Divorce & annulment

The death of either party will automatically terminate the marriage; during life, a marriage can be dissolved by filing for a divorce.

Divorce

As divorce proceedings are passed through court, it is necessary to get legal representation which AdvintA can provide for you.

In Indonesia, the rules for divorce are governed by the applicable marriage laws and can only be settled via a court ruling, as Indonesian law does not acknowledge a divorce by mutual consent.

Either the husband or wife can file for divorce.

For Muslims, a divorce petition must be filed at the local Religious Court, while non-Muslims file for divorce at the local District Court.

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Divorce justifications

The legal grounds for filing a divorce apply if one of the spouses:

  • Has committed adultery.
  • Is addicted to alcohol, drugs or gambling or has other vices which place a heavy burden on the marriage.
  • Has resorted to cruelty or abuse, endangering the life of the other spouse.
  • Has left the other spouse for 2 consecutive years without consent and without legitimate reasons.
  • Has been sentenced to imprisonment for at least 5 consecutive years.
  • Has developed an enduring disability or disease, preventing the spouse from fulfilling his/her marital duties.
  • Have irreconcilable differences, such as continuous martial disputes with no outlook on a sustainable solution.

In Islam, a marriage may be dissolved due to additional reasons, most commonly being:

  • Talak; the right given to a husband of releasing his wife from the marriage.
  • Lian; deceit and non-acknowledgement of a child by the husband, born during the marriage.
  • Murtad; if the husband or wife is an apostate of Islam i.e. abandons the Islamic faith.
Divorce documentation

To file for divorce, usually copies of the following documents should be prepared:

  • ID card (KTP) or passport.
  • Family card (KK).
  • Children’s birth certificate if applicable.
  • Marriage booklet (for Muslims) or marriage certificate (for non-Muslims).
  • Marriage agreement if applicable (prenuptial or postnuptial agreement).
  • Proof of ownership regarding assets, such as real estate, vehicles, bank savings, etc. if applicable.
  • Letters stating the reasons for the divorce.
Divorce consequences

According to Indonesian marriage law, the main effects after the divorce are that:

  • The ex-husband has to pay alimony as a contribution to the living expenses of the ex-wife if able.
  • Both parents are still obliged to take care of their children if there are any, and are responsible for their education.
  • The father has to pay child support if able.
  • A separation of assets is determined.

The details should be documented in the divorce papers and are upheld by the courts decision where applicable.

Annulment

Besides getting a divorce, a marriage can also end through an annulment. Annulment means that a marriage is terminated if one or both parties have failed to comply with the necessary terms and conditions of the marriage under Indonesian law.

Only the court can rule such a marriage as invalid.

A petition for marriage annulment must be filed at the Religious Court for Muslims and at the District Court for non-Muslim couples. This request can be submitted within the jurisdiction where the marriage was performed or in the district where the married couple resides.

Unlike a divorce, not only the husband or wife can file a request for a marriage annulment.

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Annulment requests

Besides the couple, an annulment can be requested by:

  •     Straight line relatives such as parents and siblings of the couple.
  •     Authorized officials concerned with the marriage requirements.
  •     Other parties who have a valid interest in the legitimacy of the marriage.
Annulment justifications
The legal grounds for filing an annulment petition are unfulfilled (pre) marriage requirements, such as:
  • The husband a/o wife is still married to another person.
  • The husband and wife are blood relatives.
  • The husband a/o wife is younger then the minimum required marital age.
  • The marriage was forged or performed under threat.
  • The wedding was not attended by two qualified witnesses.
  • The wedding ceremony was performed without the presence of an official marriage registrar or conducted by an unauthorized one.
In Islam, a marriage may be annulled due to additional reasons, such as:
  • Polygamy conducted by the husband without permission from the Religious Court.
  • The wife was still in the period of ‘iddah’ of her previous husband.
  • Cancellation of the marriage known as ‘fasakh’ due to unanticipated circumstances.

Muslim men are only officially allowed to have more then 1 wife in Indonesia upon consent of the first wife and with authorization of the religious Islamic authorities.

Iddah refers to the waiting period wherein a previously married woman may not re-marry, being 90 days due to a divorce and 130 days if due to the death of the previous husband.

Fasakh refers to the annulment of the marriage usually because of financial or family related issues that may hinder the continuation of the marriage.

The husband or wife may submit a petition for marriage annulment in case (one of) the parties were allegedly forced or deceived or if there were further to be specified misunderstandings. However, if the couple has been living together as husband and wife for 6 months under these circumstances without having requested annulment of the marriage, the issue is considered solved and their right to petition for annulment of the marriage will be void/expired. In case of annulment, the court basically applies the same procedures as in divorce proceedings.
Annulment consequences
According to Indonesian law, a marriage annulment does not terminate:
  • The parental relationship and joint responsibility for the children if there are any.
  • An agreement entered into with any third party during the marriage, such as mortgage payments if applicable.
The annulment of the marriage by the courts decision takes effect retroactively from the moment the marriage was entered into.

Summary

The above divorce and annulment regulations basically apply to native (Indonesian) marriages as well as mixed (foreign-Indonesian) marriages.

However, if the husband and wife who file for divorce are both foreign and both reside in Indonesia, then the Indonesian variant of the International Civil Law (ICL) applies to get a divorce in Indonesia.

In such cases you should also contact the foreign embassy of your native country to determine what they require to make the divorce legally recognized.

In any case, it is highly recommended to get in touch early with Patricia & Partners before starting any divorce proceedings on your own, in order to get best possible divorce settlement.

All changes to your civil status must be reported to the proper authorities during your residence in Indonesia. This not only concerns family matters such as marriage and divorce, but also the birth of a child and the death of the spouse.

Those legal and financial issues can also be handled by us.