How to Draft a Divorce Settlement Agreement for Consensual Divorce in Turkey
- Avukat Baran DELİL
- 3 days ago
- 5 min read
Delil Law Firm
Makale İçeriği:
What is a Mutual-Consent Divorce in Turkey?
Under the Turkish legal system, a divorce case may be processed either as a mutual-consent divorce or a contested divorce. A mutual-consent divorce is a type of action initiated when the spouses mutually agree to terminate the marriage and submit that agreement to the court in the form of a divorce settlement agreement. In this type of proceeding, the spouses have reached agreement on issues such as the divorce decision itself, alimony, child custody, and property distribution. The principal advantages of a mutual-consent divorce are that it concludes in a shorter timeframe and involves less cost.
According to the Turkish Civil Code, in order to file a mutual-consent divorce in Turkey, the marriage must have lasted for at least one year. The agreement is approved by the court provided that both parties desire the divorce and agree on its conditions. The settlement agreement for a mutual-consent divorce is ordinarily submitted together with the divorce petition, and it is reviewed by the judge. It is also possible, in certain cases, for a contested divorce case to be converted into a mutual-consent divorce case by submitting a petition to that effect. If the judge is satisfied that the provisions of the agreement are consistent with the interests of the parties and any children involved, and that they are compliant with public policy, then the divorce will be decreed.
In Turkey, hundreds of married couples decide to divorce each day for various reasons. According to official statistics by Turkish Statistical Institute(TÜİK), some 135,000 couples ended their marriage in 2020. Data published by the General Directorate of Judicial Records and Statistics show that nearly half of these divorces were processed via mutual-consent procedure. Naturally, this prompts couples considering divorce to ask: “How is the mutual-consent divorce process conducted?”, “How should the settlement agreement for mutual-consent divorce be drafted?”, “What should be considered in the settlement agreement for a mutual-consent divorce?”
In this article we will focus exclusively on how the settlement agreement for a mutual-consent divorce must be prepared and what must be taken into account when drafting that agreement.
Conditions for a Mutual‐Consent Divorce under Turkish Law
Under the Turkish legal system, there are four fundamental conditions that must be met for a mutual‐consent divorce to be granted:
The marriage must have lasted at least one year. If the marriage has lasted less than one year, the divorce must proceed via the contested procedure.
The spouses must either file the lawsuit together, or the spouse against whom the petition is filed must clearly accept the petition during the hearing. A unilateral application alone is not sufficient.
The settlement agreement prepared by the spouses(covering alimony, custody, property distribution, etc.) must be submitted with the petition, and the spouses must verbally confirm their free will before the judge.
The judge reviews the settlement agreement, particularly with regard to the best interests of any children and public policy; if the judge finds it insufficient or problematic, amendments may be proposed. If the conditions are satisfied, the judge will, in most cases, decree the divorce in a single session.
What is a Divorce Settlement Agreement in the Context of Turkish Law?
Under the Turkish legal system, a divorce settlement agreement is a written document, signed by both spouses, that sets out the matters upon which they have reached agreement in the process of a mutual-consent divorce. This agreement forms the foundation of the divorce proceedings and defines the rights, responsibilities and terms of the divorce for both parties.
In a mutual-consent divorce or even a contested divorce in Turkey, the court bases its decision on the submitted settlement agreement. However, the settlement agreement alone is not sufficient: the spouses must personally appear at the hearing and orally confirm their intention to divorce before the judge.
What Matters Are Included in a Divorce Settlement Agreement under Turkish Law?
In a settlement agreement for a mutual-consent divorce according to the Turkish legal framework, the following issues are typically included in detail:
If the spouses have joint children, the agreement will specify which parent will be granted custody of those children.
The dates and arrangements of the non-custodial parent’s personal visitation rights with the children.
Alimony(spousal maintenance).
Material and non-material compensation claims(for example, pecuniary and moral damages).
Return of personal belongings.
Allocation and division of assets — both movable and immovable property subject to the property regime, rights and receivables held through third parties — and the liquidation of the property regime.
Division of household furnishings and shared domestic assets.
Return of jewellery items.
Attorney’s fees and court costs.
How Should a Divorce Settlement Agreement Be Drafted under Turkish Law?
Before drafting a settlement agreement for a mutual-consent divorce in Turkey, the parties or their attorneys should discuss all issues relating to the divorce and establish as healthy a communication as possible. If the parties cannot communicate effectively, one party’s lawyer may facilitate this communication between the parties, or both parties may each retain a mutual-consent-divorce attorney and represent themselves through their lawyers.
Spouses wishing to opt for a mutual-consent divorce must reach agreement on the divorce itself, the associated ancillary matters(alimony, compensation, custody, personal relations with the joint child), and on the issue of jewellery and division of property. While it is not mandatory under Turkish law to agree on the liquidation of the marital property regime and jewellery items, we strongly advise including these matters in the protocol to prevent new lawsuits and to avoid any potential future legal and economic harm. In this way, after the divorce proceeding, the marriage may be terminated without launching a separate property-division or jewellery-return lawsuit, thus avoiding additional costs. Unless the parties expressly waive their rights and claims in respect of jewellery items and property division, they retain the right to bring a separate action after the divorce.
The foregoing principle applicable to property division and jewellery items does not apply to applications for spousal maintenance(poverty alimony) and compensation(material and moral damages). In mutual-consent divorce proceedings in Turkey, unlike in contested divorce proceedings, fault is not determined. As a result, claims for poverty alimony or material/moral damages which are not incorporated into the settlement agreement cannot be made after the decision becomes final, because their pursuit requires a finding of fault or the other spouse’s culpability. For instance, in a divorce based on adultery, severe incompatibility or any other contested-divorce ground, if poverty alimony or material/moral damages were not claimed in the divorce case, the less-faulty or fault-free spouse may bring those claims within one year—but this is not possible in mutual-consent divorce for the reason described. Accordingly, parties wishing to assert such claims must ensure these issues are included in the settlement agreement.
Custody, personal visitation with the child, and child support(participation alimony) matters can be requested later even if these rights and claims have been waived in the protocol, because they concern public policy.
