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:
Pursuant to Marriage Law, a marriage may be terminated due to several reasons as follows:
- Death of either party
- Upon court’s decision
The death to either party will automatically terminate the marriage.
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:
- has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;
- has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;
- has been sentenced to imprisonment for five (5) consecutive years or a longer period;
- has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;
- has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or
- 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:
- the marriage guardian (so called “wali” ) is illegal; or
- the marriage was not attended by two witnesses.
- 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:
- children born from the marriage;
- 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.
- a third party, so long as he/she has the rights based on good faith.
In Islam, a marriage may be terminated due to several reasons, namely:
- Death of either party
- Judge’s Decision
- 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:
- Polygamy conducted by husband without the permission from the Religious Court;
- The bride is not legally free to marry and still in a marriage with other man;
- 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;
- The marriage is not comply with the minimum of age requirement as governed by the 1974 Marriage Law;
- Married performed without wali nikah (marriage guardian) or performed with unauthorized one;
- 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:
- Family in a upper and lower straight line such as parents, and siblings;
- Husband or wife;
- Authorized officers responsible in supervising the performance of marriage as governed by law;
- Other parties who aware of any marriage defect in terms of marriage requirements as imposed by the prevailing law.
I am Asep Wijaya, Managing Director of Wijaya & Co. Thank you for visiting my blogs and reading my posts.
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.