Sophos Hukuk Bürosu

Divorce Proceedings under Turkish Family Law: Uncontested and Contested Divorce, Division of Property and Foreigners in Alanya

Yazar: Yayın: Son güncelleme:

Attorney Hüseyin Aydın – Alanya

The legal dissolution of a marriage is not merely a matter of the spouses ending their life together. A divorce judgment produces multi-dimensional legal consequences that are often difficult to reverse, such as custody, child support and post-divorce maintenance (poverty alimony), pecuniary and non-pecuniary compensation, allocation of the family home, protective and restraining measures against violence under Law No. 6284, and the liquidation of the statutory matrimonial property regime between the spouses. Under the Turkish Civil Code No. 4721 (TMK), divorce proceedings are governed by two basic procedural regimes: uncontested (consensual) divorce and contested divorce.

In Alanya, one of the centres of tourism and international settlement, as well as in Gazipaşa, Manavgat and the wider Antalya region, there are not only Turkish citizens but also a large number of foreign nationals (from the Russian Federation, Ukraine, Germany, the Netherlands, Norway, Sweden, Denmark, the United Kingdom, etc.) who have married, live together and have jointly acquired real estate. This cosmopolitan structure requires the careful application of the Turkish Code on Private International Law and International Civil Procedure No. 5718 (MÖHUK) when determining the law applicable to divorce, the international jurisdiction of the Alanya Family Court, the recognition and enforcement of foreign divorce judgments, and cross-border child return and custody disputes.

This comprehensive guide examines in detail, in the light of the case law of the Court of Cassation (Yargıtay): how a divorce action is filed, how the competent court and the court with territorial jurisdiction are determined, the statutory conditions of uncontested and contested divorce, the critical change made to the period of de facto separation by Law No. 7532 dated 14/11/2024, the length of proceedings, interim measures, the warning that custody may be changed if personal contact arrangements are breached, the mandatory preliminary-issue rules in the liquidation of the matrimonial property regime, and the procedures applicable to marriages with a foreign element in Alanya.

Quick Comparison: Uncontested Divorce vs. Contested Divorce

Criterion / Legal CharacteristicUncontested Divorce (TMK Art. 166/3)Contested Divorce (TMK Art. 166/1-2, 166/4)
Minimum Duration of MarriageAt least 1 year of civil marriage is required (a matter of public order).No minimum period applies; it may be filed even on the first day of the marriage.
Mandatory Attendance at the HearingThe spouses must appear in person before the judge even if they are represented by counsel.The parties may be represented by their authorised lawyers; the spouses are not required to attend in person (exceptional cases of examination of the parties are reserved).
Inquiry into Fault and Burden of ProofThere is no debate on fault and no witnesses are heard; mutual agreement is the basis.The allocation of fault (less at fault, gravely at fault, equally at fault) is proven by evidence and witnesses.
Average DurationConcluded at a single hearing; becomes final on average within a few weeks to 2-3 months.1 to 2.5 years at first instance; with appeal and cassation review it may take 3 to 5 years.
Division of Property and Ancillary ClaimsAgreement on all financial and custody matters in the protocol is mandatory; the division of property may be included in the protocol or reserved.Custody, maintenance and compensation are decided within the action; the liquidation of the matrimonial property regime is brought as a separate action and the divorce must first become final.
Right to Withdraw ConsentConsent may be withdrawn until the reasoned judgment becomes final (including during appeal/cassation); if withdrawn, the case turns into a contested divorce.The action can only be ended by waiver, acceptance or settlement; unilateral withdrawal is subject to the defendant’s consent.

1. Filing a Divorce Action: Competent Court and Territorial Jurisdiction

A spouse wishing to file for divorce must apply to the competent court with jurisdiction by submitting a properly drafted statement of claim and list of evidence, and by paying the statutory court fees and the advance on costs.

Competent Court (Family Courts)

Pursuant to Article 4 of Law No. 4787 on the Establishment, Duties and Procedures of Family Courts, Family Courts have exclusive jurisdiction over all actions and matters arising from family law as regulated in Book Two of the Turkish Civil Code No. 4721. In smaller judicial districts where no separate family court has been established, this duty is performed by the Civil Courts of First Instance designated by the Council of Judges and Prosecutors (HSK), acting “in the capacity of a Family Court”. Separate Family Courts operate within the Alanya Courthouse, and all divorce and family law disputes in the region are heard by these courts.

Territorial Jurisdiction (TMK Art. 168)

Under TMK Art. 168, the court with jurisdiction over divorce or separation actions is the court of the domicile of either spouse or the court of the place where the spouses last lived together for six months before the action. If the domicile of the spouses, or the address where they have lived together for the last six months, is within the boundaries of Alanya (for example Mahmutlar, Oba, Tosmur, Kestel, Avsallar, Konaklı, Kargıcak, Cikcilli, Çıplaklı, etc.), the action must be filed before the competent Alanya Family Court.

