Uncontested Divorce Case

In this article, we will thoroughly examine the uncontested divorce case, a form of divorce where spouses agree on all matters regarding their marriage, ensuring no disputes remain.

Our legislation places great importance on protecting the family unit, even designating "family" as the "foundation of Turkish society" in Article 41 of our Constitution. Therefore, specific conditions must be met for a divorce ruling, one of the situations that end the marital union, to be established.

Divorce cases can be classified into two types based on whether the parties can agree on all aspects of the divorce:

Uncontested Divorce Case
Contested Divorce Case

Uncontested divorce is among the general grounds for divorce listed in the law.

In an uncontested divorce case, spouses are not required to provide a reason for the divorce. After being married for one year, if both spouses express their desire to divorce, the judge must grant the divorce. Thus, the divorce process is completed without detailing the events within the family in the petition.

Even the smallest omission or error in the uncontested divorce protocol can result in irreparable loss of rights later on. Therefore, to prevent potential losses, it is advisable to conduct the process with the assistance of an expert lawyer.

Legal Basis of Uncontested Divorce Case

If the parties reach an agreement on certain points, it is possible to apply the option of an uncontested divorce, which allows the divorce process to be concluded more smoothly and quickly. The uncontested divorce case is regulated in the third paragraph of Article 166 of our Turkish Civil Code, which deals with divorce due to the "irretrievable breakdown of the marriage."

If the conditions stipulated in the legislation are met, the judge may decide on an uncontested divorce according to Article 166/3 of the Turkish Civil Code:

“If the marriage has lasted at least one year, if the spouses apply together or if one spouse accepts the other’s lawsuit, the marriage is considered to have irretrievably broken down. In this case, for the divorce decision to be granted, the judge must personally hear the parties and be convinced that their declarations of will are freely made, and must also find the arrangement made by the parties regarding the financial consequences of the divorce and the situation of the children to be acceptable. The judge can make necessary changes in this agreement in favor of the parties and children. If these changes are accepted by the parties, the divorce is granted. In this case, the judge’s discretion regarding the acknowledgment of the parties does not apply.”

For spouses to divorce through an uncontested divorce case by agreeing on certain matters, the marriage must have lasted at least one year. In an uncontested divorce case, the spouses can either jointly file a petition or one spouse can accept the contested divorce case filed by the other.

Spouses can file an uncontested divorce case at the family court with an uncontested divorce protocol and a petition. If the judge is convinced that the spouses have freely decided to divorce and finds the uncontested divorce protocol acceptable, the divorce can be granted in a single hearing.

Conditions for Uncontested Divorce

The necessary conditions for an uncontested divorce are as follows:

The marital union must have lasted at least one year from the date of the marriage.
Spouses must file the divorce case jointly or one must accept the other's case.
The judge must personally hear the spouses in the hearing and obtain their clear consent.
The uncontested divorce case must be filed properly, with the necessary fees and costs paid.
The judge must find the arrangements agreed upon by the parties regarding financial matters and the children acceptable.
If the judge makes changes to the terms of the agreement for the benefit of the parties and the children, these changes must be accepted by the parties.

1. The Marital Union Must Have Lasted at Least One Year

To apply for an uncontested divorce, at least one year must have passed since the marriage. The judge will first evaluate this condition. If one year has not passed since the marriage, the case will be dismissed. The date of the official marriage ceremony is taken as the basis for determining the one-year period.

2. Joint Application to the Court

Spouses who have been married for at least one year can jointly apply to the court to express their intention to divorce. They can also apply through their lawyers. In any case, the parties must prepare a divorce agreement and agree on the financial consequences of the divorce and the situation of the children, including the divorce decision itself. The parties must personally attend the hearing to confirm their agreement before the judge. The judge cannot grant a divorce without the clear and unambiguous expression of the intention to divorce by both parties before the judge.

3. Acceptance of One Spouse's Divorce Case by the Other

To facilitate a quicker divorce, if the parties reach an agreement on the disputed matters during the case process after a marriage lasting at least one year, the judge can decide to continue the contested divorce case as an uncontested divorce case based on the parties' request and the specific circumstances.

4. Personal Hearing by the Judge

The spouses expressing their intention to divorce must reiterate this intention before the judge. At this stage, the judge will evaluate whether the parties are ready for divorce and whether the protocol is acceptable. If the divorce protocol is signed only by the lawyers or if at least one of the spouses does not physically attend the hearing, an uncontested divorce cannot be granted.

