Displaying items by tag: Mixed Marriage

Prenuptial agreement in Indonesia is an agreement you sign with your partner before performing the marriage. The date when you execute it must shows clearly that it is being entered on or before the legal marriage date. I have reason to believe that your legal marriage date may be different than the solemnization date. It because the marriage in Indonesia is considered legal when you perform the religious marriage prior the civil ceremony, unless of course, if you were married in Moslem rites. The latter requires no civil marriage registration. So, the prenuptial agreement must be entered into before the date of the civil marriage, the legal one. 

When a Prenup Begins

Let’s have a look what the law said about it in Article 119 of Civil Code stipulates that from the moment of execution of the marriage, it shall arise by law joint marital property between the spouses to the extent that no other stipulations have been made in the pre-nuptial agreement. There you go, the prenuptial agreement must be executed before the marriage. Beside, if you did not sign any prenup, you will have joint property ownership. This condition is preventing your Indonesian spouse to keep owning a property after she/he married to you. 

The validity of a prenup begins when you and your partner sign it and register it with the marriage registry. The laws said it is valid when the officer at the marriage registry is to legaize the prenup. So, they are actively legalising the document. While in fact, they are only conducting registration of the prenup together with the registry of your marriage. This is extremely important because this action giving you a legal recognition to make the prenup valid between you and your spouse. Without this, your marital agreement is nothing but worthless piece of paper. It has no legal effect and won't do any good for your mixed-marriage life in owning a property in Indonesia. The registration of the prenup applicable to all the marriages performed and registered under the laws of the Republic of Indonesia, in accordance with the  Circular Letter of Civil Registry Directorate General number 472.2/2017 for Non-Moslem, and Circular Letter of Ministry of Religion Number B.2674/DJ.III/KW.00/9/2017 for Moslem couples. 

I am an old-fashioned guy, so I would recommend to register the prenup with a district court. This is to make your prenup valid legally against third party. Your property ownership involves other third party such as the government, banks, creditors, etc. The publicity requirement is met when you're registering the prenup with a court. Please refer to Article 152 of Civil Code that states: "No  stipulation in the prenuptial agreement which deviate entirely or partially from the provision regarding legal community property shall apply to third parties, earlier than from the date of copying such stipulations in a public register, which shall be done with the court clerk at the court of justice, within those legal jurisdiction the marriage was executed."

One item missing in your prenup might cause it challengeable. This can be a potential loophole you don't want to miss. At Wijaya & Co, we always pay attention to details of our client’s case. You better have an umbrella when it does not rain, instead of you don't have one and it gets rain. Indeed, it won't stop the rain, but at least it will make you stand in the rain. 

One Prenup for Everyone

In the event you are a foreigner planning to marry to an Indonesian, the prenup have certain issues that must be addressed to. First, we have many types of the prenup, You need to get the right one. Failure to do so will affect the ability of property ownership in your mixed marriage. You need to get a prenup with total separation of property. This is applicable to both the assets and debts of the couple. Don't use the one that suggesting joint property ownership. This one is the last thing you need. They have an old Dutch term for this: "Gronds verponding verbood." Forgive my rusty Dutch. The idea of having this type of prenup is because the laws forbid foreigners to own lands in Indonesia. Article 26 (3) of Basic Agrarian Law imposed that in the event by marriage, inheritance, or by any other means she/he loses the citizenship of Indonesia, he/she must transfer the title of the land to other third party or the state will take possession. Please contact me should you wish to draw-up a more suitable prenuptial agreement that just right for you!

In terms of mixed-marriage, I would say the above situation only applicable if you marry to a foreigner and your status in owning the property is legally affected by your foreign spouse. Since the property falls into the definition of joint property, both of you co-own the assets and therefore require consent from each other. This is not good. In any way, the consent may not be retrieved because the foreigner is not in the legal position to own the property in the first place. The ideal situation is no consent is required from either party to execute any property transaction. Either party is independently to act on his/her behalf. The idea is to keep the land with the Indonesian only. 

Transferring the Property

Second, legal constraints as set-out by Article 21 of Basic Agrarian Law certified that an Indonesian is precluded to own a freehold title after she married to you as a foreigner, without any prenup. In the event, the Indonesian spouse passes-away, you may keep the property for 12 (twelve) months. Unless, if you transfer the title to other Indonesian. Transfer means you can sell it, give it away or inherit to your child, provided she/he is an Indonesian, of course. Standard tax rate is applicable for this transaction.  

You can also to downgrade the title from Hak Milik (freehold title) to Hak Pakai (Leasehold). It valids for twenty years or so. You can renew it after. This can be the smart solution if you want to keep the property for quite a while. Until you know what to figure out next.

