Expat Divorce in Indonesia: Guideline from NP Consultant Indonesia
Updated: Aug 13, 2021
In Indonesia, any married couple can only divorce through an Indonesian court decision. Indonesian law does not recognize divorcing through an agreement between the married couple. All divorce must be conducted through a lawsuit submitted to, examined, and decided by the Indonesian court.
Please find below what you need to know about divorce in Indonesia.
Jurisdiction for Divorce in Indonesia
A party can file divorce proceedings in Indonesia court if one of the married couples:
(1) is an Indonesian citizen;
(2) is domiciled in Indonesia at the time of the law suit; and
(3) 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 one of the recognized religions and beliefs in Indonesia and/or registered in Indonesian marriage registration body.
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:
(1) a marriage conducted between Moslem couples, the registration of marriage shall be done by Religion Affairs Office (Kantor Urusan Agama) ("KUA"); and
(2) a marriage conducted by non-Moslem couples, the registration of marriage shall be done by Civil Registration Office (Kantor Catatan Sipil) ("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 or conducted their wedding outside Indonesia then registered their wedding in Indonesian marriage registration body - whether in KUA or Catatan Sipil.
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.
Reasons to Divorce in Indonesia
In accordance with the 1974 Marriage Law and 1975 Marriage Regulation, a divorce may only be granted if one of the following reasons to divorce is met:
(1) 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;
(2) 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;
(3) One party has been sentenced to a term of imprisonment for 5 (five) years or longer after the marriage is occurred;
(4) One party commits severe cruelty and ill treatment to the other that endangers the life of the abused party;
(5) One party has developed a disability or disease that prevents he/she from completing their duties as husband/wife;
(6) 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:
(7) 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
(8) 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”), a 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 procedures in the religious courts:
(1) 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;
(2) Divorce law suit is a divorce suit filed by the wife or her representative to the religious court; and
(3) 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.
Divorce Mediation in Indonesia
In Indonesia, divorce must be examined 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.
Divorce Settlement Agreement
The couples may sign a divorce settlement agreement regulating any post-divorce matters, such as: Joint Property distribution, child and wife living costs and mut’ah provided that 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) so that the Court can order the parties to obey the divorce settlement agreement and the agreement shall have the same legal force as any court decision.
Advice for divorce in Indonesia
This article was prepared and drafted by Yuliana Pertiwi Siagian, the partner and founder 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.
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