Child legalization in Indonesia is a very important issues. This is the proceeding to legalize the child born outside of a legal marriage. He/she has legal relationship with the mother and her family only. In order to obtain a custody privilege, the alleged father must conduct child legalization. No legal relationship will be established between the father and the child without the consent from the biological mother.

Under the laws in Indonesia, the relationship between the child and the father is not recognized when it comes to the inheritance matters. At least, if you compare it with the legitimate child. The thing is, inheritance is some arrangements that will only be done when you're gone. You don't know whether your assets are being distributed according to your wishes and whether the child entitled to them or not. This is why the legalization of child born out of wedlock in Indonesia really matters, especially if you're from a Non Moslem family. At Wijaya & Co, we always pay attention to details of our client’s case.

As you probably aware, the inheritance issues are referred to the person's religion affiliation. We have Compilation of Islamic Law for Moslem families, and Civil Code. Since the issues of child born out of wedlock is very familiar with the civil law, there the law defines the child into three (3) categories as follows:

1. A legitimate child, is the child born in the legal marriage of a man and a woman;
2. A child born out of wedlock, but acknowledged by his father and/or his mother. The legal relationship is being established between the three (3) of them. They are now a family recognized by law, but it does not take effect to their extended families. The acknowledgement only applicable to the three of them. The law will consider the child as a legitimate one when the two of them are married to each other. 
3. A child born out of wedlock. No acknowledgement made by the father as well as by the biological mother. Legally, he is an orphan. Poor child. No inheritance law applicable to him.

Civil Code has a very distinctive ruling on inheritance for child born out of wedlock in Indonesia. The law refer the child born out of wedlock as a "natural child." It is comprehensive and detailed. It avoids conflict between the heirs. In the event that the deceased has left legally acknowledged natural children, the inheritance shall be implemented as the following manners: According to the Article 863 and Article 865.

Article 863 stipulated that in the event the deceased has left any legal descendants or a spouse, the natural children is inherit one third of the share, which they would be entitled to if they were legal; they is inherit one half of the estate, if the deceased does not have any descendants, or spouse, but has blood relatives in the ascending line, or brothers and sisters or their descendants; and three quarters if the only remaining family is related in a more distant degree. If the legal heirs of the deceased are related in unequal degrees, the closest relative in one line is stipulate the amount of the share to which the natural child shall be entitled, even with respect to those who are in the other line.

The child born out of wedlock may inherit all the assets in the event his father (the deceased) passed-away without any other legal heir. Article 865 imposed that if the deceased has not left any legal heirs, then the natural children shall be entitled to the entire inheritance. 

The above stipulation is not applicable for the child born due to incest, and adultery. The aforementioned stipulations in Article 863 and Article 865 are not applicable to children conceived through adultery or incest. This imposed by the Article 867 of the Civil Code. 

As I said, the legalization of the child born out of wedlock is really matter. In fact, it's a big deal. It protects your child from the claims that may be made by other family members. Without the legalization, he only deserve 1/3 of the portion of the legitimate child. You need to do something to protect your flesh and blood. We both know that as parents we want the best for our children, and in this case, the legalization of the child born out of wedlock does really matters. Please contact me should you wish to discuss any further about this.

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

Marriage performed outside of Indonesia is not automatically legal and recognized. You must willing to go through the extra mile in order to gain recognition under the laws in Indonesia. We called it reporting of foreign marriage. This thing has substantial implication to you and your family. The marriage indeed is the foundation to everything important in our lives i.e. the children, property, inheritance, etc. You make a mess with the marriage, you're messing with your own life. Not to mention your children. So, whatever you do, always think twice. 

The foreign marriage reporting has a set of time frame as imposed by the prevailing laws. You need to comply with it. They said don’t put till tomorrow what you can do today. This must be the reason why they put such a time frame in place. The reporting must be made within 30 (thirty) days since you return in Indonesia after the marriage. The older version of the law sets more leeway to report it i.e. one year. They use the new rule, without revoking the old one. The old one is the 1974 Marriage Law, and the new one is the 2003 Administration of Population Law. The old law is considered as general regulation, and the new one is a very specific law governing certain issues. The marriage registry in Indonesia, they tend to use the 2003 for governing your foreign marriage reporting. At Wijaya & Co., we alway identify the issues before they can potentially turns into a problem. At Wijaya & Co, we always pay attention to details of our client’s case. 