The third one, you should consider the inheritance with you next of kin. Inheritance issues in Indonesia are referred to a person’s religious affiliation. If you were in Moslem family, the people in layer one, the next of kin in the event one passes-away, are very crowded. If you want the assets distributed to just the surviving spouse and the children, and prevent the other extended families to even touch them, you should consider a last will. Seriously. Please contact me should you wish to discuss any further about this. You can drop me an email or give me a call to have a free assessment of how can you move forward with the solution available for you.

 

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

Monday, 19 February 2018 09:34

Foreign Property Ownership

For Mixed-Marriage Couples in Indonesia

Pre-word

Foreigners are not allowed to own property in Indonesia.  However, although foreigners will not be able to own freehold (Hak Milik) property, several Government Regulations issued in 1996 allow foreigners to hold  a Right of Use (Hak Pakai) which valid for 25 years with the possibility of another 25 years extension.

However, as the validity of a Right of Use title is limited to a certain period and it is not possible to a mortgage a Right of Use, this is not comparable to freehold or ownership in perpetuity. Holding a Right of Use offers the foreign investor protection for a certain period, but this title seems not well suited for long-term investment purposes.

2 (Two) Possible Solutions

In order to own the property in Indonesia, there are 2 (two) possible solutions for foreigners i.e.:

Using the Nominee

The nominee sign several documents with the foreigner i.e.: a) A Loan Agreement that acknowledges the foreigner has lent to the nominee the purchase price of the property; b) A Right of Use Agreement that allows the foreigner to use the property; c) A Statement Letter stating that the nominee acknowledges the loan from foreigner and intention to own the land; d) Power of Attorney. This is an irrevocable power of attorney giving the foreigner complete authority to sell, mortgage, lease or otherwise deal in the property.

Using the Foreign Company (so called PMA)

Under the new investment law number 25 of 2007, simplified services and/or permission of land titles may be granted and extended all at once in advance, and is renewable at the investor's request for the following:

  1. Right to Cultivate (Hak Guna Usaha) may be granted for a period of 95 (ninety-five) years by being granted and extended all at once in advance for a period of 60 (sixty) years, and renewable for a period of 35 (thirty-five) years;
  2. Right to Buld (Hak Guna Bangunan) may be granted for a period of 80 (eighty) years by being granted and extended all at once in advance for a period of 50 (fifty) years, and renewable for a period of 30 (thirty) years;
  3. Right to Use (Hak Pakai) may be granted for a period of 70 (seventy) years by being granted and extended all at once in advance for a period of 45 (forty-five) years, and renewable for a period of 25 (twenty-five) years;

Land titles as intended above may be granted and extended all at one in advance for the following investment activities, inter alia:

  1. an investment that is made for a long term and linked to structured changes in the Indonesian economy aimed at improving competitiveness;
  2. an investment with an investment risk level that requires a long-term return on capital based on the types activities carried out;
  3. investments that need no large areas;
  4. investments with the state land titles; and
  5. investment that do not undermine a sense of public justice and does not harm the public interest.

A land title is renewable upon evaluation that the land remains in good use and cultivation conforming to the conditions, nature, and purpose the title is granted.

I am Asep Wijaya. Thank you for visiting my blog, and reading my posts.

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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Thursday, 16 November 2017 13:43

Marriage Annulment

Marriage annulment in Indonesia is being conducted in very limited requirements. It must be done within six (6) months since the marriage date. Otherwise, you better go with divorce proceedings. 

You need to have the following reasons for conducting a marriage annulment:

  1. if either spouse in the married couple is still bound in a marriage with another person so that the second marriage cannot be continued,
  2. if the married couple are discovered to have a blood relationship,
  3. if the marriage is conducted without the consent of a guardian or conducted by an invalid guardian,
  4. if the marriage was forced,
  5. and so on pursuant to the law.

A husband or a wife may submit a petition for marriage annulment in the event the marriage was conducted under threat or if, at the time of marriage, there was a misunderstanding or one of the two parties believed that he/she was deceived. If the threat is stopped or the misunderstood party realizes his/her mistake, but within six months they still live as a married couple, and neither of them uses his/her right to annul the marriage, their right will be null and void.

Consider the following issues in order to get an annulment proceeding carried-out by our firm:

  1. Experienced family law attorneys;
  2. High success rates in previous similar cases handled by our attorneys that will also contribute to your success;
  3. Conclusive legal binding;
  4. World-wide legal recognition.

Call or email us in getting the most important part of your life "undo" legally with the assistance of passionate family law practitioners in Indonesia.

