In general, a marriage in Indonesia is subject to Law No. 1 Year 1974 on Marriage (“Law on Marriage”). A marriage will be deemed to be valid if it is carried out in accordance with the law of the relevant religion and belief.
Under a marriage, normally there will be procurement of assets. Assets collected during the marriage become the common assets of the husband and the wife. Assets possessed and brought by either the husband or the wife prior to the marriage as well as assets obtained by either the husband or the wife from any gift or inheritance, shall remain under the possession of the relevant party (husband or wife), unless otherwise determined by the parties.
In terms of assets, it is possible to draw a pre-nuptial agreement. By a pre-nuptial agreement, the parties could agree with each other that assets collected during the marriage shall not automatically become a common asset. Further the parties could also agree on assets distribution in the event a divorce happens. A pre-nuptial agreement shall be made in writing and requires legalization by an official in charge of marriage register. In no event may a pre-nuptial agreement violate any laws and regulations, law and principles of the relevant religion, as well as decency.
Termination of a marriage along with the legal consequences thereof is broadly stipulated in the Law on Marriage. A marriage could terminate due to death, divorce, or upon court decision.
A divorce can only be processed before the Court proceedings after unsuccessful attempt for reconciliation. When the parties are Moslems, the court having competency to examine the case is Religion Court (Pengadilan Agama). When the parties are non Moslem, the competent court is District Court (Pengadilan Negeri).
Claim for a divorce (lawsuit) shall be brought to the court which jurisdiction includes the legal domicile of the defendant (divorcee). The lawsuit for a divorce shall be filed by a husband or a wife to the District Court in the legal domicile of the defendant. If a Religion Court be the competent court, the lawsuit for divorce shall be filed to the Religion Court having jurisdiction towards the legal domicile of the wife.
Court decision pertaining to a lawsuit for divorce shall be read out by the Judge in an openly held court trial. When the divorcing parties are non-Moslem, the divorce shall be deemed to take place upon registration of the court decision with the Register Office. Whilst for Moslem divorcing parties, the divorce shall take place when the decision of the Religion Court is final.
Said, Sudiro & Partners
Indonesian Attorneys at Law
Sampoerna Strategic Square
South Tower, Level 18
Jl. Jend. Sudirman Kav. 45 - 46
Jakarta 12930 Indonesia
Phone: (62-21) 575.0983
Fax: (62-21) 575.0803
P.O. BOX 8211 JKS.SB