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Relating to Marriages Between Expats and Indonesians

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Excerpts from the Sriro's Desk Reference of Indonesian Law 2006

The information below was compiled in response to a list of questions from the Foreign Wives of Indonesian. The answers were compiled by a team of lawyers headed by Prof. Hanifa Wiknjosastro from the University of Indonesia law faculty. They provide information relating to the various Indonesian family laws and how they relate specifically to marriages between Indonesians and expatriates. The information herein is strictly based on the relevant prevailing laws and regulations.

For more information, contact: Prof. Hanifa Wiknjosastro at 337-925, Mrs. Zulfa Basuki SH. MH at 548-2417/0816-964010 or Fatmah Jatim at (62-21) 522-9765, They provide legal services and specialize in family law.

Legal Basis for this Memorandum

1. Law No.1 of 1974 regarding Marriage Law; dated 2 January 1974, effective as of its enactment ("Marriage Law").
2. Government Regulation No.0 of 1075 regarding the implementation on Law NO.1 of 1974; dated 1 April 1975, effective as of 1 October 1975 ("GR No.9/1975").
3. Law No.62 of 1958 regarding the Indonesian Nationality; dated 29 July 1958 ("Nationality Law of 1958").
4. [Law on Immigration; and its implementing regulations;]
5. Indonesian Civil Code.
6. Indonesian Criminal Code.
7. Government Regulation NO.441 of 1996 regarding the Ownership of Dwelling House Or A Residence by A Foreign Person Domiciled in Indonesia; dated 17 June 1996 ("GR No.41/1996").
8. Joint Decree of Minister of Foreign Affairs, Minister of Education and Culture and Minister of Finance of March 18, 1974.

Getting Married in Indonesia:

Formalities and Procedures:

All couples who marry in Indonesia must declare a religion. Agnosticism and Atheism are not recognized. The Civil Registry Office can record marriages of persons of Islam, Hindu, Buddhist, Christian-Protestant and Christian-Catholic faiths. Marriage partners must have the same religion, otherwise one partner must make a written declaration of change of religion.

The Religious Marriage under Islam is performed by the Office of Religious Affairs (Kantor Urusan Agama) in a ceremony at a mosque, the home, a restaurant, or any other place chosen by the couple and is legal immediately after the ceremony.

A Christian, Hindu or Buddhist marriage is usually performed first in a church or temple ceremony. After the religious ceremony, every non-Islamic marriage must be recorded with the Civil Registry (Kantor Catatan Sipil). Without the registration by the Civil Registry these marriages are not legal. Recording by Civil Registry officials can be performed directly at the religious ceremony for an additional fee.

Persons of non-Islamic faith are required to file with the Civil Registry Office in the Regency where they are staying first a 'Notice of Intention to Marry' as well as a 'Letter of No Impediment' obtained from their consular representatives.

For the issue of the Letter of No Impediment to Marriage by your Consular Representative you will need to present for yourself and your fiance(e) your Passport(s) valid for more than 6 months and Certified Divorce Decrees (absolute/final) and/or Death Certificates regarding the termination of all previous marriages. Please contact the Consular Representative of your country for details well before the intended date of marriage.

For the Notice of Intention to Marry you have to submit the following documents for both partners to the Civil Registry Office (show the original and present a photocopy):

• Certificate of the religious marriage;
• Passport for foreign citizens, or KTP (Identity card) for Indonesian citizens;
• Certified birth certificate;
• Certified divorce decree (absolute) or death certificates regarding the termination of all previous marriages;
• Four 4x6 cm photos, both partners side by side;
• Foreign citizens:
• 'Letter of No Impediment to Marriage' issued by your Consular Representative for Bali or Indonesia;

• never married: letter Surat Keterangan Belum Kawin from Kepala Desa or Lurah (mayor);
• Men aged 18-21 and women aged 16-21: parental letter of consent, signed across the Rp. 6,000 meterai/tax stamp .
• Before the marriage, you and your fiance(e) also may wish to file with the Civil Registry a prenuptial Property Agreement (Surat Pernyataan Harta) which must be signed before a local Notary Public. This contract is necessary if you wish to hold property separately during the marriage. In the absence of such a document, Indonesian marriage law assumes joint ownership of property.

The Civil Registry office has a Mandatory Waiting Period of 10 working days from the date of filing. This waiting period may be waived for tourists presenting a guest registration form (Form A).

