Türk Hukukunda Anlaşmalı Boşanma (Tmk M. 166/III)

Abstract

Eşlerin serbest iradeleri ile evliliklerinin sona erdirebilmelerine imkân tanıyan anlaşmalı boşanma, genel ve mutlak bir boşanma se- bebi olup, bu nedenle açılan dava çekişmesiz yargı işi niteliğindedir. Anlaşmalı boşanmanın gerçekleşebilmesi evlilik en az bir yıl sürmüş olmalıdır. Ayrıca, eşler mahkemeye birlikte başvurmalı veya bir eşin açtığı davayı diğer eş kabul etmelidir. Hâkim, eşlerin serbest iradele- rini tespit edebilmek için mutlaka eşleri dinlemek zorundadır. Eşler boşanma konusunda anlaşmalıdırlar. Boşanma anlaşmasının hukuki niteliği, kendine özgü yapısı olan aile hukuku sözleşmesidir. Boşanma anlaşmasının zorunlu içeriğini oluşturan, boşanmanın mali sonuçları ibaresinden nafaka ve tazminata, çocukların durumu ibaresinden ise velayet ve çocukla kişisel ilişki kurulmasına ilişkin düzenlemeler anlaşılır. Son olarak, hâkim boşanma anlaşmasını uygun bulmalıdır. Hâkim anlaşmada eşlerin ya da çocukların yararına değişiklik yapabi- lir. Anlaşmalı boşanmanın gerçekleşebilmesi için söz konusu değişik- liklerin eşler tarafından kabul edilmesi gerekir.

In an uncontested divorce, the spouses may terminate the marria- ge with their common will. Uncontested divorce was not included in the first version of the abrogated code numbered 743, and was inclu- ded in our law for the first time with a regulation of code numbered 3444. The reason for the inclusion of uncontested divorce not in a se- parate provision of the law but in the provision on the breakdown of the marriage union is that it is accepted that there is a presumption that the marriage union has been broken down in the event of uncon- tested divorce. The existence of a specific fact is not required for an uncontested divorce to be granted. Therefore, uncontested divorce is a general reason for divorce. The fact that the judge cannot conduct any investigation in the presence of the necessary conditions indicates that it is an absolute reason for divorce. An uncontested divorce case is a noncontentious judgement. In this case, the existence of the defendant and the plaintiff cannot be mentioned. Article 166/III of the TCC, which regulates uncontested divorce, requires the existence of certain condi- tions for uncontested divorce. The first of these is that the marriage must have lasted for at least one year. The spouses do not have to actu- ally live together during the one-year period in question. The moment of determination of the one-year period is the starting moment of the proceedings. Since the relevant period is a condition of the lawsuit, it is observed ex officio by the judge. If the relevant period of time has not expired, the case shall not be dismissed, and the proceedings shall con- tinue as contentious according to Article 166/I of the TCC. Another condition for uncontested divorce is the application of the spouses. The relevant application may be made jointly or in the event that one spou- se files a lawsuit, the other spouse may accept the lawsuit. In case the spouses apply jointly, the dispute is from the very beginning of the jud- gement, while in case of acceptance, it arises with the acceptance. The declaration of acceptance can be made until the judgement is finalized. Likewise, the acceptance can be revoked until the finalization of the judgement. In an uncontested divorce, it is possible for the other party to waive the lawsuit as well as the party who filed the lawsuit. In an uncontested divorce case, only divorce can be requested, the spouses do not have the right to demand separation. Another condition in an uncontested divorce case is that the spouses are heard by the judge in person. This condition remains even if the parties are represented by an attorney. This condition enables the determination of whether the spouses have free will for an uncontested divorce. The judge uses his/her discretion in determining the free will. The obligation to de- termine the free will of the spouses prevents the uncontested divorce from being favorable to mediation. The judge must hear the parties in person. Another condition of uncontested divorce is the agreement of the spouses regarding the financial consequences of the divorce and the custody of the children, if any. The divorce agreement is not subject to any form. The divorce agreement is a unique family law contract. The financial consequences and the status of the children constitute the mandatory content of the divorce agreement. If there is a disagreement on one of these issues, an uncontested divorce cannot be granted. The financial consequences of divorce are material and moral compensa- tion, poverty alimony and precautionary alimony. Issues such as the division of the property and the costs of the proceedings are not man- datory elements. Similarly, the liquidation of the property regime is not considered within the scope of mandatory elements. The parties should clearly agree on the mandatory financial elements. It is not possible to make a claim after the divorce for the financial consequences that are not included in the divorce agreement. In this case, it is accepted that the request for the relevant financial elements is waived. Another man- datory element of the divorce is the status of the children, which refers to the custody of the children, the personal relationship of the spouse who does not have the right of custody with the child and the main- tenance of the child. The financial consequences and the status of the children under Article 166/III of the TCC constitute the minimum ele- ment of the agreement. If the parties wish, they may include other issues in the text of the agreement as subjective essential elements. In this context, issues such as property regime, family residence, the di- vorced spouse to continue to use the surname of the divorced spouse, judgement expenses may be included in the agreement. The divorce agreement must be approved by the judge. The judge may make chan- ges in the agreement on the grounds of the interests of the parties or the children. The divorce agreement must be approved by the judge. If the judge makes changes, the spouses must approve the changes. Ot- herwise, an uncontested divorce cannot be granted. The judge can only examine the agreement in terms of the financial consequences of the divorce. He/she cannot investigate the reasons for divorce. Article 166/III of the TCC stipulates that the provision of Article 184/III of the TCC stating that the judge shall not be bound by the admissions of the parties in the divorce case shall not be applied. It is not possible for the judge to decide for separation instead of divorce. Because such a deci- sion is incompatible with the purpose of Article 166/III of the Civil Co- de, which provides the possibility of divorce by giving superiority to the will of the parties.