As a well-known law firm in Indonesia, Queen Law Firm handles various kinds of cases, including commercial cases, civil cases, criminal cases, and so on. Among them, one type of case has been on the rise in recent years, namely transnational divorce suits. In such cases, the majority of divorce suits were filed by foreign women against Indonesian men. The reasons for divorce vary widely, of course, this is a matter of morality and we will not discuss it here. I will mainly discuss some of the legal issues related to divorce suits filed by foreign women against Indonesian men.
For litigation, in this kind of case, the main charges cover three things, namely: divorce, child custody, and distribution of joint assets.
1. Divorce
In accordance with Article 1 of Law No. 1 of 1974 concerning Marriage:
“Marriage is a physical and mental bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family or household based on the One Godhead.”
Marriage is sacred and is an important factor for the continuity of human society. Moreover, for women in transnational marriages, it takes a lot of courage for women to leave their homeland and their families and choose to live in a country that is completely foreign to men. However, if the marriage cannot be continued for various reasons, divorce can bring new opportunities for both parties.
Based on Article 39 of Law Number 1 of 1974 concerning Marriage in conjunction with Article 19 letter (f) PP No.9 of 1975 concerning the Implementation of Law Number 1 of 1974 concerning Marriage, which reads as follows:
“Between husband and wife, there are continuous quarrels and fights and there is no hope of living in harmony again in the household.”
In other words, as long as the marriage can no longer maintain happiness, you can file a divorce suit in court. The reason for divorce can be for any reason, as long as it is in accordance with the facts and can provide evidence and valid witnesses for that reason in the next trial.
2. Child Custody
For those who are Muslims regulated in Article 105 Compilation of Islamic Law, it reads:
“In the event of a divorce:
a. Caring for children who are not yet 12 years old is the right of the mother;
b. Child care that is 12 years old is left to the child to choose between the father and mother as the holder of the right to care for him;
c. maintenance costs borne by his father. ”
For non-Muslims, based on the Decision of the Supreme Court of the Republic of Indonesia No. 102 K / Sip / 1973 dated 24 April 1975, reads as follows:
“Based on the jurisprudence regarding child guardianship, the rule is that the biological mother is prioritized, especially for young children, because the interests of the child are the criterion, unless it is proven that the mother is not fair to care for her child.”
Based on MARI Decision number 126 K / Pdt / 2001 dated August 28, 2003:
“If there is a divorce, the child who is still under the age of maintenance should be left to the closest and familiar person to the child, namely the mother.”
Therefore, for children under 12 years of age, custody of the child will automatically be granted to the mother. However, if the mother has bad habits and the judge believes that the woman does not have the ability to properly care for the child, then custody of the child will most likely be passed on to the father’s side. We want to remind all foreign women to pay attention to this. Indonesia is a Muslim country, and judges hate women for alcoholism, gambling, and smoking. If women have the bad habits mentioned above and men have enough evidence and witnesses, it will be a big obstacle to our fight for child custody.
3. Distribution of Joint Assets
Article 53 of the Marriage Law divides assets in marriage into three types, namely:
“Congenital assets, namely assets obtained by husband or wife from before the marriage. Each of them has the full right to carry out legal actions regarding their inherited assets.
The assets of each husband or wife obtained through inheritance or gifts in marriage. The right to this property fully rests with each husband or wife
Joint Assets or Gono-gini, namely assets obtained during marriage. ”
Gono-gini assets are joint property of husband and wife, even though only the husband or wife works. Regarding the formation time of the hessian property, it is usually determined based on rationality rather than the actual formation time. In principle, these assets must be distributed fairly so as not to cause injustice between the rights of the husband and the rights of the wife. However, if one party has a serious fault in the marriage, or the burden of caring for the child is heavy and the other party is unable to pay child support, then the distribution of assets will favor the innocent party or the party who has to look after the child. After all, justice is not the same as fairness.
Divorce, as the end of the marriage, not only hurts both parties, but also causes great psychological harm to the children. Therefore, anyone should consider carefully before making a divorce decision. Of course, if you choose to keep a marriage where there is absolutely no happiness for the sake of your children, it is meaningless, constant quarrels between husband and wife will only cause continuous harm to the children.
After you make a divorce decision, please contact Queen Law Firm, no matter what kind of dilemma, we will face it together with you.
