ENTRANCE
Divorce is one of the most important legal procedures that terminates a marriage. Under the Turkish Civil
Code, divorce is based on various grounds, one of which is consensual divorce, which aims to end the
marriage by the mutual consent of the spouses. While this type of divorce allows the parties ample leeway in
family law, it also necessitates judicial oversight that considers public order and the best interests of the
children.
Consensual divorce, regulated by the third paragraph of Article 166 of the Turkish Civil Code, requires the spouses
to agree on both the divorce itself, its financial consequences, and the arrangements for the children’s future.
However, consensual divorce is not a process left solely to the will of the parties; it takes place with the active
supervision and approval of a judge. In this respect, it is an important institution that reflects the balance between
the parties’ autonomy and the public interest in private law relationships.
1-) Normative Basis and Legal Basis
The legal basis for consensual divorce is Article 166/3 of the Turkish Civil Code. According to this provision:
If the marriage has lasted at least one year, the marriage is deemed to have been fundamentally broken if both spouses file a
joint application or if one spouse accepts the lawsuit filed by the other. The judge must personally hear the parties, determine
that their will has been freely expressed, and approve the arrangements agreed upon by the parties regarding the financial
consequences of the divorce and the status of the children. The judge may make changes to these arrangements as deemed
necessary; if these changes are accepted by the parties, the divorce is granted.
Article 168 of the Turkish Civil Code (TCC) applies in terms of jurisdiction and authority. Accordingly, a consensual
divorce case can be filed in the court of one spouse’s place of residence or the place where they have resided together
for the past six months prior to the case. The competent court is the Family Court. In areas where there is no family
court, the Civil Court of First Instance acts as a family court.
These regulations reveal that consensual divorce does not only occur with the declaration of will of the parties,
but the judge’s function of supervision and protection of public order is essential.
2-) Conditions for Consensual Divorce
2.1. Minimum Duration of Marriage
For a consensual divorce to be granted, the marriage must have lasted at least one year. This
regulation aims to prevent hasty terminations and to give the spouses time to reflect. The one-year
period begins on the official marriage date. Consensual divorce cannot be pursued before this period
expires; in this case, a contested divorce case must be filed.
2.2. Declaration of Joint Will
A consensual divorce can be filed by both spouses jointly or by one spouse’s acceptance
of the other. The parties must agree on all the consequences of the divorce and clearly
express their will.
2.3. Judge Hears the Parties in Person
The judge must ensure the parties’ presence in person at the hearing and ensure that their wills are
freely expressed. Simply submitting a statement through their attorney is not sufficient. This
obligation is related to public order and is fundamental to the validity of the consensual divorce
decree.
2.4 Financial Consequences of Divorce and Arrangements Regarding Children
The parties must draft a protocol outlining the financial consequences of the divorce (such as alimony, material
and moral compensation), and matters concerning the children’s future. The judge is responsible for reviewing
this protocol and approving it. If deemed inappropriate, the judge may make changes and, provided the parties
agree to these changes, grant a divorce.
3-) Legal Nature and Content of the Protocol
One of the most important elements of a consensual divorce is the divorce protocol
agreed upon by the parties and submitted to the court. This protocol is essential for a
divorce decree to be issued. The protocol must detail the following:
Regulations Regarding Children:- To which party will custody be given?- Personal relationship calendar with the other parent,- Amount and payment method of child support.
Financial Regulations:- Poverty alimony,- Household goods- Jewelry- Claims for material and moral compensation,- The method and time of making these payments.
Property Regime Agreements (Optional):- The parties may make an agreement on the division of property acquired during the marriage.- However, these regulations do not bind third parties and do not prevent the filing of a property regime
lawsuit.
The protocol becomes effective upon the finalization of the divorce decree. The parties may
rescind or amend the protocol before it becomes final. This demonstrates the dynamic nature
of consensual divorce.
4-) The Judge’s Supervisory Duty
The judge’s duty in a consensual divorce is not limited to approving the parties’ will. The judge is particularly responsible for
considering the best interests of the children. In this context, the parties’ agreements are not binding on the judge. The
judge may, on his or her own motion, change any provisions deemed inconsistent with the child’s best interests.
These changes made by the judge become valid only if the parties accept them. In this respect, consensual
divorce has a hybrid structure that ensures both the autonomy of the parties and the preservation of public
order.
5-) Custody, Alimony and the Best Interest of the Child
The child’s best interests are the fundamental principle in all child-related arrangements. The child’s physical,
psychological, and social development are taken into account when determining custody, child support
arrangements, and child support payments.
If circumstances change after the divorce is finalized, custody or relationship arrangements
may be reconsidered. For example, adverse changes in the custodial parent’s living
conditions may necessitate a change in custody. This demonstrates that the mutually
agreed-upon divorce agreement is not absolutely binding.
6-) Supreme Court Jurisprudence and Application Principles
The Supreme Court has set forth various principles regarding consensual divorce cases:- The protocol becomes effective when the divorce decree becomes final. It is possible for the parties to withdraw from the
protocol before it becomes final.- Changing custody does not automatically invalidate the other provisions of the protocol.
