In divorce proceedings, the spouses’ ability to find common ground on ending the marriage and its consequences is often the least damaging path, both emotionally and legally. An uncontested divorce (anlaşmalı boşanma) is a type of divorce in which the parties agree on ending the marriage and on its consequences, such as the division of property, maintenance (alimony), custody and compensation; set out that agreement in a written protocol; and submit the protocol to the judge for approval.
Although it generally proceeds more calmly and predictably than a contested divorce, an uncontested divorce also has certain conditions laid down by law and technical details that require attention. A protocol that is incomplete, vague or drafted to protect only one party’s interests can give rise to new disputes and separate lawsuits even years after the divorce.
One of the main reasons for choosing an uncontested divorce is that the process is relatively more predictable and less stressful for the parties. However, the word “uncontested” does not mean that the process is entirely simple or risk-free. Even if the parties agree on the decision to divorce, the consequences of a concession made hastily on one of the issues, such as division of property, maintenance or custody, may only become apparent years later. For this reason, establishing the protocol fairly is at least as important as the speed of the process.
In this article we discuss the legal conditions for an uncontested divorce, the issues the protocol should cover, how the process works step by step, and the main differences from a contested divorce. Since every marriage and every family has its own particular circumstances, it is always advisable to consult a lawyer for an assessment specific to your situation.
Conditions for an Uncontested Divorce
Article 166/3 of the Turkish Civil Code (TMK) sets out the conditions under which an uncontested divorce is possible. These conditions are applied strictly; if any one of them is missing, the case may turn into contested divorce proceedings.
The Marriage Must Have Lasted at Least One Year
To use the uncontested divorce route, it is a statutory requirement that the marriage has lasted at least one year. This period is calculated from the date of the civil marriage to the date the case is filed. In cases filed before one year has passed, the court will not consider the parties’ request for an uncontested divorce on this ground; even if the parties are in agreement, the process must wait until this condition is met. In such a situation, the parties either wait for the year to pass or pursue contested divorce proceedings based on one of the existing grounds for divorce (for example, irretrievable breakdown of the marriage). Whether the one-year period has elapsed is a point that must always be verified so that the case is structured correctly from the outset.
Joint Application or Acceptance of the Case Filed
The law permits two different forms of application: either the spouses apply to the court jointly, or one of the parties files the case and the other accepts it. In practice, the parties usually first agree on the protocol and then submit the petition to the court either jointly or unilaterally. Both forms of application lead to the same legal result: the parties have notified the court that their wills coincide regarding the divorce, and the case is conducted under the uncontested divorce procedure.
The Judge Must Hear the Parties in Person
The law requires the judge to hear the parties in person at the hearing and to be satisfied that the will to divorce has been expressed freely, without any pressure. This is an important procedural stage which requires the parties (or lawyers authorised by a duly issued special power of attorney) to be present at the hearing, even if the case is conducted through lawyers.
The Protocol Must Be Approved by the Judge
The divorce protocol prepared by the parties is submitted to the judge for approval. If the judge finds the protocol contrary to the interests of the parties and of any joint children, the judge may propose to the parties the changes deemed necessary; if the parties accept those changes, the divorce is granted, and if they do not, the case may revert to contested proceedings. For this reason, it is very important that the protocol is drafted from the outset in a manner that is lawful, fair, clear and complete.
What Does an Uncontested Divorce Protocol Contain?
The divorce protocol is the document that puts into writing the agreement reached by the parties on the financial and personal consequences of the end of the marriage. A well-drafted protocol largely prevents uncertainties and new disputes that may arise in the future; issues left incomplete or ambiguous, on the other hand, usually become a source of problems later. The law does not require the protocol to be drawn up before a notary; the written text signed by the parties and submitted to the case file forms the basis of the judge’s review. However, the protocol must bear the signatures of both parties and must be worded in clear terms that will not be open to dispute later. Although it varies according to the specific situation, a protocol typically includes the following headings:
Division of Property
The parties may regulate in the protocol how the property acquired during the marriage will be divided. Since this heading is a separate and technical matter intertwined with the liquidation of the matrimonial property regime, we have discussed in detail how the regime of participation in acquired property works and how it should be reflected in the protocol in our article on division of property in divorce.
Maintenance (Alimony)
The parties may agree on poverty maintenance (yoksulluk nafakası) or (if there are children) child support (iştirak nafakası); the amount, method of payment, payment period and any annual increase rate should be stated clearly in the protocol. It is also possible for the parties to mutually waive maintenance, but the consequences of this choice need to be carefully assessed in advance; particularly after a long marriage, it is advisable to review the situation with a lawyer before deciding to waive.
Custody
If there are joint children, the question of who will be granted custody is one of the most sensitive headings in the protocol. The judge is not bound by the parties’ agreement on this matter and considers the best interests of the child ex officio; if the arrangement in the protocol is considered contrary to the child’s interests, the judge may propose changes or order any investigation deemed necessary (for example, a social inquiry report). For this reason, the custody heading is expected to be structured not merely according to the parties’ own preferences, but with regard to the child’s needs.