Islamic Marriage Certificates (Buku Nikah) issued by the Office of Religious Affairs (Kantor Urusan Agama) are legally valid in Indonesia and do not require registration with any other agency if you are going to live in Indonesia. However, if you might move somewhere else in the future (and who knows?), get a marriage certificate issued by the Civil Registry and an officially certified translation right away (see below).

All other Marriage Certificates will be issued by the Civil Registry usually on the same or next day. A sworn English translation of the marriage certificate should be obtained for use abroad. It is not necessary for the marriage certificate or translation to be registered by your Consular Agency. However, to have the sworn translation of the marriage certificate verified or a special translation made by the Consular Agency of your home country or the Consular Agency of your country of residence might prove useful.

Marriage

1. Mixed marriage



While previous regulations defined "mixed marriage" as marriage between people in Indonesia subject to different laws", under the Marriage Law, a "mixed marriage" is defined as "marriage between two people in Indonesia subject to different laws as result of difference in citizenship and one of the parties is an Indonesian citizen". (Article 57, the Marriage Law).


2. Requirements/formalities



The requirements and the formalities under the Marriage Law should be complied with in entering into a mixed marriage.

Under Article 60 of the Marriage Law, the substantive requirements of marriage should follow the national law applicable to each of the person entering the marriage. The national law of each of the person should be observed with respect to matters related to marital age, consent requirements and prohibited relationship. The law of the place where the marriage is to be performed will be applicable in relation to the formalities for a marriage.

As to the consequences to the citizenship in the case of mixed marriage, Article 58 of the Marriage Law provides the possibility for the husband/wife to acquire the nationality of his/her wife/husband and may also loose his/her own citizenship, according to the requirements and the procedures provided for under the laws relating to nationality.


3. Marriage outside Indonesia



In the case of a marriage performed outside Indonesia, whether (a) between two Indonesian citizens or (b) between an Indonesian citizen and a foreign citizen, such marriage is legal when it is performed according to the laws of the place where the marriage took place ("lex loci celebrationis"), and the Indonesian citizen must comply with the requirements under the Marriage Law. (Article 56, the Marriage Law).


4. Legality and Registration



Under the Marriage law, a marriage is legal if it is performed according to the respective religion and beliefs of the parties concerned. (Article 2 paragraph 1, the Marriage law).

Every marriage is required to be registered according to the applicable regulations (Article 2 paragraph 2, the Marriage Law), including mixed marriages (Article 61 paragraph 1, the Marriage Law).

A marriage performed outside Indonesia must be registered with the competent Marriage Registration Office, within one year of the return of the husband and wife to Indonesia. The Marriage Law is silent as to the consequences if the one year period requirement is not complied with. In legal practice, however, there are two opinions. One opinion considers such registration as a mandatory requirement and therefore will implicate the validity of the marriage, while the other opinion considers (illegible).


5. Marriage Procedures

The Marriage Law and the implementing regulations provide for the procedures in performing a marriage, as follows:

a. Notification

Notify (verbally or in writing) the Marriage Registrar ("Pegawai Pencatat"), within 10 (ten) days prior to the performance of the marriage. A lesser period is possible, however, subject to special dispensation. Notification can be carried out by the parties (or one of them) or by their parents or by their proxies.

b. Examination

The Marriage Registrar shall examine whether the marriage prerequisites (such as age, consent etc.) have been fulfilled and whether any obstacles to the marriage exist.

c. Announcement

If the result of the examination/inquiry is satisfactory, the Marriage Registrar shall then make an announcement of the intention to marry by affixing publication document according to a form determined by the Marriage Registration Office at a predetermined location.

d. Marriage Ceremony

The marriage shall be performed after the 10^th day of the announcement by and before the Marriage Registrar and two witnesses. The ceremony is to be conducted according to the law of the parties. respective religion and beliefs.

For Moslems: ceremony is to follow the Moslem marriage requirements ("ijab kabul).

For Non-Moslems: ceremony in church or according to relevant religion and beliefs.

d. Registration

Following the marriage ceremony the bride and bridegroom shall sign the marriage certificate, which will also be signed by the witnesses and the Marriage Registrar. Upon the signing of such certificates the marriage is considered as being registered.

