Avukat Ceren ÇETİNTAŞ
Stajyer Avukat Fatma SARI
What is an Uncontested Divorce?
Marriage is an institution in which spouses unite their lives with the mutual will of the spouses with the aim of becoming a family by nurturing the belief of being long-term. In the family institution, which is one of the most valuable concepts of the society, if the parties’ continuation of the shaken marriage union harms individuals, especially children, it is of great importance for the health of the society to terminate it with mutual will. At this point, the way of ‘uncontested divorce’, which is offered to the spouses in the Law but subject to certain conditions, means that the spouses end the marriage union by compromising with their mutual free will. The case of uncontested divorce is regulated in the Law as follows;
Article 166/1 on TMK- “If the marriage union is shaken to such an extent that they cannot be expected to maintain a common life, either spouse may file for divorce”
The legislator has prevented the spouses from illegally ending their marriage unions that have gone wrong and shaken, prevented them from sharing the same life compulsorily and ensured the protection of a public health that is open to deterioration by law with this regulation under the title of ‘Shaking of the Marriage Union’. The spouses have the right to divorce by peaceful settlement before the law, under the conditions that they have decided and determined in advance, with the help of the uncontested divorce protocol to be prepared in this direction. As a result, the wills of the parties are superior, and these wills are protected by law and the personal rights of individuals are prevented from being harmed by granting the right to uncontested divorce. The realization of an uncontested divorce before the court is subject to certain conditions and regulations in the Law;
Article 166/3 on TMK- “If the marriage has lasted for at least one year, if the spouses apply jointly or if one spouse accepts the other spouse’s lawsuit, the marriage union is deemed to be shaken from its foundations. In this case, in order for a divorce to be granted, the judge must hear the parties in person and be convinced that their wills have been freely expressed and approve the arrangement to be accepted by the parties regarding the financial consequences of the divorce and the status of the children. The judge may make the changes s/he deems necessary in this agreement by taking into consideration the interests of the parties and the children. If these amendments are accepted by the parties, divorce shall be granted. In this case, the provision that the admissions of the parties shall not bind the judge shall not apply.”
As it can be understood from the regulation, if the conditions listed in this article are met, the judge will not investigate whether the marriage union has actually shaken without considering the fault of the parties and will decide on an uncontested divorce in line with the will of the parties. With the finalization of the divorce protocol, it becomes binding for the parties, including its financial consequences. For this reason, the preparation of the divorce protocol by a lawyer is of great importance in order to prevent the parties from losing their rights.
Conditions of Uncontested Divorce
a-) The marriage must have lasted at least one year.
According to Article 166/3 of the Law No. 4721, in order to file an uncontested divorce case, 1 year must have passed from the date of the official marriage until the date of filing the divorce case. In other words, the condition of being married for 1 year in order to decide on an uncontested divorce must have expired on the date of the lawsuit. Otherwise, or if the 1-year period expires during the continuation of the case, OĞUZMAN/DURAL is of the opinion that the case should be dismissed without examining the other conditions. In an uncontested divorce case, if it is realized that the 1-year period has not expired as of the date of the lawsuit, the case can be continued as a contested divorce case. This period regulated by the legislator aims to protect the unity of marriage, to ensure that the spouses get to know each other and to prevent them from making sudden decisions to divorce. Otherwise, it is thought that this would not be in line with the sanctity of the institution of marriage, which is ‘desired to last for life’. This 1-year period will be investigated by the judge and if there is a violation of this regulation, the judge will not decide for an uncontested divorce. However, the parties are not obliged to spend the period regulated by the law together and share the same life. In order for the institution of uncontested divorce to arise; in addition to the fact that the marriage of the parties has completed a period of at least one year, the spouses’ will for uncontested divorce must be united and as a result, they must apply to the Family Court together or the defendant spouse must accept the uncontested divorce case filed as a result of the application of one of the spouses. Accordingly, for example, a couple who got married on 09.08.2021 will not be able to divorce according to the provisions of Article 166/3 of the TMK, since the one-year period sought by the Law has not passed with a lawsuit filed as a result of their agreement on 09.10.2021 by expressing their will to divorce.
