Can Conditions Be Added to the Consensual Divorce Protocol? The End of Love, The Continuation of Debt!

What is Consensual Divorce Protocol?

Consensual divorce is a type of divorce in which the parties reach an agreement on all financial and legal issues. The protocol prepared in this process determines the obligations and rights of the parties after the divorce. However, for this protocol to be valid, it must comply with some conditions. The Supreme Court states that the gratuitous provisions (mutual obligations) in consensual divorce protocols must be clear and unambiguous.

Can Concessionary Provisions Be Made?

Yes, gratuitous provisions can be included in the consensual divorce protocol. For example, when a real estate is sold, the loan debt is paid off and the remaining amount is given as compensation with a certain percentage. However, the Supreme Court emphasizes that such provisions must be stated clearly and in a way that does not create any hesitation.

Supreme Court and Mandatory Provisions

The Supreme Court of Appeals has ordered that, in accordance with the mandatory provisions, each item must be clear and its amount clear in the consensual divorce protocol of the divorcing parties. In particular, loan payments and conditional provisions must be clear, specific and non-controversial.

Judge's Intervention

The judge may intervene in the parties' agreement on certain issues in the consensual divorce protocol and make suggestions. If these suggestions are accepted by the parties, a consensual divorce decision can be made. However, agreement cannot be made conditional and waivers or acceptances should not be conditional.

Optional Issues That Can Be Added to the Divorce Protocol

Credit Debt Payment Agreement

The parties can determine the responsibility for payment of the loan debt received during the marriage by protocol. This qualifies as a "debt assumption" agreement and is approved by the judge. If the parties do not comply with the consensual divorce, enforcement proceedings may be initiated to pay the installments of this loan debt.

House Payment on Credit

How the ongoing debts of the house purchased with a loan during the marriage will be paid during the divorce phase should be clearly stated in the protocol. Spouses can decide who will own the house for which the loan is still ongoing and who will make the payments.

Financial Consequences and Compensation Claims

The protocol should also specify the financial consequences of the divorce, claims for material and moral compensation, and alimony (poverty and child support). These issues must be clearly stated in the protocol, both in terms of amount and payment schedule.

Supreme Court Decisions

Clear Concession Agreement

The Supreme Court stated that agreements should be clear and without any room for hesitation. Agreements that would create hesitation in execution were not found correct. For example, the decision of the 2nd Civil Chamber of the Supreme Court of Appeals dated 24.05.2017 emphasizes that the agreement must be clear and enforceable.

Court Approval

The items in the consensual divorce protocol must be included in the court decision or the protocol must be approved by the court. In the decision of the 8th Civil Chamber of the Supreme Court of Appeals dated 23.01.2015, it was stated that the protocol articles must be approved by court decision.

Sale of Real Estate

The conditions regarding the sale of real estate in the consensual divorce protocol are legally valid. In the decision of the 2nd Civil Chamber of the Supreme Court of Appeals dated 17.12.2015, it was stated that the protocol articles regarding the sale of immovable properties should be included in the court decision.

Conclusion

When preparing a consensual divorce protocol, it is of great importance that the articles are clear and unambiguous and that the conditional provisions are clearly stated. Supreme Court decisions provide guidance on these issues and ensure the correct management of legal processes. Precautionary alimony may be subject to enforcement proceedings without a judgment. This protects the rights of alimony creditors and ensures a fair trial process. Please contact us for a Divorce Lawyer.

Legal Consultancy

Book Now