The Problem of Property Settlement in Consensual Divorce in Turkish Law

The Problem of Property Settlement in Consensual Divorce

Consensual divorce, regulated in Article 166, paragraph 3 of the Turkish Civil Code, is a type of divorce that allows spouses to end their marriage by mutual agreement in the Turkish Legal System. In this type of divorce, it is not sufficient for the spouses to agree on the divorce; they must also have reached an agreement on the financial consequences of the divorce and, if any, the situation of the children. However, for this agreement to be valid, the judge’s approval is mandatory. Nevertheless, there are different views in doctrine and practice on whether the liquidation of the property regime is included in the mandatory content of this agreement in Turkey.

 

According to the established jurisprudence of the Court of Cassation in Turkey, the phrase “financial consequences of divorce” mentioned in Article 166/3 of the Turkish Civil Code covers material and moral compensation (Article 174 of TCC) and alimony (Article 175 of TCC). Therefore, the Court of Cassation does not consider the liquidation of the property regime as part of the mandatory content of consensual divorce. On the other hand, there is no obstacle for spouses to include matters related to the liquidation of the property regime in their agreement. Indeed, in a decision of the Court of Cassation, it was stated that “…there is no situation preventing the inclusion of arrangements regarding the liquidation of the property regime in the divorce agreement of the divorce case.”

 

In the doctrine, however, some authors argue that the liquidation of the property regime is one of the financial consequences of divorce, and therefore, one of the issues that spouses should agree on in consensual divorce is the liquidation of the property regime they are subject to in the Turkish Legal System. According to this view, for the liquidation agreement to take effect, the judge must approve the contract. Some authors even argue that a “consensual divorce” decision cannot be made based on an agreement that does not contain a consensus on liquidation.

 

On the other hand, the view that argues that the liquidation of the property regime is not part of the mandatory content of consensual divorce essentially stems from the fact that the liquidation of the property regime is not ancillary to divorce. According to this view, the property regime cannot be liquidated unless the divorce case is finalized, and divorce is not the only reason that terminates the property regime; it can also end in other situations listed in Article 225 of the TCC, such as annulment of marriage or death. Therefore, the liquidation of the property regime cannot be considered as an ancillary consequence of divorce.

 

Due to the fact that the arrangements made by spouses regarding their property values within the scope of consensual divorce are often not clear, it is common to file lawsuits originating from the property regime later. At this point, the interpretation of agreements made within the scope of consensual divorce and approved by the court becomes important. When the decisions of the Court of Cassation on this issue are examined, it is seen that different interpretations are made regarding the scope of the expressions used.

 

For example, in one decision of the Court of Cassation, the phrase “The parties have no property claims” was accepted to cover all kinds of property arising from participation claim. On the other hand, in another decision, it was stated that accepting the concept of “property” to cover all movable and immovable properties would be contrary to the logic of property regime cases and the essence of the right. Therefore, the scope of the expressions used by the parties should be carefully evaluated.

 

In interpreting agreements regarding the liquidation of the property regime, general contract interpretation principles should be applied. Accordingly, the real and common intentions of the parties should be investigated, and if this cannot be determined, the declarations should be interpreted within the framework of the theory of trust. It should be taken into account that provisions regulating the waiver of a right should be interpreted narrowly. In this context, in case of doubt, arrangements regarding the waiver of receivable rights of spouses should also be interpreted narrowly.

 

In consensual divorce cases, if the judge has the parties clarify unclear points in their agreements about the side consequences of divorce, it can prevent potential disputes in the future. Indeed, according to Article 166/3 of the TCC, it is mandatory for the judge to approve the arrangement to be accepted by the parties regarding the financial consequences of the divorce and the situation of the children. In this context, the judge should ensure that the agreement is clear, understandable, and equitable.

 

In conclusion, debates continue on whether arrangements regarding the liquidation of the property regime are mandatory in consensual divorce in Turkey. The established jurisprudence of the Court of Cassation is that the liquidation of the property regime is not included in the mandatory content of consensual divorce. However, if the spouses make an agreement on this issue, judge approval is required for the validity of this agreement. To prevent problems that arise in practice, it is important for the judge to clarify the intentions of the parties in consensual divorce cases and clearly determine the scope of the agreement. In addition, care should be taken in interpreting the expressions used by the parties, and in case of doubt, a narrow interpretation should be preferred.

 

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