Constituted divorce case

Anlaşmalı boşanma davası, en az 1 yıl sürmüş eşlerin, boşanmanın mali sonuçları ve çocukların durumu üzerinde anlaşmaya vararak hazırladıkları bir boşanma protokolü ve dava dilekçesi ile mahkemeye birlikte başvurmaları yahut eşlerden birinin açtığı boşanma davasının diğer eş tarafından kabul edilmesi suretiyle açılan, uygulamada çekişmeli boşanma davalarına göre daha kısa sürede sonuçlanabilen bir boşanma davasıdır.

The divorce process is often a process that wears out spouses both psychologically and economically. The main reason why couples who decide to divorce prefer consensual divorce is to avoid wasting time due to the long duration of contentious divorce cases and, accordingly, to prevent further material and moral wear and tear.

However, a consensual divorce case is not a "simple" type of case. Agreement between the parties alone is not sufficient; the conditions required by law must be met, the parties' wills must be freely expressed, and the prepared protocol must be approved by the judge. Incomplete or carelessly prepared protocols, especially regarding child, alimony, compensation, property division, jewellery, household goods and post-divorce claims, may later lead to serious loss of rights. Therefore, in a consensual divorce case, the main issue is not just getting divorced; It is to regulate the consequences of divorce today and in the future in a clear, applicable and unambiguous way.

CONSTRUCTED DIVORCE CONDITIONS

Article 166/3 of the Turkish Civil Code. The article clearly regulates consensual divorce and its conditions. Accordingly, provided that the marriage has lasted at least one year, if the spouses apply together or if the lawsuit filed by one spouse is accepted by the other spouse, the marriage union is deemed to be shaken from its foundations. However, in order to give a divorce decision, the judge must personally listen to the parties and be satisfied that their will has been freely expressed, and approve the arrangement accepted by the parties regarding the financial consequences of the divorce and the situation of the children.

Let's examine the conditions of consensual divorce in detail:

1- MARRIAGE MUST LAST AT LEAST 1 YEAR

Marriage is deemed to have been established by receiving oral declarations of will of the parties capable of giving rise to legal consequences in front of the marriage officer. In order to file a consensual divorce case, the marriage must have lasted at least 1 year as of the date the case is filed. The judge investigates ex officio whether the 1-year period has expired.

Although there are some opinions in the doctrine on how the case will proceed when it is understood that the time limit has not expired, that the case should be rejected on procedural grounds without further investigation, the opinion of the Supreme Court is that the case should continue as contested. The following decision is an example of this situation:

"With the third paragraph of Article 166 of the Turkish Civil Code, the provision has been made that "If the marriage has lasted at least one year, if the spouses apply together or one spouse accepts the case of the other, the marriage union is deemed to be shaken from its foundation." It has been understood from the civil registry in the file that the parties got married on 11.01.2012 and that the one-year period has not yet expired when the case was filed. The court collected the evidence shown by the parties and determined the Turkish Civil Court. "While it is necessary to investigate whether the conditions in the first and second paragraphs of Article 166 of the Turkish Civil Code are met and make a decision based on the result, deciding to divorce by accepting the case before the one-year period requirement stipulated in the third paragraph of Article 166 of the Turkish Civil Code is found to be contrary to the procedure and law." (Supreme Court 2nd HD. 2013/24061 E. 2014/275 K. 13.01.2014 T.)

2- THE SPOUSES MUST APPLY TOGETHER OR THE CASE FILED BY ONE OF THEM SHOULD BE ACCEPTED BY THE OTHER

Spouses can apply together by agreeing on all issues and submitting the protocol they have prepared and the petition they have signed together to the court. In this case, a single lawsuit is deemed to have been filed and a single application fee is paid.

Apart from this, a divorce case filed by one of the spouses can be concluded within the framework of consensual divorce with the express acceptance of the other spouse and the agreement of the parties on the consequences of the divorce. However, simply stating "I accept the divorce" is not sufficient here. The parties must also have a clear agreement on the financial consequences of the divorce and the situation of the children, if any.

TMK 166/3 or the general reason for divorce, "shattering-of-marriage-unity" reason, i.e. TMK Article 166/1, can also be divorced by agreement at any stage of the case filed according to TMK Article 166/1, with the acceptance of the other spouse.

• So, can cases filed based on one of the special grounds for divorce regulated in the law be turned into a consensual divorce with the acceptance of the other party?

