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A Divorce No

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A Divorce No Powered By Docstoc
					                         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
           s
perfect one’ life. Nevertheless, the number of marriages that end up in court for
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
                                                                  iyah in June
reason for divorce applications lodged at Banda Aceh Mahmakah Syar’
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).


                           iyah show that the number of law suits and divorce
Data from the Mahkamah Syar’
applications has increased, as can be portrayed in the following table:
      Year 2008            Husband-initiated        Wife-initiated
                           Divorce (Cerai           Divorce (Cerai
                           Talak)                   Gugat)
      January              5                        12
      February             7                        13
      March                1                        9
      April                7                        18
      May                  6                        14
      June                 6                        11


From the above table, it could be seen that the number of cerai gugat cases or wife-
                                                          iyah is greater than cerai
initiated divorce applications submitted to Mahkahmah Syar’
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
                                      iyah? The following are the steps that have
and cerai gugat cases in Mahkamah Syar’
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
            iyah (in line with Article 118 Herziene Inlands Reglemet (HIR), 142 Rechts
        Syar’
        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
            iyah on the way to prepare the application letter (Article 119 HIR, 143 R.
        Syar’
        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
    iyah:
Syar’
      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
                                                         iyah with legal authority that
           submitted to the Religious Court/Mahkamah Syar’
           covers the place of residence of the plaintiff (Article 66 Paragraph (2) Law No.
           7/1989)
      c. If the requested party lives abroad, the application should be submitted to the
                                      iyah with legal authority that covers the place
         Religious Court/Mahkamah Syar’
         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
                                                       iyah with legal authority that
         submitted to the Religious Court/Mahkamah Syar’
         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
                         iyah.
     or the Mahkamah Syar’
2. The plaintiff and the accused will be called by the Religious Court/Mahkamah
         iyah to attend the trial.
     Syar’
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).


                                                 iyah on the divorce case will be on
The decision of the Religious Court/Mahkamah Syar’
of the following
   a. The law suit/request is accepted. If the accused is not satisfied, he or she can
                                                          iyah.
      lodge an appeal to the Religious Court/Mahkamah Syar’
   b. The law suit/request is rejected. The plaintiff/litigant can submit an appeal to
                                       iyah.
      the Religious Court/Mahkamah Syar’
   c. The law suit/request cannot be accepted (niet on vankelijk verklaard).           The
                                                                             iyah
      plaintiff can lodge a new law suit to the Religious Court/Mahkamah Syar’
      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:
                                       iyah will determine the trial day for
   a. The Religious Court/Mahkamah Syar’
      observing the divorce statement (ikrar talak).
                                       iyah will call the plaintiff/litigant and the
   b. The Religious Court/Mahkamah Syar’
      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).
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
                 iyah, so that each party can obtain legal certainty before the law.
the Mahkamah Syar’