In divorce cases, couples sometimes opt for an uncontested divorce. However, even in such cases, it is beneficial for the parties to be aware of their legal rights and responsibilities.
The concept of divorce refers to the termination of the marital union. In the Turkish Civil Code, divorce is regulated in two ways: contested and uncontested. Contested divorce refers to the parties of the marriage expressing their claims, allegations and defences before the family court because they fail to reach an agreement on at least one of the fundamental elements of the divorce. Uncontested divorce, on the other hand, refers to the legal transaction that takes place when the parties to the marriage terminate the marriage as a result of a joint decision, in other words, when the parties reach a consensus on all of the fundamental elements of the divorce.
For an uncontested divorce to take place, the “conditions for an uncontested divorce” stipulated in the Turkish Civil Code No. 4721 must be fulfilled. If these stipulated conditions are not fulfilled, the filed lawsuit will continue as a contested one.
The conditions for an uncontested divorce set out in Turkish Civil Code No 4721:
- Couples having been married for at least 1 year,
- The spouses having reached an agreement on all financial and legal consequences of the divorce and the agreed matters being declared in the divorce protocol to be prepared,
- It is the participation of the parties in the lawsuit.
If the said conditions are met, one of the spouses deciding on a divorce must apply to the competent court with the prepared uncontested divorce petition and divorce protocol (which does not have to be submitted in writing and can be entered into the hearing record). The competent court in divorce cases is the court of the place where the spouses have resided together within the last 6 months. In cases where the spouses have resided at different addresses for more than 6 months, the competent court is the court of the place where the defendant is located. The court with jurisdiction is the Family Court. In regions where Family Courts do not exist, this duty is fulfilled by the Courts of First Instance.
Although an agreement has been reached between the spouses regarding the divorce, the judge has the discretion to convert the filed lawsuit into a contested divorce proceeding or to dismiss the case.
The petition and the divorce protocol forming the basis of the divorce case must be clear beyond any doubt and contain the spouses' intention to reach an agreement covering all financial and legal consequences of the divorce.
To give examples of the matters that should be included in a contested divorce protocol containing the joint statement of the spouses regarding the fundamental elements of the termination of the marital union:
- The intention regarding divorce,
- The custody of the joint children and personal contact,
- The social situations of the children,
- Alimony,
- Division of property,
- Litigation costs and attorney's fees,
- Financial and non-pecuniary compensation, etc.
The “agreed divorce protocol”, which is, so to speak, in the nature of a divorce settlement, cannot be made the subject of a pure and fixed-rate regulation in terms of its content, and therefore it must be meticulously examined and prepared both to ensure it does not constitute a violation of law and equity, and to enable the filed lawsuit to be concluded expeditiously.
It is strongly recommended that you seek legal assistance from a lawyer regarding this matter.