Our thanks to Asep A. Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

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Thursday, 16 November 2017 09:27

Foreign Divorce in Indonesia

Foreign divorce for all-foreign spouses in Indonesia is possible. This usually happens to couple who live in Indonesia long enough and both of them are expats. Certain situation must be met before you can access our legal system. First, minimum contact of the spouses in Indonesia. This is to see if the court in Indonesia has jurisdiction. Second, reporting/registration of the foreign marriage. Three, how Indonesian law can rule in your divorce case. Divorce in Indonesia must meet at least one of the legal grounds.  

How Long is Long Enough?

In order to secure your access to the Indonesia's legal system, you need to have a minimum contact of at least one (1) year. You and your wife must maintain 12 (twelve) months residency before the court in Indonesia may be able to consider your divorce case. Having a child born or school in Indonesia is even better. You have better connection and stronger contact with our legal system. If you're employed by the the company in Indonesia, the chance of getting your marriage dissolved by the court here is even higher.

The fact that either of you can't access the court system in your home country is a bummer. I have a US client in Jakarta filed for a divorce in Washington court. They spent time and money just to see the court did not have any jurisdiction in their case. What a waste!

Dissolving a Foreign Marriage

Having your marriage performed outside of Indonesia, doesn't mean you have to report or even register your marriage in Indonesia. You or your wife doesn't have to do that. Some laws in Indonesia requires the parties in the marriage to report the marriage to government authorities, but it only applicable in the event one of you is an Indonesian citizen, or both of you are Indonesian.

Since both of you are non-Indonesian, the reporting obligation is not applicable to you. Article 56 of the 1974 Marriage Law, it is not for you and your wife. This is the proceeding to dissolve a foreign marriage between two foreign spouses, in Indonesia. If either of you is an Indonesian citizen, you don't have to report or register your marriage. So, don't bother!

Your Law is Our Law

Dissolving a marriage in Indonesia, we have the legal grounds to do that. It's not really printed on the Marriage Law. It's in the 1975 Government Regulation. You know, the legal instrument implementing the Marriage Law in more details. You can't have it dissolved by mutual consent. It's not legal here. There are factual situations that must be met with the legal grounds. Your domestic situation at least must meet one of the legal grounds for dissolving a marriage. They have been regulated in the 1975 Government Regulation, which are, in the event one of the parties:

  1. has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;

  2. has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;

  3. has been sentenced to imprisonment for five (5) consecutive years or a longer period;

  4. has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;

  5. has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or

  6. has irreconcilable differences.

So, those legal grounds, at least one of them, must be recognized in your law. Well, I have nothing further on this one. Your law, is not really my department.

Be Nice to Your Friends!

You have to present witnesses to the court. Well, at least two. Unfortunately, it's not one of the CSI movies where you can supply scientific evidence, without any single human being taking a stand at the court room. They want a person, in a flesh and blood, supplying information and describing what happened to your marriage. They want to have a conversation with your witnesses. They want to talk to them. So, let them talk about your marriage in front of you. There's nothing to hide. Just make sure you give them interesting subject to discuss with. 

Yes, I know. It's a conventional civil procedures law we have been using for more than one millennium. It's our legal system, and you have to work with it if you want them to dissolve your foreign marriage in Indonesia. You will have to start looking for them. Your witnesses. They can be anyone. Your domestic staffs, colleagues, common friends, and whoever knows anything about your domestic background. Foreign witnesses are also welcome. They will have to do you a quite simple job: to tell the truth, the whole truth, and nothing but the truth. The most sacred job of being a human, and they will have to do it on a witness bench. The loneliest place on earth. 

Our thanks to Asep A. Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

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Wednesday, 15 November 2017 10:11

How to Divorce in Indonesia

In Indonesia, every divorce lawyer will have to refer to the 1974 Marriage Law and its implementing rules for divorce and  marital dissolution. A divorce petition must be filed at the local district court for Non-Moslems, and local Religious Court for Moslems. There are certain marital dissolution reasons according to 1974 Marriage Law and Islamic Law, they are:

Marriage Law

Pursuant to Marriage Law, a marriage may be terminated due to several reasons as follows:

  1. Death of either party
  2. Divorce
  3. Upon court’s decision

Death

The death to either party will automatically terminate the marriage.

Divorce

One of the means to dissolve a marriage is by divorce. Divorce may only be executed before a court session, before the district court for Non-Moslems and before the religious court for Moslems. Therefore, either one of the parties wanting to divorce needs to file a divorce petition to the court.

There are  legal grounds of filing for divorce that every divorce lawyer has to advise his/her clients with, and they have been regulated in the Marriage Law, which are, in the event one of the parties:

  1. has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;

  2. has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;

  3. has been sentenced to imprisonment for five (5) consecutive years or a longer period;

  4. has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;

  5. has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or

  6. has irreconcilable differences.

Annulment to Dissolve Your Marriage

Marriage annulment means that any marriage may be cancelled if both parties cannot fulfill the conditions for the marriage. A marriage annulment can only be decided by a court of law.

