MOST WONDERED TOPICS ABOUT CONSENSUAL DIVORCE

Divorce cases are cases that require sensitivity and care, as are any issues related to family and private life. Because there are cases in which decisions are made that will guide the future lives of the parties and common children, it is also important to manage the legal process well. It should be aimed to ensure that the interests of the parties are protected at the highest level and that the divorce process is concluded as quickly as possible so that they can survive this process without psychological exhaustion. Consensual divorce cases also serve this purpose.

A consensual divorce is an action that allows the parties to implement the results agreed by sitting and talking, so to speak, and results quickly. In this article, we tried to include the most wondered topics and questions about consensual divorce.

Key Words: Consensual Divorce, Divorce Action, Division of Property, Alimony, Guardianship.

  1. What is the difference and advantage of consensual divorce from contested divorce?

In our law, there are two types of divorce actions; consensual and contested divorce actions. The reason for the filing of contested divorce actions is that the parties have not been able to reach a compromise on either the divorce or other issues related to the divorce. For example, if only one of the spouses wants a divorce, the divorce action will be contested if the other spouse does not want it. Or, if the spouses have a dispute over alimony, compensation, or custody of the common children along with the divorce, the divorce will again occur as a result of a contested divorce action.

In consensual divorce actions, spouses agree on divorce. They either file for divorce together, or the other spouse accepts a divorce action filed by one. At the same time, spouses must also agree on ancillary rights of the divorce. 

In a consensual divorce, it is often possible for the parties to divorce in a single hearing. Contested divorce actions last an average of 1-1.5 years. In addition, trial costs and counsel’s fee are also less in a consensual divorce than in a contested divorce. For this reason, choosing consensual divorce also saves significant time, labor and cost to be spent and minimizes possible stress.

  1. What are the competent and authorized courts where a consensual divorce action will be filed?

The divorce action must be filed in the competent and authorized court. The courts in charge of divorce cases are the Family Courts. In the absence of Family Courts, the Civil Courts of First Instance adjudicate these cases as a Family Court.

A consensual divorce must be filed in the Family Courts of settlement of one of the spouses or where the spouses has been living together for the last six months before the action.

  1. What are the Terms of a Consensual Divorce?

Divorce is subject to a number of conditions. All of the following conditions must be met.

  • Continuation of marriage for at least 1 year: the legislator, who wanted to prevent very short-term marriages from easily ending in this way, predicted that the consensual divorce would apply to marriages that have continued for at least 1 year. A period of 1 year must be calculated from the date of official marriage. When the judge finds that the 1-year period has not expired, he will dismiss the case without further examination. If the 1-year period has not yet expired when the case is filed, but it has expired at the time the provision is made, the judge will still be able to decide on a divorce.
  • Spouses application for divorce together or the one’s acceptance of divorce action filed by other: Spouses can apply for divorce in court with a consensual divorce protocol and a joint petition that they have prepared together. The second way is to accept the case filed by one, on the terms filed by the other party.
  • Hearing of the parties in person by the judge: A consensual divorce can be achieved by a compromise based on the free will of the parties. For this reason, the judge must listen to the parties personally and be convinced that they have really and freely agreed on the divorce and on the terms of divorce written in the divorce protocol. It is impossible for a judge to decide on a consensual divorce without listening to the parties. For this reason, the statements of the parties’ lawyers will not be sufficient solely, the spouses will have to explain their divorce will in front of the judge in person.
  • The approval of the divorce protocol by the judge, in which the parties agree on the financial consequences of the divorce and the status of the children: The spouses must also agree on the financial consequences of the divorce and the status of their children in common. The parties may present the matters they have agreed, to the court with a written document in which they will prepare, or they may express them verbally before the judge. In this case, the statements of the parties are put in the trial records and have signed by them.

But the fact that the parties have agreed is not enough to make the divorce happen. The divorce protocol prepared by the spouses must be found appropriate by the judge. The judge may make changes to the protocol as he deems necessary, taking into account the interests of the parties and children. A divorce occurs if the parties agree to these terms identically; if the parties do not agree to these terms, the judge cannot decide on a divorce. If the corrections made by the judge are not accepted by one of the spouses, the case continues as a contested divorce action.

