the judge at the first hearing or during the trial and declare that they have reached a protocol between themselves and that they have fully agreed on the divorce and its ancillary matters (custody, alimony, compensation, etc.).

• According to Supreme Court precedents and established court practices, when a properly prepared protocol is submitted to the court and the parties freely express their intentions in court, the judge may grant a divorce in accordance with the parties' agreement, even if the case began as a contested divorce.

2. Waiting for the time to expire

If there is no urgent legal necessity between the parties (such as violence, life-threatening situations, or urgent property/property division requirements) and the parties do not wish to deal with legal procedures, waiting for the one-year period to expire is also an option. However, it should be noted that this period is exactly 365 days calculated from the date of the official marriage.

Points to Consider When Calculating the 1-Year Period

• The Official Marriage Certificate is Essential: The starting point of the period is not the wedding or engagement date, but the date of the official marriage certificate registered in the population registry.

• De Facto Separation Period Does Not Count: The fact that a portion of the marriage was spent separately or that they did not live in the same house does not eliminate or reduce the one-year period; the only criterion to be considered is the time elapsed since the official marriage.

What is a Mutual Divorce Agreement?

An amicable divorce agreement is a binding written contract signed by spouses who wish to end their marriage by mutual consent, reaching a common understanding on all legal matters related to the financial consequences of the divorce, the future of their children, the division of property, and similar issues .

According to the Turkish Civil Code, for the judge to grant an amicable divorce, this protocol must be submitted to the court and be complete. This document, prepared and signed by the parties of their own free will, becomes an integral part of the court decision and acquires the force of law as soon as it is approved by the judge.

Why is an Agreed Divorce Agreement Vital?

Although the consensual divorce process may seem like a simple procedure that ends with "mutual signatures," its legal foundation is extremely critical. The main reasons why the protocol is of vital importance are as follows:

1. Prevention of Loss of Rights

Clauses omitted, vaguely worded, or incorrectly drafted in the protocol may lead to irreparable losses of rights in the future. For example, a child support clause not taking future inflation increases into account, or a forgotten compensation item, could create significant long-term hardship for one of the parties.

2. The "No Further Lawsuit Can Be Filed" Rule (Final Provision)

The terms of a negotiated divorce settlement, approved by the judge, constitute a final judgment for the parties. A spouse who explicitly waives their rights or forgets certain claims in the settlement cannot file a new lawsuit regarding the same issues (e.g., for compensation or property division) after the decision becomes final. Therefore, every word and commitment in the settlement is of vital importance.

3. Enforceability (Creating a Legal Obligation)

The protocol is not merely a declaration of good faith; after court approval, it acquires the force of a judgment (court decision). If one of the parties fails to fulfill the obligations undertaken in the protocol (e.g., alimony payments, property transfer, or compensation), enforcement proceedings can be initiated directly without the need for another court decision. This safeguard needs to be properly structured.

4. Protecting the Best Interests of Children

Issues such as child custody, visitation days, and child support must be detailed meticulously in the protocol. The judge will not approve any clauses in the protocol that he/she deems contrary to the best interests of the children. Incorrect arrangements regarding custody and children's rights can lead to serious legal obstacles for parents in the future.

What should be considered when preparing a protocol?

• Clear and precise language should be used: Ambiguous phrases such as "to be assessed later depending on the situation" or "to be paid at an appropriate time" may be rejected by the court or create enforcement issues in the future.

• All items must be listed completely: Alimony, compensation, jewelry, and the division of movable and immovable property must be addressed individually.

How are custody and contact arrangements made in an amicable divorce?

One of the most sensitive and legally demanding aspects of consensual divorce cases is the future of the children. According to the Turkish Civil Code, for a divorce to be granted, the parties must reach a complete agreement on who will be granted custody of the children and how the personal relationship with the other parent will be regulated.

Regardless of the parties' agreement, the judge "the best interests of the child ." Therefore, it is vital that the custody and relationship clauses in the amicable divorce agreement are both legally flawless and supportive of the child's psychological and social development.