Relying on More Than One Ground for Divorce at the Same Time (Court of Cassation Case Law)

In practice, it is frequently debated whether a claimant may rely on several grounds for divorce at the same time (for example, both adultery and attempt on life, or both desertion and the general ground of irretrievable breakdown of the marriage). According to the settled case law of the 2nd Civil Chamber of the Court of Cassation, it is possible to rely on more than one legal ground in the same action, either in the alternative (in a graduated manner) or cumulatively, on the basis of the specific and general grounds for divorce set out in the law. Even if more than one ground is relied on in the statement of claim, since there is only one action, the court must award a single fixed attorney’s fee and a single set of litigation costs.

2. Uncontested Divorce and Its Strict Statutory Conditions (TMK Art. 166/3)

The institution of uncontested divorce, which aims to dissolve the marriage quickly and with minimal social and psychological strain on the parties, is regulated in TMK Art. 166/3 within the framework of the conditions and protocol of uncontested divorce. In order to use this legal route, the legislator requires certain strict formal conditions relating to public order:

  1. The Marriage Must Have Lasted at Least One Year: A period of at least 1 year must actually have elapsed between the date of the civil marriage and the date on which the action is filed. If the 1-year period has not expired on the filing date, the action cannot proceed as an uncontested divorce; this period is a matter of public order and is taken into account by the court of its own motion.
  2. Joint Application or Acceptance of the Action: The spouses must apply to the court with a jointly signed petition, or the other spouse must unconditionally accept, at the hearing, the divorce action filed by one spouse.
  3. The Judge Must Hear the Parties in Person: In uncontested divorce cases, even if the parties are represented by their attorneys, the judge is obliged to hear the parties in person at the hearing. This rule aims to allow the judge personally to establish that the parties have expressed their will freely, without threat, coercion or deceit. If the parties are not present in person, no uncontested divorce judgment can be given.
  4. Full Agreement on the Financial Consequences and the Situation of the Children: The parties must have agreed on a complete protocol covering the ancillary consequences of divorce, namely pecuniary and non-pecuniary compensation (TMK Art. 174), poverty alimony (TMK Art. 175), child support for the children, custody and the establishment of personal contact with the child. The judge may propose amendments to the protocol in the best interests of the parties and the children; however, unless the parties accept the proposed amendment, the judge cannot amend the protocol of his or her own motion and cannot grant an uncontested divorce.

Right to Withdraw Consent in Uncontested Divorce (Court of Cassation Case Law)

One of the most critical procedural rules of the uncontested divorce process is the right to withdraw consent. According to the consistent decisions of the Court of Cassation’s Assembly of Civil Chambers and its 2nd Civil Chamber, there is no legal obstacle preventing the parties from withdrawing their declarations of will and the protocol they signed until the uncontested divorce judgment becomes final. If one of the spouses declares, after the local court’s judgment and even at the appeal (Regional Court of Appeal) or cassation (Court of Cassation) stage, that he or she withdraws from the agreement, the uncontested divorce judgment is reversed. The court then grants the parties time to submit their facts and evidence, the exchange of pleadings is completed, and the proceedings continue under the contested divorce procedure.

3. Contested Divorce, Determination of Fault and the New Statutory Amendment

Where the spouses cannot agree on the wish to divorce, the allocation of fault or ancillary consequences such as custody, maintenance and compensation, a contested divorce action is conducted. The general ground in contested divorce is the “irretrievable breakdown of the marriage” (severe incompatibility) regulated in TMK Art. 166/1-2; there are also specific grounds such as adultery (TMK Art. 161), attempt on life and very bad treatment (TMK Art. 162), commission of a crime and leading a dishonourable life (TMK Art. 163), desertion (TMK Art. 164) and mental illness (TMK Art. 165).

Allocation of Fault and the Balance of Compensation

The basic principle in contested cases is the determination of fault. The proceedings focus on the lawfulness of the evidence, the concrete statements of witnesses based on their own observation, official correspondence, police inquiries and economic reports. Where no fault attributable to the defendant spouse can be proven, the divorce action is dismissed on the merits. If the claimant’s fault is heavier than the defendant’s, the defendant spouse has the right to object to the divorce; however, if this objection amounts to an abuse of rights (if the marriage has in fact ended and no interest worthy of protection remains for the parties), the judge may grant the divorce (TMK Art. 166/2).

