The divorce process in Indonesia can be complex. Expats must be aware that religious and cultural factors strongly influence divorce.
Religion, especially, plays an important role in Indonesian society and couples must belong to the same faith to get married. For a foreigner who is marrying an Indonesian, this often means having to provide a statement declaring their conversion to the religion of their future spouse.
Further, Indonesia does not recognize uncontested divorce, meaning that it is done through the courts, and it is the court’s final decision to grant the divorce.
What are the grounds for divorce in Indonesia?
Indonesia has dedicated religious courts that have jurisdiction over marriages between Muslims while the country’s civil courts regulate marriages between non-Muslims. For the divorce petition to be initiated, at least one spouse must be:
- An Indonesian citizen or resident in Indonesia; and
- Is domiciled in Indonesia.
According to the 1974 Marriage Law, divorce can only be granted under one of the following conditions:
- One party has committed adultery or other vices such as drug addiction, alcoholism, and gambling addiction which has strained the marriage;
- One party has separated from the other for 2 (two) years consecutively without a legitimate reason;
- One party has been sentenced to prison for 5 (five) or more years after the marriage has occurred;
- One party is incapacitated due to disease or illness which prevents them from fulfilling their duty as a husband/wife; or
- Due to irreconcilable differences.
Specifically for Muslim couples, there are further grounds for divorce in addition to those stated above namely if one party has become a ‘murtad’ (has left the religion of Islam) or ‘taklik talak’ in which a premarital agreement was broken by one of the parties.
The divorce process in Indonesia
Divorce proceedings in Indonesia vary depending on the religious affiliation of the couple. Generally, the divorce proceedings of non-Muslim couples are done through the civil courts whereas Muslim couples are processed through the religious courts.
To begin the divorce proceedings, a petition should first be lodged to the appropriate court by the plaintiff. If the parties are domiciled in Indonesia, the first court hearing can take two weeks after the registration with the court and up to six months if the parties are domiciled overseas.
Mediation
Mediation is compulsory for the couple and they must attend in person. Mediation aims to encourage reconciliation between the couple.
Judgment
Once judgment has taken place, parties have 14 days to appeal. If there are no appeals, the judgment is final and binding. takes
Muslim divorces
Under Islamic law, the husband must pay ‘iddah’ maintenance to his ex-wife. This maintenance includes her food, clothing, and accommodation for three consecutive months. Iddah, is a waiting period in which the ex-wife is not permitted to re-marry.
Further, Iddah is payable in all cases of divorce except if the court finds that the wife has been disobedient to the husband or when this is the third divorce between the couple.
Islamic law also stipulates that the father should ensure the support of his children’s welfare and education after the divorce unless he is unable to do so. The mother will normally receive custody of the child.
Finally, the ex-wife is eligible to receive mutaah from her ex-husband. This is a consolatory gift aimed at help mitigate the sense of loss suffered by the ex-wife due to the divorce. The total amount is based on the number of days of the marriage, thus the longer the marriage, the higher the amount is payable.
Non-Muslim divorces
For non-Muslim divorces, the court may ask the husband to pay his ex-wife alimony. This can be indefinite in non-Muslim divorces.
The division of assets
Assets obtained during the marriage become joint assets, unless in the case of inheritance. Therefore, in the case of divorce, the assets will be divided equally between the two parties.
However, prenuptial and postnuptial agreements are fully recognized in Indonesia.
If you want to know more about the legal aspects of marrying an Indonesian as a foreigner, email our attorneys at Jarji Zaidan & Partners. We have in-depth experience in the field of family law. We are also available on WhatsApp +62 821-9000-3273 / +62 813-1403-8907.
Disclaimer:
This article is based on applicable laws and regulations on the day and date this article was published.