In cases filed based on one of the special reasons such as adultery, attempt on life, very bad behavior, dishonorable behavior, committing a humiliating crime, leading a dishonorable life and abandonment, a separate procedural evaluation is required in each concrete case, unless the file is later converted into a consensual divorce case. For this reason, if a divorce case initially filed based on special reasons such as adultery, abandonment, attempt on life, mental illness is later wanted to be concluded as a consensual divorce, a separate legal evaluation should be made according to the nature of the file.

In such a case, the parties can apply to the court with an agreement protocol, the features of which we have tried to explain at various points in our analysis, and have the case considered as a consensual divorce case.

Another special reason for divorce is TMK art. A divorce case filed on the basis of mental illness as regulated in Article 165 cannot be converted into a consensual divorce by the other party's acceptance of the case or even through reformation. Because the will of a mentally ill person is considered legally invalid.

3- THE JUDGE MUST HEAR THE PARTIES PERSONALLY

In consensual divorce cases, the judge must personally listen to both parties in order to make a decision. The parties' statements are recorded in the hearing minutes and the court observes that the parties' statements are based on free will.

Even if there are lawyers representing the parties, as a rule, a consensual divorce decision cannot be made only with the statement of the attorney. Because here, the judge has to personally evaluate whether the parties really want to divorce and whether they accept the protocol they offer without being pressured.

Although some procedural features may come to the fore in practice, especially for spouses living abroad, the general rule is that the parties are heard in person before the court.

4- CONVICTION SHOULD BE MADE THAT THE PARTIES' WILLS ARE FREELY EXPLAINED

As we mentioned above, the judge must listen to both parties personally before making a decision. Only in this way does it determine whether the parties freely expressed their will when signing the divorce protocol they submitted to the court. Here, as in contested divorce cases, there is no detailed proof of fault or examination of the reason for divorce; However, it is investigated whether the will of the parties is based on real and free will.

For example, if one of the parties makes a hesitant statement at the hearing, says that they do not know the protocol fully, states that they signed under pressure, or if there is a serious imbalance in terms of children and financial consequences, the court may not decide on a consensual divorce. For this reason, the parties must make sure that they have actually read and understood the content of the protocol submitted to the court and that they accept it with their free will.

According to the practice accepted in many Supreme Court decisions, it has been stated that the notification of the consensual divorce case decision after a long time without any legal or actual obstacle is an abuse of right, accepting that the will of the parties is against the rule of honesty. However, it was decided to annul the divorce decision on the grounds that the parties' will to divorce was not sincere.

5- IT IS MANDATORY THAT THE JUDGE FINDS THE PROTOCOL APPROPRIATE

In the protocol based on the consensual divorce case, the spouses must agree on the financial consequences of the divorce and the situation of the children, if any. The court is not obliged to accept this protocol as is. The judge may suggest changes he deems necessary, taking into account the interests of the parties and especially the children. If the parties accept the change suggested by the judge, a consensual divorce may be decided. However, if the parties do not accept this change, the case may not be concluded as a consensual divorce. At this point, the following issues are especially important:

• financial compensation,
• pecuniary damage,
• poverty alimony,
• Participation alimony,
• custody,
• personal relationship with the child.

These issues are the basic topics in terms of consensual divorce. The judge is not bound by the will of the parties, especially in the arrangements regarding children, and looks after the best interests of the child.

It should also be noted that agreements regarding the secondary consequences of divorce are not valid unless approved by the judge. For this reason, merely having a protocol prepared is not enough.

The 8th Civil Chamber of the Supreme Court of Appeals, in its decision dated 26.12.2017;

"In order to decide on a consensual divorce in accordance with Article 166/3 of the TMK, the spouses must agree on the divorce and the issues that are annexed to the divorce. Since the liquidation of the property regime is not an annex to the divorce, an agreement is not necessary. However, if there is an agreement, there is no legal obstacle to the decision being taken together with the divorce."

He ruled as follows.

As can be understood, property regime liquidation is not an issue that needs to be understood in the protocol. However, if the protocol includes sharing of goods, a relative fee must be paid based on the value of the goods.

Apart from this, rent payments, loan payments, house and car purchased during marriage, gold worn at the wedding, etc. are also made by the spouses. Arrangements can be made in the divorce protocol by reaching an agreement on the issues.