There are two conditions or requirements that must be fulfilled in order to create legal recognition with the foreign marriage in Indonesia. First, formal requirement. The marriage is legal according to the local rules and regulation where it is performed and registered. So, when you’re married, you’re married. The laws in Indonesia will mirror anything that takes place in the country where the marriage performed and registered. Second, material requirements. This conditions applicable absolutely to the Indonesian citizen. It must refer to the prevailing laws and regulations in Indonesia especially regarding marriage. Issue under this criteria is, among others, the minimum age requirements to get marry. Mixed religion is also part of the material requirements. Failure to meet this requirement, the marriage may be voidable. It may be challengeable at the court of law. There’s a slight possibility that the marriage may be legal in the country where you register it, but it might not be recognized under the laws in Indonesia. It’s a quite tricky situation, please contact me should you wish to discuss any further about this. Things may be overlooked. This potentially can turn into something inevitably unpredictable. This can be used as one of the grounds for an annulment. See, there's more to this than meet the eyes. 

Article 56 (1) of the Marriage Law imposed strict requirements as well as time frame for foreign reporting marriage to the Indonesia’s government. This law was retrieved from the Principle of Nationality that every Indonesian citizen submit themselves to the laws of the Republic of Indonesia, wherever they are. You see, this is the interesting part of your foreign marriage. The idea behind the issue is an ancient government ruling took place from the colonial government back in 18 century. It was the Algemene Bepalingen ("AB") in the Article 16. This ruling is still there until today and become the basic law of how we determine our individuals can access the legal system wherever they are. We proud ourselves that the laws of Indonesia is always prevail in the life of every Indonesian, even if they are not on the Indonesian soil. 

So, the other inevitable legal consequences for getting marry in a foreign country is, among others, without you even realize, you’re inviting other foreign law elements into your marriage life. Not to mention, if your spouse is non-Indonesian. Another foreign law element is joining the club. You know, two is a company. Three is a crowd. You even have higher potential that you may overlook things. But remember, things can be mitigated with the help from the experienced international civil law in Indonesia. Please contact me should you wish to discuss any further about this.

Marriage annulment in Indonesia is being conducted in very limited requirements. It must be done within six (6) months since the marriage date. Otherwise, you better go with divorce proceedings. 

You need to have the following reasons for conducting a marriage annulment:

1. if either spouse in the married couple is still bound in a marriage with another person so that the second marriage cannot be continued,
2. if the married couple are discovered to have a blood relationship,
3. if the marriage is conducted without the consent of a guardian or conducted by an invalid guardian,
4. if the marriage was forced,
5. and so on pursuant to the law.

A husband or a wife may submit a petition for marriage annulment in the event the marriage was conducted under threat or if, at the time of marriage, there was a misunderstanding or one of the two parties believed that he/she was deceived. If the threat is stopped or the misunderstood party realizes his/her mistake, but within six months they still live as a married couple, and neither of them uses his/her right to annul the marriage, their right will be null and void.

Consider the following issues in order to get an annulment proceeding carried-out by our firm:

1. Experienced family law attorneys;
2. High success rates in previous similar cases handled by our attorneys that will also contribute to your success;
3. Conclusive legal binding;
4. World-wide legal recognition.

Call or email us in getting the most important part of your life "undo" legally with the assistance of passionate family law practitioners in Indonesia.

Our thanks to Asep A. Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Foreign divorce for all-foreign spouses in Indonesia is possible. This usually happens to couple who live in Indonesia long enough and both of them are expats. Certain situation must be met before you can access our legal system. First, minimum contact of the spouses in Indonesia. This is to see if the court in Indonesia has jurisdiction. Second, reporting/registration of the foreign marriage. Three, how Indonesian law can rule in your divorce case. Divorce in Indonesia must meet at least one of the legal grounds.  

How Long is Long Enough?

In order to secure your access to the Indonesia's legal system, you need to have a minimum contact of at least one (1) year. You and your wife must maintain 12 (twelve) months residency before the court in Indonesia may be able to consider your divorce case. Having a child born or school in Indonesia is even better. You have better connection and stronger contact with our legal system. If you're employed by the the company in Indonesia, the chance of getting your marriage dissolved by the court here is even higher.

The fact that either of you can't access the court system in your home country is a bummer. I have a US client in Jakarta filed for a divorce in Washington court. They spent time and money just to see the court did not have any jurisdiction in their case. What a waste!

