“I promise to be true to you in good times and in bad, in sickness and in health. I will love you and honor you all the days of my life, to have and to hold from this day forward, for better or for worse, for richer, for poorer, in sickness and in health, to love and to cherish; from this day forward until death do us part.”
– Wedding Vow –
The sentences above are usually iterated in wedding, on which a couple states their solemn vow to live together and create a family. The bolded sentence is not usually applied in the real practice. Referring to such sentence, marriage is not only can be terminated by death of one of the spouse, but also can be terminated by divorce. Divorce is defined as the final termination of a marital union canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties.
- Rules on Divorce
In Indonesia, divorce is regulated under Law No. 1 of 1974 concerning Marriage (“Marriage Law”) which implemented by Government Regulation No. 9 of 1975 concerning The Implementation of Law No. 1 of 1974 concerning Marriage (“Marriage Regulation”). Divorce can only be conducted base on reasons provided by Article 19 of Marriage Regulation which are:
- One of the spouse has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or other vices which are difficult to cure;
- One of the spouse has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;
- One of the spouse has been sentenced to imprisonment for five years or a longer period;
- One of the spouse has resorted to cruelty or severe ill-treatment, endangering the life of the other spouse;
- One of the spouse has developed a disability or disease, preventing from fulfilling the duties of husband or wife;
- The spouse has irreconcilable differences.
Divorce could only be claimed and submitted before a Court. This is provided by Article 39 paragraph (1) of Marriage Law. Furthermore, Article 20 of Marriage Regulation provides that divorce claim basically should be addressed to the Court whose jurisdiction is within the defendant’s domicile. In other words, divorce claim should be submitted to Court whose jurisdiction covers the domicile of husband or wife. This will depend on who has the initiative to submit the divorce claim. However, such rule is not absolute in case the domicile of defendant is unknown and in case that the defendant is domiciled abroad. In such cases, the divorce claim may be submitted in the plaintiff’s domicile.
Relating to divorce claim, at this moment Indonesia still adopts dualism in law. This dualism evidenced itself at the jurisdiction of court based on religion adopted at the time of marriage. If the parties are conducting their marriage based on Islamic Law, therefore the divorce claim shall be submitted to Religious Court (Pengadilan Agama). On the other hand, if the parties are conducting their marriage based religion other than Islam, therefore the divorce claim shall be submitted to District Court. Such dualism is clearly provided by Article 1 point (b) of Marriage Regulation.
- Mechanism of Divorce at District Court
The mechanism of divorce at district court is conducted in the form of court proceeding. In this vein, the plaintiff (one spouse who initiated the divorce) can represent him or herself or represented by attorney to appear before the court. It is suggested that the divorce be conducted by attorney as the party may not familiar with legal documents required by court or the party may have any other important matters to be taken care of. The process of divorce claim at district court consists of:
– Submission of divorce claim;
– The court summons both parties to attend the scheduled court hearing;
– Examination of the parties before the court;
– Mediation process (maximum of 40 (forty) days as mandatorily asserted by Supreme Court Regulation No. 1 of 2008 concerning Mediation Process in Court);
– If mediation has been failed, court proceeding will continue to the agenda of response of defendant towards divorce claim;
– The plaintiff’s rebuttal;
– The defendant’s surebuttal (counter-rebuttal);
– Evidence by the plaintiff and cross-examination;
– Evidence by the defendant and cross-examination;
– Closing/conclusive argument by both parties before the court;
– Judgment on divorce claim.
The court proceeding as mentioned above is in accordance with procedure of civil claim provided by Article 164 of Indonesian Civil Procedural Law (Het Herziene Indonesisch Reglement). Accordingly, the mechanism of evidence is also made in line with such law. The evidences that could be admissible to the court are:
– Written evidence (mail, legal documents, authentic documents, marriage book, birth certificate, identity card, family card, and other relevant evidence);
– Witness (this can be person/s who know or had the reason to know the situation faced by the parties on divorce claim);
– Inferences;
– Confession;
– Solemn vow.
- Divorce Claim at Religious Court
Principally, the mechanism of court proceeding between religious court and district court is similar. The difference is located on the notion used by both court. As mentioned above, the district court is using the notion “divorce claim” while the religious court using the notion “divorce application” in the case of husband who has the initiative to divorce and “divorce claim” in the case of wife who has initiative to divorce.
The court proceeding on religious court is conducted in accordance with Indonesian Civil Procedural Code and mixed with Islamic Law. The process of divorce at religious court is similar with the process in district court, which is:
– Submission of divorce application or divorce claim;
– The court summons both parties to attend the scheduled court hearing;
– Examination of the parties before the court;
– Mediation process (maximum of 40 (forty) days as mandatorily asserted by Supreme Court Regulation No. 1 of 2008 concerning Mediation Process in Court);
– If mediation has been failed, court proceeding will continue to the agenda of response of defendant towards divorce claim;
– The plaintiff’s rebuttal;
– The defendant’s surebuttal (counter-rebuttal);
– Evidence by the plaintiff and cross-examination;
– Evidence by the defendant and cross-examination;
– Closing/conclusive argument by both parties before the court;
– Judgment on divorce claim;
– If the divorce is granted, therefore the court will then order male spouse to read divorce statement or as known as “Ikrar Talak”.
- Concluding Thought
Although divorce process in Indonesia may be considered as simple and easy, it is best that divorce shall be regarded as last resort. As can be seen from the above explanation, even in the court proceeding, the judge is obligated to mediate the parties not to divorce. Accordingly, the parties who intend to divorce shall reconsider their position to conduct such legal action. The parties perhaps shall consider the legal implication of divorce which may has negative impact against children, relationship and assets.