1. How should the custody arrangement be included in the protocol?

Following a divorce, the parties mutually agree on whether custody of their minor children (under 18 years of age) will be granted to the mother or the father, and this is explicitly stated in the protocol.

• Unilateral Custody: The most common method in practice is granting custody to one spouse, while the other spouse retains the right to have personal contact with the child. The protocol should clearly state, "The custody of the joint children has been granted to the mother/father [...]"

• Is Joint Custody Possible? In Turkish law, in recent years, in line with Supreme Court precedents, requests for "joint custody" can be considered in situations where the conditions are favorable and the parents can cooperate. However, it should be remembered that courts very strictly monitor the best interests of the child during the approval process.

• Non-Waiverable: Custody rights are not a personal right of the parents, but a public authority aimed at the protection of the child. Therefore, neither party can make an unlawful waiver by stating, "I completely give up on the child, I don't care about custody anymore."

2. How to Arrange a Personal Meeting (Conversation)?

The personal relationship to be established between the parent who does not have custody and the child must be clearly defined in the protocol, including specific days and times . Vague statements such as "Visiting days will be determined by mutual consent of the parties" will not be accepted by the judge or will lead to major disputes during the enforcement phase.

A well-prepared personal relationship clause typically includes the following elements:

• Weekend Visits: For example; “The parent who does not have custody shall have personal contact with the child on the 1st and 3rd weekends of each month, from 9:00 AM on Saturday to 5:00 PM on Sunday…”

• Mid-term and Summer Holidays: Special arrangements should be made for holidays during the school year. For example; “During the first week of the mid-term (semester) holiday, and during the summer holiday from July 1st to July 31st each year, children should stay with the parent who does not have custody…”

• Religious and National Holidays: To prevent potential conflicts during holidays, alternative arrangements can be made based on odd and even years. For example; “From 09:00 to 18:00 on the second day of Ramadan and Eid al-Adha…” or planning for the holidays to be observed by one parent in odd years and the other parent in even years.

3. The Role of the Judge and the Principle of the Best Interests of the Child

Even if the parties have agreed on custody and visitation days, the judge is not obligated to directly approve the protocol.

• The judge may request changes to provisions that he/she deems contrary to the child's best interests, if necessary (especially after hearing from children of an age of understanding).

• For example, if the child is very young (still in the breastfeeding stage), or if custody is granted to the father, or if visitation times are so irregular that they negatively affect the child's health or school routine, the judge will intervene and request that the protocol be amended.

How are child support and alimony determined in an agreed-upon protocol?

The most important financial pillars of an amicable divorce settlement alimony arrangements . This process, which safeguards the spouses' economic stability after divorce and the children's care rights, must be drafted in accordance with legal procedures and the realistic economic situations of both parties.

According to the Turkish Civil Code, writing alimony clauses in the protocol clearly, unambiguously, and without room for interpretation both speeds up the judge's approval process and prevents potential enforcement problems in the future.

1. How is Child Support Determined?

Child supportis a form of maintenance paid by a parent who does not have custody of their child, in proportion to their financial means, to cover the education, health, housing, food, and social expenses of the children they share.

• A Mandatory and Inalienable Right: Child support is the legal obligation of the parent who does not have custody to provide for the child. Even if the mother or father "I completely waive my right to child support; I don't want money for the child ," the judge may consider this waiver invalid, prioritizing the child's best interests, and may mandate the addition of a child support payment in accordance with the agreement.

• How should the protocol be written? The alimony amount should be stated as a clear figure. For example; "For the joint child whose custody has been given to the mother , it is agreed that … TL will be collected from the father and paid to the mother each month as child support..."

• Increase Rate Clause: To prevent alimony from eroding due to annual inflation, a clause for an increase must be included in the protocol. The most commonly used method in practice is the clause stating, "Alimony will be increased annually in line with the Consumer Price Index (CPI) .

2. How is Alimony (Marriage) Determined?

Alimony isa form of maintenance that a party who will fall into poverty due to divorce can request from one party, provided that the other party is not more at fault, and the amount requested is proportionate to the other party's financial capacity.

