As the name suggests, this is a type of case where spouses who wish to end their marriage have reached an agreement on divorce. At the same time, the couple must also have reached an agreement on matters such as alimony, compensation, property division, and custody along with their decision to divorce.
Unlike contested divorce, the uncontested divorce process is completed in a single hearing on the same day and is the shortest and most appropriate way to separate. Contested divorce takes longer than uncontested divorce.
Conditions for Divorce by Mutual Consent
· The Marriage Must Have Lasted at Least One Year: The parties must have been married for at least one year. This is because, in accordance with the law, taking into account certain public and social benefits, the process of divorce by mutual consent is not applicable to marriages lasting less than one year.
· The Spouses Must Apply to the Court Together or One Spouse Must Accept the Other Spouse’s Divorce Petition: The spouses can request the termination of the marriage by jointly declaring their intention to divorce to the court.
· The Parties’ Requests for Divorce Must Be Based on Free Will and Conviction: The divorce intention declared by the parties must be the product of their free will, without any pressure or coercion; the judge will hear the parties and examine their intentions regarding the divorce and determine whether these intentions are based on free conviction.
· The Parties Must Prepare an Arrangement/Protocol Regarding the Financial Consequences of the Divorce and the Situation of Children Born During the Marriage: Spouses who declare their intention to divorce by mutual consent must make an arrangement covering financial matters related to the marriage and, if children were born during the marriage, matters concerning the material and moral situation of these children. Although, as a rule, no formal requirements are stipulated for this arrangement, in practice, it is now common for these matters to be set out in written agreements called “protocols.”
How is a Mutual Divorce Case Filed?
After all matters relating to the divorce have been discussed and a mutual decision has been reached, a mutual divorce petition and protocol are prepared. Either spouse can file the case (it does not matter who files first); after the petition for divorce by mutual consent is filed, the other spouse must declare that they accept the case and the protocol must be submitted.
After the divorce is finalized, the reasoned decision is expected to be written, and once written, this decision is sent to the registry office. This procedure can take approximately 1 month.
Mutual Divorce Protocol “Divorce Agreement”
Although there are no formal requirements for agreement protocols, in practice, protocols for mutual divorce are prepared in “written” form.
Nature of the Mutual Divorce Protocol
The relevant regulation in the Turkish Civil Code states:
“…it is essential that the judge personally hears the parties and is satisfied that their intentions are freely expressed and finds the arrangement to be acceptable to the parties regarding the financial consequences of the divorce and the situation of the children. The judge may make any changes deemed necessary to this agreement, taking into account the interests of the parties and the children. If the parties accept these changes, the divorce shall be granted…” This clearly stipulates the importance of the protocol to be drawn up regarding the divorce.
Scope of the Mutual Divorce Protocol
The protocol to be drawn up regarding the divorce must cover certain key issues and be organized in accordance with the requirements of the legislation. Divorce protocols must include:
· Personal Information of the Parties: Name, Surname, Turkish ID numbers
· Legal Residence Address of the Parties
In addition to these, the basic issues are as follows:
v Intent to divorce: The parties must clearly state that they have decided to divorce of their own free will, without any pressure or influence, and that they wish to proceed with the divorce.
v Custody, Joint Custody of Children, and Personal Relations: If there are joint children, it must be clearly stated which parent will be granted custody. In our legal system, the interests of the child are paramount; the arrangement must not be contrary to the best interests of the child and must provide the child with the most reasonable and beneficial environment, both materially and emotionally.
Alimony: The monthly contribution to the child’s expenses by the spouse who does not have custody is called alimony, and the amount and payment schedule of this contribution may be included in the prepared divorce agreement. Similarly, poverty alimony is the monthly alimony amount agreed upon by the parties after the divorce, which is paid to the party to whom this right is granted in the protocol. Accordingly, if the parties have claims for poverty alimony from each other upon divorce, the amount and payment schedule must be clearly stated in the protocol.
v Material and Moral Compensation: If the parties have claims for material and/or moral compensation from each other due to the divorce, this matter must also be clearly stated in the protocol, both in terms of the amount and the payment schedule.
v Status and Delivery of Personal Belongings: If the parties have personal belongings in the shared residence or if one party has personal belongings remaining at the other party’s residence, the protocol may specify what these belongings are and when and how they will be delivered.
v Claims Related to the Property Regime: If the parties have claims arising from the property regime, such as claims for a share of the increase in value, participation claims, or equalization claims, following the termination of the marriage, these should also be clarified in the protocol.
v Fate of the Shared Residence: If the parties had a shared residence where they lived together before the marriage ended, the protocol may specify who will remain in this shared residence after the divorce.
v Litigation Costs and Attorney Fees: The protocol may regulate who will pay the litigation costs and attorney fees related to the divorce, when, and how.