Divorce Law in Catholic Marriage

PERTANYAAN

I have been married for 12 years with one daughter through a Catholic marriage. My husband & I have been separated for more than 3 years, and my daughter lives with my husband. Can a divorce be carried out without the approval of the religion? How to get it? Can a divorce be filed by the wife? Should the husband be present? How about child custody?

INTISARI JAWABAN

Basically, Catholic marriage has the characteristic of being one forever and inseparable, monogamous and indissolubile, which means after a marriage between people who are legally baptized (ratum) and consummated by intercourse, the marriage becomes indissoluble, except by death.

However, if referring to the positive law in Indonesia, according to Law Number 1 of 1974 on Marriage (“Law 1/1974”) and its amendment, one of the reasons a marriage can end is because of divorce, which can only be carried out through a court hearing after the court has tried and failed to reconcile the two parties.

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Hukum Perceraian bagi Perkawinan Katolik which was written by Bernadetha Aurelia Oktavira, S.H. and was published on Tuesday, 4 May 2021.

This article below is an update of the article entitled Catholic Divorce (Perceraian Agama Katolik) which was first written by Dinna Sabriani and was first published on Monday, 4 January 2010. 

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

The Nature of Marriage

Marriage in principle is an inner bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family (home) according to Belief in the one and only God.[1]

Furthermore, in order to realize the aim of marriage to form a happy and eternal family, husband and wife need to help and complement each other, so that each of them can develop their personality to help and achieve spiritual and material prosperity.[2]

In addition, it should be understood that Law Number 1 of 1974 on Marriage (“Law 1/1974”) and its amendment adhere to the principle of making it difficult for divorce to occur, which is in order to carry out a divorce, there must be certain reasons and must be carried out through a court hearing.[3]

Catholic Marriage

According to the Hukum Gereja Mengenai Pernikahan Katolik (Law of the Church on Catholic Marriage) on the website of the Archdiocese of Jakarta, it is stated that the meaning of catholic marriage is an agreement (foedus) between a man and a woman to form a life together.

Still, according to the same page, marriage has 3 objectives, namely the welfare of husband and wife, the birth of children, and the education of children. Catholic marriage is basically one forever and inseparable, monogamous, and indissolubile.

Monogamy means one man and one woman, while indissolubile means that after the marriage takes place between legally baptized persons (ratum) and is consummated by intercourse, then the marriage becomes indissoluble, except by death.

Furthermore, as cited from the Perkawinan Katolik Hakekat dan Tujuannya (Nature and Purpose of Catholic Marriage) by the Parish of Block B, St. John's Church, there are 5 principles related to the nature and purpose of marriage, namely:

1. Marriage is a love agreement between husband and wife;
2. Marriage is an agreement to share the same fate in all aspects of life;
3. Marriage is aimed at the welfare of husband and wife;
4. Marriage is aimed at the birth and education of children;
5. Legal/valid marriage between two people who have been baptized is a sacrament.

Catholic Divorce

In response to your question, as explained in the article entitled Indissoluble Catholic Marriage, Here is the Explanation, Father Giovanni Mahendra Christi, MSF affirmed that in the Code of Canon Law which is binding for Catholics, there is no such word as divorce. For, in the Gospel of Matthew 19:6 NLT it is affirmed:

Since they are no longer two but one, let no one split apart what God has joined together.

Furthermore, the Code of Canon Law (Codex Iuris Canonici) Official Indonesian Translation, as cited from the website of the Catholic Church Diocese of Surabaya, states:

Can. 1055 - § 1. Agreement (foedus) of marriage, by which a man and a woman form between them, a communion (consortium) of a whole life, which by its natural characteristics is directed towards the welfare of the husband and wife (bonum coniugum) and the birth and education of children, between people who have been baptized, by Christ the Lord will be elevated to the dignity of the sacrament.

Can. 1141 - Ratum and consummatum marriage cannot be terminated by any human power and for any reason, other than death.

In line with the abovementioned explanation, Father Andrianus Sulistyono, MSF explained that if there is a dispute between husband and wife, it is best to be able to consult directly in this matter directed to, first, the priest/pastor who blesses the marriage. Secondly, the parish priest/pastor who is close to the area of ​​residence, or can also be directed to the priest/pastor who accompanies the family in each region.

Father Andrianus added that from a theological point of view, Catholic marriage is a union or bond between a man and a woman, symbolizing the bond of the Lord Jesus with His people and church, in which He never ceases to love. Thus, it should be underlined, based on the Code of Canon Law, Catholic marriages do not recognize divorce, because what has been united by God, cannot be separated by humans.

Divorce According to the Positive Law

However, according to the positive laws in Indonesia, in Law 1/1974 and its amendment, one of the reasons marriage could be terminated is due to divorce, which can only be done through a court hearing after the court has tried and failed to reconcile the two parties.[4]

As for the procedure, you can refer to the article entitled How to Get Divorce Without a Lawyer.

Meanwhile regarding child custody, post-divorce, according to civil law, both the mother and the father are obliged to look after and educate their children solely for their benefit, and if there is a dispute over child control, the court will give the decision.[5]

However, even if a divorce occurs under civil law, the marriage bond is still considered valid under the Canon Law of the Catholic Church.

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 of Law Number 1 of 1974 on Marriage.

Reference:

1. Kitab Hukum Kanonik (Codex Iuris Canonici) Edisi Resmi Bahasa Indonesia, accessed on 13 April 2021, at 19.00 West Indonesia Time (zone);
2. Hukum Gereja Mengenai Pernikahan Katolik, accessed on 13 April 2021, at 19.05 West Indonesia Time (zone);
3. Perkawinan Katolik Hakekat dan Tujuannya, accessed on 13 April 2021, at 19.11 West Indonesia Time (zone).

NB:

We have conducted an interview with Father Andrianus Sulistyono, MSF via phone call on Wednesday, 14 April 2021, at 15.45 West Indonesia Time (zone).

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[1] Article 1 Law Number 1 of 1974 on Marriage (“Law 1/1974”).

[2] General Elucidation Law 1/1974.

[3] General Elucidation Law 1/1974.

[4] Article 38 and 39 Section (1) Law 1/1974.

[5] Article 41 Letter a Law 1/1974.