Families in a straight line of descent and above the husband or wife (For example: father, mother, grandfather etc of husband or wife.) , an authorized/appointed official, and anyone directly possessing legal interest in the marriage may file a request for marriage annulment.

Any request for marriage annulment may be submitted to a court within the jurisdiction where the marriage was conducted or within the jurisdiction of the residence of the married couple (in accordance with Article 38 (1) Government Regulation No. 9 Year 1975 regarding the Implementing Rules of 1974 Marriage Law) the husband, or the wife. A marriage annulment may be filed for the following reasons:

  1. the marriage guardian (so called “wali” ) is illegal; or
  2. the marriage was not attended by two witnesses.
  3. The marriage was performed in front of unauthorized marriage registrar.

The right to annul a marriage by a husband or wife based on such reasons becomes null and void if they live together as a married couple and can show the marriage certificate issued by the unauthorized officer of the marriage registry. In this instance the marriage has to be conducted again in order to make it legal.

The husband or wife may request an annulment of their marriage, if the marriage was conducted before an unauthorized officer of a marriage registry, or if the marriage was conducted under a threat that violates the law, or if there is a misunderstanding between the husband and wife.

His/her right will be null and void if the threat has stopped or if the misunderstood party? realizes the situation, but doesn’t use his/her right to request for marriage annulment within six (6) months after living together as married couple. Example of a “misunderstood condition” would be if the husband thought the wife was a virgin, but in fact she was not – so I misunderstood about her personal conditions.

Annulment of a marriage commences upon the court decision and is permanent and legal binding and applies as of the time of marriage was conducted. However, such a decision is not retroactively effective to:

  1. children born from the marriage;

  2. husband or wife acting with good intention, except against joint property, if the annulment is based on a previous marriage. The annulment decision is retroactively effective to the joint property of the parties in the event the marriage was entered and one of the couples was not legally free to marry.

  3. a third party, so long as he/she has the rights based on good faith.

Islamic Law

In Islam, a marriage may be terminated due to several reasons, namely:

  1. Death of either party
  2. Thalak
  3. Judge’s Decision
  4. Khulu
  5. Li’an
  6. Ila’
  7. Murtad (apostate)

When a husband or wife passes away, their marriage is automatically terminated. When a wife passes away, her husband doesn’t have any legal difficulties in marrying another woman, but can remarry immediately. But, when a husband passes away, his wife has to wait for four (4) months and 10 days before she can marry another man.

Literally, thalak means to release (abandon). Thalak or divorce is the right given to a man and is an action of releasing a woman from the marriage. In Islam, this method of divorce has been stipulated, but it is accompanied by the explanation from the Prophet Mohammad that God doesn’t like divorce.

Divorce through a judge’s decision may be due to several reasons, such as, among others, that the husband is unable to provide the basic necessities of life, the husband commits torture against his wife, the husband vanishes (being far away from or not being near his wife), or that the husband is serving a term in prison.

Fasakh is the cancellation of marriage agreement (akad) and the termination of a marriage between a husband and wife due to damage taking place in the marriage agreement (akad) or due to sudden reasons that may hamper the continuation of the marriage agreement (akad). For instance, it could be due to a problem in the family relationships. Fasakh will cause the marriage agreement (akad) to be annulled.

Khulu’ is a divorce given by a husband to his wife with payment to the wife. Khulu’s is required by Islam for balancing the thalak right for a husband when there is a hatred that cannot be settled peacefully.

A marriage may be terminated due to li’an, because the person making the li’an in the fith oath says that God’s curse is upon him/herself if he/she is a liar. As a result of li’an, the marriage is terminated forever. If the accusing husband denies the birth of a child by saying that the child is not his, the child is not the offspring of this husband any longer, but legally becomes an illegitimate child and becomes the child of accused wife. The child cannot inherit from his/her father (the accusing husband). If the child is female, her guardian is a judge of justice, if the child will marry someone else.

Murtad (apostate) is when a Moslem abandons Islam. If a husband or wife is judged apostate, their marriage is terminated due to their action.

Marriage dissolution based on the grounds of thalakli’an, and khuluk’ shall only valid in the event they are conducted at the religious court.

