As the name suggests, it is a type of lawsuit in which the spouses who want to end the institution of marriage reach an agreement on divorce. At the same time, the spouses should have reached an agreement on issues such as alimony, compensation, division of property, custody together with the divorce decision.
The uncontested divorce process, unlike the contentious divorce, ends in a single hearing and on the same day, and is the shortest and most convenient way to apply for separation. Contested divorce takes longer than uncontested divorce.
Conditions of Uncontested Divorce
– The marriage must have lasted at least one year: The parties must have been married for at least one year. This is because the process of uncontested divorce has not been made operational for marriages of less than one year by taking into consideration certain public and social benefits.
– The spouses must apply to the court together or one spouse must have accepted the other spouse’s divorce case: Spouses can request the termination of the marriage union by declaring their will for divorce to the court together.
– The Divorce Requests of the Parties must be based on Free Will and Opinion: The divorce will declared by the parties must be the product of the free will of the parties without being under any pressure and violence; the judge will listen to the parties and examine the wills regarding the divorce in question and determine whether these wills are based on a free opinion.
– A Regulation/Protocol must be prepared by the parties regarding the financial consequences of the divorce and the status of the children born within the marriage union: The spouses who declare their will to divorce by agreement must make an arrangement including the financial issues related to the marriage and, if children are born within the marriage, the financial and moral status of these children. Although, as a rule, no formal requirement is stipulated for this arrangement, when we look at the practice, it is seen that these issues are now regulated through written agreements under the name of “protocol”.
How to File an Uncontested Divorce Case?
After all issues related to divorce are discussed and a common decision is reached, a protocol is prepared with an uncontested divorce petition. One of the spouses can file the lawsuit (it does not matter who will file the lawsuit first); after the uncontested divorce petition is submitted, the other spouse must make a statement that he/she accepts the lawsuit and the protocol must be submitted.
After the divorce is finalised, the reasoned decision is expected to be written and after it is written, this decision is sent to the registry office. This procedure may take approximately 1 month.
Uncontested Divorce Protocol “Divorce Agreement”
Although there is no form requirement in the agreement protocols, in practice, it is observed that the protocols for uncontested divorce are prepared in “written” form.
Nature of Uncontested Divorce Protocol
In the relevant regulation in the Turkish Civil Code
“…the judge must listen to the parties in person and be convinced that their wills have been freely expressed and must 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 he/she deems necessary in this agreement by taking into consideration the interests of the parties and the children. In case these amendments are accepted by the parties, divorce shall be granted…”, the importance of the protocol to be prepared regarding the divorce is clearly ruled.
Scope of Uncontested Divorce Protocol
The protocol to be established regarding the divorce should include certain issues and should be drawn up in accordance with the conditions sought in the legislation. In divorce protocols
– Personal Information of the Parties: Name, Surname, Turkish Republic Identity Number
– Legal Residence Address of the Parties
It must be specified. Apart from these, the remaining issues are basically as follows;
v Will regarding the divorce: The parties should clearly state that they have decided to divorce with their free will without being under any pressure or influence and that they want to realise this decision.
v Custody, Custody of Joint Children and Personal Relations: If there is a joint child/children, it should be clearly stated to which of the parents the custody will be given. In our law, the interest of the child is a superior issue; the arrangement to be made should not be contrary to the best interests of the child and the most reasonable and beneficial environment that can be created both materially and morally should be provided to the child.
Alimony: The monthly contribution to be made to the child’s expenses by the spouse who does not have the right of custody is the subsidiary alimony, and it is possible to include the amount of this contribution and the payment schedule in the agreed divorce protocol. Similarly, poverty alimony is the payment of the monthly alimony amount agreed upon by the parties after the divorce to the party who has been granted this right in the protocol. Accordingly, if the parties request poverty alimony from each other upon divorce, the amount and payment schedule should be clearly stated in the protocol.
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Material and Moral Compensation: If the parties have claims for pecuniary and/or non-pecuniary damages from each other with the divorce, this issue should be clearly stated in the protocol both in terms of the amount and the payment schedule.
Status and Delivery of Personal Property: If the parties have personal belongings remaining in the joint residence or one party’s personal belongings remaining in the other party, what they are, when and how they will be delivered can be specified in the protocol.
Claims Regarding the Property Regime: With the dissolution of the marriage, the parties’ claims arising from the property regime under the name of value increase share receivable, participation receivable, equalisation receivable should also be clarified in the protocol.
Fate of the Common Residence: If there is a common residence where the parties stayed together before the dissolution of the marriage, the protocol may also specify who will stay in this common residence after the divorce.
Judicial Expenses and Attorney Fees: When and how the judgement expenses and attorney fees incurred in relation to the divorce in question will be paid by whom and how can be regulated in the protocol.
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