British Expat Divorce in Indonesia

Jurisdiction for Divorce in Indonesia

A party can file divorce proceedings in Indonesia court if one of the married couples:

1. is an Indonesian citizen;
2. is domiciled in Indonesia at the time of the law suit; and
3. has a substantial connection with Indonesia.

Divorce in Indonesia

Under Law Number 1 of 1974 on Marriage (“1974 Marriage Law”), a marriage conducted in Indonesia becomes valid if it is done in accordance with one of the recognised religions and beliefs in Indonesia. The House of Representatives currently recognises six religions:

1. Islam
2. Catholicism
3. Protestantism
4. Hinduism
5. Buddhism
6. Confucianism

Further, Government Regulation Number 9 of 1975 on Implementation of 1974 Marriage Law (“1975 Marriage Regulation”) regulates a procedure to register a marriage. According to 1975 Marriage Regulation:

1. a marriage conducted by Muslim couples, the registration of marriage shall be done by Religion Affairs Office (Kantor Urusan Agama); and
2. a marriage conducted by non-Muslim couples, the registration of marriage shall be done by Civil Registration Office (Kantor Catatan Sipil).

The registration of a marriage in Indonesia shall determine the governing law for divorce. Because of this principle, couples with different religions that married in Indonesia usually choose one religion that will be used to register the marriage in Indonesia.

Because Islam is the majority religion in Indonesia, the divorce process of Muslim couple takes place in religious court under Islamic religious procedure regulations. Meanwhile, a divorce process for non-Muslim couple takes process in a general court under general court procedure regulations.

Grounds for Divorce in Indonesia

In accordance with the 1974 Marriage Law and the accompanying 1975 Marriage Regulation, a divorce may only be granted if one of the following categories is met:

1. One party has committed adultery, is an alcoholic, a drug addict, a gambler or exhibits other vices that strain the relationship because of their difficulty to cure;
2. One party has separated from the other for a period of 2 (two) years consecutively without consent or legitimate reasons or because of reasons beyond his/her control;
3. One party has been sentenced to a term of imprisonment for 5 (five) years or longer after the marriage is occurred;
4. One party commits severe cruelty and ill treatment to the other that endangers the life of the abused party;
5. One party has developed a disability or disease that prevents he/she from completing their duties as husband/wife;
6. The parties have irreconcilable differences.

Grounds for divorce stated above applies to Muslim couples and Non-Muslim Couples, however, for Muslim Couples, the Islamic Law Compilation (this is a compilation of Islamic practices in Indonesia used currently as a guidance instead of a binding regulation in religious courts proceedings) stipulates 2 (two) other grounds for divorce for Muslim couples besides grounds stated in points (1) to (6) above:

7. The husband violates taklik talak (a promise that whenever a particular event occurred during the marriage, the wife has the right to divorce the husband – this is not a mandatory promise but it can be promised between the husband and wife); and
8. One party becomes murtad or changes his/her religion from Islam to become other religion resulting in irreconcilable differences.

Divorce Proceedings in Indonesia

For Non-Muslim Couples

Pursuant to Article 39 of 1974 Indonesian Marriage Law, a divorce can only be done before the Court after the Court tries and does not succeed in reconciling the couples. For Non-Muslim couples, divorce proceedings must be done through a divorce law suit submitted either by the husband or wife or his/her representative to the general court.

For Muslim Couples

Pursuant to Article 65 of Law No. 7 of 1989 on Islamic Religious Court as lastly amended by Law No. 50 of 2009 (“Religious Court Law”), divorce can only be done before the Court after the Court tries and does not succeed reconciling the couples.

Under Religious Court Law, there are 3 (three) types of divorce procedure in the religious courts:

1. Thalak divorce is a divorce application filed by a Muslim husband to the religious Court requesting the Court to hold a thalak vow declaration by the husband intending to divorce his wife. If a divorce occurred through thalak, the ex-husband has an obligation to give a proper mut’ah to his ex-wife, in the form of: money or goods. An amount of mut’ah shall be decided by the court pursuant to the husband’s capability;
2. Divorce law suit is a divorce suit filed by the wife or her representative to the religious court; and
3. Divorce because of adultery that can be done by submitting complete and accurate evidence or by submitting some evidence and the plaintiff takes an oath before the court saying that the defendant commits adultery.

