Every married couple definitely wish to have a long-lasting marriage, however, if things are not working, a husband or a wife could decide to end the marriage with a divorce. Divorce in Indonesia can sometimes pretty easy if both husband and wife agrees to divorce, however it can also turn out to be a lengthy and stressful legal proceeding if one of the party (husband or wife) refuses to have the divorce.
In Indonesia, a divorce could only be claimed and submitted before a court. An agreement to divorce between the husband and wife will not be constituted as a divorce, only a court decision may constitute a divorce.
If the married couple are conducting the marriage under non-Islamic law, therefore the plaintiff should submit the divorce application to the district court and if the married couple are conducting the marriage under Islamic law, therefore the plaintiff should submit the divorce application to the religious court. In general, the divorce application should be submitted to the court (either district court or religious court) which covers the defendant legal domicile.
LEGAL GROUNDS TO HAVE A DIVORCE
The legal grounds to file a divorce application in Indonesia are regulated under Law No. 1 of 1974 concerning Marriage (“Marriage Law”) and Government Regulation No. 9 of 1975 concerning The Implementation of Law No. 1 of 1974 concerning Marriage (“Marriage Regulation”). A divorce can only be executed base on reasons provided by Article 19 of Marriage Regulation which are as follows:
1. One of the spouse has committed adultery, is an alcoholic, is a drugs addict, is a gambler or other vices which are difficult to cure;
2. One of the spouse has left the other spouse for two consecutive years, without permission and without legitimate reasons or the absence of reasons beyond his/her control;
3. One of the spouse has been sentenced to imprisonment for five years or more;
4. One of the spouse has resorted to cruelty or severe ill-treatment, endangering the life of the other spouse;
5. One of the spouse has developed a permanent disability or disease, preventing from fulfilling the duties of husband or wife; and
6. The spouse has irreconcilable differences.
The plaintiff should provide one of the above legal grounds for the divorce in the divorce application and historical background of the marriage. In the court proceeding, the plaintiff must also provide sufficient evidence to prove the legal grounds for the divorce. For example, if the plaintiff chooses the legal ground for the divorce is “The spouse has irreconcilable differences”, therefore the plaintiff must provide sufficient evidences to prove that there is an “irreconcilable differences”.
Evidences that could be admissible to the district court or religious court are as follows:
3. Inferences (judge conclusion about something from known facts or evidence).;
4. Confession; and
5. Solemn vow.
Although everyone has a right to have a divorce, it is best that divorce shall be regarded as last resort. Even in the court proceeding, the judge is obligated to mediate the parties not to divorce.