Dissolving a Foreign Marriage

Having your marriage performed outside of Indonesia, doesn't mean you have to report or even register your marriage in Indonesia. You or your wife doesn't have to do that. Some laws in Indonesia requires the parties in the marriage to report the marriage to government authorities, but it only applicable in the event one of you is an Indonesian citizen, or both of you are Indonesian.

Since both of you are non-Indonesian, the reporting obligation is not applicable to you. Article 56 of the 1974 Marriage Law, it is not for you and your wife. This is the proceeding to dissolve a foreign marriage between two foreign spouses, in Indonesia. If either of you is an Indonesian citizen, you don't have to report or register your marriage. So, don't bother!

Your Law is Our Law

Dissolving a marriage in Indonesia, we have the legal grounds to do that. It's not really printed on the Marriage Law. It's in the 1975 Government Regulation. You know, the legal instrument implementing the Marriage Law in more details. You can't have it dissolved by mutual consent. It's not legal here. There are factual situations that must be met with the legal grounds. Your domestic situation at least must meet one of the legal grounds for dissolving a marriage. They have been regulated in the 1975 Government Regulation, which are, in the event one of the parties:

1. has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;

2. has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;

3. has been sentenced to imprisonment for five (5) consecutive years or a longer period;

4. has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;

5. has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or

6. has irreconcilable differences.

So, those legal grounds, at least one of them, must be recognized in your law. Well, I have nothing further on this one. Your law, is not really my department.

Be Nice to Your Friends!

You have to present witnesses to the court. Well, at least two. Unfortunately, it's not one of the CSI movies where you can supply scientific evidence, without any single human being taking a stand at the court room. They want a person, in a flesh and blood, supplying information and describing what happened to your marriage. They want to have a conversation with your witnesses. They want to talk to them. So, let them talk about your marriage in front of you. There's nothing to hide. Just make sure you give them interesting subject to discuss with. 

Yes, I know. It's a conventional civil procedures law we have been using for more than one millennium. It's our legal system, and you have to work with it if you want them to dissolve your foreign marriage in Indonesia. You will have to start looking for them. Your witnesses. They can be anyone. Your domestic staffs, colleagues, common friends, and whoever knows anything about your domestic background. Foreign witnesses are also welcome. They will have to do you a quite simple job: to tell the truth, the whole truth, and nothing but the truth. The most sacred job of being a human, and they will have to do it on a witness bench. The loneliest place on earth. 

In Indonesia, every divorce lawyer will have to refer to the 1974 Marriage Law and its implementing rules for divorce and  marital dissolution. A divorce petition must be filed at the local district court for Non-Moslems, and local Religious Court for Moslems. There are certain marital dissolution reasons according to 1974 Marriage Law and Islamic Law, they are:

Marriage Law

Pursuant to Marriage Law, a marriage may be terminated due to several reasons as follows:

1. Death of either party
2. Divorce
3. Upon court’s decision

Death

The death to either party will automatically terminate the marriage.

Divorce

One of the means to dissolve a marriage is by divorce. Divorce may only be executed before a court session, before the district court for Non-Moslems and before the religious court for Moslems. Therefore, either one of the parties wanting to divorce needs to file a divorce petition to the court.

There are  legal grounds of filing for divorce that every divorce lawyer has to advise his/her clients with, and they have been regulated in the Marriage Law, which are, in the event one of the parties:

1. has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;

2. has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;

3. has been sentenced to imprisonment for five (5) consecutive years or a longer period;

4. has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;

5. has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or

6. has irreconcilable differences.

Annulment to Dissolve Your Marriage

Marriage annulment means that any marriage may be cancelled if both parties cannot fulfill the conditions for the marriage. A marriage annulment can only be decided by a court of law.

Families in a straight line of descent and above the husband or wife (For example: father, mother, grandfather etc of husband or wife.) , an authorized/appointed official, and anyone directly possessing legal interest in the marriage may file a request for marriage annulment.

Any request for marriage annulment may be submitted to a court within the jurisdiction where the marriage was conducted or within the jurisdiction of the residence of the married couple (in accordance with Article 38 (1) Government Regulation No. 9 Year 1975 regarding the Implementing Rules of 1974 Marriage Law) the husband, or the wife. A marriage annulment may be filed for the following reasons:

1. the marriage guardian (so called “wali” ) is illegal; or
2. the marriage was not attended by two witnesses.
3. The marriage was performed in front of unauthorized marriage registrar.

The right to annul a marriage by a husband or wife based on such reasons becomes null and void if they live together as a married couple and can show the marriage certificate issued by the unauthorized officer of the marriage registry. In this instance the marriage has to be conducted again in order to make it legal.

