Uncontested Divorce and the Settlement Protocol

The statutory basis: Civil Code art. 166/3

Uncontested divorce is governed by the third paragraph of article 166 of the Turkish Civil Code no. 4721. The paragraph sits within the general provision on the irretrievable breakdown of the marital union.

Under it, where the marriage has lasted at least one year, the union is deemed to have broken down irretrievably if the spouses apply jointly or one spouse accepts the other's claim.

This is a statutory presumption: once the one-year period has elapsed and the parties are in agreement, the judge does not separately examine fault. Our work in family law files is described on the Antalya divorce lawyer page.

How is the one-year period calculated?

Time runs from the date of the civil marriage. Neither a religious ceremony nor the date on which the couple began living together is taken into account.

Where an uncontested divorce claim is brought before the year has elapsed, the judge cannot grant it despite the parties' agreement. Unless the claim is founded on one of the contested grounds, it will be dismissed.

In practice the period must have expired by the date the claim is filed. If an application is made too early, waiting and reapplying is usually the shorter route.

The length of any separation or period of living apart is not decisive for this requirement; the only criterion is the duration of the marriage.

The judge must hear the parties in person

The Code lays down two further conditions. The first is that the judge must be satisfied, having heard the parties in person, that their intentions have been freely expressed.

In practice this means the parties must attend the hearing themselves. Representation by a lawyer does not remove the obligation to be present.

The purpose is to allow the judge to assess directly whether the intention to divorce was formed under pressure. The judge may therefore also question the parties on the content of the protocol.

The second condition is that the judge must approve the arrangements agreed by the parties concerning the financial consequences of the divorce and the position of the children.

What should the protocol contain?

The Code does not prescribe a form for the protocol, but arrangements the judge is to approve are expected to cover all the consequences of the divorce.

Under the financial heading, it is appropriate to address maintenance for the spouse in need, pecuniary and non-pecuniary compensation, and the parties' claims arising from the matrimonial property regime.

Under the heading of the children, custody, child maintenance and personal relations should be settled. Recording contact arrangements with days, hours and handover location reduces later disputes.

Whether a claim omitted from the protocol may be pursued separately after the divorce becomes final depends on the nature of that claim. The scope of the protocol should therefore be considered carefully before signature.

Can the judge alter the protocol?

The Code is explicit: the judge may make such changes as are considered necessary, having regard to the interests of the parties and of the children.

Divorce is granted only where those changes are also accepted by the parties. If a change proposed by the judge is not accepted, an uncontested divorce cannot be granted.

In practice judicial intervention is most often seen in arrangements concerning children; adjusting the duration of contact to the child's age is a typical example.

Where the change is not accepted, the case continues as a contested divorce and the general rules of proof apply.

Admissions do bind the judge in this case

The closing sentence of the paragraph introduces an important procedural exception: the rule that admissions by the parties do not bind the judge does not apply in this case.

In family law proceedings the general rule is that the judge is not bound by the parties' statements and investigates of their own motion. In an uncontested divorce that rule is suspended.

The practical result is that the parties' joint statements are taken as the basis, and there is no need to hear witnesses or gather further evidence.

This exception is the principal reason why an uncontested divorce is markedly shorter than a contested one.

Where is the claim brought, and how long does it take?

The competent court is the family court. As to jurisdiction, the court of the domicile of either spouse, or of the place where they last resided together for six months before the claim, has jurisdiction.

Because the parties apply jointly in an uncontested divorce, no objection to jurisdiction arises. For spouses resident in Antalya, the file is heard by the Antalya family courts.

The duration depends on the court's caseload and on how quickly a hearing date is given. Judgment is generally delivered at a single hearing; drafting the reasoned judgment and the judgment becoming final take additional time.

A waiver of the right of appeal shortens the process. Once final and recorded in the civil register, the divorce takes effect.

Can a party withdraw from an uncontested divorce?

Until the judgment becomes final, either party may resile from the intention to divorce by agreement. The conditions for an uncontested divorce then cease to exist.

Withdrawal does not automatically lead to dismissal; the case may continue as a contested divorce. In that event the parties must put forward their allegations of fault and their evidence.

Signature of the protocol alone does not produce a binding result; the Code makes the divorce judgment dependent on the judge's conviction and on the parties' statements at the hearing.

Careful consideration of the protocol's content before signature is therefore the most effective way of preventing later disputes.

Frequently asked questions

How long must a marriage have lasted for an uncontested divorce?

Under article 166/3 of the Turkish Civil Code the marriage must have lasted at least one year, calculated from the date of the civil marriage.

Is attendance at the hearing compulsory?

The Code requires the judge to be satisfied, having heard the parties in person, that their intentions were freely expressed. Representation by a lawyer does not remove that requirement.

Can the judge change the protocol?

The judge may make changes considered necessary having regard to the interests of the parties and of the children. Divorce is granted only if those changes are also accepted by the parties.

What must the protocol cover?

It must settle the financial consequences of the divorce and the position of the children. In practice this means spousal maintenance, compensation, matrimonial property declarations, custody, child maintenance and personal relations.

Which court hears an uncontested divorce?

The family court is competent. Jurisdiction lies with the court of the domicile of either spouse or of the place where they last resided together for six months before the claim.

Are witnesses heard in an uncontested divorce?

The Code provides that the rule under which admissions do not bind the judge does not apply here, so as a rule no witnesses need be heard.

Can a party withdraw before the judgment becomes final?

Yes. Until the judgment becomes final either party may resile, in which case the conditions for an uncontested divorce cease to exist and the case may continue as a contested divorce.

What makes an uncontested divorce quick is not the parties' agreement but the completeness of the protocol. Failing to record contact arrangements with days and hours, or omitting a declaration on the matrimonial property regime, can give rise to a separate dispute after the divorce.

For the general route followed in files in Antalya and Konyaaltı, see the Konyaaltı lawyer page; to have a draft protocol reviewed, you may reach the office through the contact page.

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For further detail on the matters discussed here, see our Family Law page.

The information on this page is general in nature and does not constitute legal advice. You should consult a lawyer about your own situation.