If one spouse does not attend the hearing or declares that they do not want an uncontested divorce or if there is a disagreement on the previous terms between the parties, the case continues as a contested divorce case.

5. Judge's Approval of the Parties' Intentions and Divorce Protocol

The judge is expected to evaluate the protocol. For instance, even if the parties agree on the custody of the child, if this agreement does not serve the child's best interests, the judge has the authority to reject the agreement in its current form.

6. Changes Made by the Judge to the Divorce Agreement

If the judge finds that the terms agreed upon by the parties are not suitable, the judge can make changes to the divorce protocol. However, these changes must be approved by the parties. Otherwise, the divorce cannot be granted.

How Long Does an Uncontested Divorce Case Take?

An uncontested divorce case is much shorter than a contested divorce case. For those who want to divorce "in one session," the type of divorce case to be filed should be an uncontested divorce.

Although uncontested divorce cases are said to allow for "one session" divorces, the duration can vary. Factors affecting this duration include getting a hearing date from the court where the uncontested divorce case will be heard, the court's workload, the parties' promptness in receiving the reasoned decision and adding the finalization annotation to the file, and whether the process is conducted professionally.

Once the uncontested divorce protocol signed by the parties is submitted to the court with the uncontested divorce petition, the court sets a hearing date by preparing a hearing note. The hearing date in uncontested divorce cases varies depending on the court's workload.

After the hearing, the divorce decision is made, and the process of finalizing the divorce decision is conducted. If the necessary actions to finalize the file are not taken after the hearing in an uncontested divorce case, the decision will not be finalized, and it will not produce its legal consequences even if the court has ruled on the divorce.

How to Prepare an Uncontested Divorce Protocol?

A written agreement proving the parties' agreement on the divorce and its ancillary matters and clearly stating the terms of the agreement is called an "uncontested divorce protocol."

The requests, waivers, and acceptances in the uncontested divorce protocol should be expressed clearly; the protocol should be arranged in an open, clear, and enforceable manner. It should be remembered that even the smallest omission or mistake in the uncontested divorce protocol can result in irreparable loss of rights.

It should be noted that the provisions of the uncontested divorce protocol cannot be generalized. For example, if the parties state in the protocol that they have no participation claims against each other, it cannot be interpreted as having no contribution claims against each other. In case of any future dispute regarding the division of property, the provisions of the uncontested divorce protocol will be the first to be examined.

The protocol prepared by the parties generally imposes rights and obligations on both spouses. Since family dynamics vary in each family, each uncontested divorce protocol will have its unique structure and content. Therefore, even if you are going through the process without a lawyer, you should carefully adapt the online "uncontested divorce protocol example" or "uncontested divorce petition example" to your process to avoid losing your rights.

The protocol should include the parties' intention to divorce. Following this, the protocol should clearly and unequivocally address issues such as alimony, financial and moral compensation, division of property, sharing of household items, custody, jewelry, and which spouse will use the marital home after the divorce. This ensures that future disputes are prevented.

The parties must also have a complete agreement regarding custody. However, the judge may make changes to the protocol concerning custody for the best interest of the joint child or children. Since the best interest of the child is a matter of public order and the judge has discretion, the parties must accept the judge's changes regarding custody for the divorce to be granted.

Since the best interest of the child is crucial in matters of custody, we recommend reading our article titled "Custody and the Best Interest of the Child" for further information.

It is debatable whether the parties must agree on the division of property for the divorce to be finalized. However, we believe that this issue should also be explicitly addressed in the divorce protocol.

In the uncontested divorce protocol, provisions can be made regarding the transfer, payment, installment payments, sale of assets included in the property regime, sharing of the sales proceeds between the spouses, and offsetting the share of the other spouse. However, all these provisions should be arranged without the slightest margin of error, in an enforceable manner, and with a clear legal language. Non-enforceable provisions, even if overlooked by the court and not included in the judgment, may cause problems in their execution, necessitating additional lawsuits between the parties.

In cases of disputes regarding undisclosed or unspecified issues in the protocol, such as the division of property, alimony, jewelry, and dowry, the parties may apply to the court. This situation can nullify the benefits obtained through an uncontested divorce.

Although the uncontested divorce protocol can be prepared by the parties, they may overlook certain issues during the preparation process due to a lack of legal knowledge, resulting in irreparable loss of rights.