The husband or wife may request an annulment of their marriage, if the marriage was conducted before an unauthorized officer of a marriage registry, or if the marriage was conducted under a threat that violates the law, or if there is a misunderstanding between the husband and wife.

His/her right will be null and void if the threat has stopped or if the misunderstood party? realizes the situation, but doesn’t use his/her right to request for marriage annulment within six (6) months after living together as married couple. Example of a “misunderstood condition” would be if the husband thought the wife was a virgin, but in fact she was not – so I misunderstood about her personal conditions.

Annulment of a marriage commences upon the court decision and is permanent and legal binding and applies as of the time of marriage was conducted. However, such a decision is not retroactively effective to:

1. children born from the marriage;

2. husband or wife acting with good intention, except against joint property, if the annulment is based on a previous marriage. The annulment decision is retroactively effective to the joint property of the parties in the event the marriage was entered and one of the couples was not legally free to marry.

3. a third party, so long as he/she has the rights based on good faith.

Islamic Law

In Islam, a marriage may be terminated due to several reasons, namely:

1. Death of either party
2. Thalak
3. Judge’s Decision
4. Khulu
5. Li’an
6. Ila’
7. Murtad (apostate)

When a husband or wife passes away, their marriage is automatically terminated. When a wife passes away, her husband doesn’t have any legal difficulties in marrying another woman, but can remarry immediately. But, when a husband passes away, his wife has to wait for four (4) months and 10 days before she can marry another man.

Literally, thalak means to release (abandon). Thalak or divorce is the right given to a man and is an action of releasing a woman from the marriage. In Islam, this method of divorce has been stipulated, but it is accompanied by the explanation from the Prophet Mohammad that God doesn’t like divorce.

Divorce through a judge’s decision may be due to several reasons, such as, among others, that the husband is unable to provide the basic necessities of life, the husband commits torture against his wife, the husband vanishes (being far away from or not being near his wife), or that the husband is serving a term in prison.

Fasakh is the cancellation of marriage agreement (akad) and the termination of a marriage between a husband and wife due to damage taking place in the marriage agreement (akad) or due to sudden reasons that may hamper the continuation of the marriage agreement (akad). For instance, it could be due to a problem in the family relationships. Fasakh will cause the marriage agreement (akad) to be annulled.

Khulu’ is a divorce given by a husband to his wife with payment to the wife. Khulu’s is required by Islam for balancing the thalak right for a husband when there is a hatred that cannot be settled peacefully.

A marriage may be terminated due to li’an, because the person making the li’an in the fith oath says that God’s curse is upon him/herself if he/she is a liar. As a result of li’an, the marriage is terminated forever. If the accusing husband denies the birth of a child by saying that the child is not his, the child is not the offspring of this husband any longer, but legally becomes an illegitimate child and becomes the child of accused wife. The child cannot inherit from his/her father (the accusing husband). If the child is female, her guardian is a judge of justice, if the child will marry someone else.

Murtad (apostate) is when a Moslem abandons Islam. If a husband or wife is judged apostate, their marriage is terminated due to their action.

Marriage dissolution based on the grounds of thalak, li’an, and khuluk’ shall only valid in the event they are conducted at the religious court.

Annulment according to Compilation of Islamic Law

Compilation of Islamic Law which is enacted under Presidential Instruction Number 1 of 1991 also governs marriage annulment under several reasons:

1. Polygamy conducted by husband without the permission from the Religious Court;

2. The bride is not legally free to marry and still in a marriage with other man;

3. The bride in the period of ‘iddah of her previous husband, Iddah means a waiting period where a woman is not allowed to marry other man. The period may vary according to the reason of her previous marriage dissolution i.e. 130 days due to death, and 90 days due to divorce;

4. The marriage is not comply with the minimum of age requirement as governed by the 1974 Marriage Law;

5. Married performed without wali nikah (marriage guardian) or performed with unauthorized one;

6. Marriage performed under threat

Marriage annulment is also known as fasakh is the cancellation of marriage agreement (akad) and the termination of a marriage between a husband and wife due to defect taking place in the marriage agreement (akad) or due to sudden reasons that may hamper the continuation of the marriage agreement (akad). For instance, it could be due to a problem in the family relationships. Fasakh will cause the marriage agreement (akad) to be annulled.

