Consensual Divorce Protocol

Consensual divorce is regulated in Article 166/3 of the Turkish Civil Code (TCC) No. 4721. According to the provision, if the marriage has lasted at least one year, in case of joint application of the spouses or acceptance of one spouse's case by the other spouse, the marital union is considered fundamentally shaken. In this case, for a divorce decision to be made, it is mandatory that the judge personally listens to the parties and becomes convinced that their wills are freely expressed, and approves the arrangement to be accepted by the parties regarding the financial consequences of the divorce and the situation of the children.

The judge may make changes to this agreement that they deem necessary, taking into account the interests of the parties and children. In case these changes are accepted by the parties, a divorce is ruled. In this case, the provision that the confessions of the parties will not bind the judge is not applied.

Conditions of Consensual Divorce

The mentioned one-year period starts to run from the date of marriage, and it is not required that the spouses actually live together during this period. For married persons to be able to divorce by consensus, the spouses must jointly request the divorce or one spouse must accept the divorce case filed by the other. Another condition of this article is undoubtedly that the judge must personally listen to the spouses for consensual divorce to take place. The judge determines in this way whether the spouses have decided on divorce with their free will.

Legal Nature of the Divorce Protocol

The legal nature of the "agreement" element, which is one of the material conditions for deciding on consensual divorce, is controversial. It is accepted that the legal nature of this arrangement, which is often referred to as the "divorce protocol" in doctrine and judicial decisions, is a "contract". Since the divorce protocol is a contract, the rules regarding the establishment and validity conditions of contracts are also valid for the divorce protocol. The judge must investigate whether the agreement is contrary to morality, whether there is abuse and/or defect of will.

Competent and Authorized Court

The Family Court deals with all cases related to family law, primarily consensual divorce cases. Therefore, the competent and authorized court in divorce cases are Family Courts. However, if there is no Family Court in the region where the spouses reside, the Court of First Instance may also hear the case as a Family Court.

According to Article 168 of the Turkish Civil Code (TCC) No. 4721, the authorized court in divorce cases is the court of the place of residence of one of the spouses or the court of the place where they last lived together for 6 months before the case.

Nature of Final Judgment

On the other hand, according to Article 388 of HMK, although non-contentious judicial decisions do not constitute final judgment as a rule, it is accepted that the consensual divorce decision has the nature of a materially final judgment due to its innovative effect.

Court of Cassation 2nd Civil Chamber Decision

In the decision of the Court of Cassation 2nd Civil Chamber Case No. 2020/1714, Decision No. 2020/5488, it is stated: "Consensual divorce is regulated in Article 166/3 of the Turkish Civil Code and contains mandatory elements: the marriage lasting at least 1 year, the parties' agreement on divorce and its ancillary aspects such as custody, alimony (TCC 169-175) and material and moral compensation (TCC 174/1-2), and the acceptance of this agreement by the judge.

With the finalization of the consensual divorce ruling, the performances imposed on the parties in the divorce protocol become an inseparable part of the divorce, regardless of whether they are ancillary to the divorce. The reason for the performances imposed on the parties in the divorce protocol is also exclusively tied to the divorce ruling in accordance with the wills of the parties. For this reason, in disputes arising during the fulfillment of performances arising from the divorce protocol, there is no possibility of interpreting the matters written in the divorce protocol like private law contracts."

Consensual Divorce as Non-Contentious Judicial Work

Consensual divorce is accepted as a non-contentious judicial work as stated above. However, with the first instance court's divorce decision, the innovative lawsuit effect of the judgment emerges, and with the formal finalization of the judgment, the judgment now becomes binding. According to Article 387 of HMK, an appeal may be filed against the decision of the first instance court.

Real Estate Transfer and Maturity Problem

In case a maturity is agreed upon in the protocol, the acquisition of ownership or limited real right cannot be realized through a court decision (TCC Article 705/II), which is one of the cases of acquisition without registration. On the other hand, if it is accepted that such a divorce ruling "imposes an obligation" on one of the spouses to transfer ownership or establish a limited real right, if this obligation is not fulfilled despite the expiration of the relevant maturity, no other legal way is left to the creditor spouse than filing a second lawsuit.

This lawsuit is also a lawsuit based on the provision of TCC Article 716/II, in which the plaintiff requests the court to transfer ownership to themselves or establish a limited real right in their favor.

Court of Cassation 1st Civil Chamber Decision

Regarding the issue, according to the Court of Cassation 1st Civil Chamber's Decision based on Case No. 2011/5893, Decision No. 2011/6616: "In order for the registration to be made in the name of the plaintiff in the divorce decree, the following statement was placed in Article 4 of the judgment: 'In accordance with the agreement between the parties, as compensation for the plaintiff party's material and moral compensation claims, the real estate with an area of 2532.63 square meters with a land share of 1024/2400 parcel number A1 registered in the land registry in the name of the defendant shall be transferred to the plaintiff in the land registry by the defendant without any price until the end of working hours on the day the transfer ban is lifted.'

However, it is understood that although the transfer ban period has expired, the defendant did not go to the land registry to make the transfer. In this situation, there is no other coercive way to make the defendant go to the land registry and perform the transaction." Thus, it was concluded that a second lawsuit must be filed to force the defendant who avoids the transfer transaction in the land registry to transfer. Because one of the most basic principles of land registry law is that land registry transactions subject to condition or maturity cannot be performed.

Withdrawal from Divorce

Finally, after filing a consensual divorce case, the parties may give up on divorcing. The plaintiff who filed the consensual divorce case can present their statement that they have waived the divorce case to the court where they filed the case, either by petition or orally during the hearing.

Conclusion

The consensual divorce protocol has the nature of a contract in which the spouses reach an agreement on divorce and its financial consequences. For the protocol to be valid, the marriage must have lasted at least one year, the judge must personally listen to the parties and approve the agreement. In case of non-fulfillment of performances such as real estate transfer specified in the protocol, the creditor party may be forced to file a separate lawsuit.