The condition of being married for at least 1 year is not a condition of the lawsuit, but when it is evaluated together with the application of one of the spouses or the acceptance of the uncontested divorce case filed as a result of the application of one of the spouses by the defendant spouse, it is accepted as a presumption that the marriage union has been fundamentally shaken. In addition, the judge cannot investigate fault in an uncontested divorce case.
b-) Joint application of the parties or acceptance of the case filed by one of the spouses by the other spouse
I-) Spouses Applying Together
In Article 166/3 of the TMK, the legislator has regulated that this lawsuit can also be filed through the joint application method by regulating the ‘Joint Application of the Spouses’. Although there are different opinions on this issue in the doctrine, it should be accepted that the joint application is a one of a kind (Sui generis) case. In this respect, we are of the opinion that the spouses who apply for uncontested divorce together have the title of both plaintiff and defendant. However, if the spouses have filed a lawsuit together, if one of them waives the lawsuit, the other spouse’s lawsuit will remain pending.
Another important issue in this regard is that in cases where the spouses who want to divorce by using the uncontested divorce method are based on Article 166/3 of the TCC No. 4721, then a single application fee will be sufficient. As a matter of fact, the decision of the 2nd Civil Chamber of the Court of Cassation dated 09.04.2002 and numbered 4194-4994 ruled that a single application fee should be collected from a lawsuit petition;
“Husband and wife wrote their petition for divorce together. Pursuant to the tariff numbered one of the Fees Law, a single application fee was paid. The fact that a second application fee has not been paid by the husband does not mean that his case is not accepted.”
If the spouses have applied for an uncontested divorce case together, the uncontested divorce case can be heard during the judicial vacation.
II-) A Lawsuit Filed by One of the Spouses and the acceptance by the Other Spouse
Spouses do not have to apply for an uncontested divorce together. It is also sufficient for the other spouse to accept the lawsuit filed by one of the spouses. Spouses can obtain an uncontested divorce in a case filed in accordance with Article 166 of the TCC, i.e., the general grounds for divorce, and at any stage of the case. Namely, if one of the parties in a contentious divorce case filed due to the shaking of the marriage union from its foundations accepts the case at any stage of the judicial process, the case changes its form and becomes an uncontested divorce. Again, at the appeal stage of the case, the arrangement to be taken as a basis for uncontested divorce can be presented. However, the other spouse must accept the lawsuit filed by one of the spouses freely and without pressure. We have said that the case can be converted into an uncontested divorce case in every case filed based on general reasons for divorce, but in the divorce, case based on special reasons for divorce, if the defendant accepts the case during the continuation of the case, the parties cannot realize the uncontested divorce case, and in this case, uncontested divorce will be possible with a duly made amendment.
c-) The parties’ declaration of intention with their free will and the judge listening to the parties in person
Since the right to file a lawsuit in a divorce case is one of the rights strictly attached to the person, the right to decide to file a lawsuit belongs to the spouses. However, this case can be filed by attorneys. The important thing is that the parties in the uncontested divorce case declare their statements with their free will and the acceptance is not realized under pressure. If one of the spouses expresses his/her reluctance to divorce during the hearing, the judge has the obligation to fulfill his/her duty of supervision diligently. In this regard, the decision of the Court of Cassation General Assembly of Civil Chambers dated 2.11.1994 and numbered E.2-406, K.685 is as follows;
“During the trial of an uncontested divorce case, the court ruled that if the defendant, who accepted the divorce case filed before, reversed his acceptance in the next hearing by stating that his previous acceptance was not with free will, the court could not issue an uncontested divorce decision.”
In addition, the minutes of the hearing must be read and signed by the parties. Failure to fulfill these conditions will lead to lack of form and will be considered as a reason for dismissal of the case. In order for the divorce decision to be made by the judge, the judge must personally listen to the spouses and reach the conclusion that the parties have expressed their free will, free from any pressure. At this point, it can be said that the judge has a wide discretionary power.