Annulment petition can be filed at the local religious court having jurisdiction over the residence of husband or wife or may be submitted to the local religious court within the jurisdiction where the marriage was conducted. Court decree on marriage annulment shall take effect retroactively since the date of marriage took place.

Parties to authorize for annulment petition are:

1. Family in a upper and lower straight line such as parents, and siblings;
2. Husband or wife;
3. Authorized officers responsible in supervising the performance of marriage as governed by law;

4. Other parties who aware of any marriage defect in terms of marriage requirements as imposed by the prevailing law.

Divorce for all-foreign spouses in Indonesia is possible. This usually happens to couple who live in Indonesia long enough and both of them are expats. Certain situation must be met before you can access our legal system. First, minimum contact of the spouses in Indonesia. This is to see if the court in Indonesia has jurisdiction. Second, reporting/registration of the foreign marriage. Three, how Indonesian law can rule in your divorce case. Divorce in Indonesia must meet at least one of the legal grounds.  

How Long is Long Enough?

In order to secure your access to the Indonesia's legal system, you need to have a minimum contact of at least one (1) year. You and your wife must maintain 12 (twelve) months residency before the court in Indonesia may be able to consider your divorce case. Having a child born or school in Indonesia is even better. You have better connection and stronger contact with our legal system. If you're employed by the the company in Indonesia, the chance of getting your marriage dissolved by the court here is even higher.

The fact that either of you can't access the court system in your home country is a bummer. I have a US client in Jakarta filed for a divorce in Washington court. They spent time and money just to see the court did not have any jurisdiction in their case. What a waste!

Dissolving a Foreign Marriage

Having your marriage performed outside of Indonesia, doesn't mean you have to report or even register your marriage in Indonesia. You or your wife doesn't have to do that. Some laws in Indonesia requires the parties in the marriage to report the marriage to government authorities, but it only applicable in the event one of you is an Indonesian citizen, or both of you are Indonesian.

Since both of you are non-Indonesian, the reporting obligation is not applicable to you. Article 56 of the 1974 Marriage Law, it is not for you and your wife. This is the proceeding to dissolve a foreign marriage between two foreign spouses, in Indonesia. If either of you is an Indonesian citizen, you don't have to report or register your marriage. So, don't bother!

Your Law is Our Law

Dissolving a marriage in Indonesia, we have the legal grounds to do that. It's not really printed on the Marriage Law. It's in the 1975 Government Regulation. You know, the legal instrument implementing the Marriage Law in more details. You can't have it dissolved by mutual consent. It's not legal here. There are factual situations that must be met with the legal grounds. Your domestic situation at least must meet one of the legal grounds for dissolving a marriage. They have been regulated in the 1975 Government Regulation, which are, in the event one of the parties:

1. has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;

2. has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;

3. has been sentenced to imprisonment for five (5) consecutive years or a longer period;

4. has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;

5. has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or

6. has irreconcilable differences.

So, those legal grounds, at least one of them, must be recognized in your law. Well, I have nothing further on this one. Your law, is not really my department.

Be Nice to Your Friends!

You have to present witnesses to the court. Well, at least two. Unfortunately, it's not one of the CSI movies where you can supply scientific evidence, without any single human being taking a stand at the court room. They want a person, in a flesh and blood, supplying information and describing what happened to your marriage. They want to have a conversation with your witnesses. They want to talk to them. So, let them talk about your marriage in front of you. There's nothing to hide. Just make sure you give them interesting subject to discuss with. 

Yes, I know. It's a conventional civil procedures law we have been using for more than one millennium. It's our legal system, and you have to work with it if you want them to dissolve your foreign marriage in Indonesia. You will have to start looking for them. Your witnesses. They can be anyone. Your domestic staffs, colleagues, common friends, and whoever knows anything about your domestic background. Foreign witnesses are also welcome. They will have to do you a quite simple job: to tell the truth, the whole truth, and nothing but the truth. The most sacred job of being a human, and they will have to do it on a witness bench. The loneliest place on earth. 

The provisions concerning dissolution of marriage and its legal consequences are generally regulated in Marriage Law, which is further stipulated in Government Regulation Number 9 Year 1975 regarding the Implementation of Marriage Law. As for Moslem-married couples, the divorce proceedings are being regulated further according to the Compilation of Islamic Law.

