Divorce In Turkey: Process, Tips And Consequences

Divorce In Turkey: Process, Tips And Consequences

Yağmur Yıldız
Legal Intern

1. INTRODUCTION

Divorce is never an easy process both psychologically and legally. Especially for the ones live in a foreign country, it will definitely cause more question marks and uncertainties. With this article, we aim to explain main issues about getting a divorce in Turkey, alternative ways to get divorced, crucial points to be careful about and consequences of a divorce.

We would like to examine the types of consensual (uncontested) divorce in Turkey and contested divorce. Then, we will explain the procedure for filing the divorce cases of foreigners residing in Turkey. Today, especially with the development of transportation and communication, the number of marriages with a foreign spouse is increasing day by day. The increase in the number of marriages naturally creates an increase in the number of divorces, and in such a case, question marks occur about where the lawsuit shall be filed and which law will be applied. Therefore, we aim to clarify those issues in our article.

2. HOW TO GET DIVORCED IN TURKEY?

There are two ways to divorce in the Turkish legal system. If the spouses have agreed on the divorce and the terms of the divorce, they can divorce by “consensual (uncontested) divorce“. However, if there is a disagreement between the spouses on these issues, it will be possible for them to divorce through a contested divorce case.

Before explaining the legal details, we would like to share a simple table which represents main differences between those two ways of divorce:

Consensual (Uncontested) Divorce in Turkey Contested Divorce in Turkey
Easier Harder
Faster (Finished in weeks) Slower (Takes years)
Cheaper More Expensive
Secrets of the spouse remains as secrets Many private issues must be revealed to convince the court. Also trials are public
Less harmful for children More harmful for children
Helps to keep families’ and friends’ relationships more stable Effects families’ and friends’ relationships in a bad way

If the parties agree on terms of the divorce such as custody, alimony, division of property etc., divorce process ends in a short time with consensual divorce.

However, if a consensus can’t be possible between the spouses about the divorce and other issues, the parties (or a party who seeks for a divorce) should apply to the type of divorce called a “contested divorce”. For this reason, it is crucial that the contentious divorce process is carried out properly.

3. CONSENSUAL (UNCONTESTED) DIVORCE: THE DEFINITION AND THE PROCESS

The termination of the marriage relationship between the spouses with their free will is called consensual (uncontested) divorce. The provision regarding consensual divorce is in Article 166 of the Turkish Civil Code (TCC). The provision in this article does not include the element of fault and accepts the common will of the parties as enough reason for divorce. With consensual divorce, the spouses are given the opportunity to end the marriage union quickly, under simple and predetermined conditions.

3.1. CONDITIONS OF THE CONSENSUAL DIVORCE

In order to decide on consensual divorce in Turkey, four stages must be fulfilled:

1) The marriage union must last at least one year,

2) The spouses must apply for divorce together or the other spouse accepts the lawsuit filed by the other,

3) The parties must declare their free will to divorce in the presence of the judge,

4) The agreement made by the parties must be approved by the judge (Terms of this agreement must be proper according to Turkish Law).

We would like to explain those terms in details:

3.1.1. The Marriage Must be Lasted For At Least One Year

The first condition sought in a consensual divorce is that the marriage union must be lasted at least one year. If the marriage has not lasted at least one year, the judge will reject the divorce case without examining other conditions. When a lawsuit is filed for a consensual divorce, if the one-year period has not expired yet, but one year has expired before the decision is made, the proceedings will continue, and the divorce decision will be given. According to Article 142 of TCC; the one-year period begins to run from the beginning of the marriage.

3.1.2. The Spouses Shall Apply to the Court Together or One Spouse Shall Accept The Divorce Filed by the Other

Both spouses can mention and sign their divorce requests in the same petition and can repeat their signature and requests at the hearing. In addition, it is possible to submit the application of the spouses together to the court through their attorneys. The important thing here is that the will for divorce must be declared to the judge at the same time and at the hearing. According to Article 166 of TCC, the lawsuit filed by one spouse can be accepted by the other spouse and the divorce can be consensual accordingly. If the other spouse accepts at any stage, the request for divorce will turn into a consensual divorce. A statement of acceptance can be asserted at every stage of the case and trial.

3.1.3. The Judge’s Hearing of the Spouses

The judge’s hearing to the spouses is one of the mandatory conditions of the consensual divorce. By hearing the spouses by the judge, it is aimed to examine whether the parties are ready for divorce and whether the agreement is sanctionable. Thus, it is desired to determine whether a spouse (or a third person) force to the other spouse or influencing his/her will in an unlawful way. The judge is not obliged to investigate the reason that makes the marriage union unbearable.

The judge may listen to the spouses in a single session or in more than one session.  In order for the spouses to be heard in more than one hearing, the existing doubt should continue as to whether the spouses have declared their free will after the first hearing and whether the agreement is sanctionable.

It is possible for the spouses to be heard in the same session or in different session. The judge hears to spouses who want to divorce, first separately and then together. Spouses must be heard in person. The judge has the obligation to carry out all necessary research and examination as to whether the declarations are the result of the free will. The judge has a wide discretion in this matter.