  1. Is it Necessary to Prove that one of the Spouses is Faulty for a Consensual Divorce?

A consensual divorce is not a form of divorce based on a fault. Although none of the spouses acted wrongly in the breakdown of the marital union, they can end their marriage by their joint decision. Collecting evidence, listening to witnesses, etc. to prove the opposite party’s fault as in contested divorces, are beside the point in consensual divorces. In this type of divorce, it is necessary and sufficient for the parties to jointly agree on the divorce and the legal consequences associated with the divorce, and for the judge to approve this agreement.

  1. What Should be Written in the Consensual Divorce Protocol?

According to the article 166 of the Turkish Civil Code, spouses must have agreed on two issues in order to have a consensual divorce. These are the financial consequences of divorce and the condition of common children. The financial consequences of divorce are related to material compensation and non-pecuniary damages, alimony and child support that the spouses may ask from each other. Issues related to the division of matrimonial property and the alimony of measures are not mandatory to be added to the protocol. But making clear decisions on these issues will allow the parties to avoid dealing with these issues repeatedly after divorce proceedings.

The second element that should be included in the divorce protocol is the party that will have the custody of the children, establishment of personal relationship with the child of the spouse who cannot have custody, and alimony to be paid to the child. The judge must conclude that the parties have agreed with their free will in these child-related matters and financial matters. If the parties have not been able to make a joint decision on these issues, it is not possible for them to divorce consensually.

There is no obstacle to writing other details that the parties deem necessary in the divorce protocol. According to the Court of Cassation, “When deciding on a consensual divorce, the provisions of the protocol, as well as the provision for the ratification of the protocol (agreement), must also be written to the provision paragraph. (Decision of 2. Civil Chamber of Court of Cassation, Merits No. 2009/17648, Decision No. 2010/19842 of 29.11.2010). For this reason, in the preparation of the divorce protocol, it will be in the interest of both parties to clearly and openly regulate the rights and obligations of the parties on each issue in such a way as not to create hesitation in the execution phase.

  1. How is Property Sharing Done in a Consensual Divorce?

Spouses can share property in the consensual divorce protocol according to the rules that they will determine. The Court of Cassation does not necessarily consider it essential for spouses to make a determination on division of matrimonial property for a consensual divorce. But if the issue of sharing goods is not clarified in the protocol, or if the written statements in the protocol are incomprehensible and vague, other cases may need to be filed in the future. It is necessary to make an individual inventory of the goods of the parties and clarify the issue of sharing the goods in a way that does not cause hesitation in the protocol. 

One of the most common problems in practice is disputes that arise later between the parties due to the lack of clarity in the statements used in the divorce protocol regarding the property sharing. For instance, 8. Civil Chamber of the Court of Cassation stated that, “due to the spouses mutual divorce, in terms of alimony, pecuniary and non-pecuniary damages, litigation costs and counsel’s fee and any property that they don’t want and other receivables; the waiver of their rights on “goods” in the agreement also covered claims for movable and immovable property and “increased share of value and participation due” arising from the division of matrimonial property which does not have a subsidiary characteristic. It is therefore very important that the parties receive legal assistance from professionals who know the Court of Cassation’s practice when preparing the agreement protocol.

  1. When is the Divorce Considered Finalized in a Consensual Divorce?

In consensual divorce actions, they believe that the parties are divorced when the divorce protocol submitted to the court is approved by the judge and the case is determined. However, in order for a consensual divorce to actualize, the provision given by the court must be notified. If the spouses are satisfied with the consensual divorce decision after the decision has been notified, they will be able to make the decision final by not appealing in the superior court against this decision within the period of Appeal (2 weeks). Again, it is possible to finalize the decision by renouncing of the appeal.

The Court of Cassation considers the decision not being notified within a reasonable period of time and the subsequent reviving, contrary to good faith. As follows; “In addition to the fact that the decision was not duly notified by the plaintiff despite the long period of time, it shows that it is a violation of the good faith provided in the article 2 of the Turkish Civil Code, the fact that the parties continue to live together during this period, the fact that the parties had a common children born in 12.09.2003 requires the acceptance that the parties have renounced the will to divorce. In this regard, the fact that the parties continue to live together for a long time after the formation of the decision is effective in the result of the provision. According to this situation, it is understood that the divorce wills are not sincere, the provision for the divorce of the parties is against the procedure and the law. For this reason, the parties must ensure that the decision is brought to the notification as soon as possible for the finalization of the divorce decision.

  1. What Happens if One of the Parties Appeals the Decision in o Consensual Divorce?

If one of the spouses appeals, it prevents the divorce decision from being finalized. If one of the parties takes the decision to the superior court, it is clear that the spouses have reversed the compromise they reached on the protocol. In this case, consensual divorce is no longer possible. The case becomes a contested divorce case.

