INKO LEGALINKO LEGAL Attorneys at Law
FAMILY AND INHERITANCE LAW

Uncontested and Contested Divorce

A divorce action can follow two routes: uncontested divorce, where the parties agree on all consequences, and contested divorce, where fault is determined at trial. Which route is taken, what the agreement contains and how evidence is gathered directly shape the picture of maintenance, compensation and division of property after the divorce.

An uncontested divorce requires that the marriage has lasted at least one year, that the spouses apply jointly or one spouse accepts the other's action, and that the judge hears the parties in person and approves the agreement (Article 166/3 of the Turkish Civil Code No. 4721, TMK). Where these conditions are not met, the action proceeds as contested; the most common ground is the irretrievable breakdown of the marriage (Art. 166/1 TMK), and fault determines the maintenance and compensation claims. The court with subject-matter jurisdiction is the family court; the competent court is that of the domicile of either spouse or of the place where the spouses last lived together for the six months before the action (Art. 168 TMK). Divorce actions are not subject to mandatory mediation.

What we do in this area

Divorce files are handled at the office along two separate routes. In an uncontested divorce, where the spouses agree on all consequences of the divorce, the work consists of drafting a complete agreement and preparing for the hearing. Where there is no agreement, the action is filed as contested; fault, evidence and the financial consequences of the divorce are determined at trial. This page is the part of the family and inheritance law tree devoted to the divorce action; maintenance and custody, and division of property, are covered on separate pages.

The work the office carries out under this heading:

  • Drafting the uncontested divorce agreement and following the hearing
  • Filing the contested divorce action or responding to an action already filed
  • Claims for interim maintenance, temporary custody and allocation of the family home during the proceedings
  • Claims for pecuniary and non-pecuniary damages (Article 174 of the Turkish Civil Code, TMK)
  • Applications for protective and preventive measures under Law No. 6284

Uncontested divorce: conditions and the agreement

Under Article 166/3 of the Turkish Civil Code No. 4721, an uncontested divorce requires that the marriage has lasted at least one year and that the spouses apply to the court jointly or one spouse accepts the action filed by the other. The judge hears the parties in person; the judge must be satisfied that their intentions have been freely expressed and must find the arrangement regarding the financial consequences of the divorce and the situation of the children appropriate.

The agreement must address the financial consequences of divorce and the position of the children. The following table also includes optional matters; liquidation of the property regime is not a mandatory condition of uncontested divorce:

Heading Matter regulated
Custody and contact Which parent the child will live with, contact days with the other parent, holiday and religious festival arrangements
Child maintenance Monthly amount payable for the child, payment date and the annual increase criterion
Post-divorce maintenance and compensation Whether claimed and in what amount; if not claimed, an express waiver
Property regime (optional) Division of real estate, vehicles, accounts and jewellery, or mutual waiver
Household goods and the home Who will use them and the date for vacating
Surname The wife reverting to her pre-marriage surname or continuing to use the husband's surname with permission (Art. 173 TMK)

If the agreement contains no mutual waiver regarding the property regime, an action for liquidation of the matrimonial property regime may be filed while the divorce is pending; a decision on liquidation awaits the final divorce judgment. If one of the parties withdraws from the agreement before the judgment becomes final, the action continues as contested.

Contested divorce: grounds and fault

The Code sets out the specific grounds for divorce (adultery, attempt on life and severe ill-treatment, committing a crime and leading a dishonourable life, desertion, mental illness; Articles 161 to 165 TMK) and, as the general ground, the irretrievable breakdown of the marriage (Art. 166/1). The court determines whether the marriage has broken down to the extent that the spouses cannot be expected to continue their life together, and which spouse is at fault. If the claimant is more at fault, the respondent may object to the action; but if the objection amounts to an abuse of right, divorce may still be granted.

The finding of fault determines not only the divorce judgment but also what follows: post-divorce maintenance is awarded to the spouse who is not more at fault (Art. 175); pecuniary and non-pecuniary damages are the right of the party who is without fault or less at fault (Art. 174). In actions based on adultery or attempt on life, the right of action lapses six months after learning of the ground and in any event five years after the act; a spouse who has forgiven has no right of action (Arts. 161, 162). For desertion, the separation must have lasted at least six months, a warning must be served through the judge or a notary after the fourth month, and two months must have passed since the warning (Art. 164).

On the evidence side, witness statements, correspondence, bank records and the social inquiry report stand out. Evidence obtained unlawfully cannot form the basis of the judgment under Article 189 of the Code of Civil Procedure No. 6100 (HMK). In a divorce action an admission does not bind the judge and an oath cannot be tendered (Art. 184 TMK).

Measures during the proceedings

Once the action is filed, the judge takes of their own motion the temporary measures relating to the spouses' accommodation and subsistence and the care of the children (Art. 169 TMK). Interim maintenance, which spouse is allocated the family home and which parent the child will temporarily live with are decided within this scope. Where violence or threats are alleged, protective measures under Law No. 6284 may be sought independently of the divorce action; disputes involving allegations of domestic violence are not suitable for mediation (Article 1 of Law No. 6325).

Jurisdiction, venue and time limits

The divorce action is heard by the family court; the competent court is that of the domicile of either spouse or of the place where the spouses last lived together for the six months before the action (Art. 168 TMK). The rights of action for maintenance and compensation arising from the divorce become time-barred one year after the judgment becomes final (Art. 178). The office is located in Konak, İzmir; files are also followed before family courts in other provinces according to the venue rules.

For details of how we work: How we work.

FREQUENTLY ASKED

What people ask about this area

Under what conditions is an uncontested divorce possible?
The marriage must have lasted at least one year, and the spouses must apply jointly or one spouse must accept the action filed by the other (Article 166/3 of the Turkish Civil Code, TMK). The judge hears the parties in person at the hearing; a statement through a lawyer is not sufficient. The agreement regulating the financial consequences of divorce and the position of the children must be approved by the judge; changes proposed by the judge must be accepted by the parties. Property-regime liquidation may be regulated separately and is not a mandatory condition.
My spouse does not want a divorce. Will the action still be concluded?
One spouse not wanting a divorce does not prevent the action; the action proceeds as contested and the court determines on the evidence whether the marriage has irretrievably broken down (Article 166/1 of the Turkish Civil Code, TMK). If the claimant is wholly at fault and the respondent's objection is not considered an abuse of right, the action may be dismissed. If the spouses have not resumed living together within one year of the dismissal becoming final, divorce is granted at the request of either spouse (Art. 166/4).
What happens if my spouse withdraws from the agreement before the judgment becomes final?
Until the uncontested divorce judgment becomes final, either party may withdraw from the agreement; in that case the action continues as a contested divorce and the ground for divorce and fault must be proved by evidence. Admissions in the agreement cannot be used on their own as evidence at the contested stage. This possibility means the state of the evidence must also be assessed when the agreement is being drafted.
In which court and where is a divorce action filed?
The court with subject-matter jurisdiction is the family court; where there is no family court, the civil court of first instance sits in that capacity. The competent court is that of the domicile of either spouse or of the place where the spouses last lived together for the six months before the action (Article 168 of the Turkish Civil Code, TMK). Divorce actions are not within the scope of mandatory mediation; the action is filed directly.

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IMPORTANT NOTICE

This page is general information only and does not constitute legal advice. Every file is assessed on its own documents, dates and parties; the general explanations here cannot be applied directly to your own situation. Prepared in line with the Union of Turkish Bar Associations’ advertising restrictions. This English text is a courtesy translation prepared by the firm; in case of any discrepancy the Turkish text prevails.

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