A friend of mine recently got married to a foreign citizen in a foreign country. However, due to certain reasons, she intends to divorce in Indonesia. She and her husband have different religions and they have never lived together. What I want to ask is, is the marriage legal under Indonesian law?
DAFTAR ISI
INTISARI JAWABAN
Your friend who is married to a foreign citizen will be required to register her marriage and will also require a stipulation from a local district court due to the fact that they have different religions. What is the legal basis?
Please read the review below for a further explanation.
This article below is an update of the article entitled When Are Marriages Declared Illegal? (Kapan Perkawinan Itu Ditanyakan Tidak Sah?) which was first written by Si Pokrol and was first published on Tuesday, 9 May 2006.
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.
The Validity of Marriage in Indonesia
Regarding the validity/legality of marriages, it has been regulated in Article 2 jo. Article 56 Law 1/1974a.k.a Marriage Law, states that marriage is legal if it is carried out according to the law of each religion and belief. Every marriage shall be recorded in accordance with the prevailing laws and regulations.[1]
This means that there is no marriage outside the law of the respective religions and beliefs, in accordance with the 1945 Constitution. What is meant by the law of the respective religions and beliefs, are including provisions of laws and regulations which apply to their religions and beliefs insofar as they do not conflict with or contradict each other or are not specified otherwise in the Marriage Law.
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Marriage which is held outside of Indonesia between 2 Indonesian Citizens (Warga Negara Indonesia/ "WNI") or an Indonesian Citizen with a Foreign Citizen (Warga Negara Asing/ "WNA") is legal if it is carried out according to the prevailing law of the country where the marriage is being held and the Indonesian Citizen does not violate the provisions of the Marriage Law.
However, it should be noted that after marrying a Foreign Citizen in a foreign country, within 1 year after the couple returns to the Indonesian territory, their marriage certificate must be registered at the Marriage Registration Office of their place of residence.[2]
Thus, the validity of marriages in Indonesia, both marriages which are held in Indonesian Territory and outside Indonesia, between 2 Indonesian Citizens as well as between an Indonesian Citizen and a foreigner, have 2 criteria in order to be considered legal, namely:
To be held in accordance with the law of respective religions and beliefs of the bride and groom and the law of the country where the marriage is being held if the marriage is held abroad
Marriage registration is carried out.
Continuing your question, your friend who is married to a foreigner in a foreign country should first register their marriage in Indonesia.
Registration of Marriages Abroad
In terms of registering marriages abroad, marriages of Indonesian Citizens outside of Indonesia are required to be registered in the authorized agencies in local countries and reported to the Representative of the Republic of Indonesia.[3]
If the local country does not organize marriage registrations for foreigners, the registration is carried out at the local Representative of the Republic of Indonesia.[4]
Representative of the Republic of Indonesia shall record marriages in the Marriage Certificate Register and issues Marriage Certificate Deed.[5]
The marriage registration is then reported by the person concerned to the implementing agency in his/her place of residence no later than 30 days after the person concerned returns to Indonesia.[6]
Furthermore, you mentioned that your friend got married to a Foreign Citizen with a different religion. In this regard, the registration of marriages requires a stipulation from a local district court. This matter is as described in the Elucidation to Article 35 letter a Marriage Law.
After obtaining a court stipulation and being registered in the implementing agency, your friend who wants to separate from her partner may then take divorce proceedings in accordance with the procedural law that applies in Indonesia.
These are the answers we can provide, we hope you will find them useful.