If the best interests of the child require it, custody changes can be made even shortly after the divorce decision
becomes final.- The failure of the parties to appear in person at the hearing is grounds for annulment of the decision.
These principles reveal the Supreme Court’s approach that consensual divorce should not be
left solely to the will of the parties.
7-) Differences Between Consensual and Contested Divorce
Criteria
Consensual Divorce
Trial Period
Proof of Fault
The Role of the Judge
Expenses
Usually a single session, short duration
Not necessary
Inspection and approval
Impact on the Child
Lower cost
Less traumatic
Contested Divorce
Long trial process
Necessary
Evaluating faults and evidence
More conflict and psychological impact
Higher cost
😎 Conditions Required to File a Consensual Divorce Case: A-) The marriage
relationship must have lasted at least 1 year.
B-) Spouses must apply to court together, or one spouse must accept the other spouse’s divorce petition. C-)
The parties must declare their will to divorce before a judge.
D-) The judge must approve the arrangement regarding the financial consequences of the divorce and the situation of the children.
Conclusion
A consensual divorce is a special type of divorce that represents a balance between the parties’ freedom
of will and public order. It allows the parties to end their marriage by mutual consent, while the judge’s
oversight authority protects the best interests of children and social order.
In practice, drafting a detailed and clear protocol is crucial to preventing future disputes.
Clearly regulating matters such as custody, alimony, and property division is crucial for the
future of both the parties and the children.
Consensual divorce offers a quick and economical solution, backed by judicial guarantees. In this
respect, it remains an effective institution in family law, ensuring both the autonomy of the parties
and the preservation of public order.
MOST CURIOUS ABOUT CONSENSUAL DIVORCE CASES
THINGS TAKEN
1-) What are the basic conditions for consensual divorce?
The marriage must have lasted at least one year, the spouses must have agreed on the divorce, financial consequences, and
matters related to the children, a protocol must be prepared, and the parties must be heard in person by the judge. 2-) Which
spouse can file for a consensual divorce?
Either spouse can file a lawsuit, and the other spouse’s acceptance of the lawsuit is sufficient.
3-) Is it mandatory for the parties to attend the hearing?
Yes. The judge must hear the parties in person; otherwise, the divorce cannot be decided. 4-) How
long does a consensual divorce take?
If the parties agree, the case is usually concluded in a single hearing and it is possible to complete the process within a
few weeks.
5-) Can a consensual divorce case turn into a contested one?
Yes. The parties may waive this will until it is finalized, in which case the case becomes a contested
divorce.
6-) Can a consensual divorce be made without a lawyer?
Theoretically, it can be done, but due to the risk of protocol and process errors, legal assistance is
recommended. 7-) Can poverty or moral damages be claimed after divorce?
No. If such requests are not agreed upon in a consensual divorce, they cannot be filed later.
😎 Can child support be requested after the divorce?
Yes, even if child support is not included in the protocol, it is permitted later. 9-) Is
it possible to change custody?
Yes, even after a mutually agreed-upon divorce, it is possible to change custody if it is in the best interests of the child. 10-) If a
decision regarding the property regime has not been made, can a lawsuit be filed later?
Yes, if the property regime is not regulated during the divorce, a property division lawsuit can be filed later. 11-)
Can a consensual divorce lawsuit be filed during the judicial recess?
Yes, it can be filed, but the hearing will be held after the end of the judicial recess (unless required by urgency).
12-) How are expenses and attorney fees regulated?
The parties must reach an agreement; fees and attorney fees are determined according to the
agreement. 13-) Is it possible to divorce by mutual consent with a foreign spouse?
Yes. A divorce case can be filed in Türkiye, regardless of Turkish citizenship. 14-)
Should the sharing of household goods be included in the protocol?
Yes, all material items, including household goods and jewelry, must be clearly included in the protocol.
15-) Can the judge make changes to the protocol?
The judge may propose changes to articles that he/she deems inappropriate for public order and the best interests of the child, and may decide on
them, provided that the parties accept them.
COURT OF APPEALS DECISIONS REGARDING CONSENSUAL DIVORCE CASE
1-) Supreme Court of Appeals 2nd HD – Docket: 2016/21325, Decision: 2017/1208 (Submission of a New Divorce Protocol After
the Court Decision);
“…According to the protocol dated 05.09.2013, it was decided that the child support payment of 1,000 TL would be taken from
the defendant and given to the plaintiff, that it would be increased by 10% each year in the month following the month in
which the decision became final and that the protocol dated 05.09.2013 would be approved. After the second verdict, the
plaintiff woman appealed the verdict and submitted the agreement protocol dated 08.06.2016 and requested that the verdict
be overturned according to this protocol.
With the agreement protocol dated 08.06.2016, it was accepted and undertaken that the real estate regulated in the divorce
decision dated 08.09.2015 and the real estate located in the title deed as …., parcel 17322, page 12 will be transferred to the
child of the parties … and will be recorded and registered in the title deed, the real estate will be used free of charge by the
plaintiff woman until the date of registration and registration in the name of the joint child, and the 1000 TL child support paid
by the defendant man for the joint child will be paid as 1200 TL.
