FREQUENTLY ASKED QUESTIONS ABOUT DIVORCE BY MUTUAL CONSENT
THINGS YOU SHOULD KNOW ABOUT UNCONTESTED DIVORCE CASES
In this week's column reserved for me in the Önce Vatan newspaper, I will try to talk to you about an important topic: uncontested divorce cases. There are certain procedures and principles involved in uncontested divorce cases. First, I will try to explain what an uncontested divorce case is, how to file an uncontested divorce case, and what the conditions for an uncontested divorce are. Subsequently, I will attempt to provide information about the decisions of the Court of Cassation regarding uncontested divorce cases.
What is an Uncontested Divorce Case?
The Turkish Civil Code regulates in detail how divorce cases can be filed. Specifically, parties who cannot find common ground within the marital union and wish to express their desire to terminate their marriage through a decision by a Family Court Judge have two options. Parties have the right to file an uncontested divorce case to state their desire to divorce, or they can file a contested divorce case by adding the grounds for divorce to the petition in detail at the Family Court.
The most important aspect of an uncontested divorce case is that the parties, by using their free will to reach an agreement on all financial and moral consequences of the divorce, inform the Family Court judge of their decision to end the marital union by filing a lawsuit (in regions where there is no Family Court, the Civil Court of General Jurisdiction acting as a Family Court examines the uncontested divorce case). In an uncontested divorce case, the issues on which the parties must reach an agreement are as follows: the custody of the joint child if there is one, the amount of alimony to be paid for the joint child, material and moral compensation, the division of assets acquired during the marriage, the division of jewelry (ziynet), alimony, and the division of household goods; the parties must reach an agreement on these matters.
WHAT ARE THE CONDITIONS FOR FILING AN UNCONTESTED DIVORCE CASE?
Article 166/3 of the Turkish Civil Code states: “If the marriage has lasted at least one year, in the event that the spouses apply together or one spouse accepts the lawsuit of the other, the marital union is considered to have fundamentally shaken. In this case, for a divorce decision to be rendered, it is required that the judge personally hears the parties, becomes convinced that their will is expressed freely, and finds the arrangement accepted by the parties regarding the financial consequences of the divorce and the situation of the children to be appropriate. The judge may make necessary changes to this agreement by considering the interests of the parties and the children. If these changes are also accepted by the parties, the divorce is ruled. In this case, the provision that the confessions of the parties will not bind the judge does not apply.”
To file an uncontested divorce case, the parties must first have been married for at least 1 (one) year. One of the parties must apply to the Family Court judge by writing a petition and submitting an uncontested divorce protocol to file the case. Once the Family Court judge determines that there are no procedural deficiencies, they organize the preparatory document and decide to send the hearing date invitation to the plaintiff and defendant parties via mail to be served. As clearly regulated in the relevant article of the Turkish Civil Code, in an uncontested divorce case, it is accepted by the decision of the Family Court Judge that the marital union has been fundamentally shaken and that continuing the marriage at this stage would not provide any benefit to society. In an uncontested divorce case, the Family Court Judge personally invites the parties to the hearing and asks them to state their desire for divorce verbally. Subsequently, the judge asks for their final decisions on the matters they have agreed upon (material and moral compensation, alimony, custody, division of property, jewelry, household goods, alimony for the joint child), and specifically, if there is a joint child, by considering the best interests of the child, the judge approves the uncontested divorce protocol and issues an uncontested divorce decision.
The second important condition in an uncontested divorce case is that the defendant spouse accepts the lawsuit filed by the plaintiff spouse. The parties must sign the uncontested divorce petition and the protocol detailing the matters they have agreed upon. If there is even a single item that cannot be agreed upon, the uncontested divorce case turns into a contested divorce case.
As I mentioned in detail above, the Family Court Judge must personally hear and accept the parties' decision to have an uncontested divorce at the hearing. Their free will, without any pressure or external influence, must be conveyed to the Family Court Judge. In uncontested divorce cases, it is not sufficient for the parties' lawyers to attend alone. Divorce is a right strictly bound to the person, and it is a situation that the parties must express with their own free will. In addition to the lawyers for the plaintiff and defendant, the plaintiff and defendant themselves must attend the uncontested divorce hearing and express their desire to divorce.
The Family Court Judge must also find the arrangements regarding the financial consequences of the divorce and the situation of the children after the divorce to be appropriate. The Family Court Judge must approve the points agreed upon by the parties in the uncontested divorce protocol regarding matters such as material and moral compensation, child support (iştirak nafakası) and poverty alimony (yoksulluk nafakası), custody of the joint children, and the establishment of personal relationships with the children. If the Family Court Judge deems it necessary, they have the right to make changes to these conditions. However, the uncontested divorce can only be realized if these changes made by the Family Court judge are accepted by the parties. Otherwise, the case will be heard as a contested divorce case.
COURT OF CASSATION DECISIONS REGARDING UNCONTESTED DIVORCE
Decision of the 2nd Civil Chamber of the Court of Cassation, E. 2018/15333;
As a result of the trial of the case filed by the plaintiff husband, a decision was made on 09.11.2010 for the parties to divorce in an uncontested manner. The reasoned decision of the court was sent for notification eight years later, and upon its notification to the defendant wife on 19.04.2018, the defendant wife appealed the decision within the time limit. With her appeal petition, the defendant claimed that "they had agreed among themselves not to receive the reasoned decision, that everyone still considered them married, that they lived in the same residence with their children until April 2018, that the union continued, that she did not want to divorce, and requested that the judgment be overturned." Sending the decision for notification after a long period of eight years is contrary to the rule of honesty set forth in Article 2 of the Turkish Civil Code and constitutes an "abuse of right." As stated in Article 2/2 of the Turkish Civil Code, the legal order does not protect the clear abuse of a right. In the face of this situation, as it is understood that the desire for divorce was not sincere, it was necessary to overturn the judgment to dismiss the case.
Decision of the 2nd Civil Chamber of the Court of Cassation, E. 2018/14612;
The judgment rendered in the divorce case between the parties was appealed by the defendant husband. The judgment was overturned by our Chamber's decision (E. 2016/21742 - K. 2018/2462) with the reasoning: "Although the divorce decision rendered by the court pursuant to Article 166/1 of the Turkish Civil Code was appealed by the defendant, it is understood from the petition dated 01.02.2018 addressed to the Court of Cassation before the appeal review that the parties have drafted a protocol regarding the divorce, financial consequences, and the situation of the joint child; therefore, the judgment should be overturned to make a decision in accordance with the result after taking the parties' personal statements, taking this protocol into account." Although the court complied with the reversal decision, the parties' personal statements were not taken into account while considering the uncontested divorce protocol. In this situation, the requirement of the reversal decision complied with by the court was not fulfilled. Therefore, while the court should have taken the parties' personal statements in accordance with Article 166/3 of the Turkish Civil Code and the protocol regarding the uncontested divorce, it was contrary to procedure and law to decide on an uncontested divorce by accepting the excuses of the party attorneys without taking the personal statements of the plaintiff and defendant. (Court of Cassation, 2nd Civil Chamber – Decision: 2018/14612).