In some cases, one of the parties may pressure the other party to accept the terms in the uncontested divorce protocol by showing behaviors that may paralyze the will of the other party. Sensing such a situation, the judge may listen to the parties separately if he deems necessary. Ultimately, the spouse under pressure will have the opportunity to express himself/herself more comfortably.
In order to decide on an uncontested divorce, the parties must be heard in person. As a matter of fact, the parties should be heard in the same court, in front of the same judge and at the same time. The hearing of the parties in person in the uncontested divorce case is related to public order and the hearing of the spouses through instructions is not valid. However, in the uncontested divorce case, the parties may attend the hearing and be heard from their location by means of audio and video transmission, provided that the parties consent. Therefore, it is not sufficient for the judge not to hear the parties but only the attorneys. In cases where the parties are not heard in person and they are represented by an attorney, it is accepted that the “condition of being heard in person” is not met. As a matter of fact, Y.2.H.D, 29.09.2005 T. 10528 E. and 13106 K. numbered decision is as follows
“If the parties are present and do not declare their agreement in person or if the judge does not find the agreement of the parties appropriate, as a result of asking and collecting the evidence from the parties, it is necessary to appreciate whether the marriage union has been shaken from its foundations within the framework of Article 184 of the Civil Code, but it is contrary to the procedure and the law to have established a divorce judgment with incomplete examination by being satisfied with the statement of the attorneys of the parties without hearing the plaintiff and the defendant.”
d-) Judge’s approval of the agreement which accepted by the parties
Divorce has an important position in the law in terms of its consequences in Family Law and has been a subject of research and curiosity for years. Because the terms of the agreement to be accepted as a result of the divorce will affect the parties and most importantly the children’s lives after the marriage. Financial issues and the status of children play a major role in the consequences of divorce. The acceptance of the uncontested divorce protocol by the parties is not enough, the parts of the protocol related to public order must also be accepted by the judge. It is undisputed that there is a principle of the best interest of the child in matters such as determination of custody, child support and personal relationship, and that the protocol will of the parties is not sufficient in these matters, and that the judge has the authority to supervise the protocol within the scope of this principle. The judge may use this authority by completely removing the matter contrary to public order or by making it compatible with public order. However, if the agreement protocol does not include an interim alimony, an interim alimony cannot be ordered for the spouse and child against the request.
The protocol does not have to be in writing. However, in order to prevent the spouses from making sudden decisions and to create more opportunity to think, the lawmaker has preferred the written protocol. Again, the verbal agreement must be recorded in a minute and signed by both spouses. The uncontested divorce protocol must be prepared with the free will of the parties. At this point, if there is any violation of will or coercion from one of the spouses against the other, the judge is obliged to observe and investigate this and has a wide discretionary power. The decision of the Court of Cassation General Assembly of Civil Chambers, E. 2017/2-1941, K. 2019/475, T. 18.4.2019 is as follows;
“The parties filed a lawsuit by agreeing on an uncontested divorce and the terms of the protocol, and after the uncontested divorce, the defendant appealed the decision and claimed that the plaintiff deceived him with fraudulent behavior and was forced to get an uncontested divorce. Although the appellate court expressed the opinion that the case should be continued according to the current situation after the existence of the fraud of will and that the case should not return to the contentious case, this opinion was not accepted by the majority and the common opinion was adopted that the case should return to the contentious case.”
As can be understood from the relevant Court of Cassation decision above, the scope of the judge’s responsibility is limited to the determination of the situations that impair the will, not to determine the reasons leading to divorce.
The judge may make changes in the protocol made by the parties at the points s/he deems necessary. For example, the judge may increase the alimony by intervening in the amount of alimony that he finds low due to the interests of the child. However, if the matter that the judge wants to change is not accepted by the parties, an uncontested divorce cannot be decided.
e-) In the uncontested divorce protocol, it is necessary to reach an agreement on every issue.
In the text regulating the uncontested divorce, there must be a full agreement on the financial consequences of the divorce. Article 174/1 of the TMK (Civil Code), Article 174/2 of the TMK, Article 175 of the TMK, alimony is among the financial consequences of divorce and the parties must agree on these issues.