Marital age

Minimum age for Marriage according to the Marriage Law. For men : 19 years
For women: 16 years


Dispensation to the above is possible, subject to consent from an appropriate authority.

Those who are under 21 years of age must obtain the consent from their parents to enter into marriage.

Rights and Responsibilities/Obligations

1. Between husband and wife

The Marriage Law adopts the principle of equality between husband and wife in the family and in society. Each of them has equal legal rights in conducting legal actions.

Although the husband is the head of the family while the wife is responsible for the household ("ibu rumah tangga"), equality is the basis of the relationship, with love respect and faithfulness to each other and continuous physical as well as moral support.

While the wife has the responsibility to take care of the household to the best of her abilities, the husband has the responsibility to protect his wife and support her to the best of his abilities.

2. Between parents and children

A legal child is a child born in wedlock (from parents who are legally married). A child born out of wedlock shall have civil law relation only with his/her mother and the family of the mother.

Both parents shall be responsible for the welfare and education of their children. Such responsibility shall continue to be in force (i) until the children are married, or will be able to support themselves and (ii) notwithstanding the parents. divorce.

A child who has not reached the age of 18 years or has not been married shall not have the capability to act on his/her own. The child will be under the authority/custody of his/her parents, unless such authority has been revoked by a competent Court of Law (for reasons provided under the Marriage Law). With such authority the parents shall represent and act on behalf of the children. Certain restrictions however, are imposed on the parents whereby they may not transfer or encumber immovable goods owned by such child, unless the interest of such child so requires.

Marital Property and Financial Responsibilities

1. With regard to marital property, the Marriage Law provides certain stipulations in relation to (i) what is defined as joint marital property and (ii) the legal action with respect to the joint property.

Article 35 paragraph 1 of the Marriage Law stipulates that property acquired during the marriage shall become joint marital property of the husband and the wife. According to the second paragraph of this Article, property brought into marriage by the husband or the wife or acquired separately by either one of them as a gift or inheritance shall remain the property of the party concerned, unless determined otherwise.

2. The general rule of "joint marital property" as it is adopted in the first paragraph of Article 35 may be exempted in the event the husband and wife had concluded a pre-nuptial contract, which is a specific contract of marriage for a separation of marital property, concluded prior to entering into their marriage.

In the pre-nuptial contract it can be agreed by them whether they want to apply a full separation of joint marital property or regulate the rights and obligations of each of them as to the marital property.

3. In relation to the joint marital property, the husband or the wife may only take legal action with the consent of the other.

For example, in the case of a sale of a joint property, the spouse's consent is compulsory. The same applies in the case of a personal guarantee granted by a personal guarantor as collateral for a loan. The personal guarantor is required to obtain his/her spouse approval.

With respect to property brought in by the husband or the wife respectively which does not constitute part of the joint marital property, either the husband or the wife shall be fully entitled to perform any legal action with respect to their respective personal property.

4. Debts and obligations incurred by one party during marriage are generally the joint obligations of the husband and wife unless a pre-nuptial contract exists and provides otherwise. Claims must be satisfied out of the joint property. If the joint marital properly is insufficient, the personal property of the spouse who makes the debts is liable for the remainder. Debts acquired prior to marriage continue as personal debts.

Divorce

Grounds for divorce

One of the means to dissolve a marriage is by divorce. Divorce may only be effected based on "sufficient reasons". The reasons for a divorce have been regulated in the Marriage Law, which are, in the event where one of the parties:

• has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or other vices which are difficult to cure;
• has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;
• has been sentenced to imprisonment for five years or a longer period;
• has resorted to cruelty or severe ill-treatment, endangering the life of the other spouse;
• has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or
• irreconcilable differences.

Procedure for divorce

• Divorce can only be obtained by a judgement of the court of law, after the court has tried unsuccessfully to reconcile the parties. There are two ways to effect divorce:

• divorce by "talak"
• divorce by judgement of the court of law.

• Divorce by "talak" is applicable to Moslem spouses. Divorce by court of law judgement is applicable to Moslem as well as non-Moslem spouses.

Consequences of divorce

• Alimony



Payment of alimony may be decided by the Court as the obligation of the husband. However, the Court may also determine a certain obligation on the part of the former wife. There are no definite criteria to determine the duration or the amount of alimony payment. In practice, the Court will decide a reasonable alimony amount to be paid by the husband.


• Custody and child support



Both of the divorced spouses are responsible for the protection and education of their children.

