This article was authored by Expatriate Law.
Jurisdiction for Divorce in Indonesia
A party can file divorce proceedings in Indonesia court if one of the married couples:
- is an Indonesian citizen;
- is domiciled in Indonesia at the time of the law suit; and
- has a substantial connection with Indonesia.
Divorce in Indonesia
Under Law Number 1 of 1974 on Marriage ("1974 Marriage Law"), a marriage conducted in Indonesia becomes valid if it is done in accordance with each of [recognized] religion and belief in Indonesia.
Further, Government Regulation Number 9 of 1975 on Implementation of 1974 Marriage Law ("1975 Marriage Regulation") regulates a procedure to register a marriage. According to 1975 Marriage Regulation:
- a marriage conducted by Moslem couples, the registration of marriage shall be done by Religion Affairs Office (Kantor Urusan Agama); and
- a marriage conducted by non-Moslem couples, the registration of marriage shall be done by Civil Registration Office (Kantor Catatan Sipil).
The registration of a marriage in Indonesia shall determine the governing law for divorce. Because of this principle, couples with different religions that married in Indonesia usually choose one religion that will be used to register the marriage in Indonesia.
Because Islam is the majority religion in Indonesia, the divorce process of Muslim couple takes place in religious court under Islamic religious procedure regulations. Meanwhile, a divorce process for non-Moslem couple takes process in a general court under general court procedure regulations.
Grounds for Divorce in Indonesia
In accordance with the 1974 Marriage Law and the accompanying 1975 Marriage Regulation, a divorce may only be granted if one of the following categories is met:
- One party has committed adultery, is an alcoholic, a drug addict, a gambler or exhibits other vices that strain the relationship because of their difficulty to cure;
- One party has separated from the other for a period of 2 (two) years consecutively without consent or legitimate reasons or because of reasons beyond his/her control;
- One party has been sentenced to a term of imprisonment for 5 (five) years or longer after the marriage is occurred;
- One party commits severe cruelty and ill treatment to the other that endangers the life of the abused party;
- One party has developed a disability or disease that prevents he/she from completing their duties as husband/wife;
- The parties have irreconcilable differences.
Grounds for divorce stated above applies to Moslem couples and Non-Moslem Couples, however, for Moslem Couples, the Islamic Law Compilation (this is a compilation of Islamic practices in Indonesia used currently as a guidance instead of a binding regulation in religious courts proceedings) stipulates 2 (two) other grounds for divorce for Moslem couples besides grounds stated in points (1) to (6) above:
- The husband violates taklik talak (a promise that whenever a particular event occurred during the marriage, the wife has the right to divorce the husband – this is not a mandatory promise but it can be promised between the husband and wife); and
- One party becomes murtad or changes his/her religion from Islam to become other religion resulting in irreconcilable differences.
Divorce Proceedings in Indonesia
For Non-Moslem Couples
Pursuant to Article 39 of 1974 Indonesian Marriage Law, a divorce can only be done before the Court after the Court tries and does not succeed in reconciling the couples. For Non-Moslem couples, divorce proceedings must be done through a divorce law suit submitted either by the husband or wife or his/her representative to the general court.
For Moslem Couples
Pursuant to Article 65 of Law No. 7 of 1989 on Islamic Religious Court as lastly amended by Law No. 50 of 2009 ("Religious Court Law"), divorce can only be done before the Court after the Court tries and does not succeed reconciling the couples.
Under Religious Court Law, there are 3 (three) types of divorce procedure in the religious courts:
- Thalak divorce is a divorce application filed by a Moslem husband to the religious Court requesting the Court to hold a thalak vow declaration by the husband intending to divorce his wife. If a divorce occurred through thalak, the ex-husband has an obligation to give a proper mut'ah to his ex-wife, in the form of: money or goods. An amount of mut'ah shall be decided by the court pursuant to the husband's capability;
- Divorce law suit is a divorce suit filed by the wife or her representative to the religious court; and
- Divorce because of adultery that can be done by submitting complete and accurate evidence or by submitting some evidence and the plaintiff takes an oath before the court saying that the defendant commits adultery.
Law suit regarding divorce consequences, such as: child custody, child living costs, wife living costs, and joint assets distribution of husband and wife, can be submitted together with the thalak divorce application, or with divorce law suit or after the thalak vow has been declared or after the divorce proceedings has become final and binding.
Division of Assets
According to Article 35 of 1974 Marriage Law, any property acquired during the marriage becomes joint property of husband and wife. Property acquired prior to the marriage remains separately owned by the parties unless so otherwise specified.
If a divorce occurs, the joint property shall be split in half between the husband and wife. This is applied for non-Moslem couples and Moslem couples.
For Non-Moslem Couples
A child below 18 years old or never had married shall be under authority and supervision of the parents. The parents shall represent the child's interest in any legal action before or outside the court. Custody may be held jointly or solely according to the Court's decision and based on case by case basis.
Once a divorce is concluded and granted, 1974 Marriage Law indicates the following consequences:
- That both the mother and father will be responsible for the sustenance and education of any children. Should there be any dispute concerning this, then a decision will be handed down by the Court;
- The father shall be responsible for all expenses of the children's sustenance and education. However, if the father is unable to do so, the Court may determine that the mother shall share the expenses with the father;
- The court may issue an order requiring the ex-husband to pay alimony to the ex-wife and/or to impose any other obligation on the ex-husband.
For Moslem Couples
A child below 21 years old and never had married shall be under authority and supervision of the parents. The parents shall represent the child's interest in any legal action before or outside the court.
In the case of divorce:
- custody of a child below 12 years old is his/her mother's right;
- after 12 years old, the child has a right to choose whether the father or mother that shall be the child's custodian;
- the child's living, maintenance and education costs shall be borne by the father until the child ages 21 (twenty-one) years old;
- If there is any dispute over divorce result, the religious court shall decide the case;
- The religious court may determine an amount of costs for the child's education and sustenance borne by the father even for the child under custody of the mother.
Family Dispute Resolution – Mediation, Collaborative Practice and Parenting Co-ordination
In Indonesia, divorce must be done and decided by the Court; however, the Court has the obligation to hold a mediation between husband and wife at initial proceedings and the Court also shall always try to reconcile the couples throughout the Court proceedings.
Divorce in Indonesia cannot be done through signing a document stating that both husband and wife agree to divorce – it must be done through court decision. However, as for divorce result matters, the couples may sign an agreement regulating divorce consequences, such as: joint property distribution, child and wife living costs and mut'ah as long as the terms and conditions do not contravene with prevailing laws and regulations. For this agreement to have an execution power, the agreement can be restated into a Court's decision (as requested by the parties) therefore the parties shall be obliged by the Court to comply with the agreement.
Advice for Family Law in Indonesia
This article was prepared and drafted by Yuliana Pertiwi Siagian and Gesiu Nicholas Manurung, partners and founders of NP Consultant Indonesia (www.np-consultant.com).
NP Consultant Indonesia is a one stop legal consultant providing high quality standard of Indonesian law expertise, market entry service, licensing service, corporate secretarial service and immigration service, etc. With years of knowledge and experience, NP Consultant Indonesia has assisted many local or foreign individuals and corporations in various legal problems in Indonesia.
Yuliana and Gesiu are Indonesian lawyers assisting family law matters, international civil law matters, marriage law and dispute resolution. Besides that, they also engage in wide range of legal practices, including corporate and commercial, merger and acquisition, mining, energy, natural resources, forestry, trade, investment, tourism, etc.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. For any further queries or follow up please contact Expatriate Law at firstname.lastname@example.org.