A marriage may be terminated due to several reasons among others death, divorce, and court decisions. A marriage terminated by a divorce may occur due to talak or divorce suits. The last two were regulated under Compilation of Islamic Law. If you're a husband, and you're thinking to divorce your wife, you have a talak right. So you may submit a divorce application to the court in order to set-up a talak hearing. On another hand, if you're a wife, and you're thinking to divorce your husband, you may also file a divorce against him under divorce suit. We call it "Gugatan." Basically, this is pretty much the same thing, and has equal position in front of the law. A talak must be performed in front of the court of law in order to have effect in dissolving your marriage. Otherwise, it won't take legal binding. 

As for talak, it's the divorce oath of a husband before a court session at the Religious Court. The oath is being recited by the husband to his wife, by requesting both verbal and written to the Court in the jurisdiction of the wife in order to request for a court session for the purpose of reciting the divorce oath or talak. The legal term for this is talak divorce application. As a husband, you're the Petitioner, and your wife serves as the Respondent. You see, your titled changed as soon as you file your divorce. You're no longer a loving husband and wife. You're opponents. This is what the law said about it: "Talak is the oath of a husband before a court session in the Religious Court, which is one of the reasons for terminating a marriage..." The law is Article 117 Compilation of Islamic Law. Therefore, with reference to the law, divorce by talak must be conducted in front of the Religious Court. You just can't say "talak" for three times to get divorce. It won't take legal effect in a country like Indonesia. You've got to do it formally by registering a case to a court clerk, and obtain a case number.

The proceeding for divorce, both under talak or under legal suit carried-out by a wife, are the same. They use national Civil Procedures Code, which takes approximately ten sessions. You're looking at five to six months processing time. Both of them are implementing mediation to stall the process. This is imposed by our Supreme Court in order to reduce the number of litigation cases in our court system. Yes, it takes time to get divorce in Indonesia, but when you have a case number, step by step it'll take you there. They implement strict time frame under the principles of simple, costs-effective and speedy trials. Some experts said mediation is not applicable for divorce cases, because you can't stop people for getting divorce. I would say you can. You can give each other a chance. A second chance. A third chance. Whatever. It takes two to tango. The thing is, you have to keep on trying. Never give up. Don't ever quit for your marriage. Because you're only fail when you stop trying.

You and your spouse are foreigners. Both of you have been living in Indonesia for several years due to work commitments. Either your spouse works in Indonesia or being your dependent, both of you are residents of Indonesia. After all you have been through, you find the romance is no longer exists and you are seeking divorce as the ultimate solution.

In any country, divorce is tough for everyone involved. Obtaining a divorce can be costly and expensive. It’s even tougher when you file for divorce in a foreign country.  The last thing you want to do is file for divorce in your home country and have the court dismiss your case due to lack of subject matter of jurisdiction. This could cost you even more.

Legal doctrines may say that you are now the subject of International Civil Law due to your long residence abroad. It’s pretty complicated whenever there is more than one legal system involved in your particular case. You need to work through all the necessary procedures in order to see that it’s possible to file for a divorce in Indonesia, when both spouses are foreign nationals.

Indonesian Court Perspective

The Indonesian legal system should not refuse to examine, hear, and decide a case filed, even when there is no clear legal reason for the case to be filed in an Indonesian court. The court is obliged to examine and judge the case. This is a basic principle in the judicative system in Indonesia. Period.

The court may not refuse to examine the case. But do they have any jurisdiction over your case?  If, both of you are foreign nationals and your marriage was conducted and legally registered abroad you may wonder if the Indonesian courts could have jurisdiction over a divorce in your case.

Let’s Cut to the Chase: The International Civil Law (ICL)

In the divorce between two foreign nationals, there are foreign elements involved. Therefore, the case shall be considered as an ICL proceedings. ICL is a national law. It’s not a supranational law or international law. Therefore, every country, including Indonesia, has ICL system respectively. Furthermore, there are major issues within the ICL, they are Choice of Law and Choice of Forum/Jurisdiction. Official domicile of the Parties is a link point to determine the forum court of competent jurisdiction to examine the case. This deals in determining the personal status of a person.

There are several ways to determine the personal status of a person that is principle of citizenship or nationality (Lex Patriae) and principle of domicile. In the principle of nationality, one’s national law determines his/her personal status. It means, even though one is residing abroad, his/her nationality law shall prevail and therefore the court in his/her home country shall have jurisdiction upon him/her. While the principle of domicile, on the other hand, one’s personal status is determined from the country where they live. It means that the law and the court where he/she lives shall have jurisdiction upon him/her.