In a consensual divorce case, in order for a divorce to be decided, the parties must reach an agreement on the following issues in the protocol they will prepare and this arrangement must be approved by the judge.

MATERIAL AND MORAL COMPENSATION

One of the financial consequences of divorce is material and moral compensation. The parties must make a clear regulation on this issue. If compensation is requested, it would be appropriate to clearly state the amount, payment time and payment method. If compensation is not requested, this should also be stated clearly. At this point, vague expressions should be avoided. For example, vague sentences such as "may be requested in the future" or "there is no request for now" are not fully compatible with the logic of consensual divorce. The healthiest method is for the parties to clearly state their demands or will to waive in this regard.

POVERTY SUPPORT

Since alimony is one of the financial consequences of divorce, in order for a divorce to be decided, the parties must agree on this issue and the judge must find the arrangement appropriate. Therefore, this issue must be clearly regulated in the consensual divorce protocol. If alimony is requested, the amount, start date, payment date and increase rate, if any, must be written. If it is not requested, this should also be stated clearly. Ambiguous expressions should also be avoided in alimony. Expressions such as "rights reserved" should be used with caution, as they may lead to interpretation disputes in the future.

Participant Alimony

If there is a joint child, it is essential that the spouse who is not given custody participates in the child's care and education expenses in proportion to his/her ability. For this reason, a clear regulation must be made regarding child support. However, there is an important distinction here: The fact that alimony is not requested for the child during the consensual divorce does not, as a rule, prevent the request for alimony in the future if the conditions change and the best interest of the child requires it. Because child support is not only a matter of contract between spouses, but also an issue regarding the protection of the child. For this reason, even if child support is not regulated in the protocol, it is possible to request child support later, taking into account the needs of the child, educational status, health expenses and changes in the economic conditions of the parties.

CUSTODY

The parties must reach a clear agreement regarding the custody of the joint children. It should be written without hesitation that custody will be left to the mother or father. If there is more than one child, a separate evaluation may be required for each child. As we mentioned above, the court does not only look at the will of the parties regarding custody; It also takes into account factors such as the child's age, care needs, educational system, psychological and social development. For this reason, if it is concluded that the custody arrangement is against the best interests of the child, the judge may recommend changes to the protocol.

PERSONAL RELATIONSHIP WITH THE CHILD

With regard to personal relationship with the child, if the judge does not find the protocol appropriate, he may request a change in the protocol, taking into account the interests of the child. However, in order for the divorce to be consensual, the parties must approve the judge's request for change or the judge must approve an arrangement put forward by the parties. Otherwise, the case will be continued as a contested divorce under Article 166/1.

The personal relationship to be established between the spouse and the child to whom custody is not granted must be regulated in a clear and applicable manner. Here, instead of general expressions such as "let the court arrange" or "the parties agree among themselves", it is better to make as concrete an arrangement as possible in terms of days, hours and holiday periods. For example, making a more concrete personal relationship plan in the form of special days such as the first and third weekend of each month, certain days of religious holidays, semester break, certain period of summer vacation, mother's day, father's day, birthday, etc. will reduce conflicts that may arise later.

SHARING OF PROPERTY, JEWELRY AND OWN BEINGS IN CONSENTED DIVORCE

In order for the parties to have a consensual divorce, it is not necessary for them to agree on the liquidation of property, jewelry receivables, sharing of household goods, or sharing of real estate and vehicles. These issues are not among the mandatory accessory elements of divorce.

However, if the parties wish, they can also arrange these issues in the consensual divorce protocol. In this case, extreme caution must be exercised. Because the provisions regarding property may have much more permanent and severe consequences than other topics of divorce.

Especially in the following types of regulations, clear, concrete and unambiguous language should be used:

• block/parcel information of the real estate
• vehicle license plate information
• scope of household goods
• Who will keep the jewelery
• bank account or receivable amounts
• credit debt and payment responsibility
• delivery date and transfer obligation

For example, very broad statements such as "the parties have no remaining receivables from each other under any name" may cause serious loss of rights in the future in terms of property regime, participation receivables, jewelry receivables or goods receivables. For this reason, if a regulation is to be made regarding the division of property, each property or receivable item should be written separately and clearly as possible.

