It examines the most important factors to consider when preparing a consensual divorce protocol and frequently encountered issues in these protocols regarding property division, alimony payments, and child custody, in light of Supreme Court decisions. Consensual divorce is based on the principle that spouses who wish to terminate their marriage apply to the court after reaching an agreement on all consequences of the divorce. However, the meticulous preparation of the protocol is of great importance for this process to proceed smoothly and not to lead to new legal disputes in the future.

1. Scope and Clarity of the Consensual Divorce Protocol

 The protocol must contain the full and clear agreement of the parties on all ancillary matters such as the financial consequences of the divorce (property division, material and moral compensation, alimony for destitution) and the children’s situation (custody, personal relationship, child support). Furthermore, within the scope of the liquidation of the property regime or independently thereof, they can include many matters such as the registration of certain real estate or movable property registered in the registry, the delivery of movable property, the payment of a certain amount of money, share transfers, and so on, in the consensual divorce protocol.

General statements included in the protocol such as “I have no request regarding any property sharing” (Supreme Court 8th Civil Chamber-2013/827-2013/12674) or “We have voluntarily shared the goods acquired during the marital union, and neither party will make a claim later” (Supreme Court 8th Civil Chamber-2013/9389-2014/4769) may not cover the liquidation of the property regime and may become subject to a lawsuit later. In this regard, the Supreme Court 8th Civil Chamber (2013/827-2013/12674) emphasizes that “the arrangement must clearly specify, one by one and by name, that it pertains to the liquidation of the property regime, leaving no room for doubt.”

Incomplete Reflection of Protocol Provisions in the Decision: It is mandatory for the court to clearly and completely include all matters agreed upon in the protocol in the judgment clause of the decision. Otherwise, “hesitation in enforcement” may arise. The Supreme Court 2nd Civil Chamber (2012/25949-2013/11249) states that “it is not sufficient to merely refer to the protocol; all agreed matters must also be included in the judgment clause of the decision.” Similarly, the Supreme Court 2nd Civil Chamber (2023/28-2023/3252) found that “the failure to explicitly state the child support agreed upon by the parties in the protocol… creates doubt in the enforcement of the decision.” Incomplete or altered inclusion of protocol articles in the judgment (Supreme Court 2nd Civil Chamber-2024/2311-2024/2340) also leads to serious problems.

2. Parties’ Will and the Judge’s Role in Uncontested Divorce:

It is essential that the parties have signed the protocol with their free will and that the judge finds the protocol appropriate after being convinced that these wills were expressed freely. The 8th Civil Chamber of the Supreme Court (2013/827-2013/12674) reminds us of the principle: “It is essential that the judge personally hears the parties, is convinced that their wills have been freely expressed, and finds appropriate the protocol agreed upon by the parties regarding the financial consequences of the divorce and the situation of the children.” Therefore, taking the personal statements of the parties during the hearing is important (2nd Civil Chamber of the Supreme Court-2024/5860-2024/8178).

Revocation of Will: Parties can revoke their declarations of will until the consensual divorce decision becomes final. In this case, the lawsuit turns into a contested divorce (2nd Civil Chamber of the Supreme Court-2024/2108-2024/1835, 2nd Civil Chamber of the Supreme Court-2023/4736-2024/3599). The 2nd Civil Chamber of the Supreme Court (2024/1117-2024/8212) states: “There is no provision preventing spouses from revoking their declaration of will, which includes the accepted arrangements, until the decision regarding consensual divorce becomes final.”

Allegations of Forced Signing: The allegation that the protocol was signed under duress can lead to the invalidity of a consensual divorce (2nd Civil Chamber of the Supreme Court-2006/16394-2007/5066).

Judge’s Adherence to Requests and Exceptions: The judge is bound by the parties’ requests (CCP art. 26/1). However, in matters related to public order, such as child support, or when the child’s best interest requires it, the judge may act ex officio or modify the arrangement (Supreme Court General Assembly of Civil Chambers-2017/1894-2019/918). However, this does not mean that extra items beyond the request, such as “ruling an additional 6000 TL for the joint child once a year despite no such request,” will be decided.

3. Division of Property (Liquidation of Matrimonial Property Regime):

 It is important that agreements regarding the liquidation of the matrimonial property regime are clearly stated in the protocol, specifying which assets will remain with whom. The Supreme Court 8th Civil Chamber (2012/4834-2012/5060) emphasizes this distinction by stating that general declarations in a divorce protocol “do not cover the matrimonial property regime”.

Matrimonial Property Regime Not Covered: If there is no explicit provision in the protocol regarding the liquidation of the matrimonial property regime, general waiver declarations concerning the ancillary consequences of divorce (alimony, compensation) do not cover claims arising from the matrimonial property regime (share in acquired property, contribution share, etc.), and a separate lawsuit can be filed in this regard (Supreme Court 8th Civil Chamber-2012/4834-2012/5060, Supreme Court 8th Civil Chamber-2014/12747-2015/1086).