Annulment according to Compilation of Islamic Law

Compilation of Islamic Law which is enacted under Presidential Instruction Number 1 of 1991 also governs marriage annulment under several reasons:

  1. Polygamy conducted by husband without the permission from the Religious Court;
  2. The bride is not legally free to marry and still in a marriage with other man;

  3. The bride in the period of ‘iddah of her previous husband, Iddah means a waiting period where a woman is not allowed to marry other man. The period may vary according to the reason of her previous marriage dissolution i.e. 130 days due to death, and 90 days due to divorce;

  4. The marriage is not comply with the minimum of age requirement as governed by the 1974 Marriage Law;

  5. Married performed without wali nikah (marriage guardian) or performed with unauthorized one;

  6. Marriage performed under threat

Marriage annulment is also known as fasakh is the cancellation of marriage agreement (akad) and the termination of a marriage between a husband and wife due to defect taking place in the marriage agreement (akad) or due to sudden reasons that may hamper the continuation of the marriage agreement (akad). For instance, it could be due to a problem in the family relationships. Fasakh will cause the marriage agreement (akad) to be annulled.

Annulment petition can be filed at the local religious court having jurisdiction over the residence of husband or wife or may be submitted to the local religious court within the jurisdiction where the marriage was conducted. Court decree on marriage annulment shall take effect retroactively since the date of marriage took place.

Parties to authorize for annulment petition are:

  1. Family in a upper and lower straight line such as parents, and siblings;
  2. Husband or wife;
  3. Authorized officers responsible in supervising the performance of marriage as governed by law;
  4. Other parties who aware of any marriage defect in terms of marriage requirements as imposed by the prevailing law.

Our thanks to Asep A. Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

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Tuesday, 17 October 2017 13:29

Dissolving Foreign Marriage in Indonesia

Divorce for all-foreign spouses in Indonesia is possible. This usually happens to couple who live in Indonesia long enough and both of them are expats. Certain situation must be met before you can access our legal system. First, minimum contact of the spouses in Indonesia. This is to see if the court in Indonesia has jurisdiction. Second, reporting/registration of the foreign marriage. Three, how Indonesian law can rule in your divorce case. Divorce in Indonesia must meet at least one of the legal grounds.  

How Long is Long Enough?

In order to secure your access to the Indonesia's legal system, you need to have a minimum contact of at least one (1) year. You and your wife must maintain 12 (twelve) months residency before the court in Indonesia may be able to consider your divorce case. Having a child born or school in Indonesia is even better. You have better connection and stronger contact with our legal system. If you're employed by the the company in Indonesia, the chance of getting your marriage dissolved by the court here is even higher.

The fact that either of you can't access the court system in your home country is a bummer. I have a US client in Jakarta filed for a divorce in Washington court. They spent time and money just to see the court did not have any jurisdiction in their case. What a waste!

Dissolving a Foreign Marriage

Having your marriage performed outside of Indonesia, doesn't mean you have to report or even register your marriage in Indonesia. You or your wife doesn't have to do that. Some laws in Indonesia requires the parties in the marriage to report the marriage to government authorities, but it only applicable in the event one of you is an Indonesian citizen, or both of you are Indonesian.

Since both of you are non-Indonesian, the reporting obligation is not applicable to you. Article 56 of the 1974 Marriage Law, it is not for you and your wife. This is the proceeding to dissolve a foreign marriage between two foreign spouses, in Indonesia. If either of you is an Indonesian citizen, you don't have to report or register your marriage. So, don't bother!

Your Law is Our Law

Dissolving a marriage in Indonesia, we have the legal grounds to do that. It's not really printed on the Marriage Law. It's in the 1975 Government Regulation. You know, the legal instrument implementing the Marriage Law in more details. You can't have it dissolved by mutual consent. It's not legal here. There are factual situations that must be met with the legal grounds. Your domestic situation at least must meet one of the legal grounds for dissolving a marriage. They have been regulated in the 1975 Government Regulation, which are, in the event one of the parties:

  1. has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;

  2. has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;

  3. has been sentenced to imprisonment for five (5) consecutive years or a longer period;

  4. has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;

  5. has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or

  6. has irreconcilable differences.

So, those legal grounds, at least one of them, must be recognized in your law. Well, I have nothing further on this one. Your law, is not really my department.

Be Nice to Your Friends!

You have to present witnesses to the court. Well, at least two. Unfortunately, it's not one of the CSI movies where you can supply scientific evidence, without any single human being taking a stand at the court room. They want a person, in a flesh and blood, supplying information and describing what happened to your marriage. They want to have a conversation with your witnesses. They want to talk to them. So, let them talk about your marriage in front of you. There's nothing to hide. Just make sure you give them interesting subject to discuss with. 

Yes, I know. It's a conventional civil procedures law we have been using for more than one millennium. It's our legal system, and you have to work with it if you want them to dissolve your foreign marriage in Indonesia. You will have to start looking for them. Your witnesses. They can be anyone. Your domestic staffs, colleagues, common friends, and whoever knows anything about your domestic background. Foreign witnesses are also welcome. They will have to do you a quite simple job: to tell the truth, the whole truth, and nothing but the truth. The most sacred job of being a human, and they will have to do it on a witness bench. The loneliest place on earth. 