USE OF SPOUSE'S SURNAME IN CONSENTED DIVORCE

According to Article 173 of the TMK; "In case of divorce, the woman retains the personal status she gained through marriage; however, she regains the surname she had before marriage." Therefore, the wife who wants to continue using her husband's surname for reasons of recognition in terms of her professional and social life environment after the divorce can make an arrangement regarding this issue in the consensual divorce protocol. This issue set out in the protocol will now be binding on the parties when the court determines that the parties have agreed with their free will and is included in the scope of consensual divorce.

The fact that this issue, which was regulated by the parties in the consensual divorce protocol, is not stated by the judge in the divorce decision is a reason for annulment;

"The parties requested a divorce, stating that they agreed on divorce and its accessories, in accordance with Article 166/3 of the Turkish Civil Code, and submitted the protocol regarding the agreement. In the submitted protocol, they also agreed that the defendant woman will bear the surname of the plaintiff husband, together with the divorce and its accessories. Although the court has made a provision regarding divorce and its accessories, the agreement for the defendant woman to bear the husband's surname is included in the provision. "Not granting it is against the procedure and the law and necessitates reversal." (Y2HD. 9.6.2011 T. 2010/9477 E.)

All rights of the woman regarding the use of her surname in case of marriage and divorce are explained in detail in our article titled "Woman's Surname Issue".

CONSTRUCTED DIVORCE BECOME CONTENTIOUS

In some cases, the consensual divorce case is subject to Turkish Civil Code art. It is continued as a contested divorce case according to Article 166/1. Namely;

• If the 1-year period, which is the condition of the consensual divorce case, has not expired,
• If full agreement cannot be reached regarding the financial consequences of the divorce and the situation of the children,
• If the parties do not accept the amendment proposal deemed necessary by the judge,
• If the defendant gives up on divorce,
• If one of the parties breaks the agreement (it can be broken at any stage of the trial),

The case turns into a contested divorce case.

The case, which turns into a contested divorce case, is continued by giving time to the plaintiff to present his allegations and evidence and to the defendant to respond, according to TMK 166/1.

FINALIZATION OF CONSENTED DIVORCE

In order for the divorce decision to be recorded in the civil registry and for the parties to officially use their new marital status, the decision must be final. After the court gives the summary decision at the hearing, a reasoned decision is written. The reasoned decision is duly notified to the parties. If the parties do not appeal within two weeks from the notification, the decision becomes final.

In order to complete the process faster in practice, the parties can accelerate the finalization process by submitting a petition stating that they waive legal remedies after being notified of the reasoned decision. However, the finalization period and procedure should be evaluated separately according to the nature of the concrete file, to whom and when the notification was made. For this reason, in practice, instead of general statements such as "the decision becomes final in 15 days", the notification of the reasoned decision and the two-week legal remedy period should be taken as basis.

THE COURT IN CHARGE IN THE CONSENTED DIVORCE CASE

The court responsible for handling consensual divorce cases is the Family Courts. In places where there are no Family Courts, Civil Courts of First Instance are responsible for hearing consensual divorce cases as Family Courts.

Since the matter of duty is related to public order, it is taken into consideration by the court ex officio.

THE AUTHORITY COURT FOR CONSENTED DIVORCE CASE

In divorce cases, the competent court is the court of the place of residence of one of the spouses or the court of the place where they lived together for the last six months before the case.

In practice, it is seen that in consensual divorce cases, lawsuits can be filed in different places as long as no jurisdictional objection is raised. However, the technical and safe approach is to file the case in the competent court specified in the law.

For this reason, even if the parties agree, it would be appropriate to evaluate the file separately in terms of place of residence and place of cohabitation in order to prevent the issue of jurisdiction from creating a procedural problem.

IF ALMOST IS NOT REQUESTED FOR THE CHILD IN THE CONSENTED DIVORCE CASE, CAN IT BE DEMANDED LATER?

The fact that alimony has not been requested for the child from the spouse whose custody was not given in the consensual divorce case does not mean that it cannot be requested later. In accordance with the TMK, both spouses must contribute to the education and care expenses of the joint child, according to their own means. Alimony that is not requested during the divorce case due to both legal obligation and changing circumstances can be requested later by applying to the Family Court.

Although the consensual divorce protocol binds the spouses, the terms of the protocol can always be changed if the changing conditions create justified grounds. Accordingly, the judge may increase, decrease or eliminate the amount of child support depending on the change in the situation of the parents or the child.