In case of minor children, the Court will usually award custody of such children to the mother, unless the mother is the one who is at fault or there is proof of her incompetence to take care of the children.


• Marital property

The division of joint marital property will be dealt with according to the respective laws of the spouse. The laws may be their respective religious laws, customary law and other laws. The joint property is usually divided equally between the spouses.

It is advisable to reach a mutual agreement between the husband and wife in case of their divorce, particularly in relation to the right to visitation and matters related to child support and rights to property.

Nationality

1. Nationality Law of 1958 seems to show a definite preference for "jus sanguinis" rule in determining nationality at birth. The main rules on attribution of nationality at birth under the Nationality Law of 1956 are as follows:

• Any person, who at the time of birth has a legally established parent-child relationship with his/her father (who is an Indonesian national) becomes an Indonesian national (Article 1.(b)).

• In the absence of such legally established relationship with the father or if the father was stateless or was of unknown nationality, the person also acquires Indonesian nationality if the mother was an Indonesian national at the time of the person's birth (Article 1 (d) and (e)).

The aforesaid seems to reflect that the Nationality Law of 1958 shows a definite preference for "jus sanguinis" rule in determining nationality at birth, and precedence is given to the link with the father.

By way of complementing the "jus sanguinis" rule, the Nationality Law of 1958 seems also to adopt the "jus soli" rule by providing that a person born in the Indonesian territory is an Indonesian national:

• so far as the parents are unknown (Article 1 (f)); or
• if the parents are stateless or as long as their nationality is not known (Article a (h)); or
• if or as long as the person does not acquire either of the nationalities of his/her parents.

• as consequence of marriage; and
• by way of naturalization.


If a foreign wife, after her divorce with her Indonesian husband, intends to acquire Indonesian nationality, she may do so by was of naturalization.

4. The legal requirements to obtain Indonesian nationality by way of naturalization are as follows:

• the applicant must be at least twenty-one years of age;
• at the time of the application, the applicant must have been residing in Indonesia for five consecutive years or for an aggregate period of ten years;
• in the event of a married man, has obtained the consent of his wife (or wives !!);
• the applicant must have a reasonable command of the Indonesian language and some knowledge of the Indonesian history, and has never been convicted of a crime to the detriment of Indonesia;
• the applicant must be in good physical and mental health;
• the applicant must be a certain amount proportionate to his/her income (?);
• the applicant must have a regular source of income;
• the applicant should have no other nationality or should lose his/her previous nationality upon acquiring the Indonesian nationality or the applicant should expressly renounce his/her previous nationality according to the laws applicable to him/her;
• submit a written application in the Indonesian language to the Minister of Justice through the District Court where the applicant has his/her domicile.

6. In principle, an International School is intended only for the children of foreign citizens who are not permanently residing in Indonesia, who are staying in Indonesia to engage in private/commercial business such as: an expert/technician working for a foreign agency, association or enterprise in Indonesia with permission from the GOI; an expert/technician who is working for a private enterprise/institution in Indonesia with permission from the GOI; and other foreign citizens who are not maintaining a permanent residence in the territory of the Republic of Indonesia with special permission of the GOI. However, under certain special circumstances, the children of a member of a diplomatic/consular office; an expert/technician working with the GOI; and a member of UN representation offices, may also be admitted to an International School on condition that they are needed fully as pupils at the said International School.

7. If the baby is born overseas the regulation requires registration within 10 days after the baby birth and registration may be made to the Indonesian Embassy in the country where the baby was born.

8. As far the practice we know the baby may travel with the mother's passport and other travel documents as required by the relevant regulations.

9. As long as they do not have the Indonesian nationality, they need a working permit.

Children

According to the criminal code, abortion is strictly illegal except when there are certain medical indications.

Conduct toward each other

Under Indonesian regulations, adultery is illegal.
Husband and wife cannot testify for or against each other, but can sue each other.

Ownership

Minor children have no legal capacity to take legal action on his/her own. They will have to be represented by their parents.

Assuming that the child is an Indonesian citizen, a house/land may be purchased in the child's name. However, in entering into the transaction the child must be represented by his/her parents.

Prepared by: Mrs. Zulfa Basuki SH. MH, Mrs. Lita Aryati, SH, LL.M, Mrs. Ririn Sunu Purbanti, SH, LL.M.

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