How to Finalize an Uncontested Divorce Decision?

To finalize an uncontested divorce decision, the reasoned decision regarding the divorce must be notified, and the finalization annotation must be added, followed by sending the decision to the civil registry. An uncontested divorce lawyer conducts all these processes on behalf of their clients as part of the uncontested divorce. If the uncontested divorce is not finalized, the parties are still legally considered married, and the divorce will not be registered with the civil registry, preventing either party from remarrying.

Competent and Authorized Court for Uncontested Divorce Cases

The competent court for uncontested divorce cases is the Family Court. In places where there are no Family Courts, the Civil Courts of First Instance will handle the case as a Family Court. There is no issue of jurisdiction in uncontested divorce cases, and the parties can file an uncontested divorce case in any family court they choose. Since the parties are already divorcing by mutual agreement, it is accepted that there will be no objection to jurisdiction.

Uncontested Divorce Case Without a Lawyer

If the uncontested divorce case is conducted without the assistance of a lawyer, significant loss of rights may occur. Although uncontested divorce cases may seem like a simple process, missing the necessary details in any legal process can result in significant loss of rights.

Especially if the parties to the divorce have above-average income or wealth, millions of lira worth of rights can be lost due to erroneous provisions in the uncontested divorce protocol. Therefore, although it is possible to conduct the uncontested divorce process without a lawyer, it is not recommended.

If the parties wish to file an uncontested divorce case without the assistance of a lawyer due to financial constraints or other reasons, they should thoroughly research their legal rights regarding divorce, its ancillary matters (alimony, compensation, custody), jewelry, and the division of property. Based on this research, they should prepare the uncontested divorce protocol and the uncontested divorce petition. Even the smallest omission or carelessness in the uncontested divorce protocol can result in significant loss of rights.

General Steps of an Uncontested Divorce

In summary, the steps of an uncontested divorce are as follows:

The spouses decide to divorce by mutual agreement.
A divorce protocol is prepared.
The protocol addresses custody, alimony, compensation, household items, etc.
The protocol is signed by the parties.
A divorce petition is prepared.
The divorce case is filed with the protocol and petition.
An urgent hearing date is requested.
The parties attend the hearing.
The parties confirm their intention to divorce and acknowledge their signatures on the protocol.
The court grants the uncontested divorce.
The reasoned decision is written.
The reasoned decision is received.
The parties waive their right to appeal.
The finalization of the decision is conducted.
The decision is sent to the civil registry, and the parties can change their identification documents.

Frequently Asked Questions

Can the period spent with a "religious marriage" before the official marriage be counted towards the uncontested divorce period?

The period spent with a "religious marriage" before the official marriage, commonly seen in our society, cannot be included in this period.

Can an uncontested divorce decision be appealed?

Yes, it is possible to appeal this decision. Our law does not contain any provision preventing the parties from withdrawing their consent to the agreed matters. If one spouse appeals the divorce decision, there is no longer an agreement, and the case should be continued as a contested divorce.

Can a custody case be filed after the uncontested divorce case is concluded?

After the uncontested divorce case is concluded, the spouse who does not have custody can file a custody case by claiming that the conditions have changed and there are justified reasons.

Is it possible to request alimony after the court has ruled in an uncontested divorce case?

A spouse who did not request alimony for themselves in the uncontested divorce case cannot request alimony later. However, the situation is different for joint children. The spouse with custody of the children can later file a case and request alimony for the children, even if they did not request it during the uncontested divorce case, by claiming that the conditions have changed.

Is it possible to file a property division case after the court has ruled in an uncontested divorce case?

If the uncontested divorce protocol does not contain a clear provision and arrangement regarding the division of property, the parties can file a property division case after the divorce decision. To avoid facing new lawsuits after the divorce, the property regime should also be arranged in the divorce protocol. Arranging the property regime will prevent future lawsuits and litigation costs.

Within what time frame should a property division case be filed after an uncontested divorce case?

A ten-year statute of limitations is determined for property division cases. Since the statute of limitations does not run while the marital union continues, spouses who have divorced by mutual agreement can file a property division case according to the provisions of the divorce protocol within ten years from the date the divorce decision becomes final.

If one of the spouses withdraws after filing an uncontested divorce case, will the case be dismissed?

If one of the spouses withdraws their intention to divorce after filing an uncontested divorce case, the judge will not dismiss the case due to the lack of agreement; instead, the case will become contested.