Our thanks to Asep A. Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

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The provisions concerning dissolution of marriage and its legal consequences are generally regulated in Marriage Law, which is further stipulated in Government Regulation Number 9 Year 1975 regarding the Implementation of Marriage Law. As for Moslem-married couples, the divorce proceedings are being regulated further according to the Compilation of Islamic Law.

A marriage may be terminated due to several reasons among others death, divorce, and court decisions. A marriage terminated by a divorce may occur due to talak or divorce suits. The last two were regulated under Compilation of Islamic Law. If you're a husband, and you're thinking to divorce your wife, you have a talak right. So you may submit a divorce application to the court in order to set-up a talak hearing. On another hand, if you're a wife, and you're thinking to divorce your husband, you may also file a divorce against him under divorce suit. We call it "Gugatan." Basically, this is pretty much the same thing, and has equal position in front of the law. A talak must be performed in front of the court of law in order to have effect in dissolving your marriage. Otherwise, it won't take legal binding. 

As for talak, it's the divorce oath of a husband before a court session at the Religious Court. The oath is being recited by the husband to his wife, by requesting both verbal and written to the Court in the jurisdiction of the wife in order to request for a court session for the purpose of reciting the divorce oath or talak. The legal term for this is talak divorce application. As a husband, you're the Petitioner, and your wife serves as the Respondent. You see, your titled changed as soon as you file your divorce. You're no longer a loving husband and wife. You're opponents. This is what the law said about it: "Talak is the oath of a husband before a court session in the Religious Court, which is one of the reasons for terminating a marriage..." The law is Article 117 Compilation of Islamic Law. Therefore, with reference to the law, divorce by talak must be conducted in front of the Religious Court. You just can't say "talak" for three times to get divorce. It won't take legal effect in a country like Indonesia. You've got to do it formally by registering a case to a court clerk, and obtain a case number.

The proceeding for divorce, both under talak or under legal suit carried-out by a wife, are the same. They use national Civil Procedures Code, which takes approximately ten sessions. You're looking at five to six months processing time. Both of them are implementing mediation to stall the process. This is imposed by our Supreme Court in order to reduce the number of litigation cases in our court system. Yes, it takes time to get divorce in Indonesia, but when you have a case number, step by step it'll take you there. They implement strict time frame under the principles of simple, costs-effective and speedy trials. Some experts said mediation is not applicable for divorce cases, because you can't stop people for getting divorce. I would say you can. You can give each other a chance. A second chance. A third chance. Whatever. It takes two to tango. The thing is, you have to keep on trying. Never give up. Don't ever quit for your marriage. Because you're only fail when you stop trying.

Our thanks to Asep A. Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

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Friday, 13 October 2017 18:43

Foreign Divorce in Indonesia

You and your spouse are foreigners. Both of you have been living in Indonesia for several years due to work commitments. Either your spouse works in Indonesia or being your dependent, both of you are residents of Indonesia. After all you have been through, you find the romance is no longer exists and you are seeking divorce as the ultimate solution.

In any country, divorce is tough for everyone involved. Obtaining a divorce can be costly and expensive. It’s even tougher when you file for divorce in a foreign country.  The last thing you want to do is file for divorce in your home country and have the court dismiss your case due to lack of subject matter of jurisdiction. This could cost you even more.

Legal doctrines may say that you are now the subject of International Civil Law due to your long residence abroad. It’s pretty complicated whenever there is more than one legal system involved in your particular case. You need to work through all the necessary procedures in order to see that it’s possible to file for a divorce in Indonesia, when both spouses are foreign nationals.

Indonesian Court Perspective

The Indonesian legal system should not refuse to examine, hear, and decide a case filed, even when there is no clear legal reason for the case to be filed in an Indonesian court. The court is obliged to examine and judge the case. This is a basic principle in the judicative system in Indonesia. Period.

The court may not refuse to examine the case. But do they have any jurisdiction over your case?  If, both of you are foreign nationals and your marriage was conducted and legally registered abroad you may wonder if the Indonesian courts could have jurisdiction over a divorce in your case.

Let’s Cut to the Chase: The International Civil Law (ICL)

In the divorce between two foreign nationals, there are foreign elements involved. Therefore, the case shall be considered as an ICL proceedings. ICL is a national law. It’s not a supranational law or international law. Therefore, every country, including Indonesia, has ICL system respectively. Furthermore, there are major issues within the ICL, they are Choice of Law and Choice of Forum/Jurisdiction. Official domicile of the Parties is a link point to determine the forum court of competent jurisdiction to examine the case. This deals in determining the personal status of a person.