3.1.4. Approval Of the Agreement by The Judge

According to Article 166 of the TCC; another condition required for a consensual divorce is that the spouses make a protocol (/an agreement) regarding financial issues and the situation of the children, and this arrangement is approved by the judge. However, there is no limitation on the subjects to be included in the regulation. The spouses can also add other issues in this agreement.  The agreement made by the spouses will not bear legal consequences unless approved by the judge.

The judge may make necessary changes in the arrangement submitted by the parties, considering the interests of the parties and the children. If the judge does not find the arrangement made by the parties appropriate, the judge makes the necessary changes, considering the interests of the parties and the children. The agreement will be valid only if the parties agree to these changes.

3.1.4.1. Content of the Agreement

The uncontested (consensual) divorce protocol is a technical text and should be prepared with the support of a lawyer. However, we would like to briefly give general information here:

a) Financial Issues

The financial issues to be arranged between the spouses include the material and non-pecuniary compensation and alimony demands, which the spouses can demand from each other. The fact that the parties state that they reserve their right to compensation in their agreement means that this problem should be resolved in the future. In this case, the conflict between the spouses continues. In this case, where there is no agreement between the parties on financial issues, it is not possible for the judge to decide on an consensual divorce.

b) Children’s Status

Which side will hold the custody of the child after the divorce, what kind of personal relationship will be established between the spouse who does not have custody, and the child maintenance to be paid for the child are the elements that should be included in the agreement. If there is a provision in the agreement between the parties stating that one of the spouses cannot file a lawsuit for the removal of custody in the future or demand the extension of the personal relationship with a lawsuit to be filed, this provision will be null and void as it violates the personal rights of the spouse who is under obligation.

In the case that the spouses have arranged regarding the division of matrimonial property in the agreement, the judge should examine in detail how this arrangement is made. If it is stated that the spouses will not demand from each other regarding the division of matrimonial property, in this case, if the judge hears to the spouses and decides that their will is in this direction, he will decide on a consensual divorce. In this case, the spouses will not be able to claim from each other later.

It is possible for spouses who divorce based on consensual divorce to conclude an agreement regarding the matrimonial home. In the absence of an agreement between the spouses, the spouse who has the right to own the matrimonial home has the right of disposition of the residence.

What Happens If a Party Gives up the Consensual Divorce Agreement: Conversion of a Consensual Divorce into a Contested Divorce

After the parties have filed a consensual divorce case according to article 166/3 of the Turkish Civil Code, if they disagree on one or more of the agreed matters or because of their statements at the hearing, the consensual divorce may not take place. In the case that a consensual divorce cannot decided, it is possible to turn the case into a contested divorce case with an amendment petition to be submitted to the court.

4. CONTESTED DIVORCE: THE DEFINITION AND THE MAIN POINTS OF THE PROCESS

As we mentioned in the “consensual divorce” part of the article, if the spouses mutually agree on issues such as alimony, compensation and custody, which are the legal consequences of a divorce, the parties can divorce quite quickly by agreement. However, if one or more of the above-mentioned issues cannot be understood, there will be a conflict for the parties. For example, if one of the parties wants a divorce, the other party does not accept the divorce, both parties want the custody of the children, or if there is no agreement on the amount of alimony, there will be a contentious divorce case. Contested divorce cases are the type of divorce case where the most loss of rights is experienced in matters such as alimony, custody, property, compensation. It is only possible to prevent such loss of rights with an effective process management. Therefore, it is recommended that individuals should file a divorce case with the support of a lawyer.

A contested divorce case is opened when one of the spouses submit any of the reasons for divorce through litigation. The reasons for the contested divorce case are divided into two as general and special reasons. The general reason is that the breakdown of marriage. We have touched about the breakdown of marriage above. The specific reasons for divorce are as follows:

  • Adultery
  • Attempt on life, spousal abuse, indignity
  • Committing a crime and live dishonorably
  • Abandonment
  • Mental illness

Except for general and special divorce reasons, if the parties cannot agree on the custody of the mutual child/children, if they cannot agree on alimony and compensation claims, if they cannot agree on the distribution of the acquired property, if one of the spouses does not want to get divorced, if the marriage lasts less than 1 year and for many reasons contested divorce can be filed. The reason for the divorce must be stated to the court when the divorce case is filed, and this reason must be proved.

4.1. Custody

In a contested divorce process, the main factor that determines the custody of the child is the interests of the child. In this case, if the judge decides that it is more important for the child to live with whom after the divorce, the custody is given to that person.

By making an effective defense, it may be possible to form a judge’s opinion that the child’s interests are to live with himself/herself.

4.2. Status of the Matrimonial Home During Divorce Process

While the contested divorce case is in progress, a decision about the status of the matrimonial home may be asked from the court. The court may allocate the matrimonial home to the party who is in need in terms of financial status or children’s accommodation. After the court’s allocation, the other spouse will not be able to demand the eviction of the spouse who uses the home while the divorce case is hearing.

A lawsuit may be filed against the spouse who does not leave the matrimonial home after the divorce case is over. In this case, damage can be compensated from the spouse who occupies the home unlawful.

