Divorce in Indonesia may be divided into two categories, namely for Islam religion and other religions, then these categories will determine different court. The process of divorce Indonesia for both categories generally same as regulated under Law No. 1 of 1974 regarding Marriage as amended by Law No. 16 of 2019 (“Marriage Law“). Furthermore, for detail description will be explained as follows:
A. Divorce process for Islam
Basically, the divorce process for moslem also comply with Marriage Law, however there is specific regulation for moslem to file divorce as regulated under Islamic Compilation Law (“ICL“), as referred to Article 115 of ICL clearly mentioned that:
The Divorce only can be process before trial at Religious Court after both parties have been mediated by Court to reconcile.
As stated in that article, the authority of court is under Religious Court to examine the divorce case for moslem. However, different with other religion, the process of filing divorce lawsuit for moslem should be determined according the last address of wife to choose which court will has authority for case examination. In the other hand, either husband or wife as a Plaintiff shall file the divorce lawsuit to the court under region of wife’s address.
Moreover, if the plaintiff is husband, then he shall declare the pledge of divorce in front of Panel of Judges after the verdict has been stated. Meanwhile, if wife become the plaintiff no obligation for her to declare the pledge of divorce.
For filing divorce lawsuit, it must have legal reason as stipulated under Article 116 of ICL, as follows:
- One of the parties commits adultery or becomes a drunkard, a drug addict, a gambler and others which difficult to cure;
- One party leaves the other party for 2 (two) consecutive years without the consent of the other party and without valid reasons or for other reasons beyond its capabilities;
- One of the parties get punishment with prison sentence of 5 (five) years or a heavier sentence after the marriage takes place;
- Either one of parties commits cruelty or serious persecution that endangers the other;
- One of the parties has a disability or illness resulting from being unable to conduct obligations as husband or wife;
- Between husband and wife there are continuous quarrels and fights and there is no hope for living in harmony again in the household;
- Husband violates taklik talak (marriage vows);
- Religious conversion or murtad which causes disharmony in the household.
Practically, most people who file divorce lawsuit use legal reason as mentioned in number 6, continuously quarrels or fight which cannot be harmony anymore.
B. Divorce for other religion
As explain previously, the process of divorce in Indonesia is regulated under Marriage Law. Furthermore, technical regulation for divorce also stipulated in the Government Regulation No. 9 of 1975 regarding implementation of Law No. 1 of 1974 regarding Marriage (“Government Regulation“).
For people with other religion (not Islam), the divorce process referred to both regulations namely Marriage Law and Government Regulation. However there are some different requirements with divorce for other religion, such as court authority under District Court referred to defendant’s address whoever the defendant (husband or wife), and also no divorce pledge in this process.
Meanwhile, for the legal reason to file divorce lawsuit is referred to Article 19 of Government Regulation which basically same with divorce for moslem, as follows:
- One of the parties commits adultery or becomes a drunkard, a drug addict, a gambler and others which difficult to cure;
- One party leaves the other party for 2 (two) consecutive years without the consent of the other party and without valid reasons or for other reasons beyond its capabilities;
- One of the parties get punishment with prison sentence of 5 (five) years or a heavier sentence after the marriage takes place;
- Either one of parties commits cruelty or serious persecution that endangers the other;
- One of the parties has a disability or illness resulting from being unable to conduct obligations as husband or wife;
- Between husband and wife there are continuous quarrels and fights and there is no hope for living in harmony again in the household;
Commonly, some people use legal reason for divorce about continuous quarrels or leaves the other party for 2 (two) consecutive years.
Most of divorce cases will be approved by Panel of Judges in the court, because divorce case no need much evidences like another case or general types of lawsuit in the district court If one of party (the losing party) cannot accept or objection with the verdict, then the (losing) party may submit appeal into High Court or even Cassation to the Supreme Court.
author: wilopo husodo
HUSODO & PARTNERS 