When Divorce Becomes the Last Resort Indonesia is a country that still esteems highly its oriental cultural roots, where marriage is considered as something sacred. However, the rate of divorce cases arbitrated in Religious Courts (Pengadilan Agama) throughout Indonesia cannot be considered as insignificant. Divorce cases in Aceh demonstrate that there are couples who submit divorce applications to the court in just months after their marriage, due to disharmony in their newly formed families. When someone decides to marry, the decision is taken with a long-term view of maintaining their life because marriage is often considered as a factor that could perfect one’ life. Nevertheless, the number of marriages that end up in court for s divorce trial is not small. Although permissible, divorce is not something recommended by religion, particularly for Islam that considers divorce as a last resort. Divorce rates in areas that have been influenced by modernization tend to show a growing trend. In the city of Banda Aceh, for instance, since 2005 the divorce rate has shown a progressive increase. Many reasons are put forward by couples submitting divorce applications. Basri, S.H., a Panitera Muda Hukum (Junior Clerk of Court) in the Mahkamah Syar'iyah (Islamic Court) in Banda Aceh City, maintains that from the cases arbitrated at the Court it shows that disharmony in the family (9 cases) was the dominant reason for divorce applications lodged at Banda Aceh Mahmakah Syar’ iyah in June 2008. Other reasons cited for divorce applications included polygamy (2 cases), moral crisis (1 case), violence (1 case), involvement of a third party (1 case), and irresponsibility on the part of the spouses (3 cases). Data from the Mahkamah Syar’ iyah show that the number of law suits and divorce applications has increased, as can be portrayed in the following table:
Year 2008
Husband-initiated Divorce (Cerai Talak)
Wife-initiated Divorce (Cerai Gugat) 12 13 9 18 14 11
January February March April May June
5 7 1 7 6 6
From the above table, it could be seen that the number of cerai gugat cases or wifeinitiated divorce applications submitted to Mahkahmah Syar’ iyah is greater than cerai talak cases or husband-initiated divorce cases. The procedure of submitting divorce applications is regulated through Article 40 of the Marriage Act (UU No. 1/1974), through the following paragraphs: (1) Divorce application is submitted to the court; (2) The procedure to submit the divorce application meant in paragraph (1) is regulated separately by means of another regulation. The procedure for divorce is further regulated in Chapter V from Article 14 to Article 36 of the Government Regulation (PP) No. 9 year 1975 on the implementation of Law No. 1 year 1974 on Marriage. Article 14 of the Government Regulation No. 9 year 1975 stipulates that a husband who has got married under Islam and later wants to divorce his wife should submit a letter to the local Court, specifying his desire to divorce his wife with the reasons and ask the Court to conduct trial for that purpose. The concerned Court has to examine the content of the letter and within at the most 30 (thirty) days call the applicant and his wife to explain all the matters related to the divorce application (Article 15). Further, Article 16 of the Government Regulation also stipulates that the Court will only decide to conduct a trial when there are appropriate reasons for it and it
considers that the relation between the concerned husband and wife cannot be improved and they can no longer live in harmony under the same roof (Article 16). Immediately after conducting trial to witness the divorce, the Chief Justice of the Court will prepare a letter notifying the divorce. The notification letter will be sent to the Registrar at the place of trial who will then register it in the divorce registration book (Article 17). If a divorce cannot be avoided, it is suggested that the requesting couple or the plaintiff/litigant and the accused go through a divorce process that complies with the prevailing legal procedures. How are the procedures and processes to try cerai talak and cerai gugat cases in Mahkamah Syar’ iyah? The following are the steps that have to be taken by an applicant or his/her legal representation: 1. a. Submitting a written or verbal request to the Religious Court or Mahkamah Syar’ iyah (in line with Article 118 Herziene Inlands Reglemet (HIR), 142 Rechts Reglement op de Burgerlejk (R. Bg) juncto Article 66 of Law No 7/1989) on the Court of Religious Affairs. b. The plaintiff is suggested to seek advice from the Religious Court/Mahkamah Syar’ iyah on the way to prepare the application letter (Article 119 HIR, 143 R. Bg juncto Article 58 of Law No. 7/1989). c. The application letter can be changed as long as it does not change the posita and petitum. If the accused/requested party has answered the letter and it turns out that there is a change, the change has to be agreed by the requested party. 2. The application letter has to be submitted to the Religious Court/Mahkamah a. Whose legal jurisdiction covers the area of the place of residence of the accused (Article 66 Paragraph (2) Law No. 7/1989) b. If the requested party has left the place of residence that has mutually been agreed without the consent of the plaintiff, the application should be submitted to the Religious Court/Mahkamah Syar’ iyah with legal authority that covers the place of residence of the plaintiff (Article 66 Paragraph (2) Law No. 7/1989) Syar’ iyah:
c. If the requested party lives abroad, the application should be submitted to the Religious Court/Mahkamah Syar’ iyah with legal authority that covers the place of residence of the plaintiff (Article 66 Paragraph (3) Law No. 7/1989) d. If the plaintiff and the accused live abroad, the application letter should be submitted to the Religious Court/Mahkamah Syar’ iyah with legal authority that covers the place of the marriage or to the Religious Court of Central Jakarta. (Article 66 Paragraph (4) Law No. 7/1989) 3. The request should contain: a. Name, age, occupation, religion, the place of residence of the plaintiff and the accused/requested party. b. Posita (the reason why somebody purses the case) c. Petitum (expectation of what the person wants the outcome to be) 4. Requests related to child custody, child allowance, wife allowance and joint matrimonial property can be submitted along with the cerai talak application or after the divorce statement (ikrar talak) has been said (Article 66 Paragraph (5) of Law No. 7/1989) 5. Pay the cost of the trial (Article 121 Paragraph (4) HIR, 145 R. Bg jo Article 89 Law No. 7/1989). Those who cannot afford to pay can have a free trial (Article 237 HIR, 273 R. Bg). Cerai talak and cerai gugat cases will be tried through the following steps: 1. The plaintiff/litigant registers his or her divorce application to the Religious Court or the Mahkamah Syar’ iyah. 2. The plaintiff and the accused will be called by the Religious Court/Mahkamah Syar’ iyah to attend the trial. 3. Stages in the trial: a. In the first trial session the judge will try to ask the two parties to reconcile; the husband and the wife have to attend the trial in person (Article 82 Law No. 7/1989) b. If the attempt is unsuccessful, the judge will oblige the two parties to try mediation (Article 3 Paragraph (1) PERMA No. 2/2003 on the Mediation in the Court).
c. If the mediation is unsuccessful, the examination of the case will be continued with the reading of the law, the response, question and answer, attestation and conclusion. In the question and answer stage (prior to the attestation) the accused can lodge a reconvention claim (a counter law suit) (Article 132 HIR, 158 R. Bg). The decision of the Religious Court/Mahkamah Syar’ iyah on the divorce case will be on of the following a. The law suit/request is accepted. If the accused is not satisfied, he or she can lodge an appeal to the Religious Court/Mahkamah Syar’ iyah. b. The law suit/request is rejected. The plaintiff/litigant can submit an appeal to the Religious Court/Mahkamah Syar’ iyah. c. The law suit/request cannot be accepted (niet on vankelijk verklaard). after improving the shortcomings in the first law suit that has been rejected. 4. After the request has been accepted and has obtained a permanent legal power, the subsequent steps will follow: a. The Religious Court/Mahkamah Syar’ iyah will determine the trial day for observing the divorce statement (ikrar talak). b. The Religious Court/Mahkamah Syar’ iyah will call the plaintiff/litigant and the accused/requested to declare the ikrar talak. c. If within the period of 6 (six) months from the pronouncement of the trial to witness the ikrar talak (oral divorce announcement by the male spouse which officially ends the marriage), the husband or his representation does not declare the ikrar talak in front of the Court, the legal verdict will expire and divorce law suit cannot be lodged based on the same reasons (Article 70 Paragraph (6) of Law No. 7/1989). 5. After the ikrar talak has been declared, the clerk of court has to give a divorce letter to the two parties within at the most 7 (seven) days after the declaration of the divorce statement. (Article 84 Paragraph (4) UU No 7/1989). The plaintiff can lodge a new law suit to the Religious Court/Mahkamah Syar’ iyah
In each divorce case there is always an effort to reconcile the conflicting parties. If the reconciliation is successful, the couple can then lead a united life again. However, although a divorce has already taken place, there is always an opportunity to unite the separated couple. Reunification can be done if the divorce occurs because of a divorce statement (talak), except that the divorce statement has been already been declared three times or the talak is qobla al-dukhu (when the wife has not done sexual intercourse with the husband). It can be done if the court decision is based on certain reasons or reasons other than adultery and khuluk (when the wife gives the husband something in exchange for ending the marraige) (Article 163 Paragraph (2) KHI). Divorce always brings about certain impacts and consequences. Therefore, according to Basri, S.H., to anticipate and prevent conflict in the family, it is good if a husband and a wife can understand each other and their special roles in the family. When a couple has to face a divorce, it is recommended that they go to the Religious Court or the Mahkamah Syar’ iyah, so that each party can obtain legal certainty before the law.