Also, in uncontested divorce, the parties should reach an agreement on child support, personal relationship, and custody regarding the status of the children. In order for the judge to decide on an uncontested divorce, the arrangement in the protocol regarding alimony must be found appropriate. Alimony requires the intervention of the judge as it necessitates the interest of the child. In this direction, if the parties agree on this issue or accept the judge’s recommendation, the parties can divorce by agreement, otherwise the divorce case will continue as contentious in accordance with TMK 166/1-2. Again, the fact that the maintenance is not requested during the uncontested divorce does not constitute an obstacle to request it later, and for this reason, the spouse whose custody is given to him/her may request maintenance for the child later.
In order for the parties to divorce by agreement, the arrangement to be accepted by the parties regarding the personal relationship regarding the status of the children must be approved by the judge. Although the judge may make the necessary changes in the agreement by taking into consideration the interests of the parties and the children, the work to be done in this case is to make a proposal to the parties in this regard. If the proposal is not accepted or if the parties do not agree on a new arrangement that the court will find appropriate, the uncontested divorce case will be carried out as a contested divorce case.
In order for the parties to obtain an uncontested divorce, the arrangement to be agreed by the parties regarding the custody of the children must be approved by the judge. In order for the judge to decide on an uncontested divorce, the parties must agree on custody.
In addition, in the uncontested divorce case, the financial consequences of the divorce and the status of the children cannot be contrary to the law and cannot be conditional.
The results other than the status of the children and the financial consequences of the divorce, which are included in the scope of uncontested divorce, have binding consequences for the parties. In the case of uncontested divorce, if the judge listens to the parties in person and decides that they have expressed their free will; the arrangement that the woman will not use the surname of the man, the arrangement to assume the loan debt, the agreement to transfer the real estate, the agreement to pay rent and dues and other arrangements become binding for the parties.
Partial invalidity of the articles in the divorce protocol invalidates the entire uncontested divorce protocol.
In an uncontested divorce case, no decision can be made other than the arrangements in the divorce protocol. However, the judge may make changes that s/he deems appropriate for the benefit of the parties and children, and if these changes are accepted by the parties, an uncontested divorce takes place. Otherwise, the divorce will be contested in accordance with Article 166/1 of the TMK.
f-) The articles in the divorce protocol must be enforceable in an uncontested divorce case.
In order for the court to decide on divorce, the arrangements agreed between the parties must be enforceable. In this direction, the court should examine the records subject to the arrangement in order to decide on divorce, investigate the enforceability, the arrangement should be enforceable and should not cause any dispute. Again, if the transfer of immovable property has been arranged by the spouses, a registration decision should be made for this immovable property, and no fees are paid by the spouses for the registration decisions in the uncontested divorce case. In the arrangements regarding the inheritance in the uncontested divorce case, there must be the participation or permission of the heir, otherwise the arrangements are not valid and may be requested to be returned. The arrangements in the uncontested divorce case will not be valid and binding unless approved by the court. Again, the arrangements in the protocol in the uncontested divorce case can be made again unless the decision is finalized. In other words, in this case, a new protocol can be submitted, and a new arrangement can be made at the appeal stage. In this regard, the decision of the 2nd Civil Chamber of the Court of Cassation No. 2015/22286 E., 2017/1236 K. is also in this direction;
“The court accepted the divorce cases filed by both parties and decided for the divorce of the parties in accordance with Article 166/1-2 of the Turkish Civil Code and its accessories, and both parties appealed the decision in due time. It is understood from the petition dated 17.05.2016, which the parties addressed to the Court of Cassation before the appellate review, that they organized a protocol between them regarding divorce and its accessories. Taking this protocol into consideration, it is necessary to revoke the judgment to be decided in accordance with the result to be realized by calling the parties to the hearing and taking their statements in person.”
g-) Division of matrimonial property in an uncontested divorce case is not within the scope of the agreement.