Each country has different principles in determining one’s personal status. Let’s take Indonesia and the United States as examples. Indonesia adheres to the civil law as its legal system, while United States adheres to the common law legal system. Civil law countries use the principle of nationality and common law countries use the principle of domicile. These are very closely related to the jurisdiction of the court to adjudicate a case of divorce.  Therefore, the marriage of the US nationals must be dissolved in their country.

On the other hand, according to the state that adheres to a common law system such as United States, the party’s residence or domicile must exist at the time the proceedings are filed. In order for a US court to have subject matter jurisdiction to dissolve a marriage, either party must have been physically present within the country for a certain period of time prior to the filing of the petition for dissolution of marriage. The divorce, therefore, should be finalized in their country of domicile.

This is where renvoi (re-appointment) serves. Renvoi arises because of the differences in determining one’s personal status. It requires the US court to dismiss your divorce case due to lack of subject matter of jurisdiction. Although Indonesia is not a state of the United States of America, nevertheless, the Indonesian decree is an order from a foreign nation which the US court cannot ignore subject to certain restrictions. Furthermore, the court shall re-appoint Indonesia as the forum in dissolving the marriage. This is where Indonesian court has jurisdiction based on the re-appointment (renvoi).

So What Next?

In Indonesia, marital dissolution is a personal status related case under the category of family law. If both spouses are US nationals, the Indonesian court shall consult and utilize US family law regarding legal grounds for marital dissolution during the proceedings. The legal grounds in the US family law must not contradict with the public policy (ketertiban umum) in Indonesia. To be more specific, it must be in line with the legal grounds for divorce as stipulated in Indonesia’s Marriage Law and its implementing regulations.

Let's Take It to the Next Level!

After the Indonesian court declared the jurisdiction to adjudicate the case, and the legal grounds for divorce is in line with the public policy in Indonesia, the case shall be tried by using Indonesia’s civil procedures law. This is when the case enters regular phase  within the Indonesian court.

In Indonesia, every divorce lawyer will have to refer to the 1974 Marriage Law and its implementing rules for divorce and  marital dissolution. A divorce petition must be filed at the local district court for Non-Moslems, and local Religious Court for Moslems. There are certain marital dissolution reasons according to 1974 Marriage Law and Islamic Law, they are:

Marriage Law

Pursuant to Marriage Law, a marriage may be terminated due to several reasons as follows:

1. Death of either party
2. Divorce
3. Upon court’s decision

Death

The death to either party will automatically terminate the marriage.

Divorce

One of the means to dissolve a marriage is by divorce. Divorce may only be executed before a court session, before the district court for Non-Moslems and before the religious court for Moslems. Therefore, either one of the parties wanting to divorce needs to file a divorce petition to the court.

There are  legal grounds of filing for divorce that every divorce lawyer has to advise his/her clients with, and they have been regulated in the Marriage Law, which are, in the event one of the parties:

1. has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;
2. has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;
3. has been sentenced to imprisonment for five (5) consecutive years or a longer period;
4. has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;
5. has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or
6. has irreconcilable differences.

Annulment to Dissolve Your Marriage

Marriage annulment means that any marriage may be cancelled if both parties cannot fulfill the conditions for the marriage. A marriage annulment can only be decided by a court of law.

Families in a straight line of descent and above the husband or wife (For example: father, mother, grandfather etc of husband or wife.) , an authorized/appointed official, and anyone directly possessing legal interest in the marriage may file a request for marriage annulment.

Any request for marriage annulment may be submitted to a court within the jurisdiction where the marriage was conducted or within the jurisdiction of the residence of the married couple (in accordance with Article 38 (1) Government Regulation No. 9 Year 1975 regarding the Implementing Rules of 1974 Marriage Law) the husband, or the wife. A marriage annulment may be filed for the following reasons:

1. the marriage guardian (so called “wali” ) is illegal; or
2. the marriage was not attended by two witnesses.
3. The marriage was performed in front of unauthorized marriage registrar.

The right to annul a marriage by a husband or wife based on such reasons becomes null and void if they live together as a married couple and can show the marriage certificate issued by the unauthorized officer of the marriage registry. In this instance the marriage has to be conducted again in order to make it legal.

The husband or wife may request an annulment of their marriage, if the marriage was conducted before an unauthorized officer of a marriage registry, or if the marriage was conducted under a threat that violates the law, or if there is a misunderstanding between the husband and wife.