Law suit regarding divorce consequences, such as: child custody, child living costs, wife living costs, and joint assets distribution of husband and wife, can be submitted together with the thalak divorce application, or with divorce law suit or after the thalak vow has been declared or after the divorce proceedings has become final and binding.

Division of Assets

According to Article 35 of 1974 Marriage Law, any property acquired during the marriage becomes joint property of husband and wife. Property acquired prior to the marriage remains separately owned by the parties unless so otherwise specified.

If a divorce occurs, the joint property shall be split in half between the husband and wife. This is applied for non-Muslim couples and Muslim couples.

Children

For Non-Muslim Couples

A child below 18 years old or never been married shall be under authority and supervision of the parents. The parents shall represent the child’s interest in any legal action before or outside the court. Custody may be held jointly or solely according to the Court’s decision and based on case by case basis.

Once a divorce is concluded and granted, 1974 Marriage Law indicates the following consequences:

• That both the mother and father will be responsible for the sustenance and education of any children. Should there be any dispute concerning this, then a decision will be handed down by the Court;
• The father shall be responsible for all expenses of the children’s sustenance and education. However, if the father is unable to do so, the Court may determine that the mother shall share the expenses with the father;
• The court may issue an order requiring the ex-husband to pay alimony to the ex-wife and/or to impose any other obligation on the ex-husband.

For Muslim Couples

A child below 21 years old and never been married shall be under authority and supervision of the parents. The parents shall represent the child’s interest in any legal action before or outside the court.

In the case of divorce:

• custody of a child below 12 years old is his/her mother’s right;
• after 12 years old, the child has a right to choose whether the father or mother that shall be the child’s custodian;
• the child’s living, maintenance and education costs shall be borne by the father until the child reaches 21 (twenty-one) years of age;
• If there is any dispute over divorce result, the religious court shall decide the case;
• The religious court may determine an amount of costs for the child’s education and sustenance borne by the father even for the child under custody of the mother.

Family Dispute Resolution – Mediation, Collaborative Practice and Parenting Co-ordination

In Indonesia, divorce must be done and decided by the Court; however, the Court has the obligation to hold a mediation between husband and wife at initial proceedings and the Court also shall always try to reconcile the couples throughout the Court proceedings.

Divorce in Indonesia cannot be done through signing a document stating that both husband and wife agree to divorce – it must be done through court decision. However, as for divorce result matters, the couples may sign an agreement regulating divorce consequences, such as: joint property distribution, child and wife living costs and mut’ah as long as the terms and conditions do not contravene with prevailing laws and regulations. For this agreement to have an execution power, the agreement can be restated into a Court’s decision (as requested by the parties) therefore the parties shall be obliged by the Court to comply with the agreement.

Prenuptial Agreement in Indonesia: Frequently Asked Questions

What is a Prenuptial Agreement?

A prenuptial or pre-marital agreement is a written contract made between the soon-to-be-husband and the soon-to-be wife which is legalised by the marriage registration officer. Indonesian law permits the couple to construct the agreement as they see fit, as long as the content shall not violate any law, religion, and morality.

The prenuptial or pre-marital agreement shall be signed before the marriage (or the wedding) takes place. Indonesian law does not stipulate how many days prior to the marriage the agreement should be signed. In 2016, the Indonesian Constitutional Court decided that a postnuptial agreement is also permitted.

I am planning to get married. Do I need a prenuptial agreement?

This depends on a number of factors.

A prenuptial agreement is advisable to have if you want to regulate matters regarding marriage and divorce differently than what the Indonesian law has already regulated. For instance, Indonesian law regulates that all assets acquired during the marriage becomes joint assets of husband and wife. Any transfer of joint assets requires a spousal consent. Thus, you need a prenuptial agreement if you want to have a separation of assets and flexibility to transfer your assets without the need to ask your spouse’s consent.