• It is Entirely Subject to the Will of the Parties: Unlike child support, alimony is not mandatory; it depends entirely on the agreement or request of the parties. Spouses can mutually waive alimony entirely if they wish.

• The Importance of the Waiver Statement: If one of the parties does not want alimony, this must be clearly stated in the protocol. For example; "Neither party has a claim for alimony from the other; the parties mutually waive all claims for alimony and compensation from each other." This clause is critically important to prevent future claims.

• Will it be for a limited or indefinite period? If alimony is to be awarded, it should be clearly stated in the protocol whether it will be indefinite or will automatically terminate after a certain period (e.g., 2 years). The parties can also agree on a lump-sum payment if they wish.

Provisions to be Considered When Preparing Alimony Clauses

1. Payment Date Must Be Clear: The the exact day of each month by which the alimony payment is to be made (e.g., "No later than the evening of the 5th day of each month") and the bank account to which it should be deposited, along with the IBAN information.

2. Enforceability: Once the protocol is approved by the court, it acquires the force of a judgment. If alimony is not paid, enforcement proceedings can be initiated directly without the need to file a separate lawsuit. Therefore, clear figures and conditions greatly facilitate the enforcement process.

How are claims for material and moral damages regulated in an amicable divorce?

One of the most strategic parts of an amicable divorce settlement financial and non-financial compensation . While in contested divorce cases the determination of fault and the amount of compensation are decided by the judge after lengthy proceedings, in an amicable divorce, this is entirely determined by the free will and mutual agreement of the parties.

1. How is financial compensation determined in an amicable divorce?

Monetary compensationis the compensation that a party whose existing or expected interests have been harmed by divorce, and who is less or equally at fault than the other party, can claim without the intention of unjust enrichment.

• Mutual Agreement is Essential: The parties may choose to claim monetary compensation from each other, or they may mutually waive this right entirely.

• Format of the Protocol: The amount of monetary compensation, the method of payment, and the timing of payment should be written in the protocol with clear figures that leave no room for interpretation.

2. How is compensation for emotional distress determined in an amicable divorce?

Non-pecuniary damagesare compensation sought to remedy the emotional harm suffered by a party whose personal rights have been violated and who has been emotionally distressed as a result of the events leading to the divorce.

• Non-conditional: Like pecuniary damages, non-pecuniary damages are subject to the will of the parties. However, when written into a protocol, it must be clear enough to ensure the parties' peace of mind and prevent potential future disputes.

• Waiver Status: If the parties do not intend to claim compensation for non-pecuniary damages, this should be clarified as follows: "The parties have no claim for non-pecuniary damages from each other and have mutually waived all claims for non-pecuniary damages from one another."

3. Critical Legal Points to Consider When Arranging Compensation

1. Clarity of Waiver Statements: In an amicable divorce settlement, the party not seeking compensation or waiving their rights must explicitly sign a statement declaring that they "mutually waive all claims for material and moral damages." Otherwise, there is a risk of a new compensation lawsuit being filed regarding these matters after the decision becomes final.

2. Enforceability Guarantee: When an agreed divorce settlement agreement is approved by the court, it acquires the force of a court judgment. For unpaid compensation within the specified period, enforcement proceedings can be initiated directly without the need for a separate lawsuit. Therefore, it is essential to provide all payment dates and account numbers completely.

3. Not to Confuse Property Division: Compensation considers the balance of fault and interests within the marriage; property division (participation in acquired property regime) is an entirely different legal matter. In the protocol, compensation and property division payments (transfer of title, jewelry, etc.) should not be confused; each should be regulated in separate clauses.

How should the division of common property (property and jewelry) be addressed in the protocol?

One of the most costly and potentially contentious areas of an amicable divorce settlement is the division of property and jewelry (wedding jewelry). Unlike contested divorces where property division and jewelry disputes can drag on for years, an amicable divorce can be resolved in a single hearing through the mutual agreement of both parties.