There are several ways to determine the personal status of a person that is principle of citizenship or nationality (Lex Patriae) and principle of domicile. In the principle of nationality, one’s national law determines his/her personal status. It means, even though one is residing abroad, his/her nationality law shall prevail and therefore the court in his/her home country shall have jurisdiction upon him/her. While the principle of domicile, on the other hand, one’s personal status is determined from the country where they live. It means that the law and the court where he/she lives shall have jurisdiction upon him/her.

Each country has different principles in determining one’s personal status. Let’s take Indonesia and the United States as examples. Indonesia adheres to the civil law as its legal system, while United States adheres to the common law legal system. Civil law countries use the principle of nationality and common law countries use the principle of domicile. These are very closely related to the jurisdiction of the court to adjudicate a case of divorce.  Therefore, the marriage of the US nationals must be dissolved in their country.

On the other hand, according to the state that adheres to a common law system such as United States, the party’s residence or domicile must exist at the time the proceedings are filed. In order for a US court to have subject matter jurisdiction to dissolve a marriage, either party must have been physically present within the country for a certain period of time prior to the filing of the petition for dissolution of marriage. The divorce, therefore, should be finalized in their country of domicile.

This is where renvoi (re-appointment) serves. Renvoi arises because of the differences in determining one’s personal status. It requires the US court to dismiss your divorce case due to lack of subject matter of jurisdiction. Although Indonesia is not a state of the United States of America, nevertheless, the Indonesian decree is an order from a foreign nation which the US court cannot ignore subject to certain restrictions. Furthermore, the court shall re-appoint Indonesia as the forum in dissolving the marriage. This is where Indonesian court has jurisdiction based on the re-appointment (renvoi).

So What Next?

In Indonesia, marital dissolution is a personal status related case under the category of family law. If both spouses are US nationals, the Indonesian court shall consult and utilize US family law regarding legal grounds for marital dissolution during the proceedings. The legal grounds in the US family law must not contradict with the public policy (ketertiban umum) in Indonesia. To be more specific, it must be in line with the legal grounds for divorce as stipulated in Indonesia’s Marriage Law and its implementing regulations.

Let's Take It to the Next Level!

After the Indonesian court declared the jurisdiction to adjudicate the case, and the legal grounds for divorce is in line with the public policy in Indonesia, the case shall be tried by using Indonesia’s civil procedures law. This is when the case enters regular phase  within the Indonesian court.

Our thanks to Asep A. Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

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In Indonesia, every divorce lawyer will have to refer to the 1974 Marriage Law and its implementing rules for divorce and  marital dissolution. A divorce petition must be filed at the local district court for Non-Moslems, and local Religious Court for Moslems. There are certain marital dissolution reasons according to 1974 Marriage Law and Islamic Law, they are:

Marriage Law

Pursuant to Marriage Law, a marriage may be terminated due to several reasons as follows:

  1. Death of either party
  2. Divorce
  3. Upon court’s decision

Death

The death to either party will automatically terminate the marriage.

Divorce

One of the means to dissolve a marriage is by divorce. Divorce may only be executed before a court session, before the district court for Non-Moslems and before the religious court for Moslems. Therefore, either one of the parties wanting to divorce needs to file a divorce petition to the court.

There are  legal grounds of filing for divorce that every divorce lawyer has to advise his/her clients with, and they have been regulated in the Marriage Law, which are, in the event one of the parties:

  1. has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;
  2. has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;
  3. has been sentenced to imprisonment for five (5) consecutive years or a longer period;
  4. has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;
  5. has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or
  6. has irreconcilable differences.

Annulment to Dissolve Your Marriage

Marriage annulment means that any marriage may be cancelled if both parties cannot fulfill the conditions for the marriage. A marriage annulment can only be decided by a court of law.

Families in a straight line of descent and above the husband or wife (For example: father, mother, grandfather etc of husband or wife.) , an authorized/appointed official, and anyone directly possessing legal interest in the marriage may file a request for marriage annulment.

Any request for marriage annulment may be submitted to a court within the jurisdiction where the marriage was conducted or within the jurisdiction of the residence of the married couple (in accordance with Article 38 (1) Government Regulation No. 9 Year 1975 regarding the Implementing Rules of 1974 Marriage Law) the husband, or the wife. A marriage annulment may be filed for the following reasons:

  1. the marriage guardian (so called “wali” ) is illegal; or
  2. the marriage was not attended by two witnesses.
  3. The marriage was performed in front of unauthorized marriage registrar.

The right to annul a marriage by a husband or wife based on such reasons becomes null and void if they live together as a married couple and can show the marriage certificate issued by the unauthorized officer of the marriage registry. In this instance the marriage has to be conducted again in order to make it legal.

The husband or wife may request an annulment of their marriage, if the marriage was conducted before an unauthorized officer of a marriage registry, or if the marriage was conducted under a threat that violates the law, or if there is a misunderstanding between the husband and wife.