At the end of the trial of the case filed on the basis of the legal reason for consensual divorce in accordance with Article 166/3 of the Turkish Civil Code, the decision given by the Court of First Instance has been appealed by the defendant woman and since the parties can reverse from the will of a consensual divorce until the finalization of the decision, and the case should be considered as a contested divorce, it was decided to rescission of the decision of the Court of First Instance with the acceptance of the request for appeal and send the file to the Court of First Instance.”

The parties were divorced in accordance with the article 166/3 of the Turkish Civil Code, the sentence was appealed by the defendant male. In other words, there is no legal provision to prevent spouses from reversing from the declaration of will, which covers the agreed rules regarding both the financial consequences of the divorce and the condition of the children, until the decision on a consensual divorce is finalized. In this case, a consensual divorce should be considered as a contested divorce.”

  1. When Can a Consensual Divorce Decision be Enforced?

If the parties do not fulfill their obligations agreed upon in the divorce protocol by their own consent, the divorce declaration must be put into execution. But court decisions on family law cannot be executed until they are finalized. Payment of compensation, matters such as the delivery of the child partaking in the finalized consensual divorce protocol shall be settled through the enforcement proceeding with judgement. In order to request the execution of judgements regarding the alimony, there is no need to wait for the decisions to be finalized; it is enough for the court to issue the decision.

  1. Is it Possible to File a Suit Again if a Previously Filed Divorce Action has been Waived?

It is possible to waive a consensual divorce action until the decision is final. After this waiver, it is possible to file for divorce again both because of the events before the renounced consensual divorce and on the basis of the events after this case. The Court of Cassation does not consider the waiver of consensual divorce to be a kind of amnesty.

If the waiver is filed exclusively on the basis of the article 166/3 of the Turkish Civil Code, the waiver of the consensual divorce action does not result in the forgiveness of events prior to the date of the action. In this case, one of the parties may file for a divorce action based on any reason for divorce related to events prior to the date of the action of a consensual divorce that resulted in a waiver. In the action filed, events prior to the date of the action of a consensual divorce must also be taken into account in determining the fault.

CONCLUSIONS AND RECOMMENDATIONS

A consensual divorce is a type of action that allows parties to terminate a marriage that they have established of their own free will. The parties are freed of the material and spiritual burdens they will experience in a contested divorce, such as mutual accusations, proof actions, participation in many hearings; in a consensual divorce. But in practice, these benefits can be utilized if the consensual divorce protocol is prepared correctly and in detail. Otherwise, new cases will have to be filed to resolve them as many issues will remain unclear with a consensual divorce decision. This will make the quick and easy divorce process expected from a consensual divorce meaningless. You can get help from our team for sincere and professional support in the consensual divorce process.

Sincerely.

REFERENCES

 KURU, Baki, 2016, İstinaf Sistemine Göre Yazılmış Medeni Usul Hukuku, Legal Yayınevi, Istanbul, p. 95; Article 1-4 of Law on the Establishment, Duties and Judicial Procedures of Family Courts.

2 KURU, ibid, p. 95; Article 2 of the Code of Civil Procedure.

3 Article 167 of the TCC.

4 SARGIN, Elif, 2020, “Türk Hukukunda Anlaşmalı Boşanmanın Şartları Üzerine Bir İnceleme”, Selçuk Üniversitesi Hukuk Fakültesi Dergisi, p. 359-364 (access: https://dergipark.org.tr/tr/download/article-file/1040237, access date: 26.01.2020).

5 SEÇER, Öz, “Anlaşmalı Boşanmada Eşlerin Yaptıkları Anlaşma”, İnönü Üniversitesi Hukuk Fakültesi Dergisi vol:7, issue: 2, year: 2016, p. 261.

6 AKINTÜRK, Turgut/ATEŞ KARAMAN, Derya, 2013, Aile Hukuku, Beta Yayıncılık, Istanbul, p. 271.

7 AKINTÜRK/ATEŞ KARAMAN, ibid, p. 271.

8 ÖNCÜ, Özge, “Eşlerin “Anlaşmalı Boşanma” Çerçevesinde Mal Rejiminin Tasfiyesine Yönelik Olarak Yaptıkları Anlaşmalar ve Bu Anlaşmaların Uygulamada Doğurduğu Sonuçlar”, D.E.Ü. Hukuk Fakültesi Dergisi, Prof. Dr. Şeref ERTAŞ’a Armağan, C. 19, Special Issue -2017, p. 798.

