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  • aw@wijayaco.id

We take marriage very serious in Indonesia. You need to meet certain requirements, terms and conditions in order to get legally married. Once you have been issued a marriage certificate, or a marriage book for Moslem couples, your marriage is legally recognized. The terms and conditions for a person to get legally married in Indonesia are, among others:

  1. Consents by both parties; bride and groom;
  2. They must be aged 21 years. They must obtain parents' approval, or either parent if one of them has passed-away, or from their guardian in the even both of them have passed-away.

Consents by both parties are required in order to avoid forced-marriage, or arranged marriage. Both bride and groom must love each other without any force to enter into a matrimony. This is in accordance with our philosophy that marriage is a spiritual bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family (household) based on belief to one and only God. This aim most likely will not be met without consents of both parties.

The idea of having the couples aged 21 years old to get married without parents' consent, among others, is to have matured spouses in the matrimony as it requires emotional as well as physical efforts. 

The Applicant 

If you think a marriage does not meet the above terms and conditions, you may file a cancellation to the court of law. An application may be submitted to the court with a jurisdiction as governed by the 1974 Marriage Law. In order to file an annulment application, you must be either:

  1. You are one of the parties in the marriage, either wife or husband;
  2. You are the parents of the groom or the bride;
  3. You are the authorized officer as governed by the Marriage Law;
  4. Any party related with legal interest to the marriage. This can be, among others, a wife whose husband is getting married again without her approval for committing bigamy.

You need to pay attention to the time frame for filing the annulment with the ground that the marriage conducted under a threat. You have only six  (6) months to file for the annulment application to the court. After that, the law will see you accept the situation, and annulment is no longer the case. 

Legal Consequences

The marriage annulment will not take affect to your children's legal status. They are legitimate one, and therefore shall have the legal relationship with their father. The rights and obligations within parental relationship are still in place even the marriage has been canceled. 

As for the property, since the marriage declared annulled and therefore it's not legally recognized since day one, the property division is not applicable between the husband and wife that is not legally free to marry. This may happen especially when the previous marriage still exists and is not yet to be dissolved.

Key Take-away

Marriage annulment has many aspects to meet. Failure to do so will make the court reject your application. Instead of filing for the annulment, I would suggest you to go with a divorce application. You have more leeways and options in pursuing your goals. We have one legal ground that commonly used in the field of practice i.e. irreconcilable differences. 

I am Asep Wijaya. Thank you for reading my blogs!

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The provisions concerning dissolution of marriage and its legal consequences are generally regulated in Marriage Law, which is further stipulated in Government Regulation Number 9 Year 1975 regarding the Implementation of Marriage Law. As for Moslem-married couples, the divorce proceedings are being regulated further according to the Compilation of Islamic Law.

A marriage may be terminated due to several reasons among others death, divorce, and court decisions. A marriage terminated by a divorce may occur due to talak or divorce suits. The last two were regulated under Compilation of Islamic Law. If you're a husband, and you're thinking to divorce your wife, you have a talak right. So you may submit a divorce application to the court in order to set-up a talak hearing. On another hand, if you're a wife, and you're thinking to divorce your husband, you may also file a divorce against him under divorce suit. We call it "Gugatan." Basically, this is pretty much the same thing, and has equal position in front of the law. A talak must be performed in front of the court of law in order to have effect in dissolving your marriage. Otherwise, it won't take legal binding. 

As for talak, it's the divorce oath of a husband before a court session at the Religious Court. The oath is being recited by the husband to his wife, by requesting both verbal and written to the Court in the jurisdiction of the wife in order to request for a court session for the purpose of reciting the divorce oath or talak. The legal term for this is talak divorce application. As a husband, you're the Petitioner, and your wife serves as the Respondent. You see, your titled changed as soon as you file your divorce. You're no longer a loving husband and wife. You're opponents. This is what the law said about it: "Talak is the oath of a husband before a court session in the Religious Court, which is one of the reasons for terminating a marriage..." The law is Article 117 Compilation of Islamic Law. Therefore, with reference to the law, divorce by talak must be conducted in front of the Religious Court. You just can't say "talak" for three times to get divorce. It won't take legal effect in a country like Indonesia. You've got to do it formally by registering a case to a court clerk, and obtain a case number.

The proceeding for divorce, both under talak or under legal suit carried-out by a wife, are the same. They use national Civil Procedures Code, which takes approximately ten sessions. You're looking at five to six months processing time. Both of them are implementing mediation to stall the process. This is imposed by our Supreme Court in order to reduce the number of litigation cases in our court system. Yes, it takes time to get divorce in Indonesia, but when you have a case number, step by step it'll take you there. They implement strict time frame under the principles of simple, costs-effective and speedy trials. Some experts said mediation is not applicable for divorce cases, because you can't stop people for getting divorce. I would say you can. You can give each other a chance. A second chance. A third chance. Whatever. It takes two to tango. The thing is, you have to keep on trying. Never give up. Don't ever quit for your marriage. Because you're only fail when you stop trying. I am Asep Wijaya, writing for Wijaya Law Review. Thank you for reading.

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