1. General Legal Framework and Basic Requirement

According to Article 166/3 of the Turkish Civil Code (TMK), for an uncontested divorce decision to be rendered, it is a legal requirement for the parties to appear in court and be personally present before the judge. As consistently emphasized in Supreme Court decisions, even if the marriage has lasted at least one year and the parties have agreed on all matters, it is a condition that the judge personally hears the parties and is convinced that their wills have been freely expressed (2014/6016 E. K, 2012/10613 E., 2010/20339 E. K).

2. Requirement for Personal Presence of the Parties

In uncontested divorce cases, the parties must be present at the hearing and orally declare their intention to divorce before the judge. As stated in many decisions of the 2nd Civil Chamber of the Supreme Court (e.g., 2014/20562 E., 2018/5527 E. ):

Both parties must be present at the hearing.

Even if there is special authorization in the power of attorney, the statement of the attorney does not substitute for the principal’s and is not sufficient on its own.

The mere statement by attorneys or the submission of a signed protocol in place of the parties does not fulfill the requirement of “personally hearing” the parties.

3. Submission of the Protocol and Judge’s Approval

Divorce protocols prepared outside the hearing and submitted to the court cannot form the basis of a judgment unless the parties are personally present at the hearing and declare their approval of this protocol (2012/22825 E. K). The judge, after hearing the parties, must approve the arrangements regarding the financial consequences of the divorce and the situation of the children. If the parties are not present or do not confirm their agreements before the judge, the case loses its character as a consensual divorce and proceeds as a contested divorce procedure (TMK 166/1-2), with evidence being collected (2012/23821 E. K, 2011/7013 E.k, 2014/9614 E.).

4. Exceptional Circumstances and Procedural Details

Subsequent Hearings: If the parties were personally present at the first hearing, gave their statements, affixed their signatures, and the judge formed the conviction of free will; but the decision was deferred to a subsequent hearing for a technical reason, the parties are not obligated to be personally present at subsequent hearings (2010/9743 E).

Video Conference: The Supreme Court ruled that taking the plaintiff’s statement via video conference without their personal presence at the hearing violates the statutory requirements of “personal hearing” and “presence before the judge,” thus constituting a ground for reversal (2021/7601 E. 

Guardianship Status: If one of the spouses is in prison and is represented by their guardian, a consensual divorce decree cannot be issued because the condition of both parties being heard together before the court cannot be met (2015/9033 E.).

5. Secondary Source Evaluations

Judicial decisions and reviews, which are secondary sources, provide practical examples supporting the fundamental principles mentioned above:

Constitutional Court (8/9/2021): In an application, it was observed that the parties’ oral statements made jointly during the hearing, stating “we wish to divorce of our free will and without any coercion,” were recorded by the judge, which is a standard part of the process.

Court of Cassation Practice Examples: In some decisions (2014/16466 E.  2014/20177 E.  it is seen that the parties personally went to court even during judicial holidays, ensuring a hearing was opened on the same day, and their statements were taken after identity verification. This situation is emphasized as a reflection of the practical application of the obligation to appear in court and make personal statements.

Delayed Notification and Will: In another example (2022/10833 E.), even if the parties were personally heard, the finding that the decision was served after a very long delay was contrary to the rule of good faith, demonstrating the importance of the sincerity of will and judicial oversight at every stage of the process.

In conclusion; in a consensual divorce case, the parties’ appearance in court and their personal statements before the judge are an indispensable procedural condition for the acceptance of the case. It is not possible to divorce through a proxy or by merely submitting a written protocol without appearing in court. A recommended article.

Anlaşmalı boşanmada mahkemeye gitmeden boşanmak mümkün mü?

Hayır. Anlaşmalı boşanmada tarafların mahkemeye gitmesi ve hâkim huzurunda bizzat boşanma iradelerini açıklaması zorunludur. Taraflar her konuda anlaşmış olsa, protokol imzalamış olsa ve avukatları bulunsa dahi; hâkim, eşleri yüz yüze dinlemeden anlaşmalı boşanma kararı veremez. Yazılı belgeler veya vekil beyanı tek başına yeterli kabul edilmez. Mahkemeye gitmeden anlaşmalı boşanma hukuken mümkün değildir.

Anlaşmalı boşanmada avukat gider ama eşler gitmezse dava kabul edilir mi?

Hayır. Anlaşmalı boşanma davalarında vekilin duruşmaya katılması, eşlerin bizzat duruşmada bulunması zorunluluğunu ortadan kaldırmaz. Vekaletnamede özel yetki olsa dahi, avukatın beyanı eşlerin yerine geçmez. Tarafların her ikisi de duruşmada hazır bulunmalı ve hâkim huzurunda serbest iradeleriyle boşanmak istediklerini sözlü olarak ifade etmelidir. Aksi durumda dava anlaşmalı boşanma niteliğini kaybeder.

Anlaşmalı boşanma duruşmasına görüntülü bağlantı ile katılabilir miyim?

Hayır. Görüntülü bağlantı, telefon veya benzeri uzaktan yöntemlerle duruşmaya katılım anlaşmalı boşanma için yeterli değildir. Hâkimin tarafları “bizzat” dinlemesi ve mahkeme huzurunda iradelerini tespit etmesi gerekir. Uzaktan bağlantı ile alınan beyanlar, yasal şartları karşılamadığı için bozma sebebi sayılmaktadır. Bu nedenle eşlerin fiilen duruşma salonunda bulunması zorunludur.

Why is Expert Lawyer Support Necessary in Consensual Divorce?

Although consensual divorce cases are often perceived as “easy and fast”, the smallest error contrary to procedural rules can lead to the dismissal of the case or its conversion into a contentious divorce. Especially the obligation to appear in court, the personal hearing of the parties, the judge’s approval of the protocol, and its correct recording in the minutes are the areas where problems are most frequently encountered in practice.

In regions with heavy court traffic, such as Tuzla, Kartal, Pendik, and Gebze, especially in Istanbul, family courts strictly scrutinize procedural requirements. For this reason, in cases handled without the support of a divorce lawyer or a consensual divorce lawyer, cases can be prolonged or completely fail due to incomplete statements, incorrect protocols, or procedural errors.

An expert lawyer;

how the parties should make statements in court,

which statements in the protocol yield binding results,

at which points the judge can intervene,

correctly plans the necessary procedural steps from the beginning for the case to be concluded smoothly in a single hearing.
At this point, 2M Hukuk Law Office adopts an approach in consensual divorce cases that not only involves file preparation but also strategically manages the hearing process and the statement phase before the judge. For a consensual divorce to truly be concluded “consensually” and in a single hearing, it is only possible with correct legal guidance.