You and your spouse are foreigners. Both of you have been living in Indonesia for several years due to work commitments. Either your spouse works in Indonesia or being your dependent, both of you are residents of Indonesia. After all you have been through, you find the romance is no longer exists and you are seeking divorce as the ultimate solution.
In any country, divorce is tough for everyone involved. Obtaining a divorce can be costly and expensive. It’s even tougher when you file for divorce in a foreign country. The last thing you want to do is file for divorce in your home country and have the court dismiss your case due to lack of subject matter of jurisdiction. This could cost you even more.
Legal doctrines may say that you are now the subject of International Civil Law due to your long residence abroad. It’s pretty complicated whenever there is more than one legal system involved in your particular case. You need to work through all the necessary procedures in order to see that it’s possible to file for a divorce in Indonesia, when both spouses are foreign nationals.
Indonesian Court Perspective
The Indonesian legal system should not refuse to examine, hear, and decide a case filed, even when there is no clear legal reason for the case to be filed in an Indonesian court. The court is obliged to examine and judge the case. This is a basic principle in the judicative system in Indonesia. Period.
The court may not refuse to examine the case. But do they have any jurisdiction over your case? If, both of you are foreign nationals and your marriage was conducted and legally registered abroad you may wonder if the Indonesian courts could have jurisdiction over a divorce in your case.
Let’s Cut to the Chase: The International Civil Law (ICL)
In the divorce between two foreign nationals, there are foreign elements involved. Therefore, the case shall be considered as an ICL proceedings. ICL is a national law. It’s not a supranational law or international law. Therefore, every country, including Indonesia, has ICL system respectively. Furthermore, there are major issues within the ICL, they are Choice of Law and Choice of Forum/Jurisdiction. Official domicile of the Parties is a link point to determine the forum court of competent jurisdiction to examine the case. This deals in determining the personal status of a person.
There are several ways to determine the personal status of a person that is principle of citizenship or nationality (Lex Patriae) and principle of domicile. In the principle of nationality, one’s national law determines his/her personal status. It means, even though one is residing abroad, his/her nationality law shall prevail and therefore the court in his/her home country shall have jurisdiction upon him/her. While the principle of domicile, on the other hand, one’s personal status is determined from the country where they live. It means that the law and the court where he/she lives shall have jurisdiction upon him/her.
Each country has different principles in determining one’s personal status. Let’s take Indonesia and the United States as examples. Indonesia adheres to the civil law as its legal system, while United States adheres to the common law legal system. Civil law countries use the principle of nationality and common law countries use the principle of domicile. These are very closely related to the jurisdiction of the court to adjudicate a case of divorce. Therefore, the marriage of the US nationals must be dissolved in their country.
On the other hand, according to the state that adheres to a common law system such as United States, the party’s residence or domicile must exist at the time the proceedings are filed. In order for a US court to have subject matter jurisdiction to dissolve a marriage, either party must have been physically present within the country for a certain period of time prior to the filing of the petition for dissolution of marriage. The divorce, therefore, should be finalized in their country of domicile.
This is where renvoi (re-appointment) serves. Renvoi arises because of the differences in determining one’s personal status. It requires the US court to dismiss your divorce case due to lack of subject matter of jurisdiction. Although Indonesia is not a state of the United States of America, nevertheless, the Indonesian decree is an order from a foreign nation which the US court cannot ignore subject to certain restrictions. Furthermore, the court shall re-appoint Indonesia as the forum in dissolving the marriage. This is where Indonesian court has jurisdiction based on the re-appointment (renvoi).
So What Next?
In Indonesia, marital dissolution is a personal status related case under the category of family law. If both spouses are US nationals, the Indonesian court shall consult and utilize US family law regarding legal grounds for marital dissolution during the proceedings. The legal grounds in the US family law must not contradict with the public policy (ketertiban umum) in Indonesia. To be more specific, it must be in line with the legal grounds for divorce as stipulated in Indonesia’s Marriage Law and its implementing regulations.
Let's Take It to the Next Level!
After the Indonesian court declared the jurisdiction to adjudicate the case, and the legal grounds for divorce is in line with the public policy in Indonesia, the case shall be tried by using Indonesia’s civil procedures law. This is when the case enters regular phase within the Indonesian court.
I am Asep Wijaya, Managing Director of Wijaya & Co. Thank you for visiting my blogs and reading my posts.
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