What Is Divorce by Mutual Consent?
Under the Turkish Civil Code, divorce by mutual consent is regulated as a specific form of divorce based on the fundamental disruption of the marital union. Divorce by mutual consent may come into play if the marriage has lasted at least one year and the spouses apply jointly, or one spouse files for divorce and the other accepts it. However, a mere statement by the parties that they “want to divorce” is not sufficient.
The judge must personally hear the parties and be convinced that their intention to divorce has been freely declared, and must approve the arrangements concerning the financial consequences of the divorce and, if applicable, the situation of the children.
What Can Be Regulated in a Divorce by Mutual Consent Protocol?
In practice, the matters on which the parties have agreed are submitted to the court in a divorce by mutual consent protocol.
Depending on the specifics of the case, the protocol may address:
- Child custody,
- Contact arrangements with the child,
- Child maintenance,
- Spousal maintenance,
- Material and non-pecuniary damages,
- The status of belongings and personal property,
- Litigation costs
and similar matters.
However, it is important that the wording used in the protocol be clear. In particular, general expressions concerning the division of matrimonial property, immovable property, vehicles, wedding jewellery, or other claims between the parties may later give rise to differing interpretations.
Is the Judge Required to Accept the Protocol as Is?
No.
Under Article 166 of the Turkish Civil Code, the judge may propose to the parties such amendments as he or she deems necessary, particularly with regard to arrangements concerning the interests of the children and the financial circumstances of the parties. For the divorce by mutual consent to take effect, the proposed amendments must also be accepted by the parties.
Therefore, the protocol should not be regarded as an ordinary contract signed between the parties. It must be approved by the court and form the basis of the judgment.
Is It Necessary to Set Out Every Matter in the Protocol?
The parties must genuinely have agreed on the consequences of the divorce. However, particular care should be taken as to how matters that may give rise to separate legal consequences, such as the division of matrimonial property, are regulated.
For example, a general clause stating merely that “the parties have no rights or claims against each other” may later become a subject of dispute as to which claims it covers.
Therefore, it is important that the protocol clearly reflects the true intention of the parties.
Conclusion
Divorce by mutual consent is a form of proceedings based on the parties having reached a prior agreement on many matters, in contrast to contested divorce. However, the fact that the process may be shorter does not mean that the legal consequences of the protocol are insignificant.
Since provisions relating in particular to child custody, maintenance, compensation and property may have long-term consequences, the content of the protocol should be assessed in light of the specific circumstances of the case.
Related practice area: For more detailed information on this subject, you may visit our Family Law page.
This article is intended for general legal information purposes only. Each dispute should be assessed in light of its own specific circumstances.