“No Waiver of an Unborn Right” Principle: Especially since claims arising from the matrimonial property regime do not fully accrue before the divorce decree becomes final, the validity of general waivers made in advance regarding these rights is debatable. The Supreme Court 8th Civil Chamber (2014/5316-2014/11905) makes an important finding stating: “in a divorce case, a declaration of waiver of claims for compensation and alimony is not valid because waiver is not possible before the right accrues.”

Good Faith and Adherence to Agreement: The parties making clear declarations regarding property division in the protocol and then filing a lawsuit may be found contrary to the rules of good faith. The Supreme Court 2nd Civil Chamber (2022/9961-2023/1778) emphasized that it is unacceptable for the plaintiff, as a person who “knowingly and willingly provided certain financial opportunities to the other party through the protocol,” to reclaim these opportunities after the divorce.

Distinction Between Personal Property and Acquired Property: The nature of the assets (personal property/acquired property) agreed upon for sharing in the protocol is important. The other spouse may not have a claim right over a share that is considered the defendant’s personal property (Court of Cassation 8th Civil Chamber-2014/16757-2015/4903).

4. Alimony (Poverty and Contribution):

The amount, increase rate, and duration of alimony must be clearly stated in the protocol. The 2nd Civil Chamber of the Court of Cassation (2024/1343-2024/8709) decision refers to a provision stating “… for child support alimony, for alimonies to be increased in future years at the rate of civil servant salary raises.”

Uncertainty or Lack of Amount: The absence of a provision regarding alimony in the protocol or the failure to include the amount in the provision creates a problem.

Applicability of Increase Conditions: Lack of clarity in increase rates may lead to disputes in the future.

Change in Financial Status: Even if the alimony determined by the protocol becomes final, in accordance with Article 176/4 of the Turkish Civil Code (TMK), “The income may be increased or decreased in cases where the financial situations of the parties change or where equity so requires.” (Court of Cassation 3rd Civil Chamber-2015/19705-2016/2083).

5. Custody of Children and Personal Relationship:

The custody of the child and the establishment of personal relations with the other parent should be regulated in detail, considering the child’s best interests. If the custody arrangement agreed upon by the parties is contrary to the child’s interests, the judge may intervene. Uncertainty regarding details such as the days, hours, and special occasions of personal relations creates problems in practice. In the decision of the 2nd Civil Chamber of the Court of Cassation (2009/17648-2010/19842), “the failure to regulate personal relations between the father and the child whose custody was given to the mother in accordance with the protocol” was stated as a deficiency.

Conclusion

Although consensual divorce protocols are one of the most peaceful and fastest ways to terminate a marriage, they can lead to new and complex legal problems if their content is not prepared meticulously. Therefore, when preparing the protocol:

Clarity and Certainty: All financial consequences (property division, alimony, compensation) and arrangements regarding children (custody, personal relations) must be stated clearly and in detail, leaving no room for interpretation or ambiguity.

Liquidation of the Property Regime: Matters concerning property division, which assets belong to whom, and if claims arising from the property regime (participation claim, contribution share, value increase share) are being waived, it is of critical importance that this is clearly stated. As emphasized by the 8th Civil Chamber of the Court of Cassation (2013/827-2013/12674), it is ideal for assets to be “clearly specified by listing them one by one and by name.”

Free Will and Information: It must be ensured that the parties understand all articles of the protocol and accept them with their free will.

Legal Support: Receiving support from a legal expert during the preparation of the protocol will greatly benefit in preventing potential loss of rights and future disputes. Paying attention to these elements will ensure that the amicable divorce process concludes in accordance with its purpose, protecting the rights of the parties, and in a fair manner. Our other articles

Why is an Expert Lawyer’s Opinion Necessary? | Tuzla Lawyer

Although the amicable divorce process may seem simple, even a small oversight in the protocol could later lead to legal action on matters such as property division, alimony, or child custody. Especially in densely populated districts like Tuzla, Pendik, Kartal, which have increasing divorce rates, being knowledgeable about the practices of local courts and Supreme Court decisions provides a significant advantage.

✅ Properly incorporating the matrimonial property regime into the protocol,
✅ Clearly stating details such as alimony increases and duration,
✅ Planning custody and personal relationship arrangements in the best interest of the child,
working with an expert lawyer in divorce law in Tuzla both prevents loss of rights and increases the likelihood of the protocol being accepted by the court. A protocol prepared with the support of an expert lawyer protects you from disputes that could last for years and ensures the process is completed quickly and peacefully. Article suggestion on this matter