According to the actual situation, the decision had to be overturned and a new decision had to be made, taking into
account the agreement protocol dated 08.06.2016, which was issued after the date of the decision.
2-) Court of Cassation 2nd Civil Chamber – Decision: 2018/14800 (Will for Divorce in Consensual Divorce Case);
“…As a result of the trial of the lawsuit filed by the plaintiff, on November 30, 2015, the parties were
ordered to divorce by mutual consent pursuant to Article 166/3 of the Turkish Civil Code. The court’s
reasoned decision was notified after more than two years. Upon notification to the defendant woman
on March 13, 2018, the defendant appealed the decision within the timeframe. In his appeal petition,
the defendant claimed that they had decided to abandon the divorce and continue their marriage.
Notifying the decision after a long period of two years not only demonstrates that the parties’ marital
union has not been shaken to its core, but also violates the principle of honesty 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 blatant abuse of a right. In the face of this situation, it was
determined that the will to divorce was not sincere, and the case was dismissed. “The verdict had to be
overturned…”
3-) Supreme Court of Appeals 2nd HD – 2018/15333 K. (Will for Divorce in Consensual Divorce Case);
“…As a result of the trial of the case filed by the plaintiff man, a decision was made dated 09.11.2010
for the parties to divorce by mutual consent. The court’s reasoned decision was notified after eight
years. Upon notification to the defendant woman on 19.04.2018, the defendant appealed the decision
within the time limit. The defendant claimed in his appeal petition that “they did not receive the
reasoned decision by mutual consent, everyone considered them married, they lived in the same
residence with their children until April 2018 and the union continued, they did not want a divorce and
requested the annulment of the decision.” The notification of the decision after a long period of eight
years is contrary to the principle of honesty 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, it is concluded that the will to divorce is not sincere.
Since it was understood that the case was dismissed, the judgment had to be overturned…”
4-) Supreme Court of Appeals 2nd Civil Chamber – Decision: 2018/15024 (Conversion of Contested Divorce into
Consensual Divorce Case);
“…The plaintiff filed for divorce on August 28, 2015, pursuant to Article 166/1 of the Turkish Civil Code. On
March 1, 2016, the parties drafted a protocol in the case file, converting the contested divorce case into a
consensual divorce case. Although the court granted a consensual divorce based on Article 166/3 of the
Turkish Civil Code, it was not appropriate for the court to issue a written judgment, assuming that there
was a reconciliation of wills, despite the parties not fully agreeing on the divorce and its ancillary matters.
The existing agreement was also annulled upon the plaintiff’s appeal. Given this situation, the case between
the parties must be re-evaluated as a contested divorce case pursuant to Article 166/1 of the Turkish Civil
Code. Therefore, the court, taking into account the scope of the current case, proceeded with the trial
within the framework of Article 166/1 of the Turkish Civil Code, collected the evidence presented in a proper
manner, and overturned the judgment, with a view to reaching a decision based on the outcome.” “it was
necessary…”
5-) Court of Cassation 2nd Civil Chamber – Decision: 2018/14612 (Declarations of the Parties Regarding the Consensual Divorce Protocol
Must Be Obtained);
“…The verdict given in the divorce case between the parties was appealed by the defendant man, and with the decision
numbered 2016/21742-2018/2462 of our Chamber, “Although the divorce decision given by the court to the parties pursuant
to Article 166/1 of the Turkish Civil Code was appealed by the defendant, it was understood from the petition dated 01.02.2018
addressed to the Court of Cassation before the appeal review that the parties had drawn up a protocol regarding the divorce,
its financial consequences and the situation of the common child. Taking this protocol into consideration, the verdict had to be
overturned in order to decide in accordance with the result after the parties’ personal statements were taken.” The court
overturned the annulment on the grounds that, although the court complied with the annulment decision, the parties’
statements were not taken in person, taking into account the protocol for consensual divorce. In the face of this situation, the
court’s requirements for the annulment decision, which was followed, were not fulfilled. Therefore, while the court should
have taken the parties’ statements in person, in accordance with Article 166/3 of the Turkish Civil Code and the annulment
decision, in accordance with the protocol for consensual divorce, the acceptance of the parties’ attorneys’ excuses and the
decision for consensual divorce without taking the statements of the plaintiff and defendant in person, are contrary to
procedure and law, and necessitate annulment.
The Importance of Legal Support
Consensual divorce cases require technical knowledge, legislative expertise, and deep expertise in judicial
practices. While the legal provisions are clear, each case has its own unique circumstances, and even a
small mistake can lead to loss of rights. Therefore, working with an experienced attorney from the
beginning of the process is crucial to determining the right strategy, protecting your rights, and achieving
the swiftest resolution.
It’s important to remember that every step taken during the litigation process has legal and financial implications. A
professional lawyer will guide you not only in preparing the petition but also in gathering evidence, representing the
court, negotiating, and pursuing potential alternative solutions.
In order not to risk your rights and to manage the process safely, it is recommended that you consult a
specialist lawyer.