Applicable laws for divorce in Indonesia
Grounds for getting a divorce
Initiating a divorce
Court process – steps
Defendant spouse absent from proceedings
Degree of proof/evidence to support divorce
Do I need to attend court hearing?
Possible outcome/verdict
Child custody
Engaging a lawyer
Marriage certificate – loss
Matrimonial property division
Divorce legal fee/costs
Applicable laws for divorce in Indonesia
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”)
Grounds for getting a divorce
hese are grounds on which the court can declare a divorce:
a. 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;
b. One of the spouse has deserted the other spouse for two consecutive years – without consent and without legitimate reasons;
c. One of the spouse has been sentenced to imprisonment for five years or more;
d. One of the spouses has resorted to cruelty or severe ill-treatment, endangering the life of the other spouse;
e. One of the spouse has developed a disability or disease, preventing from him or her from fulfilling the duties of husband or wife;
f. The spouses has irreconcilable differences as evidenced by frequent disagreements.
The above grounds are also applicable to Moslem marriages. There are two additional grounds though for Moslem marriages :
g. The husband has violated taklik talak (a promise that the husband expressly made and written onto the marriage certificate).
h. One party convert from Islam into another faith.
Initiating a divorce
A divorce can only be validly declared by an Indonesian court.
The claim for divorce needs to be submitted before a Court as provided under Article 39(1) of Marriage Law.
You file divorce claim in the local district court where your spouse lives ( domicile of the Defendant – Article 20 of Marriage Regulation).
Where the domicile of your spouse (defendant) is unknown or where the defendant is domiciled abroad, divorce law suit may be submitted in the court of your district (plaintiff’s domicile).
Muslim marriage divorce mirrors the procedure for civil marriage – the law suit for divorce is to be submitted to the Religious Court (Pengadilan Agama).
The party can be self represented or can appoint an advocate to represent him or her to file a law suit.
Alternatively, it is possible to request an advocate to prepare the law suit statement of claim for the party to file personally – this compromise is with a view to save on legal costs.
As for court venue for filing of divorce, please see this page.
Court process – steps
– Submission of divorce statement of claim;
– court summons both parties to attend at scheduled date for court hearing;
– Mediation mandatory under Supreme Court Regulation No. 1 of 2008 concerning Mediation Process in Court;
– mediation fails and court process continues with filing defense response to statement of claim;
– Plaintiff file rebuttal;
– Defendant file last round of response;
– Evidence by the plaintiff and cross-examination;
– Evidence by the defendant and cross-examination;
– Closing/concluding argument by both parties before the court;
– Judgment on divorce claim.
The evidence to be used has to comply with the civil procedure rules (Het Herziene Indonesisch Reglement). Such evidence could be:
– Written evidence such as letters and original documents;
– Witness of fact relevant to the divorce claim;
– Photographs and video recording
Additionally, the plaintiff must provide at least two witnesses to confirm the facts on which the grounds are based.
See this page for checklist for filing for divorce.
Defendant spouse absent
If the Respondent/Defendant is not present and the judge is satisfied that the summons on the defendant spouse has been properly delivered to the defendant/spouse, the judge will order that the divorce court process proceed in absence of the defendant spouse. Contrary to certain misconceptions, it does not mean that the divorce cannot be proceeded with as long as the defendant spouse does not appear in the divorce proceeding. A divorce can still be granted in absence of the defendant spouse. Delivery of the summons to the spouse should be sent to the address of the defendant spouse according to the Identity Card (KTP – Kartu Tanda Penduduk) of the defendant spouse. If not, the summons is to be delivered to the last known address of the defendant spouse. It may also be good to contact the village head of location where the defendant spouse is known to reside to enquire about the his or her whereabout and whether he or she is still residing in that neighbourhood. The judge might order publication of the summons in the newspaper if deemed necessary but this practice can vary between judges – the objective is to be satisfied that notice has been given to the defendant spouse before the divorce is proceeded with in absence of the defendant spouse.
Evidence/degree of proof
Indonesian court may grant divorce without any need to find fault. Its main concern is to find that the marriage has become irreconciliable. The abovementioned requirement to have two witnesses of fact is not always strictly implemented since it may not always be easy to find such witnesses to testify as to the state of the marriage; and judges may take a pragmatic approach that the marriage has already broken down.
Do I need to attend court hearing?
The spouse petitioning for divorce will not need to attend any court proceeding provided that :
- A power of attorney has been given to an advocate;
- The other spouse does not contest the divorce petition; in other words, the other spouse gives consent to the divorce petition
Possible outcome/verdict
It takes about 6 to 9 months (from filing of law suit) for the court to come to a decision. The court will read out the decision which could be an order to grant the divorce.
On the day of the decision, the court will read out its decision. The written decision will be available to the parties between 1 to 4 months.
The losing party has 14 days from the announcement of the decision to file the notice of appeal . The appeal is to the High Court. The appellant will have to submitt a memorandum of appeal explaining why the trial judges were thought you be wrong in arriving at the decision.
Against the High Court decision, there is a further right to appeal to the Supreme Court.
Child custody
A divorce can be finalized without resolving child custody, support and assets distribution. It is important to include these matters in the divorce law suit.
Decision on the custody of the child is based on the best interest of the child. This takes into account the parent’s ability to provide for the child – financially and emotionally and ability to respect the other parent’s right to visitation.
See this page for further discussion on child custody on divorce.
Engaging a lawyer
I am a foreigner who married an Indonesian but have left the country, can I What engage a lawyer to represent me without my presence in Indonesia?
Answer : Yes you can appoint an Indonesian l lawyer to represent you to file the divorce proceedings without requiring your presence in Indonesia. You should check that he or she is holding a valid Indonesian Lawyer Association (PERADI) license. PERADI (Perhimpunan Advokat Indonesia) is the commonly used acronym for the local bar association. The following documents will be required : original marriage certificate and notarized and legalized copy of your passport’s pages that contain your particulars. You will need to sign a power of attorney before a notary public in your country and the notarization will then need to be legalized by the local Indonesian consulate . The power of attorney is necessary for the Indonesian lawyer to file the court proceedings.
We provide free of charge advice for the initial consultation. Contact us on whatsapp +61433911473 for an appointment. A profile of our lawyers is available on request.
Marriage certificate – loss
Answer : It is necessary to submit the original marriage certificate to court. vIf you can’t find it, it may be necessary to make a declaration of the loss and supported by a police report of the loss. The lawyer will have to explain to the judges of the loss and request that the judges proceed with the divorce petition without the original marriage certificate.
Matrimonial property division
For division of matrimonial property in a divorce , please see this link
We provide free of charge advice for the initial consultation. Contact us on whatsapp +61433911473 for an appointment. A profile of our lawyers is available on request.
Legal fees
Costs can vary significantly.
It can be as low as IDR 8 million and as high as IDR 100 million.
The median is likely to be IDR 15 million to 30 million. Lawyers may charge some premium when the client is not local – probably due to the additional language interface where documents need to be translated and explained in English. Law Jakarta does not impose such premium.
Where the divorce is contested including property division and child custody issues, costs is likely to be closer to IDR 100 million.
Be prepared that the lawyer will ask for deposit. Also provide for court fee of around IDR 2 million.