Divorce of an Intermarried Couple Residing Abroad

PERTANYAAN

An Indonesian woman married a French foreigner at the Office of Religious Affairs in Bali. After the marriage, they both live in France. If the woman wants to file for divorce, how does she file for a mixed marriage divorce? Is it possible for her to file the divorce through the Semarang Religious Court? What documents must be completed? Then is the translation of the lawsuit required? Does the lawsuit also have to be translated into French, or just English?

INTISARI JAWABAN

Divorce is regulated by the Marriage Law and its amendments. Then, considering that the parties are a couple from a mixed marriage between an Indonesian Citizen and a foreign citizen who is domiciled abroad, how do you file a divorce lawsuit?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Perceraian Pasangan Kawin Campur yang Berdomisili di Luar Negeri written by Dian Dwi Jayanti, S.H. and was published on Wednesday, 12 July 2023.

This article is an update of the article with the same title written by Rohana Amelia Putri Handayani, S.H. and was first published on Monday, 30 December 2019.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Divorce

Previously, since you did not provide an explanation as to where the couple is currently residing, we assume that the couple is still residing overseas.

According to Article 28 letter b Marriage law, marriage may be terminated due to divorce. Divorce can only occur if there is sufficient reason that the husband and wife can no longer live together. This is stated in Article 39 paragraph (2) Marriage Law, which states that:

In order to carry out a divorce, there must be sufficient reason that the husband and wife will not be able to live in harmony as husband and wife.

The grounds which may be used as a basis for divorce are:[1]

1. One of the parties commits adultery or becomes an incurable drunkard, drug addict, gambler, and so forth;
2. One of the parties leaves the other for 2 (two) consecutive years without permission from the other party and without a valid reason or due to other things against his/her will;
3. One of the parties is sentenced to imprisonment for 5 (five) years or a heavier sentence after the marriage;
4. One of the parties commits atrocities or severe mistreatment which is harmful to the other party;
5. One of the parties suffers from a disability or disease which results in them being unable to carry out their obligations as husband/wife;
6. Between husband and wife, there are continuous disputes and fights and there is no hope of living in harmony in the household;
7. the husband violates the taklik talak;
8. change of religion or apostasy that causes domestic disharmony.

However, even if there are grounds to file for divorce, the court must first try to reconcile the husband and wife. This is as referred to in Article 39 paragraph (1) Marriage Law, which states that:

Divorce may only be carried out before a Court Hearing after the relevant Court has attempted and failed to reconcile the two parties.

The courts referred to in this provision are religious courts for those who are Muslims and general courts for others.[2]

Divorce of a Spouse Living Abroad

In connection with the place of residence of the husband or wife abroad, you need to know Article 73 section (3) Religious Judiciary Law, which stipulates that:

In case of both the plaintiff and defendant resides in a foreign country, then the application is filed to a Court whose jurisdiction covers the place where their marriage was held or to the Central Jakarta Religious Court.

According to your explanation, the marriage took place and was registered at the Office of Religious Affairs in Bali. Thus, to answer your question, a divorce suit can be filed with the religious court where the couple's marriage was recorded or at the Central Jakarta Religious Court.

Meanwhile, the lawsuit itself is written in Indonesian. As far as we can see, there is no obligation to translate it into a foreign language.

Furthermore, regarding the files that must be prepared for the requirements for filing a divorce lawsuit, you can read How to Process a Divorce Letter and Steps to File a Lawsuit.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Law Number 1 of 1974 on Marriage as amended by Law Number 16 of 2019 on the Amendment to Law Number 1 of 1974 on Marriage;
2. Law Number 7 of 1989 on the Religious Judiciary as amended by Law Number 3 of 2006 on the Amendment to Law Number 7 of 1989 on the Religious Judiciary as secondly amended by Law 50 of 2009 on the Second Amendment to Law Number 7 of 1989 on the Religious Judiciary;
3. President Instruction Number 1 of 1991 on the Dissemination of the Compilation of Islamic Law.

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[1] Elucidation to Article 39 section (2) Law Number 1 of 1974 on Marriage (“Marriage Law”) jo. Article 116 President Instruction Number 1 of 1991 on the Dissemination of the Compilation of Islamic Law.

[2] Law 63 section (1) Marriage Law.