Everyone aspires to spend the rest of their lives with their best friend and lover in holy matrimony, no matter the circumstances they face.
Some married couples grow old until their hair has turned grey, resting at their country home – or villa in Bali – after seeing the world and all of its beauty whilst together. They live a picturesque life that people dream of and fantasise about in the movies. Alas, other marriages may turn sour and eventually lead to the end of their promises made on “the happiest days of their lives”.
Let’s say you’re an Indonesian and you’ve met the one, who happens to be a foreigner, or perhaps you’re both foreigners who are currently living in Indonesia embarking on a new life chapter in a foreign land. No matter which scenario you resonate with, you and your spouse are both happily married but the course has taken a toll and therefore, decide to separate.
Indonesian courts are obliged to examine and judge any cases as the legal system has no means to 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. A divorce process tends to turn complex. But it’s possible, as long as you continue to learn.
Now, if you’re meaning to file for a divorce in Indonesia and relate to these two scenarios, we’ve got you covered! Asep Wijaya, Managing Director of Wijaya & Co, has shared the basic requirements for foreign and mixed marriage couples wishing to get a divorce in Indonesia. “You must understand that Indonesia defines a divorce case according to the couples’ religion,” said Asep. If they’re Muslim, they must file the divorce application at the religious court, or Pengadilan Agama, whereas if they’re non-Muslim, their divorce application must be lodged at a district court or Pengadilan Negeri.
Before you start preparing your documents, really understand the reason behind this life-changing decision. “They need to know that marriage dissolution in Indonesia can only be carried out if they meet the legal requirements,” said Asep.
There are legal grounds of filing for divorce that is regulated in Indonesia’s 1974 Marriage Law, which is, in the event that one of the parties:
- has committed adultery, is an alcoholic, is addicted to drugs, is a gambler, or exhibits other vices which are difficult to cure;
- has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;
- has been sentenced to imprisonment for five consecutive years or a longer period;
- has resorted to cruelty or severe ill-treatment, endangering the life of the other spouse;
- has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or
- has irreconcilable differences.
Once you’ve settled a legal basis, be ready to prepare a photocopy of your marriage certificate or book, children’s birth certificate, and the last known address of your spouse. Also copies of other letters relating to reasons for divorce, for example, if either one of you is sentenced to five years’ imprisonment, then you need to provide evidence of a court verdict stating your spouse’s imprisonment.
Furthermore, if either one of you has a dispute regarding the joint property, known as harta gono-gini, you’ll need to have a photocopy of a letter of marriage agreement such as a prenup or a postnup, copies of valuable documents like the land certificate, BPKB car or motorcycle, etc. as proof of ownership, and lastly, a copy of the debt proof letter.
Take note of the location of your marriage too. If you did the ceremony overseas but intend to divorce in Indonesia, make sure you have your marriage registered at the Indonesian Embassy where the marriage took place and reported to the local marriage registry in Indonesia.
Next, it’s time to create the divorce papers. Three commonly issued points are written: divorce status, childcare rights, and the right to obtain joint property. According to Bali Lawyers, photocopied papers obtained after the divorce lawsuit has been made will be distributed to the parties concerned in court; “one file sent by the court to the defendant, three files for the judges, a file for the officer on duty to record the proceedings, and one remaining file for you.”
Mixed marriage and foreign couples will have to go through court litigation at the courthouse. “The court will first set out a mediation to resolve the conflict peacefully. If it didn’t work out, they will schedule the hearings,” said Asep. That will consist of an opening statement for the respondent to present the case in front of the judges, cross-examination of evidence and witnesses, and closing statements. The court will reach the verdict on the application of the divorce as the final phase.
Of course, as a foreigner, you need to show your residence permit as proof that you’re meeting the residency requirement in order to access the court jurisdiction. A residence permit is an extra requirement as a foreigner; it must show that you’ve been staying in Indonesia for at least twelve months. “If they have a residency permit, it means they are a resident of Indonesia. Therefore, they have minimum contact with the court jurisdiction here,” said Asep.
The International Civil Law (ICL) states foreign elements involved in a divorce between two foreign citizens. ICL is a national law, not a supranational law or international law, meaning every country including Indonesia has its own ICL system.
“Official domicile of the parties involved is a link point to determine the court of competent jurisdiction to examine the case. In the principle of nationality, one’s national law determines their personal status. Despite whether you’re residing abroad, your national law shall prevail and the court in their home country shall have jurisdiction upon them.”
“Within the principle of domicile, on the other hand, one’s personal status is determined from the country in which they live. This means that the law and the court where he/she lives shall have jurisdiction upon him/her,” according to an article on Living in Indonesia.
All in all, mixed and foreign couples need to be aware of child custody. As noted if getting a divorce is the best solution, couples need to understand what a divorce is. “Just because you earn more than your spouse, doesn’t mean you deserve the custody.
Just because you’re the mother, doesn’t mean you are going to get it. The court will only award you with the custody when you can prove that you have the best interest of the child,” explained Asep. He called it unconditional love. The child’s best interests mean in terms of education, child support, shelter, clothing, entertainment, as well as stability, all need to be put before the parents’ demands.
As his final words, Asep exclaimed, “Don’t do it! Divorce is not for everyone. If you think you can save your marriage, no matter how silly you might think it is, do it.”
Visit www.wijayaco.com for more legal inquiries.
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