The division of matrimonial property is not within the scope of the agreement unless the parties have separately agreed on the division of matrimonial property. Likewise, the financial consequences of divorce, such as pecuniary and non-pecuniary compensation and alimony, and the arrangements regarding the status of children do not include the requests for the division of matrimonial property.
h-) Requests can be made for regulation.
After the finalization of the uncontested divorce case, if there are justified reasons, it may be requested to change the arrangements. In this regard, the situation on the date of the arrangement must have changed extraordinarily and one of the parties cannot be expected to endure this situation. In this case, the amendment or annulment of the arrangements may be requested.
i-) Waiver in uncontested divorce case
The parties may file for divorce due to the breakdown of the marriage union, or they may not want to continue the case by waiving the lawsuit they have filed. It is possible to waive the case at every stage of the proceedings until the decision is finalized. This can be realized through a unilateral declaration of intent, during the hearing or by submitting a petition to the court without the approval of the other party. The decision of the 2nd Civil Chamber of the Court of Cassation dated 13.02.2014 and numbered 2013/20501 Esas, 2014/2688 Karar is as follows;
“The court decided to divorce the parties in accordance with Article 166/3 of the TMK due to the fact that the parties agreed on divorce and its ancillaries, and the judgment was appealed by the defendant with the petition submitted within the time limit. The plaintiff principal, with his petition dated 01.07.2013, stated that ‘he did not find the decision of the court appropriate’ and requested its reversal, and in the same petition, he stated that ‘he did not want a divorce’. Even if this petition is not in due time, the statement in the petition that he does not want a divorce is a waiver of the lawsuit. It is necessary to revoke the judgment in order to make a decision considering this issue.”
As can be understood from the above-mentioned Court of Cassation Decision, it is possible to waive the uncontested divorce case.
The institution of waiver has different consequences in terms of forgiveness in uncontested and contested divorce cases. In contentious divorce, the claims and reasons relied upon in the previously waived case are deemed to be forgiven and cannot be asserted. However, the party who waives the uncontested divorce case may rely on the previous claims and reasons in the new lawsuit. Therefore, if there is an uncontested divorce, the waiver does not constitute a pardon. In this regard, the decision of the 2nd Civil Chamber of the Court of Cassation dated 02.03.2020 and numbered 2020/548 E. 2020/1743 K. is as follows;
“In the concrete case, since the lawsuit previously filed and waived by the plaintiff-defendant woman was filed exclusively on the basis of Article 166/3 of the TMK, it does not mean that the uncontested divorce lawsuit forgives the facts before the date of the lawsuit, while it should be decided by considering this issue, it was not deemed correct to establish a written judgment with an erroneous evaluation, and it was necessary to decide to revoke the decision.”
The institution of marriage is formed as a result of the common will of two parties with the intention of establishing a family and sharing the same life for many years. However, with the weakening of the relationship in this institution due to various reasons, the spouses may wish to end their union by agreeing within the framework of respect, in other words, within the scope of uncontested judgment. At this point, the parties may terminate the marriage union by using the way of uncontested divorce with an agreement protocol prepared by themselves within the scope of TMK 166/3. Since determining the future living standards after divorce is of great importance for family members, this process, which is much more difficult especially for the children in the family, can be carried out in a respectful manner thanks to the institution of uncontested divorce.
- Atmaca Ülkü,Hande, Türk Hukukunda Anlaşmalı Boşanma Protokolü, Yeditepe Üniversitesi Sosyal Bilimler Enstitüsü, Doktora Tezi, İstanbul, 2017.
- Ergün,Zafer, Boşanma Davaları, Adalet Yayınevi, Ankara, 2009.
- Gençcan,Ömer Uğur, Boşanma Hukuk, Genişletilmiş 9. Baskı, Yetkin Yayınları, Ankara,2020.
- Yargıç,Zeynep, Türk Hukukunda Anlaşmalı Boşanma Davası ve Hukuki Sonuçları,(Yüksek Lisans Tezi), İstanbul Kültür Üniversitesi Lisansüstü Eğitim Enstitüsü, İstanbul, 2020.
Avukat Ceren ÇETİNTAŞ / Antalya Barosu
Stajyer Avukat Fatma SARI / Antalya Barosu