Can a Wife Sue for Divorce If Her Husband Lives Abroad?

PERTANYAAN

I am an Indonesian Citizen and my husband is an American Citizen. We got married in Indonesia (church and civil registry) and in America. I am currently in Indonesia and my husband is in America. My question:

1. What is the best way to file for divorce, should I file it in Indonesia or America?
2. My husband does not want to file for divorce in America. Can I file for divorce in Indonesia without my husband being present?
3. What are the things that I need to prepare for the divorce?

Please give me your best advice, thank you.

INTISARI JAWABAN

Since your marriage to your husband was solemnized in Indonesia through religion and through the civil registry, you can file for divorce in Indonesia. However, it should be noted that divorce should remain a last resort.

In the event that you have made up your mind to file for divorce, then what if your husband does not attend the divorce hearing, can the divorce hearing still be processed?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Bisakah Istri Gugat Cerai Jika Suami Tinggal di Luar Negeri? written by Haris Satiadi, S.H. from Haris Satiadi & Partners and published on Friday, 21 October 2022.

This article below is an update of the article entitled Divorce for Two Different Citizens (Perceraian untuk Dua Warga Negara yang Berbeda), written by Si Pokrol and published on 20 October 2003.

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 Lawsuit if Husband is Overseas

We are sorry to hear about the condition of your family. In this regard, we always encourage married couples to resolve domestic problems by talking amicably. So divorce should not be the main solution to solving household problems, but divorce should be the last resort.

Based on the facts you have informed us, we assume that you are an Indonesian Citizen and Christian woman who has a US Citizen husband. You and your husband were married in Indonesia by religion and state. In addition, you also stated that you were married in the United States, but did not elaborate on whether you were married in a religious ceremony or in a civil ceremony.

Following on from your first question, if you eventually decide to file for divorce, will the divorce suit be filed in Indonesia or America? We are of the opinion that since you and your husband were married religiously and civilly in Indonesia, the divorce can be filed in Indonesia through the local District Court that covers the legal domicile of your residence address as the wife and also as the plaintiff.[1]

However, given that your husband is currently in America (overseas/abroad), the Head of the local court will convey the divorce suit to your husband as the defendant through the local Representative of the Republic of Indonesia.[2]   

On the other hand, in our opinion, since you also entered into a marriage in America, you can also process the divorce in America, so that the divorce becomes legally valid in both countries, both in Indonesia and America.

Husband Is Not Present at Divorce Hearing

Furthermore, regarding the second question, can you file for divorce in Indonesia without your husband being present, as previously stated, you as the plaintiff can still file for divorce through the local District Court and the Head of the local court will submit a divorce suit to your husband.

The divorce process in the District Court uses civil procedural law. So that the parties will still be summoned properly a maximum of 3 times. If you have been summoned 3 times and your husband as the defendant is not present and does not also appoint a legal proxy, the trial will continue without the presence of the defendant (verstek).

Also read: How to Get a Divorce Certificate if the Case is Decided Verstek

Things to Prepare for a Divorce Lawsuit

Regarding your third question regarding the things that you must prepare for divorce proceedings are more or less as follows.

1. Every lawsuit, whether a civil lawsuit or a divorce lawsuit, generally must prepare the arguments of the plaintiff and must be able to be proven in court with the support of evidence both letters and witnesses.
2. In addition, you must be able to prove at least one reason justified by law to apply for a divorce,[3] namely:
   1. One of the parties commits adultery or becomes a drunkard, addict, gambler, and so on that is difficult to cure;
   2. One of the parties leaves the other party for 2 consecutive years without the other party's permission and without valid reasons or for other reasons beyond his/her control;
   3. One of the parties receives a prison sentence of 5 years or a heavier sentence after the marriage has taken place;
   4. One of the parties commits cruelty or serious maltreatment that endangers the other party;
   5. One of the parties becomes physically disabled or sick with the result that he/she cannot fulfill his/her obligations as husband/wife;
   6. There is a continuous dispute and quarrel between husband and wife and there is no expectation that they will live together again in the household.
3. You must also prepare evidence to support your argument, including:
   1. Evidence that there has been a valid marriage between you and your husband in the form of a marriage certificate issued by the Population and Civil Registration Office and 2 witnesses who are aware;
   2. Evidence that you and your husband have children (if any) in the form of a birth certificate issued by the Population and Civil Registration Office and 2 witnesses who are aware;
   3. Evidence that the marriage between you and your husband initially went well and harmoniously, for example in the form of photographs of family and 2 witnesses who are aware;
   4. Evidence that you and your husband's marriage later developed problems that fall into the category of grounds/reasons for divorce and 2 witnesses who are aware;
   5. Evidence of letters and witnesses to prove that you have tried to maintain the marriage but your husband continues to commit actions that make the household break and cannot be reunited. For example, evidence of communication in an effort to maintain the household and 2 witnesses who are aware.

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

Legal Basis:

Regulation of the Government Number 9 of 1975 on the Implementation of Law Number 1 of 1974 concerning Marriage.

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[1] Article 20 section (3) Regulation of the Government Number 9 of 1975 on the Implementation of Law Number 1 of 1974 concerning Marriage (“Government Regulation 9/1975”).

[2] Article 20 section (3) Government Regulation 9/1975.

[3] Article 19 Government Regulation 9/1975.