Personal Relations (Contact)
The arrangements for the personal relationship between the child and the parent who does not have custody (such as visiting days, holiday and religious festival periods, and means of communication) should be clearly set out in the protocol. Left vague, this heading is one of the most frequent sources of disagreement in practice.
Compensation
The parties may also agree in the protocol on claims for pecuniary and non-pecuniary compensation; a certain amount of compensation may be agreed, or a mutual waiver is also possible. It is advisable to write this heading clearly and in a way that leaves no room for doubt.
The Process Step by Step
An uncontested divorce case consists of certain successive stages. The most critical point throughout the process is that the protocol has been prepared completely and in a balanced way before the case is filed; otherwise, unexpected delays may occur at the hearing stage.
- Preliminary discussion and agreement: The parties reach agreement on the consequences of the divorce (division of property, maintenance, custody, personal relations, compensation). Obtaining support from a lawyer at this stage helps ensure that the protocol is structured in a balanced way that does not lead to a loss of rights.
- Preparation of the protocol: The headings of division of property, maintenance, custody, personal relations and, if applicable, compensation are set out in a written protocol with a clarity that leaves no room for doubt, and the protocol is signed by both parties.
- Preparation of the petition and application to the court: The parties may apply jointly, or one may file the case and the other accept it; the protocol is submitted to the court as an annex to the petition, and the case is registered with the competent family court.
- Hearing: The judge hears the parties in person and must be satisfied that their will to divorce has been formed freely, without any pressure.
- Review of the protocol: The judge examines the protocol, particularly with regard to the interests of the children; if the content is found appropriate, it is approved as it stands, and if not, it is assessed together with a proposal for the changes the judge considers necessary.
- Judgment and finalisation: If the protocol is found appropriate, the divorce is granted; the reasoned judgment is served on the parties, and after the judgment becomes final, the process of recording it in the civil registry office records is followed up.
The specific duration of each of these steps varies depending on the hearing schedule, the court’s workload and the particular features of the case; rather than predicting an exact timeframe, it is more accurate to know the general flow of the process and to conduct the case in a well-prepared manner in line with that flow.
Differences Between Uncontested and Contested Divorce
In an uncontested divorce, the parties have reached agreement both on the decision to divorce and on its consequences; for this reason, the process can generally be completed in a single hearing and the case proceeds in a less stressful manner. In a contested divorce, by contrast, the parties cannot agree on one or more issues such as the grounds for divorce, division of property, maintenance or custody; in that case, the court may need additional stages such as taking evidence and hearing witnesses or expert examination, and the process may by its nature take longer.
Even in an uncontested divorce, one of the parties may withdraw from the protocol during the process or change their statement at the hearing; in that case, the case turns into a contested divorce. It is therefore important that a process that appears to be uncontested is also conducted on a legally sound basis. In summary, the main differences between the two routes are as follows:
- Level of agreement: In an uncontested divorce, the parties have agreed on the divorce itself and all its consequences; in a contested divorce, there is no agreement on at least one issue.
- Number of hearings: While an uncontested divorce can often be concluded in a single hearing, a contested divorce may require more than one hearing due to stages such as gathering evidence, hearing witnesses and expert examination.
- Burden of proof: In an uncontested divorce, the parties declare their will; in a contested divorce, the ground for divorce and the parties’ claims (such as the amount of maintenance or the share in the division of property) must be proven before the court.
- Emotional and financial burden: Since an uncontested divorce does not by nature involve a long-running dispute, it generally causes less emotional strain; the longer contested proceedings last, the greater both the emotional and the financial burden may become.
Frequently Asked Questions
Is it mandatory to hire a lawyer for an uncontested divorce?
It is not legally mandatory; the parties may apply without a lawyer. However, since drafting the protocol in a way that will not cause problems later and that protects the rights of both parties in a balanced manner requires technical knowledge, it is generally advisable to obtain support from a lawyer.
Can an uncontested divorce protocol be changed afterwards?
As a rule, changing a protocol that has become final is difficult and is subject to legal conditions that vary according to the specific situation. For this reason, it is important to consider all headings carefully and with an eye to the future when the protocol is being prepared.
Is an uncontested divorce possible before the marriage has lasted one year?
No. The law expressly requires this condition. Couples who wish to divorce before one year has passed must pursue a contested divorce based on the existing grounds for divorce.
Is division of property a mandatory heading in an uncontested divorce?
No, it is not mandatory to include division of property in the protocol. However, if this matter is not covered in the protocol, one of the parties may later file a separate lawsuit for the liquidation of the matrimonial property regime; with this possibility in mind, it is advisable to regulate the matter clearly in the protocol.
What happens if one of the parties does not attend the hearing?
Since the law requires the judge to hear the parties in person, the failure of one of the parties to attend the hearing prevents the uncontested divorce from being concluded in this way. In such a case, the process may turn into a contested divorce or the case may be adjourned to another hearing.
Is an uncontested divorce always faster than a contested divorce?
That is the general tendency, but it is not a hard and fast rule. Factors such as the judge not approving the protocol, one of the parties changing their statement at the hearing, or the court’s workload may prolong the process; each case must be assessed within its own particular circumstances.
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.