Divorce Proceedings Between Foreigners and Indonesians
- Tiffany Efny Tampubolon, S.H., LL.M.
- Sep 7
- 9 min read
Updated: Sep 8
In the journey of life, every person will inevitably experience meetings and farewells. The same applies to the bond between a man and a woman: they meet in marriage, hoping for happiness, yet separation may come through death or divorce. Marriage is a sacred union that binds two people in love. However, even with its sanctity, it cannot be denied that separation between husband and wife—known as divorce—still occurs.
Divorce in Indonesia happens across all levels of society. It is no longer considered taboo or a source of shame. Shifting social values, the rapid flow of information due to globalization, and economic pressures have all contributed to the rising divorce rate. The increasing complexity of modern life seems to normalize divorce as a common reality.
Divorce can happen to anyone, whether among Indonesian couples or those in mixed marriages. For cross-cultural couples, differences in nationality, culture, and social background often make the relationship more vulnerable to separation. Many cases have shown that mixed marriages between Indonesians and foreigners fail to achieve their purpose and eventually end in divorce.
In this article, we will discuss the process of divorce in Indonesia for mixed couples where one spouse is an Indonesian citizen (WNI) and the other is a foreign national (WNA). The discussion will be divided into several subtopics:
What Is Divorce and the Laws That Regulate It?
Divorce is the legal termination of a marriage bond between husband and wife, ending their status as spouses and their shared household life. Divorce occurs when one or both parties decide to separate and no longer fulfill their marital obligations.
According to the Kamus Besar Bahasa Indonesia (KBBI), divorce is defined as separation, the dissolution of a marital relationship, or the breaking of a marriage bond. For most couples, divorce is one of the least desired outcomes. It is considered a last resort to resolve conflicts, disputes, or irreconcilable differences within a marriage.
In Islam, divorce is referred to as talak, which means releasing the marital bond. Divorce in Islam is only permissible as a final option after all efforts to maintain the household have been exhausted.
The termination of a marriage in Indonesia is regulated by several legal sources. Article 38 of Law No. 1 of 1974 on Marriage, in conjunction with Article 113 of the Compilation of Islamic Law (KHI), stipulates that a marriage can end due to:a. Death;b. Divorce; orc. A court decision.
Furthermore, Article 114 of the Compilation of Islamic Law states:“The dissolution of a marriage due to divorce may occur either through talak (pronouncement of divorce by the husband) or based on a divorce lawsuit.”
In practice, many couples in Indonesia ultimately choose to separate. The most common reasons for divorce in Indonesia include incompatibility in various aspects of life, differences in values and perspectives, and unresolved disputes. Conflicts arising from differing expectations, lifestyle choices, or even interference from family and friends can also lead to divorce.
Divorce Must Go Through the Court
Choosing and deciding to divorce means facing a court process. This is because a legally valid divorce in Indonesia can only be filed and processed through the court system.
As stipulated in Article 39 paragraph (1) of the Marriage Law,“Divorce can only be carried out before a court session after the court has attempted, and failed, to reconcile both parties.”
Similarly, Article 115 of the Compilation of Islamic Law (KHI) states:“Divorce can only be carried out before the Religious Court after the court has attempted, and failed, to reconcile both parties.”
This principle also applies to divorce in Indonesia involving mixed marriages, where one spouse is an Indonesian citizen (WNI) and the other is a foreign national (WNA). The divorce must still follow the same legal procedures as marriages between two Indonesians.
The case must be brought before either the Religious Court (Pengadilan Agama) or the District Court (Pengadilan Negeri), depending on the religion governing the marriage.
It is important to note that the Embassy of the Republic of Indonesia does not have the authority to process divorces. Only Indonesian courts—religious or general—have jurisdiction to decide divorce cases in accordance with the law.
However, many couples often feel confused or overwhelmed when dealing with the divorce process. For the general public, filing a divorce lawsuit is not always straightforward, and for mixed marriages, the procedure can become even more complicated, consuming significant time, energy, and financial resources.
Divorce is never easy, and this is especially true for divorce in Indonesia involving mixed marriages. One of the most common challenges is when one or both parties cannot be physically present in court, which can significantly hinder the progress of the divorce proceedings.
