Quite recently, a prominent Indonesian Muslim scholar, Nazarudin Umar, expressed curiosity as to why the divorce rate in Indonesia has increased, particularly after the Supreme Court adopted a one-roof judicial system. According to him, most judges at the Religious Courts conduct divorces for couples too easily.
As a judge, and based on my experiences in many divorce cases, such a statement is absolutely wrong. Worse, Nazarudin said most judges were motivated to gain “reward points” for promotion in their careers. The more they separate spouses, the more reward points they get.
Let us look at the real condition. Law No. 1/1974 on Marriage and Government Regulation No. 9/1975 on the implementation of the Marriage Law clearly state that divorce is not allowed to be carried out except in court, after careful examination of each case by judges.
The law stipulates that divorce can only be allowed for one of the following reasons: One of the spouses is adulterous, a drunk, a junkie or a gambler, and he or she is not yet rehabilitated; one spouse leaves the other for two years successively without any legal reason or the other’s permission; one of the spouses is convicted by a court and sentenced to five years’ incarceration or longer during the marriage; one of the spouses commits cruelty and extreme oppression which threatens the other’s safety; one of the spouses suffers from a disease and/or physical defect which is incurable, preventing him or her from fulfilling his/her spousal duties; and the spouses are in an extreme and continuous dispute without hope of living together in harmony.
The law stipulates some difficult requirements that need to be fulfilled by spouses seeking divorce. The law does not recognize as a basis for divorce the kind of agreement that is accepted in Australia: namely, where spouses can mutually agree to end their marriage contract after 12 months of living separate lives.
I often found many spouses tried to deceive the law by presenting a joint agreement to divorce while they did not have any legal reason to support their desire to divorce as stated by the law. In this case, judges are not immediately convinced to divorce them, but must examine whether they really have strong legal reasons or not. Judges will not divorce spouses if their marriage is in fact harmonious.
Furthermore, judges are obliged to comply with Supreme Court Regulation No. 1/2008 on mediation procedures in courts. Article 2, verse 4, states that judges must mention in their verdicts that a mediation procedure has been performed. If not, a verdict will be declared invalid.
Spouses are given 40 days for mediation, which is extendable by 14 days. Indeed, spouses have ample time to find the best solution for their marriage. They are assisted by a professional, independent mediator, or one of the judges acts as mediator.
The courts work hard to save family unity and it often pays off. It is urgently noted that in litigation, judges endeavor to reconcile spouses by giving them advice.
Do the judges seek “reward points”? It is obviously a contemptible accusation. As judges, we are never promised that. On the contrary, we are required to give serious attention to the mediation procedure. Indeed, the Supreme Court has provided a number of mediation trainings for judges. It is all aimed at saving Indonesian families.
Frankly speaking, we feel very happy when we succeed in mediating conflicting spouses. They will continue their married life with their beloved children in harmony.
It is no different in style or trend to the litigation procedures in religious courts after the one-roof system took effect. Judges apply the same procedural law they used to follow.
So why does divorce increase every year? There are so many factors involved, all of which are very complicated and interrelated behind a decision to divorce.
First, a poor economic condition within a family will influence the longevity of married life. In 2010, divorce data from the Directorate General of the Religious Courts (Badilag) showed that 67,891 couples (24 percent) divorced due to economic problems.
In Indonesia, it commonly happens that a young man is allowed to marry a girl even though he is not economically independent. He has no permanent job to make money. Even worse, he still completely depends on maintenance from his parents.
Second, a lack of responsibility by spouses for their marriages is also responsible for divorce. A husband leaves his wife for several years and he never comes back. In some extreme cases, he even marries another woman. There were 78,407 divorces (27 percent) in 2010 due to this reason.
Third, a continuing dispute between spouses also causes divorce. This is commonly triggered and prolonged by bad communication, immaturity, a lack of mutual understanding, etc. In this case, judges will examine whether there is a possibility or not to save a family by giving the spouses more time. Judges will also commonly suggest that, in such cases, they should seek reconciliation with help from their families, religious leaders, priests and others. The data shows that 40 percent, or 112,374 couples divorced due to this factor.
Fourth, awareness of the law, particularly relating to people’s rights, also plays an important role in causing divorce. When a spouse is consciously aware that his or her marriage is not working anymore and has broken down, he or she will suddenly think to come to the court. They already know that divorce can only take place in court as stipulated by the law.
Interestingly, most women have begun to understand that they also have the legal right to end their marriage. In 2010, 169,673 divorce cases (57 percent) were filed by women, and 81,535 (28 percent) by men.
It is necessary to note that according to article 10 verse 1 of Law No. 48/2009 on Religious Courts, courts are not allowed to reject any case filed with them. Thus, judges have to examine and decide the cases brought before them.
The divorce rate is increasing because spouses file their cases with the courts. The religious courts are the final step in solving family problems in terms of the law.
The writer is a judge at the Religious Court in Cilegon and a staff member with the Directorate General of
Religious Courts for Foreign Affairs. The opinions expressed are his own.