 9 GÜNEŞLİOĞLU, Filiz, Boşanma ve Boşanmanın Hukuki Sonuçları, Yüksek Lisans Tezi, Bahçeşehir Üniversitesi Sosyal Bilimler Enstitüsü Özel Hukuk Anabilim Dalı, Istanbul, 2009, p.18.

10SEÇER, ibid, p. 268.

11YÜCEL, Sevtap,  “Yargıtay Kararları Işığında Anlaşmalı Boşanma Davası Sonrasında Nafaka ve Tazminat Talepleri”, Anadolu Üniversitesi Hukuk Fakültesi Dergisi, vol: 4, issue: 1, January 2018, p. 244.

12YÜCEL, ibid, p. 281.

13 ÖNCÜ, ibid, p. 819; 8. Civil Chamber of Court of Cassation, Merits No: 2010/4983, Decision No: 2011/2095 of 12.04.2011.

14 2. Civil Chamber of Court of Cassation, Merits No: 2019/8067, Decision No: 2020/186 of 15.01.2020.

15 2. Civil Chamber of Court of Cassation, Merits No: 2019/7152, Decision No: 2020/578 of 30.01.2020.

16 2. Civil Chamber of Court of Cassation, Merits No: 2020/4971, Decision No: 2020/5355 of 04.11.2020.

17PEKCANITEZ, Hakan/ATALAY, Oğuz/SUNGURTEKİN ÖZKAN, Meral/ÖZEKES, Muhammet, 2015, İcra İflas Hukuku, Yetkin Yayınları, Ankara, p. 321.

18 PEKCANITEZ/ATALAY/SUNGURTEKİN ÖZKAN/ÖZEKES, .ibid, p. 321.

2. Civil Chamber, Merits No: 2020/4971, Decision No: 2020/5355.

The parties were divorced in accordance with the article 166/3 of the Turkish Civil Code, the sentence was appealed by the defendant male. In other words, there is no legal provision to prevent spouses from reversing from the declaration of will, which covers the agreed rules regarding both the financial consequences of the divorce and the condition of the children, until the decision on a consensual divorce is finalized. In this case, the consensual divorce action should be heared as a “Contested divorce (TCC art. 166/1-2)”. 04.11.2020.

 Civil Chamber, Merits No: 2020/1422, Decision No: 2020/2919.

If the waiver is filed exclusively on the basis of the article 166/3 of the Turkish Civil Code, the waiver of the consensual divorce action does not result in the forgiveness of events prior to the date of the action. In this case, one of the parties may file for a divorce action based on any reason for divorce related to events prior to the date of the action of a consensual divorce that resulted in a waiver. In the action filed, events prior to the date of the action of a consensual divorce must also be taken into account in determining the fault. 10.06.2020

2. Civil Chamber, Merits No: 2019/8067, Decision No: 2020/186.

In the divorce action filed by the plaintiff male on 14.06.2001, it is understood that the court decided that the parties’ consensual divorce and that the reasoned decision was finalized by the court without being duly notified in accordance with the Notification Law, No: 7201. In addition to the fact that the decision was not duly notified by the plaintiff despite the long period of time, it shows that it is a violation of the good faith provided in article 2 of the Turkish Civil Code, the fact that the parties continue to live together during this period, the fact that the parties had a common children Eylül and Efe born in 12.09.2003 requires the acceptance that the parties have renounced the will to divorce. In this regard, the fact that the parties continue to live together for a long time after the formation of the decision is effective in the result of the provision. According to this situation, it is understood that the divorce wills are not sincere, the provision for the divorce of the parties is against the procedure and the law. 15.01.2020.

2. Civil Chamber, Merits No: 2019/7152, Decision No: 2020/578.

  •  

At the end of the trial of the case filed on the basis of the legal reason for consensual divorce in accordance with Article 166/3 of the Turkish Civil Code, the decision given by the Court of First Instance has been appealed by the defendant woman and since the parties can reverse from the will of a consensual divorce until the finalization of the decision, and the case should be considered as a contested divorce, it was decided to rescission of the decision of the Court of First Instance with the acceptance of the request for appeal and send the file to the Court of First Instance. 30.01.2020

Leave a Reply

Your email address will not be published. Required fields are marked *