Divorce for Foreigners in Indonesia
If both spouse are foreigners and you have been living in Indonesia for several years due to work commitments, you may be able to get a divorce in Indonesia.
In any country, divorce is tough for everyone involved. Obtaining a divorce can be costly and expensive. It’s even tougher when you file for divorce in a foreign country. The last thing you want to do is file for divorce in your home country and have the court dismiss your case due to lack of subject matter of jurisdiction. This could cost you even more.
Legal doctrines may say that you are now the subject of International Civil Law due to your long residence abroad. It’s pretty complicated whenever there is more than one legal system involved in your particular case. You need to work through all the necessary procedures in order to see that it’s possible to file for a divorce in Indonesia, when both spouses are foreign nationals.
Where does the Indonesian Court Stand?
The Indonesian legal system should not refuse to examine, hear, and decide a case filed, even when there is no clear legal reason for the case to be filed in an Indonesian court. The court is obliged to examine and judge the case. This is a basic principle in the judicative system in Indonesia. Period.
The court may not refuse to examine the case. But do they have any jurisdiction over your case? If, both of you are foreign nationals and your marriage was conducted and legally registered abroad you may wonder if the Indonesian courts could have jurisdiction over a divorce in your case.
The International Civil Law (ICL)
In a divorce between two foreign nationals, there are foreign elements involved. Therefore, the case shall be considered an ICL proceeding. ICL is national law. It’s not a supranational law or international law. Therefore, every country, including Indonesia, has its own ICL system, respectively.
Furthermore, there are major issues within the ICL: Choice of Law and Choice of Forum/Jurisdiction. Official domicile of the parties involved is a link point to determine the forum court of competent jurisdiction to examine the case. This deals with determining the personal status of a person.
There are several ways to determine the personal status of a person: the principle of citizenship or nationality (Lex Patriae) and the principle of domicile. In the principle of nationality, one’s national law determines his/her personal status. This means that, even though one is residing abroad, his/her nationality law shall prevail and therefore the court in his/her home country shall have jurisdiction upon him/her.
Within the principle of domicile, on the other hand, one’s personal status is determined from the country in which they live. This means that the law and the court where he/she lives shall have jurisdiction upon him/her.
Each country has different principles in determining one’s personal status. Let’s take Indonesia and the United States as examples. Indonesia adheres to the civil law as its legal system, while United States adheres to the common law legal system. Civil law countries use the principle of nationality and common law countries use the principle of domicile. These are very closely related to the jurisdiction of the court to adjudicate a case of divorce. Therefore, the marriage of the US nationals must be dissolved in their country.
On the other hand, according to the state that adheres to a common law system such as United States, the party’s residence or domicile must exist at the time the proceedings are filed. In order for a US court to have subject matter jurisdiction to dissolve a marriage, either party must have been physically present within the country for a certain period of time prior to the filing of the petition for dissolution of marriage. The divorce, therefore, should be finalized in their country of domicile.
This is where renvoi (re-appointment) serves. Renvoi arises because of the differences in determining one’s personal status. It requires the US court to dismiss your divorce case due to lack of subject matter of jurisdiction. Although Indonesia is not a state of the United States of America, nevertheless, the Indonesian decree is an order from a foreign nation which the US court cannot ignore subject to certain restrictions. Furthermore, the court shall re-appoint Indonesia as the forum in dissolving the marriage. This is where Indonesian court has jurisdiction based on the re-appointment (renvoi).
In Indonesia, marital dissolution is a personal status related case under the category of family law. If both spouses are US nationals, the Indonesian court shall consult and utilize US family law regarding legal grounds for marital dissolution during the proceedings. The legal grounds in the US family law must not contradict with the public policy (ketertiban umum) in Indonesia. To be more specific, it must be in line with the legal grounds for divorce as stipulated in Indonesia’s Marriage Law and its implementing regulations.
Get the Ball Rolling!
After the Indonesian court declares that it accepts the jurisdiction to adjudicate the divorce case of two foreign nationals, and the legal grounds for divorce is in line with the public policy in Indonesia, the case shall be tried under Indonesia’s civil procedures law. At this point, the case enters the regular phase within the Indonesian courts.
We hope that you can get a clearer picture of this legal situation from this article and most important that you have access to the law that protects your rights. At Wijaya & Co, we help people with legal issues and assist them with access to the legal system in Indonesia.
Disclaimer: The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.
Our thanks to Asep Wijaya, Managing Director of Wijaya & Company for his contribution of this article!