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Dissolving a Foreign Marriage in Indonesia

Monday, 21 October 2019
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Getting divorce in Indonesia is not easy, especially if you were married abroad, but is still doable. You can rely on the court in Indonesia to dissolve your foreign marriage. This is not the case that they usually see on daily basis. This is about making Indonesia as your primary jurisdiction. Some regular legal issues in terms of divorcing in Indonesia may not be applicable to your case. For example, the marriage must be registered or reported to the marriage registry in Indonesia, you must possess a marriage certificate issued from the marriage registry in Indonesia, or none of you are Indonesian national. Those things are not required to exist in your case. This is a foreign divorce case. It's part of the international civil law in Indonesia. 

Reporting of Foreign Marriage 

When you're married outside of Indonesia, both of you are foreigners, and either of you work in Indonesia, you don't have to register or report marriage in order to divorce or dissolve your marriage here. You don't have to get a marriage certificate from the civil registry or you don't have to retrieve a marriage book from the Office of Religious Affairs (so called "Kantor Urusan Agama"/KUA). When you're married, you're married. Since both of you are foreigners, no further reporting of your foreign marriage is required with the above marriage registries. Foreign marriage reporting is only applicable to you in the event one of you are an Indonesian national. 

This thing has something to do with the term of "Lex Loci Celebrations." Literally, this term means the law of the land where the marriage was celebrated. A marriage or a union of a man and a woman when lawfully and validly celebrated under the relevant law of the land where the two individuals have legal nationality or citizenship, is also lawful and valid in the country where they live (reside or are domiciled). 

Principle of Minimum Contact

There are several legal principles that may able to used to support your foreign divorce. They are principle of connection point, Lex Fori, and Lex Causae. Those are the basic legal principle that in order to examine how the court will handle your case. The connection point principle consist of two parts i.e. Primary and secondary connection point. Some called it Minimum Contact. Your case must have minimum contact with the laws where the court has its jurisdiction. Primary connection point is the facts that establish the connection between your divorce case with the place where you will find it has jurisdiction over your case. At Wijaya & Co, we always pay attention to details of our client’s case. 
 
The component supporting primary connection point are as follows:
  1. The nationality. Both spouses nationality is part of the primary connection point that establish the case between you and your spouse.
  2. Domicile. You must live in the territory of Indonesia and both you and your spouse are residents. This is where you establish the bonafide residence in order to have a minimum contact with the court jurisdiction in the area where you live.
  3. The venue. The venue is the exact place where you intend to dissolve the marriage and shall try your case according to the prevailing laws in Indonesia.
As for the secondary connection point in your case is the applicable law under your nationality. If you belongs to the state of California, United States, the court in Indonesia shall use family law in the state of California, especially to establish legal grounds for divorce, spousal and child support. The judge will compare those laws with the same thing that applicable under the Indonesian laws. They need to come to examination where none of the stipulation in California laws do not contradict anything under the Indonesian laws. This is to meet the requirements of keep the public order. Indonesia definitely confirm that they have jurisdiction over the case like this under a very ancient stipulation of Article 16 Algemene Bepalingen (AB). It's an ancient law that still exist in Indonesia. It came from Dutch ruling ages ago, but still exist up until now. In fact, it created the framework of our legal system. 
 
Jurisdiction according to Residence
 
Under Article 207 of Civil Code, a petition for divorce is to be filed with the court of justice, within whose jurisdiction the husband, at the time of the filing of the petition has his main residence, or in the absence thereof, has taken up actual residence. In the event the husband does not have any known principal residence or actual residence within Indonesia, the petition is to be filed with the court of justice at the location where the wife, at that time, actually resides. So, the actual residence of both spouses may be used in order to establish connection with the court jurisdiction in Indonesia. This is the principle Lex Fori that the laws in Indonesia shall be referred to in terms of determination of the court responsible to try the case.
 
In order to retrieve your legal jurisdiction to dissolve your foreign marriage in Indonesia, you need to have a valid residency here. Either you work in a company located in Indonesia, or you set-up your own company in Indonesian soil operating within the territory of the Republic of Indonesia, you may retrieve a court jurisdiction through that residency. I would say you need any least twelve (12) months minimum in order to retrieve a jurisdiction  for this situation. 
 
The above is the minimum contact in order to get  a divorce in Indonesia. Please contact me should you want me to explain in plain language about how we can do to assist you with your foreign marriage dissolution or even how you might be able to establish a case under the Indonesian law.  Please contact me should you wish to discuss any further about this. You may give me a call or drop me an email so we can take it further. 
  
My name is Asep Wijaya. Thank you for reading my posts!

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