In order for pecuniary and non-pecuniary compensation (TMK Art. 174) to be awarded, the spouse claiming compensation must be without fault or less at fault than the other spouse. For poverty alimony (TMK Art. 175), the claiming spouse must be likely to fall into poverty as a result of the divorce and must not be gravely at fault in the events leading to the divorce. Poverty alimony is not awarded in favour of a spouse who has a regular and sufficient income to support himself or herself.

Critical Statutory Amendment: The Waiting Period for Divorce Based on De Facto Separation Reduced to 1 Year!

If an action filed on any ground for divorce has been dismissed on the merits and, despite the expiry of the period provided by law from the date on which that dismissal became final, the spouses have not been able to resume their common life, the marriage is deemed to have irretrievably broken down and divorce is granted at the request of either spouse (TMK Art. 166/4).

Important Statutory Update: This statutory waiting period, which was applied as 3 years for many years and was the subject of an annulment decision of the Constitutional Court, has been reduced from 3 years to 1 YEAR by the amendment made by Article 13 of Law No. 7532 dated 14/11/2024. Now, if the parties have not come together and have not resumed their common life for 1 year from the date on which the dismissal became final, the court grants divorce directly in the new action without any further inquiry into fault.

4. Divorce Proceedings in Practice and the Duration of the Case

The duration of divorce proceedings depends directly on the nature of the case, the parties’ discipline in submitting evidence and the workload of the court:

5. Interim Measures During Divorce, the Family Home and Restraining Measures under Law No. 6284

Once a divorce action is filed, the parties acquire by law the “right to live separately”. In order to prevent the parties and the children from suffering harm during the proceedings, our legal system provides two basic protective shields:

A. Interim Measures under TMK Art. 169

Under TMK Art. 169, once a divorce or separation action is filed, the judge is obliged to take, of his or her own motion (ex officio), the interim measures necessary for the duration of the case, in particular those relating to the housing of the spouses, their maintenance, the management of the spouses’ property and the care and protection of the children. In this context, even without a request, the court decides on:

B. Protective and Restraining Measures under Law No. 6284

If there is a risk of physical, psychological, sexual or economic violence within the marriage, the provisions of the Law No. 6284 on the Protection of the Family and the Prevention of Violence against Women are applied immediately, whether or not a divorce action has been filed. The family court judge may, without delay, order that the spouse who uses or threatens violence:

6. Personal Contact with the Child and the Severe Sanction for Its Breach: The Warning on Change of Custody

Establishing regular personal contact between the joint child and the parent who has not been granted custody is a fundamental human right protected by the Constitution and international conventions, in view of the child’s physical, mental and moral development. The detailed legal parameters on this subject are examined in our guide to personal contact with the child in different cities and countries.

Under TMK Art. 182/1, after hearing the mother and father, the judge determines the days and hours of personal contact on the basis of the best interests of the child (health, education, social development and well-being). In uncontested divorce protocols, the personal contact schedule must never be left open-ended; it must be regulated clearly enough to be enforceable, covering weekends, the semester break, religious and national holidays and the summer holidays.

The Statutory Warning Added by Law No. 7343: The Risk of a Change of Custody

Under the explicit paragraph added to TMK Art. 182 by Law No. 7343, the court judgment expressly warns that “if the requirements of the personal contact arrangement are not complied with, custody may be changed, provided this is not contrary to the interests of the child”. If the parent having custody unjustly hides the joint child from the other parent, does not let the child be seen, or systematically prevents contact, this is regarded as an abuse of custody rights and constitutes a legal basis for custody to change hands directly and be granted to the other party.

7. The Action for Liquidation of the Matrimonial Property Regime and Its Relationship with the Divorce Action

A divorce judgment brings the statutory regime of participation in acquired property between the spouses directly into the liquidation stage. A detailed analysis of the subject is provided under the heading division of property in divorce and the regime of participation in acquired property. In terms of procedural law, the liquidation of the matrimonial property regime and the divorce action are subject to different rules:

  1. Date on Which the Matrimonial Property Regime Ends (TMK Art. 225/2): If the court grants a divorce, the property regime between the spouses ends retroactively, with effect from the date on which the divorce action was filed, not on the date the divorce judgment became final. Assets acquired by the spouses after the date of the action are considered personal property.
  2. Separation of Claims and Mandatory Preliminary Issue: Claims arising from the liquidation of the matrimonial property regime (participation claim on the surplus value, share in increased value, contribution share) are not ancillary to the divorce action. These claims must be pursued in a separate, independent action subject to a proportional court fee. If division of property is requested in the divorce petition, the court immediately separates this claim and registers it under a separate docket number. Since the divorce judgment must be final before the merits of the liquidation can be examined, the divorce action is treated as a mandatory preliminary issue for the property regime action.
  3. The Position in Uncontested Divorce and the 10-Year Limitation Period: In the uncontested divorce protocol, the spouses may liquidate the property regime by dividing movables, immovables (apartments, land, vehicles) and company shares, and may release each other from further claims. However, the absence of a clause on the property regime in the protocol does not prevent an uncontested divorce. The spouses may bring an independent liquidation action within the general 10-year limitation period under TMK Art. 178 from the date on which the divorce judgment becomes final.