It was clearly stated in a decision of the general assembly of the Supreme Court of Appeals dated 14.11.2019. Namely;

"Since the spouse, who is not given custody in accordance with Article 182/2 of the TMK, has to participate in the care and education expenses of the joint child in proportion to his ability, the fact that the plaintiff in the consensual divorce case has not requested alimony for the joint child will not constitute an obstacle to demanding alimony later, considering the needs and best interests of the child, and on the other hand, the payment of compensation for the joint child by protocol will not relieve the defendant father from the obligation to pay child support. This issue may be taken into consideration in determining the amount of alimony.

In addition, when the consensual divorce protocol is drawn up, if the balance between the mutual acts is disrupted to an unbearable degree to the detriment of one of the parties due to an extraordinary change in the conditions, the parties can no longer be bound by that contract, and in the face of these changing conditions, they can request the court to re-arrange the contract by taking advantage of Article 2 of the TMK No. 4721.

Due to this obligation, the plaintiff mother requests alimony from the defendant father for the benefit of the joint child. It should be emphasized that, for the benefit of the joint child, taking into account the fact that more than 6 years have passed from 12.07.2007, the date when the divorce decision was finalized, to 07.10.2013, the date of the lawsuit, the fact that the joint child, who was 3 years old on the date of divorce, is 9 years old as of the date of the case, the changing and developing situations, the needs and best interests of the child, and the personal and educational expenses will naturally increase, taking into account the social and economic situations of the parties, According to the principle of equity in Article 4 of the TMK No. 4721, an appropriate child support must be awarded.

HOW LONG DOES A CONSENTED DIVORCE CASE TAKE?

The duration of consensual divorce cases varies depending on the workload of the court where the case is filed, whether the parties attend the hearing together, whether the protocol has been prepared properly, and how the finalization process with a reasoned decision is carried out.

In practice, some files may be finalized in a single session. However, this does not mean that every file will necessarily be finished in a very short time. The process may be prolonged, especially if there is a deficiency in the protocol, if there is a regulation against the child's interest, if one of the parties makes a different statement at the hearing, or if there is a delay in the notification process.

For this reason, instead of expressing a consensual divorce as "it will definitely be completed in this many days", it should be said that a well-prepared file is more likely to be finalized much faster than a contested divorce.

CONSTRUCTED DIVORCE PROTOCOL EXAMPLE

Although it is not necessary for the protocol to be in writing in a consensual divorce case, it is the healthiest method to prepare it in writing and submit it to the court as an annex to the consensual divorce petition. If the judge finds it inappropriate in the protocol, he/she takes the statements of the parties to make changes. If the parties do not accept the change made by the judge, a consensual divorce cannot be decided. Below is a superficial and simplest protocol example. In order not to miss any details and to avoid loss of rights, it is beneficial to have the protocol prepared by an expert lawyer.

DIVORCE PROTOCOL

The plaintiff [Name Surname] and the defendant [Name Surname] got married on [Date of Marriage], and they decided to end the marriage union with their mutual and free will.

The parties, pursuant to Article 166/3 of the Turkish Civil Code. accepts consensual divorce in accordance with the article.

The joint children of the parties are [Child's Name and Surname - Date of Birth] and [other child information, if any], and custody of the joint children will be left to [mother/father].

A personal relationship will be established between the spouse who is not given custody and the joint children as follows: [personal relationship days and hours should be written in detail].

The spouse who is not given custody will pay monthly alimony of [Alimony Amount] TL for the joint child. Alimony will be paid on [day] of each month, via [payment method]. Alimony will be increased each year in accordance with [rate of increase or rate determination method].

Alimony of [Alimony Amount] TL per month will be awarded in favor of [one of the parties]. / The parties do not request alimony from each other.

[Amount] TL pecuniary compensation and [Amount] TL moral compensation will be paid in favor of [one of the parties]. This fee will be paid by [payment method] within [period] following the finalization of the decision / The parties have no claims for material or moral compensation from each other.

An agreement has been reached between the parties regarding [household goods / jewelery / vehicle / real estate / loan debt / bank account] as follows: [detailed arrangement should be written].

The plaintiff woman [wants to continue using her husband's surname / will use her surname before marriage] after the divorce.

The parties declare that they have read and understood this protocol and that they accept it with their free will, without being under any pressure.

The parties request that the court decide on a consensual divorce if the provisions of this protocol are found appropriate.

Date: [Date]

Plaintiff: [Name Surname – Signature]

Defendant: [Name Surname – Signature]