For couples who married abroad, filing for divorce in Indonesia raises two main questions: is their marriage recognised under Indonesian law, and which Indonesian court, if any, has jurisdiction? The answers depend on several factor, includings the validity of the marriage , the spouses’ religion, and their respective place of residence. A further question is whether the marriage must already have been registered in Indonesia before a divorce case can be heard. These issues must be considered separately: recognition of the marriage, the administrative duty to register it, and the court’s jurisdiction are related but distinct matters.
Validity of the Marriage
Indonesian law recognises the validity of a marriage conducted outside Indonesia under Article 56 of Law Number 1 of 1974 on Marriage (“Law No. 1/1974”), whether between two Indonesian citizens or an Indonesian citizen and a foreign citizen. Under Article 56(1), the marriage must comply with the laws of the country where it takes place and, for the Indonesian citizen, must not violate Law No. 1/1974. Article 56(2) further requires the marriage certificate to be registered with the marriage registration office at the couple’s place of residence within one year of their return to Indonesia.
Furthermore, Supreme Court Circular Letter No. 3 of 2015 (“SEMA No. 3/2015”), under the Special Civil Matters section, letter (g), provides that a marriage conducted abroad which has not been registered with the relevant marriage registration office in Indonesia is deemed never to have existed.
However, the registration requirement and its legal consequences must be distinguished from the question of whether an Indonesian court may hear and decide a divorce case. While non-registration may raise issues concerning the legal recognition of the marriage, it does not necessarily mean that divorce proceedings cannot be brought before an Indonesian court, as illustrated by the court decision discussed below.
Does Non-Registration Automatically Prevent a Divorce Case?
Registration in Indonesia is an obligation under Article 56(2), but the provision does not expressly state that non-registration automatically invalidates the marriage of removes the Indonesian court’s jurisdiction over a divorce. The distinction between registration and jurisdiction is important in Article 56(1) and Article 56(2) of Law No. 1/1974. Neither provision expressly says that failure to register automatically deprives an Indonesian court of subject-matter jurisdiction over every divorce case. Nevertheless, a court must be satisfied that a legally cognisable marriage exists before it can dissolve that marriage. Non-registration can therefore create a serious evidentiary or procedural obstacle, even if is not necessarily an automatic jurisdictional bar.
This distinction is illustrated in Ruling of District Court of Sumbawa Number 65/Pdt.G/2024/PN Sbw, involving a foreign couple who were married in France and subsequently resided in Indonesia. Although their marriage had not been registered in Indonesia, the couple pursued divorce proceedings before an Indonesian court, which ultimately granted the divorce.
In reaching its Ruling, the court considered the marriage certificate issued by the relevant French authority and stated as follows:
“Considering that, based on the foregoing considerations, the Panel of Judges is of the opinion that the second prayer for relief in the Plaintiff’s claim, requesting the Court to declare that the marriage between the Plaintiff and the Defendant, solemnised in Bourg-Saint-Maurice, France, on 12 June 2020, as evidenced by the Full Copy of the Marriage Certificate issued by the Government of Bourg-Saint-Maurice on 12 June 2020, be dissolved by divorce with all its legal consequences, is well-founded and should therefore be granted.”
Notably, the marriage had not been registered in Indonesia, and the parties relied on a sworn Indonesian translation of their French marriage certificate as evidence of their marriage. Despite the absence of Indonesian registration, the court accepted the marriage certificate as evidence and granted the divorce.
This decision demonstrates that non-registration of a foreign marriage in Indonesia does not necessarily prevent an Indonesian court from granting a divorce. Rather, the court may still examine the validity of the marriage based on the evidence presented and determine whether the marriage can be dissolved under Indonesian law. Accordingly, the absence of registration should not automatically be equated with a lack of jurisdiction to hear a divorce case
Jurisdiction of Indonesian Court
Another important consideration is whether the Indonesian courts have jurisdiction over the divorce. This depends, among other things, on where each spouse resides and whether the case falls within the jurisdiction of the District Court or the Religious Court.
a. Where one spouse resides in Indonesia
A divorce may generally be filed in Indonesia where one spouse resides in the country, subject to the applicable jurisdictional rules. For proceedings before the District Court, Article 20 of Government Regulation No. 9 of 1975 on the Implementation of Law Number 1 of 1974 on Marriage generally requires the claim to be filed where the defendant resides. If the defendant resides abroad, the claim may be filed where the plaintiff resides.
For Muslim couples, divorce is generally filed before the Religious Court where the wife resides, as regulated under Articles 66(2) and 73(1) of Law Number 7 of 1989 on Religious Court (“Law No. 7/1989”), subject to the exceptions specified therein. If the wife resides abroad and the husband resides in Indonesia, the case is filed where the husband resides, as regulated under to Articles 66(3) and 73(2).
b. Where both spouses reside abroad
The key issue here is whether the Indonesian courts have jurisdiction over the divorce. The fact that the marriage took place abroad does not, by itself, prevent a couple from filing for divorce in Indonesia. However, where both spouses reside abroad, the applicable jurisdictional rules require closer examination. It also may depend on the type of court and the specific statutory provisions applicable.
In Supreme Court Ruling No. 1544 K/Pdt/2015, the Court held that the Surabaya District Court lacked jurisdiction because both spouses centered their daily lives in Pima County, Arizona, United States. In determining their residence, the Court considered where they actually lived and carried out their daily activities, rather than merely the address stated on an Indonesian identity card. The Court therefore concluded that the divorce should have been filed before the competent court in Arizona.
Different rules apply to divorce proceedings of Muslim couple which take place before the Religious Court. Article 66(4) of the Law No. 7/1989, which governs divorce applications filed by husbands (cerai talak), and Article 73(3), which governs divorce claims filed by wives (cerai gugat), expressly address situations where both spouses reside abroad. These provisions allow proceedings to be filed before the court whose jurisdiction covers the place where the marriage took place, or before the Central Jakarta Religious Court.
Conclusion
A couple who married abroad may divorce in Indonesia, provided that the marriage is legally recognised and the Indonesian courts have jurisdiction. This provision is still applicable even if the marriage has not yet been registered in Indonesia. Article 56(2)’s registration requirement should not automatically be treated as a bar to the court’s authority to hear the divorce. Nevertheless, non-registered marriage may complicate proof of marital property. The appropriate court depends on the spouses’ religion, residence, and applicable procedural rules. Where both spouses reside abroad, particular care is needed: the District Court’s jurisdiction may be limited, while specific provisions allow Muslim couples to file before the Religious Court in certain circumstances.