1. How should the division of acquired assets (title deeds, vehicles, bank accounts) be regulated in the protocol?

According to the Turkish Civil Code, legally, there is an equal share of assets acquired during marriage. In an amicable divorce, however, the parties can be flexible with these legal shares, divide the property as they wish, or choose not to claim any rights over each other's assets.

• If no property division will take place / if there will be mutual waivers:

  • The parties must explicitly state that they have no claims or demands on each other regarding movable or immovable property acquired during the marriage, arising from the marital property regime.

  • Example Clause: “The parties have no remaining claims or demands from each other regarding movable and immovable property acquired during their marriage, arising from the liquidation of the marital property regime; the parties have released each other from these claims and have mutually waived their demands arising from the marital property regime.”

• If the transfer of real estate (house, land) or a vehicle is involved:

  • Which property or vehicle will go to whom must be clearly stated, along with the title deed information (details such as block, parcel, or license plate number).

  • Transfer Costs and Timing: The protocol must clearly state who will cover the title deed fees, revolving fund fees, and other expenses, as well as the number of days after the decision becomes final for the transfer procedures to be completed.

2. How Should Jewelry (Wedding Jewelry) Be Included in the Protocol?

According to Supreme Court precedents, jewelry (gold, ornaments) is considered the personal property of the wife. However, in practice, claims such as "the jewelry was sold, spent on the honeymoon, or given to pay off debts" frequently create disputes. Clarifying this issue is essential in an amicable divorce.

• Jewelry Remaining with the Woman or Being Returned:

  • If the jewelry remained with the woman or is to be returned by the man, this should be clarified.

  • Example Clause: “The … grams of gold, … bracelets, and all other jewelry given during the wedding ceremony remain with the wife, and the wife has no further claims against the husband; the parties agree not to make any claims against each other in this regard.”

  • If a specific cash payment is to be made in exchange for the gold, the amount to be paid, including the timing and terms of the payment, must be stated numerically.

3. Provisions to be Considered When Dividing Property and Arranging Jewelry

1. They Should Be Arranged as Separate Clauses: Property division (house, car) and jewelry should not be crammed into the same sentence; each should be presented as an independent and clear clause in the protocol.

2. Enforceability and Final Judgment: The protocol acquires the force of a judgment after being approved by the court. For example, if a promised property transfer or payment for jewelry is not made, enforcement proceedings can be initiated directly based on the decision. Therefore, the amount, address, and dates must be written completely.

3. Tax and Fee Obligations: Property transfers based on an agreed divorce settlement agreement may offer certain tax and fee advantages (as required by the settlement agreement); however, familiarity with land registry and enforcement regulations is necessary for the process to be carried out correctly.

How Long Does an Agreed Divorce Case Take? (Process and Hearing Stages)

While contested divorce cases can take months or even years, an amicable divorce , as the name suggests, is a process where legal procedures are completed much faster and can be concluded in a single hearing. The fact that the couple has already agreed on all legal matters (custody, alimony, compensation, and property division) minimizes the court's workload and the duration of the trial.

How long does an amicable divorce case take to conclude?

In practice, although it varies depending on the workload of the courts, judicial holiday periods, and the occupancy of the Family Court where the case is filed, consensual divorce cases are concluded on average between 1 week and 1 month .

Especially in cases handled through a lawyer and with a fully prepared petition, it is even possible to complete the process within a few days by obtaining an early hearing date from the court (learning/distribution expedited).

1. Preparation of the Protocol and Submission of the Petition

The first and most critical step in the process is for the parties to sign a complete Mutual Divorce Agreement . This agreement and the divorce petition are submitted to the competent and authorized Family Court, and after paying the court fees, the case is assigned a number.

2. Setting the Hearing Date

The court clerk reviews the file. If there are no deficiencies in the documents and protocol, a hearing date (preliminary examination and investigation hearing) is usually set for 1 to 3 weeks later, depending on the judge's workload

3. Hearing Stage (Statement Before the Judge)

In amicable divorce cases, the parties' personal attendance at the hearing is a legal requirement. Even if lawyers are present, a decision cannot be made without hearing the parties in person.