8. Divorce Cases with a Foreign Element in Alanya (Guide for Russian, Ukrainian, German, Dutch and Scandinavian Nationals)

Alanya and its surroundings (Mahmutlar, Kestel, Oba, Tosmur, Kargıcak, Konaklı, Avsallar, Demirtaş and Gazipaşa) are among the places in Turkey with the highest concentration of foreign-owned property and resident foreign population. In marriages between Turkish citizens and foreigners, or in the divorce of couples who are both foreign nationals, the international jurisdiction of the Turkish Family Courts and the applicable law are of particular importance.

Determining the Applicable Law (MÖHUK Art. 14)

Under Article 14 of the Code on Private International Law and International Civil Procedure No. 5718 (MÖHUK), the law applicable to divorce and separation actions is determined in stages as follows:

  1. The grounds and effects of divorce and separation are governed by the common national law of the spouses (for example, if both spouses are citizens of the Russian Federation or Germany).
  2. If the parties have different nationalities (for example Turkish-Russian, Turkish-Ukrainian, German-Russian or Dutch-Turkish marriages), the law of the common habitual residence applies. If the spouses have been residing in Alanya during the marriage, the common habitual residence is Turkey and therefore Turkish law (TMK) applies directly.
  3. If there is no common habitual residence either, Turkish law applies.

Key Disputes and Legal Terms in Divorce Cases Involving Foreign Nationals

The main areas of dispute and the international legal terms encountered by foreign nationals residing or owning property in our region in proceedings before the Turkish Family Courts are as follows:

Recognition and Enforcement of Foreign Divorce Judgments in Turkey (MÖHUK Art. 50-59)

Judgments of persons who divorced abroad (for example before courts in Germany, Russia, the Netherlands, the United Kingdom or Norway) do not automatically take effect in Turkey. In order to register such judgments in the Turkish civil registry or to transfer real estate in Turkey, either an action for recognition and enforcement must be filed before the Turkish Family Courts under MÖHUK Art. 50-59, or both parties must apply together to the consulates to have the judgment registered administratively. If the judgment contains enforceable provisions such as custody, maintenance or compensation, an enforcement (exequatur) decision must be obtained from the competent court.

Cross-Border Custody and International Child Abduction (1980 Hague Convention)

In the divorce of nationals of different countries, if one parent takes the joint child to his or her own country, or abducts the child from Turkey, without the consent of the other parent and without a court order, the mechanisms of the 1980 Hague Convention on the Civil Aspects of International Child Abduction are activated. The immediate return of the child to the place of habitual residence is requested in coordination with the Chief Public Prosecutor’s Offices and the Directorate General for Foreign Relations of the Ministry of Justice.

9. Conclusion and Legal Assessment

Under Turkish family law, divorce proceedings go far beyond the dissolution of the marriage: they are highly significant processes that directly shape the parties’ economic future, their right to housing and the fate of the children. If the marriage has lasted at least 1 year and the parties have reached full agreement, uncontested divorce is the fastest and most practical solution; however, it should not be forgotten that consent can be withdrawn until the judgment becomes final. In contested cases, the law of evidence, the soundness of the evidence and the balance of fault determine the outcome. The reduction of the waiting period for de facto separation to 1 year by Law No. 7532 has also significantly reduced the hardship suffered after dismissed actions. Particularly in regions with international dynamics such as Alanya, compliance with the rules of legal procedure at every stage is vital for the proper determination of the applicable law and the division of property in marriages with a foreign element.

This article has been prepared solely for general legal information purposes and does not constitute a legal opinion or guidance on any specific case. Every legal dispute must be assessed independently in the light of the circumstances of the case, the evidence, the parties’ nationality and their habitual residence; in order to avoid any loss of rights and to ensure that the process is conducted properly, it is advisable to seek professional legal advice from a lawyer.

Att. Hüseyin Aydın | Sophos Law Office
Alanya, Türkiye
Web: sophoshukuk.com

Legal Notice: This text has been prepared for general information purposes only and does not constitute legal advice. sophoshukuk.com makes no referral, guarantee or promise of outcome. Each case must be assessed on its own particular circumstances; for your specific dispute, please obtain professional advice from a lawyer.