Consensual Divorce

What Is a Consensual Divorce? Legal Basis and Advantages

The termination of a marriage does not always have to be a distressing and prolonged process. When spouses mutually agree on all consequences of the divorce within a framework of respect and understanding, a consensual divorce (known in Turkish as “anlaşmalı boşanma”) allows them to conclude the process both legally and emotionally in the fastest and least damaging way possible. This method transforms the end of the marriage into a joint decision and lays a stable foundation for the future of both spouses and their children, if any.

For many couples, especially when considering the long duration and high costs of contested divorce proceedings, consensual divorce represents the most reasonable and responsible option.

Legal Basis of Consensual Divorce: Article 166/3 of the Turkish Civil Code

The legal foundation of consensual divorce in Turkey is set out under Article 166, paragraph 3 of the Turkish Civil Code (TCC). This provision constitutes a specific and practical form of the general ground for divorce—“the breakdown of the marriage union.” The legislator accepts that if both spouses have reached a firm decision to divorce and have agreed on its consequences, the marriage is deemed to have irretrievably broken down.

The article reads as follows:

“If the marriage has lasted for at least one year, and the spouses jointly apply for divorce or one spouse accepts the other’s petition, the marriage shall be deemed to have broken down irretrievably. In such a case, the court may grant a divorce after hearing the parties personally and being convinced that their consent is given freely, and after approving the arrangements made regarding the financial consequences of the divorce and the situation of the children.”

This provision establishes the essential cornerstones of consensual divorce:
• Duration Condition: The marriage must have lasted at least one year.
• Mutual Intention: The spouses must share a joint will to divorce (joint petition or acceptance).
• Judicial Hearing: The judge must personally hear the parties and ensure the declaration of free will.
• Settlement (Protocol): The parties’ written agreement on financial matters and child-related arrangements must be approved by the judge.

Mandatory Conditions for a Consensual Divorce

To obtain a court decree of consensual divorce, the spouses must fulfill the mandatory conditions explicitly defined in Article 166/3 of the Turkish Civil Code:

1. Marriage Duration of at Least One Year

The most basic requirement is that the marriage must have lasted at least one year as of the filing date of the divorce petition. Couples who have been married for less than one year may only file a contested divorce based on fault. The one-year rule aims to ensure that the decision to end the marriage is not made impulsively.

2. Mutual and Free Declaration of Will

The spouses must reach a full and unequivocal agreement on the divorce and its consequences. This agreement may be shown in one of two ways:
• Jointly filing a divorce petition; or
• One spouse accepting the divorce petition filed by the other, either orally during the hearing or through a written statement.

Most importantly, the court must be convinced that each spouse’s will is declared freely and voluntarily, without any coercion, threat, or undue influence.

3. Preparation of the Consensual Divorce Protocol

At the heart of the process lies the Consensual Divorce Protocol, a written document signed by both spouses setting out their mutual agreement on all legal and financial consequences of the divorce. The protocol must be clear, comprehensive, and enforceable to ensure that the case concludes in a single hearing.

The protocol must include at least the following:
• Alimony: Determination of spousal support (alimony) and child support (maintenance).
• Compensation: Whether pecuniary or non-pecuniary damages are claimed and their amount.
• Custody: The allocation of custody of the minor children, if any.
• Visitation Rights: The regulation of visitation or personal contact between the non-custodial parent and the children.

Note: Property division (matrimonial property regime) and personal assets such as jewelry or dowry items (ziynet) are not mandatory elements of the protocol and may be handled through separate proceedings after divorce. However, it is generally advisable to address these issues within the protocol to fully settle all potential disputes.

4. Personal Appearance of the Parties in Court

Unlike contested divorces, both spouses must personally attend the court hearing in a consensual divorce. The law expressly requires the judge to personally hear both parties and confirm their free and voluntary intent to divorce.

“The court shall personally hear the parties and be convinced that their declarations of will have been made freely…” (TCC Art. 166/3)

Representation solely through an attorney is not sufficient; the personal appearance of both parties is compulsory.

5. Judicial Approval and Potential Modifications

The protocol ultimately requires judicial approval. The judge examines the agreement in light of public order and, most importantly, the best interests of the child. If the judge finds any provisions contrary to these principles, modifications may be proposed.

Any amendment suggested by the judge must be expressly accepted by both spouses during the hearing. Otherwise, the case will be dismissed, and the parties may proceed through a contested divorce instead.

Step-by-Step Process of Consensual Divorce

A consensual divorce is far faster and more predictable than a contested one, often concluded in a single hearing.

A. Pre-Filing Preparation and Application

• Drafting the Protocol: The first and most critical step is the preparation of the protocol, ensuring all mandatory elements are covered. Seeking legal counsel at this stage helps avoid costly mistakes.
• Filing the Case: The signed protocol is submitted with the petition for consensual divorce to the competent Family Court.
• Payment of Court Fees: Filing requires payment of the fixed court fees and expenses (harç ve gider avansı).
• Jurisdiction: The competent court is the Family Court of either spouse’s domicile or their last common residence (TCC Art. 168). If there is no Family Court, the Civil Court of First Instance hears the case as a Family Court.

B. Hearing and Judgment (Single Session)

After filing, the court schedules a hearing date based on its workload—usually within several weeks to a few months. During the hearing:
• The judge verifies the parties’ identities.
• Each clause of the protocol is reviewed and confirmed by both spouses.
• The judge assesses whether the will of each party is freely expressed.
• If necessary, the judge may propose amendments, and upon acceptance, grants the divorce decree.

C. Finalization of the Divorce Decree
• Reasoned Judgment: After the hearing, the court issues a reasoned decision, which is served on both parties.
• Appeal Period: The decision becomes final after the 2-week appeal (regional court of appeal) period expires.
• Waiver of Appeal: The parties may jointly submit a petition of waiver to expedite finalization (usually within 1–2 weeks).
• Registration: Once finalized, the court notifies the relevant Civil Registry Office, officially recording the divorce.

The Importance of Legal Representation

Although spouses may technically file and conclude a consensual divorce without legal representation, the drafting of the protocol is a highly delicate legal process. Even a minor ambiguity or omission may cause serious and irreversible financial or parental disputes later—such as miscalculated alimony or overlooked property rights.

An experienced divorce attorney ensures that:
• All legal rights and entitlements are properly protected and documented.
• The protocol is written in clear, enforceable language that prevents future conflicts.
• The agreement aligns with judicial expectations to secure approval in a single hearing.

Conclusion

A consensual divorce marks not only the end of a marriage but also the beginning of a new chapter in life. Ensuring that this transition is built on firm legal foundations protects both emotional and financial well-being. With the guidance of a qualified attorney, couples can conclude their marriage respectfully, efficiently, and with full legal certainty—paving the way for a peaceful and secure future.