• Declaration of Will: During the hearing, the judge gives both spouses the opportunity to speak separately. The spouses verbally declare their intentions before the court, stating, "The signatures on this protocol are mine, I accept its contents, and we wish to divorce."

• Approval of the Protocol: If the judge is satisfied that the parties have freely expressed their will without coercion and that the protocol is in accordance with the law/in the best interests of the children, he/she will announce his/her decision in the courtroom.

4. The Process of Writing and Finalizing the Reasoned Decision

After the oral decision is given in court, the judge or court clerk writes the reasoned decision

• The reasoned judgment is served to the parties.

• If the parties declare in court or in writing that they do not accept the decision and waive their right to appeal, the divorce decree becomes final on the same day.

• If the appeal is not withdrawn, the legal period of 2 weeks following the notification of the decision to the parties and the receipt of the finality certificate must be obtained. After the finality certificate is received, the divorce is registered in the population registry.

What factors speed up or prolong the process?

• Key Considerations for Speeding Up the Process: Ensuring the protocol is legally flawlessly prepared, all pleadings are submitted completely, and all parties are present at the hearing to maximize the speed of the process (in a single session).

• Situations that may prolong the process: The presence of missing or contradictory clauses in the protocol, the failure of one of the parties to attend the hearing without a valid excuse, or the judge requesting changes to the protocol because they find it contrary to the best interests of the children may prolong the process.

Is it possible to withdraw or make changes after the protocol has been signed?

After an agreed divorce settlement is signed by both parties and submitted to the court, it is common in practice for one spouse to change their mind or for circumstances to change. So, is it legally possible to withdraw from a signed settlement or make changes to its clauses? The answer to this question depends entirely on whether the action was taken before or after the judge's decision became final

1. Withdrawing or Changing the Decision Before the Judge Makes a Decision (During the Hearing)

In the phase after an amicable divorce case is filed and before the judge makes a decision (while waiting for the hearing date or in the courtroom), the legal status of the parties is quite flexible:

• Withdrawal of the Declaration of Will (Becoming a Contested Divorce): one of the spouses declares before the judge in the courtroom, "I have withdrawn my consent to divorce" or "I was forced to sign the protocol, I do not accept it," the conditions for an amicable divorce are eliminated. In this case, the court cannot grant an amicable divorce; the case automatically into a contested divorce case . The process continues with the stages of determining fault, hearing witnesses, and gathering evidence.

• Mutual Amendment of the Protocol: Before the hearing date or in the courtroom, the parties may mutually agree to amend certain clauses of the protocol (for example, the amount of alimony or the visiting days). These amendments may be recorded and approved in the minutes in the presence of the judge.

2. What happens after the judge makes a decision and the decision becomes final?

If a hearing has taken place, the judge has approved the agreed-upon divorce protocol, and the decision has become final (registered in the population registry) within the legal time limits, then things change completely. After a final court decision, it is legally impossible to say, "I've changed my mind, let's cancel the protocol."

• Objection to Final Judgment: Since the approved protocol acquires the status of a court judgment, it constitutes a final judgment. The parties cannot file a new lawsuit regarding the matters they signed and waived their rights on (for example, later claiming "the compensation was insufficient, I want the property back").

• Exception for Cases of Fraud, Coercion, or Error: If, during the signing of the protocol, one of the parties was subjected to severe threat, coercion, fraud, or their will was impaired, "annulment of the provision" or cancellation of the contract according to general provisions. However, these circumstances require very strong and concrete evidence to be proven in court; this necessitates a rather long and arduous judicial process.

• Subsequent Changes in Circumstances (Exceptions for Alimony and Custody): Financial rulings that have become final, such as property division and compensation, cannot be changed later; however, child custody and child support are considered matters of public order, if circumstances change substantially in the future (e.g., the child's health condition, the parent's economic collapse, etc.), a request for a change in custody or an increase/decrease in alimony can always be made to the judge.