October 2009
CONSENSUAL DIVORCE UNDER TURKISH LAW
In Turkish law consensual divorce is regulated in third paragraph of the article 166 of the Civil Code (Türk Medeni Kanunu- hereafter will be referred to as TMK). According to the law it is possible consensually divorce when the spouses apply for divorce together or when one spouse accepts the divorce suit opened by the other.
The judge must listen to the side himself, must observe that their wills have been expressed freely(without any pressure), must examine the arrangement made between the spouses relating the by-results of the divorce and must accordingly give a decision for divorce.
With the granted option to divorce consensually being given to the spouses, the possibility to end the conjugal union in a fast and easy manner by following the conditions which have been expressed beforehand is given.
The conditions for consensual divorce are as follows;
1. The conjugal union must have lasted for at least one year:
The first condition which the law seeks in order for the spouses to divorce consensually is that the marriage must have lasted for at least one year. The existence of this condition shall be examined by the judge himself and if this one year period has not been expired then a decision for consensual divorce will not be granted. The beginning of this one year period is accepted earliest as the date the marriage was established.
2. The spouses must agree to get divorce
The precondition of consensual divorce is that the spouses must agree to get divorce. In Turkish law the 166th articles first paragraph of the TMK accepts that the union of will is acquired when the spouses apply together or when one spouse accepts the divorce suit opened by the other one.
In these two cases if the other conditions exist, without the need for the judge to examine if the conjugal union has been shaken from its core, a decision for divorce will be given. (The definite legal presumption is that the judge must examine if the marriage has been shaken from its core in order to give the decision of divorce but when the sides want a consensual divorce this condition is not needed). On the other hand the wills of the spouses for divorce must be a product of a healthy mind and it must have not been vitiated by any reasons which will make the will ineffective.
3. The judge must personally listen to the spouses and must be convinced that their wills have been expressed freely:
When the spouses apply together or when one spouse accepts the divorce suit opened by the other then the definite legal presumption that the marriage has been shaken from its core will be effective. After this stage the judge not only may not examine to see if the conjugal union has been shaken or not shaken from its core but also may not examine to see if the events between the spouses is strong or not strong enough to shake the core of the conjugal union.
Just like the judge does not have the authority or the obligation to verify if the marriage has really fell apart or not, he/she also does not need to detect if the spouses have the idea that the marriage has been fallen apart.
The judge will decide that the will to divorce is serious and that it is given freely with his own appreciation and after doing all the necessary research. The judge is also obligated to check if the spouses have been mislead or not about their wills to have a divorce.
Also in 166/3 of the TMK the fact that the judge must listen to the parties personally is stated in a mandatory way. According to this the spouse who was able to continue with their application with a representative until now will have to come to court and will have to be listened personally by the judge to verify that they have freedom in their will to divorce.
If the judge sees it as necessary he may listen to the sides more than once so that the objective by listening becomes complete. If by one parties acceptance of the divorce suit opened by the other party turns the legal procedure into consensual divorce then listening to the defendant spouse is not enough the spouse who opened to suit must be listened to as well.
The 2nd Civil Chamber of the Courts of Appeal, at the date of 20.10.1993 in the 8625 E. 9559 K file, on the matter of if or if not the motive of the spouses are going to be considered has decided, and says as follows. “...The case which was refused by the Court is about the motive which was expressed as; “The plaintiff may have opened the suit in order to get a widows allowance from her father” this does not remove free will which is in the direction of divorce.
However, in another decision of 2nd Civil Chamber of the Courts of Appeal which was dated 17.01.1991 dated and 7288 E. 9704 K. numbered, opposing this point of view says that; “The parties, whose wills have joined in the way of divorcing because of financial reasons such as getting dependant benefits, saving valuables which are being followed and confiscated because of the spouses debts cannot be a declaration of will which will become a presumption that the marriage has been shaken by the core.”
4. The judge must find the arrangement (protocol) accepted by the spouses relating the financial consequences and the status of the children:
In the light of the TMK’s 166/3 article, another condition needed for the spouses to divorce consensually is that the spouses must arrange a protocol(make a deal) relating financial matters and the children’s status and then this arrangement must be found appropriate by the judge.
This condition is also one of the substantial conditions in order for consensual divorce and it concerns public order, so if its existence cannot be established then consensual divorce is out of the question. The lawmaker desires that the spouses who have agreed consensually on divorce should also agree on the side consequences of it as well.
Because the most important reason that divorce is arranged by law, are the consequences that divorce brings forth. In the TMK article 166/3 the compulsory element for the desire to divorce, is that the arrangement accepted by the sides must be about financial consequences and the status of the children.
With this expression the lawmaker has wanted to define the minimum content of the deal (arrangement). Although on the matters which will be included to the arrangement there is no limiting number. The spouses as long as it relates accordingly to the situation may give space in the arrangement for other matters as well. Also it must be mentioned that, for consequences of divorce which are born from the law, the spouses do not have the chance to make arrangements.
As it may be seen openly in the article 166/3 of the TMK, as a rule the judge is not bound by the arrangement which the spouses have bought forth in front of him. Because in the article it openly states that the judge must find the arrangement appropriate and may make (suggest) changes in the arrangement which he sees fit.
But the fact that the judge is not bound to this arrangement should be understood in the way that, he is not bound by the arrangement brought forth by the spouses, when in his right to appreciate, he believes conscientiously that there is a contradiction to the benefits of the spouses or the children and that he may request that this arrangement be made more suitable to the benefits of the spouses and children. Looking at this any other way will give no reasonable explanation for the judge to find the arrangement appropriate.
The 2nd Civil Chamber of the Courts of Appeals decision on this subject dated 12.12.1994 and numbered 12452/12840 may be interpreted in this way. Even through in this decision says that “according to the TMK 134/2 which was changed by the 3444 numbered law, the parties’ agreement and its content bound the judge, this sentence should be understood that the agreement and its content bond the judge if there is no contradiction.”
Also on this subject again the 2nd Civil Chamber of the Courts of Appeal in the 9.3.2009 dated 2008/1912 E. and 2009/4076 numbered file has decided as follows. “ If the parties are found ready at court but do not personally expressed that they have agreed or if the judge does not find the parties agreement appropriate he must have asked for evidence from the parties and once these were gathered he should have appreciated in his own accord if the marriage had been shaken from its core but instead because he has decided on divorce without listening to the plaintiff and the defendant personally and has made a decision based on the lawyers’ statements and therefore this is against procedure and the law.”
If the judge sees any problems which affect the children or spouses directly in the matter of the arrangement given to court by the spouses then he will suggest that the spouses should make changes on this arrangement.
As an example for this matter the decision given by the 2nd Civil Chamber of the Courts of Appeal which was numbered 2005/10528 E and 2005/13106 K. can be given. According to this decision “In the 4721 numbered Turkish Civil Code’s 166/3 article it states that a marriage which has lasted for at least one year may be accepted as shaken from the core, when both the spouses apply together or when one spouse opens a divorce suit and the other accepts it.
Even in this situation for the judge to decide in favour of divorce and he must listen to the sides personally and believe that their wills have been given freely and must also find the arrangement made between the spouses on financial consequences and the children’s status as appropriate. The judge may make the necessary changes he sees fit by keeping in mind the parties and children’s benefits. If these changes are accepted then the judge will decide to divorce the spouses.”
Finally in the light of the article 166/3 of the TMK, the spouses who want to divorce consensually after providing the court with the arrangement (deal) they made between themselves, and if needed making the changes which the judge suggested, the deal made by the participation of all three subjects of the trial must be present with the decision of divorce (judgement) in the final part of the written decision (the verdict).
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