His/her right will be null and void if the threat has stopped or if the misunderstood party? realizes the situation, but doesn’t use his/her right to request for marriage annulment within six (6) months after living together as married couple. Example of a “misunderstood condition” would be if the husband thought the wife was a virgin, but in fact she was not – so I misunderstood about her personal conditions.

Annulment of a marriage commences upon the court decision and is permanent and legal binding and applies as of the time of marriage was conducted. However, such a decision is not retroactively effective to:

  1. children born from the marriage;
  2. husband or wife acting with good intention, except against joint property, if the annulment is based on a previous marriage. The annulment decision is retroactively effective to the joint property of the parties in the event the marriage was entered and one of the couples was not legally free to marry.
  3. a third party, so long as he/she has the rights based on good faith.

Islamic Law

In Islam, a marriage may be terminated due to several reasons, namely:

  1. Death of either party
  2. Thalak
  3. Judge’s Decision
  4. Khulu
  5. Li’an
  6. Ila’
  7. Murtad (apostate)

When a husband or wife passes away, their marriage is automatically terminated. When a wife passes away, her husband doesn’t have any legal difficulties in marrying another woman, but can remarry immediately. But, when a husband passes away, his wife has to wait for four (4) months and 10 days before she can marry another man.

Literally, thalak means to release (abandon). Thalak or divorce is the right given to a man and is an action of releasing a woman from the marriage. In Islam, this method of divorce has been stipulated, but it is accompanied by the explanation from the Prophet Mohammad that God doesn’t like divorce.

Divorce through a judge’s decision may be due to several reasons, such as, among others, that the husband is unable to provide the basic necessities of life, the husband commits torture against his wife, the husband vanishes (being far away from or not being near his wife), or that the husband is serving a term in prison.

Fasakh is the cancellation of marriage agreement (akad) and the termination of a marriage between a husband and wife due to damage taking place in the marriage agreement (akad) or due to sudden reasons that may hamper the continuation of the marriage agreement (akad). For instance, it could be due to a problem in the family relationships. Fasakh will cause the marriage agreement (akad) to be annulled.

Khulu’ is a divorce given by a husband to his wife with payment to the wife. Khulu’s is required by Islam for balancing the thalak right for a husband when there is a hatred that cannot be settled peacefully.

A marriage may be terminated due to li’an, because the person making the li’an in the fith oath says that God’s curse is upon him/herself if he/she is a liar. As a result of li’an, the marriage is terminated forever. If the accusing husband denies the birth of a child by saying that the child is not his, the child is not the offspring of this husband any longer, but legally becomes an illegitimate child and becomes the child of accused wife. The child cannot inherit from his/her father (the accusing husband). If the child is female, her guardian is a judge of justice, if the child will marry someone else.

Murtad (apostate) is when a Moslem abandons Islam. If a husband or wife is judged apostate, their marriage is terminated due to their action.

Marriage dissolution based on the grounds of thalak, li’an, and khuluk’ shall only valid in the event they are conducted at the religious court.

Annulment according to Compilation of Islamic Law

Compilation of Islamic Law which is enacted under Presidential Instruction Number 1 of 1991 also governs marriage annulment under several reasons:

  1. Polygamy conducted by husband without the permission from the Religious Court;
  2. The bride is not legally free to marry and still in a marriage with other man;
  3. The bride in the period of ‘iddah of her previous husband, Iddah means a waiting period where a woman is not allowed to marry other man. The period may vary according to the reason of her previous marriage dissolution i.e. 130 days due to death, and 90 days due to divorce;
  4. The marriage is not comply with the minimum of age requirement as governed by the 1974 Marriage Law;
  5. Married performed without wali nikah (marriage guardian) or performed with unauthorized one;
  6. Marriage performed under threat

Marriage annulment is also known as fasakh is the cancellation of marriage agreement (akad) and the termination of a marriage between a husband and wife due to defect taking place in the marriage agreement (akad) or due to sudden reasons that may hamper the continuation of the marriage agreement (akad). For instance, it could be due to a problem in the family relationships. Fasakh will cause the marriage agreement (akad) to be annulled.

Annulment petition can be filed at the local religious court having jurisdiction over the residence of husband or wife or may be submitted to the local religious court within the jurisdiction where the marriage was conducted. Court decree on marriage annulment shall take effect retroactively since the date of marriage took place.

Parties to authorize for annulment petition are:

  1. Family in a upper and lower straight line such as parents, and siblings;
  2. Husband or wife;
  3. Authorized officers responsible in supervising the performance of marriage as governed by law;
  4. Other parties who aware of any marriage defect in terms of marriage requirements as imposed by the prevailing law.
Our thanks to Asep A. Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

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