His/her right will be null and void if the threat has stopped or if the misunderstood party? realizes the situation, but doesn’t use his/her right to request for marriage annulment within six (6) months after living together as married couple. Example of a “misunderstood condition” would be if the husband thought the wife was a virgin, but in fact she was not – so I misunderstood about her personal conditions.

Annulment of a marriage commences upon the court decision and is permanent and legal binding and applies as of the time of marriage was conducted. However, such a decision is not retroactively effective to:

1. children born from the marriage;
2. husband or wife acting with good intention, except against joint property, if the annulment is based on a previous marriage. The annulment decision is retroactively effective to the joint property of the parties in the event the marriage was entered and one of the couples was not legally free to marry.
3. a third party, so long as he/she has the rights based on good faith.

Islamic Law

In Islam, a marriage may be terminated due to several reasons, namely:

1. Death of either party
2. Thalak
3. Judge’s Decision
4. Khulu
5. Li’an
6. Ila’
7. Murtad (apostate)

When a husband or wife passes away, their marriage is automatically terminated. When a wife passes away, her husband doesn’t have any legal difficulties in marrying another woman, but can remarry immediately. But, when a husband passes away, his wife has to wait for four (4) months and 10 days before she can marry another man.

Literally, thalak means to release (abandon). Thalak or divorce is the right given to a man and is an action of releasing a woman from the marriage. In Islam, this method of divorce has been stipulated, but it is accompanied by the explanation from the Prophet Mohammad that God doesn’t like divorce.

Divorce through a judge’s decision may be due to several reasons, such as, among others, that the husband is unable to provide the basic necessities of life, the husband commits torture against his wife, the husband vanishes (being far away from or not being near his wife), or that the husband is serving a term in prison.

Fasakh is the cancellation of marriage agreement (akad) and the termination of a marriage between a husband and wife due to damage taking place in the marriage agreement (akad) or due to sudden reasons that may hamper the continuation of the marriage agreement (akad). For instance, it could be due to a problem in the family relationships. Fasakh will cause the marriage agreement (akad) to be annulled.

Khulu’ is a divorce given by a husband to his wife with payment to the wife. Khulu’s is required by Islam for balancing the thalak right for a husband when there is a hatred that cannot be settled peacefully.

A marriage may be terminated due to li’an, because the person making the li’an in the fith oath says that God’s curse is upon him/herself if he/she is a liar. As a result of li’an, the marriage is terminated forever. If the accusing husband denies the birth of a child by saying that the child is not his, the child is not the offspring of this husband any longer, but legally becomes an illegitimate child and becomes the child of accused wife. The child cannot inherit from his/her father (the accusing husband). If the child is female, her guardian is a judge of justice, if the child will marry someone else.

Murtad (apostate) is when a Moslem abandons Islam. If a husband or wife is judged apostate, their marriage is terminated due to their action.

Marriage dissolution based on the grounds of thalak, li’an, and khuluk’ shall only valid in the event they are conducted at the religious court.

Annulment according to Compilation of Islamic Law

Compilation of Islamic Law which is enacted under Presidential Instruction Number 1 of 1991 also governs marriage annulment under several reasons:

1. Polygamy conducted by husband without the permission from the Religious Court;
2. The bride is not legally free to marry and still in a marriage with other man;
3. The bride in the period of ‘iddah of her previous husband, Iddah means a waiting period where a woman is not allowed to marry other man. The period may vary according to the reason of her previous marriage dissolution i.e. 130 days due to death, and 90 days due to divorce;
4. The marriage is not comply with the minimum of age requirement as governed by the 1974 Marriage Law;
5. Married performed without wali nikah (marriage guardian) or performed with unauthorized one;
6. Marriage performed under threat

Marriage annulment is also known as fasakh is the cancellation of marriage agreement (akad) and the termination of a marriage between a husband and wife due to defect taking place in the marriage agreement (akad) or due to sudden reasons that may hamper the continuation of the marriage agreement (akad). For instance, it could be due to a problem in the family relationships. Fasakh will cause the marriage agreement (akad) to be annulled.

Annulment petition can be filed at the local religious court having jurisdiction over the residence of husband or wife or may be submitted to the local religious court within the jurisdiction where the marriage was conducted. Court decree on marriage annulment shall take effect retroactively since the date of marriage took place.

Parties to authorize for annulment petition are:

1. Family in a upper and lower straight line such as parents, and siblings;
2. Husband or wife;
3. Authorized officers responsible in supervising the performance of marriage as governed by law;
4. Other parties who aware of any marriage defect in terms of marriage requirements as imposed by the prevailing law.