Legal Grounds for Divorce in Indonesia
A divorce in Indonesia can only take place if there are sufficient reasons to prove that the husband and wife can no longer live harmoniously as a couple. This principle is set out in Article 39 paragraph (2) of the Marriage Law, which states:“To carry out a divorce, there must be sufficient reasons to indicate that the husband and wife will not be able to live in harmony as husband and wife.”
Further, Article 116 of the Compilation of Islamic Law (KHI) provides detailed grounds for divorce in Indonesia, including:
One spouse commits adultery, becomes an alcoholic, drug addict, gambler, or engages in other harmful behavior that is difficult to cure;
One spouse abandons the other for two consecutive years without permission and without valid reason, or due to circumstances beyond their control;
One spouse receives a prison sentence of five years or more after the marriage has taken place;
One spouse commits severe cruelty or abuse that endangers the other;
One spouse suffers from a physical disability or illness that prevents them from fulfilling their marital duties;
Continuous disputes and quarrels between husband and wife with no hope of reconciliation;g. The husband violates the conditions of taklik talak (conditional divorce pledge);h. A change of religion or apostasy by one spouse that creates disharmony in the household.
These provisions form the legal basis for filing a divorce lawsuit in Indonesia. Each reason must be adjusted and proven according to the circumstances of the couple’s situation.
Key Requirements and Divorce Process for Mixed Marriages (Foreigners and Indonesians) in Indonesia
Divorce in Indonesia involving a mixed marriage between a foreign national (WNA) and an Indonesian citizen (WNI) has its own dynamics, because it touches upon aspects of international private law. The applicable law depends on the jurisdiction of the court where the divorce is filed, as well as the national laws of the parties involved.
If the divorce lawsuit is filed in an Indonesian court, then the requirements, grounds, and procedures for divorce must follow Indonesian law, while also taking into account the national law of the foreign spouse.
General Requirements for Filing Divorce Between WNA and WNI in Indonesia:
The marriage must be legally valid under Indonesian law.
One or both parties must have lived in Indonesia for at least one year before filing the lawsuit.
There must be sufficient legal grounds for divorce.
The divorce must be filed with either the Religious Court (Pengadilan Agama) or the District Court (Pengadilan Negeri), depending on the religion of the parties.
In Indonesia, there is a clear jurisdictional distinction: the Religious Court has authority over divorce cases for Muslims, while the District Court handles cases for non-Muslims.
In practice, the divorce process for mixed marriages is not very different from divorce between two Indonesian citizens. However, there are several specific points that couples in mixed marriages should pay attention to:
Preparing a divorce petition in Bahasa Indonesia (no obligation to translate it into a foreign language).
Filing the divorce petition at the District Court or Religious Court in the plaintiff’s domicile.
Preparing required documents, including:
Copy of ID cards (KTP) of both parties
Religious marriage certificate (for non-Muslims)
Family card (KK)
Child’s birth certificate (if any)
Divorce petition letter
Providing supporting evidence related to the grounds for divorce.
Attending mediation, as the court will attempt reconciliation.
If mediation fails, the trial proceeds under the Civil Procedure Code.
Presenting at least two witnesses.
Receiving the divorce judgment issued by the court.
For Muslims: obtaining a Divorce Certificate (Akta Cerai) from the Religious Court.
For non-Muslims: registering the divorce at the local Civil Registry Office.
If the plaintiff resides abroad, they must appoint a lawyer in Indonesia through a power of attorney legalized by the Indonesian Embassy (KBRI).
Divorce When Both Spouses Reside Abroad
If both husband and wife live overseas, Article 66(4) of Law No. 7 of 1989 on Religious Courts applies:
If the marriage was conducted in Indonesia, the divorce can be filed either at the Religious Court in the place where the marriage took place or at the Central Jakarta Religious Court.
If the marriage was conducted abroad, the marriage must first be registered with the Office of Religious Affairs (KUA) within one year before filing for divorce.
If the marriage has not been registered either at the KUA or the Civil Registry, the divorce application may still be submitted to the Central Jakarta Religious Court or the Central Jakarta District Court.
Additionally, Article 73(3) of the Religious Courts Law regulates that if both spouses reside abroad, the divorce must be filed at the court in the area where the marriage was conducted, or alternatively, at the Central Jakarta Religious Court.
