28.09.2021

 Authors: Sema Çelebi, Esra Ayaz

The conjoint must submit an agreement regarding the financial results of the divorce and the situation of the joint children for  the approval of the judge, and then the judge must approve it in order to give a verdict of divorce consensually. In short, the agreement between the conjoint is a private law contract, that depends upon the approval of a judge which is made about secondary conclusions of the divorce.

Mandatory elements in such a protocol include the  financial results and the situation of the joint children. Financial results are alimony, pecuniary and non-pecuniary compensation. As for situation of the joint children, it covers the custody and personal relationship.

The Financial Results of the Consensual Divorce

One of the financial results is alimony which has various types; rehabilitative alimony, child support and alimony ad interim.

While stating the rehabilitative alimony; some information like the party who will take the alimony, the amount, the rate of increase, the period and the payment method should be involved. Because specify of beginning date is not a must, in case of not state beginning date is validity of divorce verdict. Also, the end date does not need to be specified. “Falling into poverty” is stated that a person cannot afford essential and necessary expenses such as accommodation, transportation or health.

The purpose of the child support is that the parent, has not got custody right, shares minor joint child’s costs like health or education etc. in the ratio of his/her welfare. The amount of this type of alimony shall be detected by considering the parents’ living conditions, abilities to payment and joint child’s necessities together. Moreover, it should be established how much will be paid in future, as well as  the amount allocated to  each individual child.

Alimony ad interim is a type of payment  made  by one of the conjoint during the action for divorce. Generally consensual divorce is ended at the first hearing so alimony ad interim is not usually necessary. In addition, the parties can request an alimony by alleging that their life conditions may change. The payment of alimony ad interim expires at the determination of the action. Besides, that one claiming alimony should not work during the trial, which is one of the circumstances.

It should be clearly and separately expressed the payee and the type of alimony in the text. The most essential criteria is proportionateness while determining the alimony amount. Maintaining a balance between claiming one’s requirements and the other’s financial strength is necessary. This amount may be increased in regard of various indexes or some economic factors.

The agreed topics regarding  pecuniary and non-pecuniary compensation should be include  in the protocol. Unless there is an agreement about this subject, the judge cannot issue the divorce verdict. If there is such demand, the amount and payment schedule should be specified. However, a claim for compensation is not a mandatory. Although a clause related to pecuniary and non-pecuniary compensation is mandatory, if it is not included, it does not affect the validity of the protocol because the judge may be convinced that the parties did not consciously take such a clause in the text.

The Principles Regarding the Situation of the Joint Children

The right of children’s custody can be belong only one parent. It also can be shared between conjoints although there is no regulation in Turkish Law. Personal communication or interviews between the child and the parent whose right of custody has been granted to another party is required to be stated in the protocol. In this topic, period, time and nature of the  relationship should be regulated as clear and definite.

Unless the parties are not in consensus about custody, it is impossible to give a verdict in accordance with a consensual divorce. The clauses related to custody right should not prevent the use of either the plaintiff’s or the defendant’s custody rights. The judge can modify the protocol clause by taking care of the child’s best interest because the custody relates to public policy. However, the parties need to accept this change.

The Optional Elements of the Consensual Divorce Protocol

The parties who want to be divorced consensually can address some subjects such as the division of matrimonial property, the relationship of joint children between with 3^rd persons or promise of gift in the child’s favor etc. within the scope of legal regulations. The free will of the spouses is effective at this point. Furthermore, non-mandatory elements are subject to the approval of the judge without any other research of reasons other than the parties’ free will. If the judge approves the mandatory elements but not the non-mandatory ones, the parties can change or delete them and the protocol saves its validity.