4.3. Determination of Alimony

The amount of alimony is determined according to the economic and social conditions of the parties. After the lawsuit is filed, it will be requested from the court to investigate the economic and social situations of the parties by writing a warrant to the relevant places.

The important thing is to determine the amount of alimony, by taking into consideration the equitable principles in order not to decrease the financial situation of the alimony debtor and the welfare level of the other party.

4.4. Determination of Compensation

At the end of the divorce process, the non-faulty or less faulty party can claim compensation for the material/non-pecuniary damages incurred or to be incurred by the other spouse. In order to be entitled to compensation, it is required to be less faulty in terms of events that require divorce. While filing a contested divorce case and demanding financial compensation, the judge considers the other party’s ability to pay and decides on a compensation amount accordingly.

Non-pecuniary damages, on the other hand, can be claimed by persons whose personal rights have been damaged due to the facts that require divorce. For example, in divorce cases to be filed due to cheating, this issue should be proven, and it should be determined that personal rights and dignity are damaged due to cheating.

4.5. Divorce of The Foreigners in Turkey

The international jurisdiction of the courts in divorce cases is an issue that should be emphasized not only because it concerns foreigners, but also because it concerns Turkish citizens. Since divorce is a matter of family law, the attribution rule should be considered in determining the applicable law. In this context, Private International Law gets involved. However, there are international conventions on divorce: The Hague Convention 1902, the 1967 Convention on the Recognition of Decisions Regarding the Marriage Bond, The Hague Convention 1970 on the Recognition of Divorce and Separation Decisions…

In Turkey, it is possible for a foreigner and a Turkish person, foreigners with the same citizenship, and foreigners with different nationalities to get divorced. In this case, we are faced with the problem of which country’s law must be apply.

According to Article 14/1 of International Private Law (IPL) it is first checked whether the spouses have common citizenship. If the parties do not have a common habitual residence, Turkish Law is applied. In Turkey, the common national law will be applied to the divorce of two foreigners with common citizenship. The law of common habitual residence will be applied to the divorces of foreigners with different citizenships, if this is not the case, Turkish law will be applied.

In accordance with the general rule in Article 3 of the IPL, the common national law or the law of common habitual residence at the time of the lawsuit will be applied.

The law of common habitual residence of the parties will be applied to the divorce of a foreigner and a Turkish person in Turkey. If one of the spouses is Turkish and the other is a foreign citizen, it is possible for the foreign spouse to file a divorce case in their own country, and the Turkish spouse can also file a divorce case in Turkey.

It is possible to list the other conditions for foreigners to file a divorce case in Turkey as follows:

  • The marriage must be registered with the Birth Registration Office.
  • In order for to be concluded in Turkey and for the Turkish Law to be applied at least one of the relevant divorcing reasons in the Civil Code must exist.
  • It is necessary to follow the relevant case application procedure and apply to the civil court that will decide on the divorce.
  • The divorce process must be completed in the civil court that will make the decision.

4.6. Claims for Alimony

Article 14/2 of International Private Law (IPL) will be applied to alimony claims. Accordingly, the nationality of the parties will be taken into consideration in requests for alimony. First, common national law, if there is no, common habitual residence law will be applied, if it is not there, Turkish Law will be applied.

According to the Hague Convention on the Applicable Law to Alimony Obligation 1973, which Turkey is a party on the issue of alimony, alimony claims between divorced spouses are excluded from the scope of the general binding rule in the Convention and are subject to the applicable law to divorce.

The provisions of the first paragraph will be applied in accordance with the Article 14/3 (IPL) rules for custody and custody issues. In this case, it will be checked whether the parties have a common national law, otherwise the law of common habitual residence will be applied. In the absence of this, Turkish law will be applied.

According to Article 14/4 of IPL, “Turkish law is applied for claims of temporary measures.’’ Any request for interim measures that may arise during divorce and separation cases is subject to Turkish law. Since divorce in Turkish law is a legal process established only by a court decision, there is no special regulation in IPL regarding the law to be applied to the form of divorce.

Warning: The information and opinions on this page are for general information and academic contribution purposes. It may not reflect the views of Otto Law and Consultancy. Due to the fact that law is a dynamic field, the information and opinions on the site may be out of date. The articles on the site may not reflect the prevailing doctrine or common judicial practices in that field and may contain the author’s own legal convictions. The information and legal opinions on this site are not legal advice and these contents are not intended to be legal advice. It is recommended to seek professional legal support for specific cases. Otto Law and Consultancy or the author of the relevant article are not responsible for the consequences of applying the information and opinions on the site to concrete events. We present it to your information.

Otto Logo white

All articles and content on this site belong to Otto Law and Mediation, and registration of
ownership is provided with an electronically signed time stamp. In case of unauthorized
copying of content and articles, legal action will be taken within the scope of Law on
Intellectual and Artistic Works and related law. Articles and content on the site can be linked,
and the content can be quoted on the condition of showing the source and giving an active
link.

Practice Areas
Copyright © 2022 OTTO Law & Mediation. All rights reserved.