Common Challenges in Divorce Between Foreigners and Indonesians in Indonesia
Divorce in Indonesia involving mixed marriages between a foreign national (WNA) and an Indonesian citizen (WNI) often raises both legal and social complications. For this reason, it is crucial for couples in international marriages to fully understand the applicable regulations before initiating the process.
Based on practice, at least three recurring issues are most commonly encountered during the divorce process in Indonesia for mixed couples:
Residence permit (izin tinggal) of the foreign spouse;
Citizenship and child custody of children born from the marriage;
Division of marital property, particularly immovable assets such as land, houses, or buildings.
Residence Permit Issues
One of the main challenges for WNA spouses in divorce cases is related to their immigration status. Foreigners typically hold a Temporary Stay Permit (ITAS) or Permanent Stay Permit (KITAP) sponsored by their Indonesian spouse, under a family visa scheme. When divorce proceedings begin, this sponsorship legally loses its validity.
As a result, the foreign spouse may face administrative difficulties, such as rejection of permit renewal by the Directorate General of Immigration. In practice, many foreigners lose or cannot extend their residence permits once the divorce is finalized. Without quickly adjusting their immigration status (e.g., switching sponsorship to a company, business activity, or applying for an independent stay permit), they risk violating immigration law—leading to fines, deportation, or even blacklisting.
To avoid this risk, couples should prepare a residence permit strategy early in the divorce process. This includes reviewing the current validity of the permit, exploring alternative sponsors, and consulting with Immigration offices or competent legal counsel. Ideally, these adjustments should be made before the divorce judgment becomes final.
Child Custody and Citizenship Issues
Another critical issue in divorce in Indonesia is the status of children from mixed marriages. Under Law No. 12 of 2006 on Citizenship, children from mixed marriages may hold dual nationality until a certain age. Divorce often raises disputes over whether a child should remain in Indonesia, move abroad, or retain a particular citizenship.
Custody (hak asuh anak) is equally sensitive. Indonesian courts generally grant custody of children under 12 to the mother, but in mixed marriages, other factors such as domicile, financial ability, and parental presence are taken into account. If one parent resides abroad, implementing custody and visitation rights becomes complex, requiring additional legal and logistical arrangements.
Division of Marital Assets
The division of joint marital property is another recurring problem, especially when no prenuptial agreement exists. By default, Indonesian law considers assets acquired during marriage as joint property. Complications arise when these assets are immovable property (land, houses) because foreigners are prohibited from owning freehold land (hak milik) in Indonesia.
Often, property is registered in the Indonesian spouse’s name, even though the foreign spouse contributed financially. This makes division during divorce extremely difficult, especially without documented proof of shared ownership. Matters are further complicated by differences between Indonesian law and the foreign spouse’s national law. For instance, some countries apply “community property” rules (50-50 division by default), while Indonesia requires evidence of contribution and legality of ownership. Mediation is strongly recommended to avoid prolonged, cross-border litigation.
Other Challenges
Additional difficulties include:
One or both spouses being unable to attend court hearings in Indonesia;
Difficulty collecting necessary documents located abroad;
Differences between Indonesian legal systems and foreign legal frameworks.
Because of these challenges, hiring a lawyer (pengacara/advokat) is highly recommended in divorce in Indonesia, particularly for mixed marriages. For spouses living abroad, legal representation is mandatory, with a power of attorney legalized by the Indonesian Embassy (KBRI). Lawyers will handle the entire process—from drafting and filing the petition, attending hearings, presenting witnesses and evidence, to securing the final divorce judgment and divorce certificate.
Final Notes
While divorce can be a necessary solution when a marriage can no longer be maintained, the process often brings unexpected difficulties. By understanding the specific procedures and common challenges of divorce in Indonesia for mixed marriages, couples can better prepare for the legal and practical realities both during and after divorce.
In principle, the requirements and process for divorce between WNA and WNI are not drastically different from those for Indonesian couples. However, couples residing abroad must be prepared to appoint a lawyer in Indonesia to manage the process efficiently and lawfully.
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Disclaimer: This article is written for educational and informational purposes only. It does not constitute legal advice and should not be relied upon as a substitute for professional guidance. The process and outcome of divorce in Indonesia can vary significantly depending on the unique facts, circumstances, and legal issues of each case. For accurate and tailored advice, it is essential to consult directly with a qualified lawyer who can assess your specific situation.
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