The existence of a prenuptial agreement will help the married couple and their children during the marriage and the divorce (if it occurs). The prenuptial agreement can discuss, among others, the rights and obligations between the married couple, the management of assets, the management of income, etc. Through having this prenuptial agreement, the married couple can manage their expectations towards each other, and their relationship, as well as their assets management.

Why do I need a prenuptial agreement?

There are many reasons a couple considering marriage might consider it advisable to have a prenuptial agreement, among others:

1. one party is a foreigner and the other is an Indonesian. A foreigner cannot own land in Indonesia. A prenuptial agreement is necessary to enable the Indonesian spouse to own the land in Indonesia;
2. one party (or both parties) may wish to provide some assets or living costs for children from a prior marriage;
3. one party (or both parties) has a business;
4. one party (or both parties) has been married and divorced therefore without prenuptial agreement; he/she will be reluctant to marry again;
5. one party (or both parties) has a lot of assets;
6. one party (or both parties) has an asset-risk-adverse or high-risk litigious job, such as: lawyer, doctor, consultant; and/or
7. (g) one party (or both parties) wants to own a land in Indonesia.

Are premarital agreements only for the rich?

Not at all; a prenuptial agreement is necessary for any married couple wishing to regulate, among others, their rights and obligations, the assets management, the income distribution during the marriage and after the marriage ends.

What happens if I don’t have a prenuptial agreement?

If you do not have a prenuptial agreement, Indonesian law will determine who owns the assets that both of you acquire during the marriage, the distribution of income, the rights and obligations of husband and wife, when the marriage ends.

What Indonesian law says regarding marital assets?

Under Indonesian law, any assets obtained during the marriage shall become joint assets of husband and wife. Consequently, any action towards the joint assets requires the spousal consent, such as: transfer or encumbrance of assets requires spousal consent. And, if divorce happens, the joint assets shall be divided in half.

What does Indonesian law say about marital assets in a multinational marriage between an Indonesian and an expatriate?

Because Indonesian law does not permit a foreigner/expatriate to own land in Indonesia, the mixed marriage couple (an Indonesian and a foreigner/expatriate) cannot own a land in Indonesia without having a prenuptial agreement regulating a separation of assets.

Is there any other requirement for the prenuptial agreement to be valid?

Yes, a prenuptial agreement will be valid and applicable to husband, wife, and other party involved if the prenuptial agreement is registered to the relevant local district court’s clerk and the relevant marriage registration office.

I am considering a prenuptial agreement. What should I do next?

The first step is to let your partner know that you would like to have a prenuptial agreement. Then you should gather your financial information (a list of assets and liabilities, amount, and sources of income) and plan what you would like to regulate in the prenuptial agreement.

The next step is to meet with a lawyer to assist you during the drafting, negotiation, and registration process of a prenuptial agreement.

This article was prepared and drafted by Yuliana Pertiwi Siagian and Gesiu Nicholas Manurung, partners and founders of NP Consultant Indonesia (www.np-consultant.com).

NP Consultant is an Indonesian law firm offering the highest quality standard of local law expertise. The team consists of lawyers with excellent law academic background and international exposure working experience. They have assisted many renowned international and local individuals and corporations.

Yuliana and Gesiu are Indonesian lawyers assisting family law matters, international civil law matters, marriage law and dispute resolution. Besides that, they also engage in wide range of legal practices, including corporate and commercial, merger and acquisition, mining, energy, natural resources, forestry, trade, investment, tourism, etc.

For advice on divorce and family law matters in Indonesia, kindly contact:

1. Yuliana Pertiwi Siagian
   yuliana@np-consultant.com/+62811 – 8013 – 088

2. Gesiu Nicholas Manurung
   gesiu@np-consultant.com/ +62813 – 1143 – 904

NP Consultant Indonesia

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