marriage

What to Do When Your Marriage Just Isn't Going to Work Out

We asked a lawyer to walk us through how to get divorced.
December 12, 2017, 8:45am
Illustration by Dini Lestari

Indonesia's biggest lawyer had some simple advice for women considering a divorce: take a serious look at your bank account first. Hotman Paris Hutapea, an attorney in some of the country's biggest cases, was speaking in a now viral video, drink in hand. He explained that Indonesia's divorce laws are "weak and unfair," and, more often than not, women ended up walking away from the marriage with none of their shared assets in their name.

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Getting a divorce in Indonesia is about as stressful—and expensive—as getting married these days. But still more-and-more Indonesians are actually getting divorced, either a sign that the stigma around divorce is less today or that people are choosing the wrong person more often. Or maybe they're just more willing today to admit that some marriages just aren't built to last.

The Ministry of Religious Affairs did a survey that discovered that divorce rates had risen by 20 percent between 2010 and 2015. In 2012, there was an average of 40 divorces occurring every hour for an entire year. That's a lot of couples calling it quits.

Now look, there's nothing wrong with getting divorced. Sometimes two people just aren't the best fit. But if you're going to go through with it, make sure you actually know all the facts first. Marriage is hard, but divorce in Indonesia is even harder.

We reached out to Anang Alfiansyah, the founding partner of Alfiansyah Anang & Partners Law Firm, to get the kinds of advice you would typically need to pay for. So if you, or someone you know, is considering a divorce, read on.

KNOW THE LAW

OK, so maybe this seems like a given. Of course you should know the law. But law is complicated and it takes a skilled attorney to make the law work for you (it's why we pay a lawyer to represent us). So before you start the divorce proceedings, you need to understand how the law works—especially if you're a woman.

This is because under Indonesian law a man is always seen as the de-facto head of the household. Women, even if they work full-time and make more money than their spouses, are rarely seen as the primary breadwinner. And those who don't work are put in an even tougher situation.

Meanwhile, women are typically awarded custody of the children—which taken together means that most divorces leave women financially vulnerable and with mouths to feed.

"Don't sue your husband for divorce before you have enough money and a safe financial situation," Hutapea said in the viral video. "Indonesian laws are weak and unfair regarding this."

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But Alfiansyah doesn't totally with Hotman's off-the-cuff assessment either. Just because a woman isn't wealthy, doesn't mean she shouldn't be able to file for divorce. If your marriage is beyond saving, why wait? And in instances of domestic violence and abuse, women should sue for divorce immediately.

FILE YOUR DIVORCE PAPERS

The difficult part of the divorce process often isn't the divorce itself, but the aftermath. If both parties agree to a divorce, then it's a fairly smooth road going forward. But if one of them disagrees, then expect for a rocky road. Under Indonesian law, both the husband and the wife have the right to ask for a divorce hearing session. If it's submitted by the woman it's called a "gugatan cerai," or divorce lawsuit. If it's submitted by the man, it's a "permohonan cerai," or divorce request.

SCENARIO #1: YOU BOTH WANT TO CALL IT QUITS
If both of you want a divorce, then you both need to be ready to accept the fact that you might lose full-time custody of your children and that your assets are going to be divided up. In this type of divorce, the hearing is pretty simple. It's just a matter of going through all the procedures and then it's over before you even know it.

SCENARIO #2: ONLY ONE OF YOU WANTS A DIVORCE
This is where it gets a bit more difficult. One way to make sure you get your divorce is to appeal, appeal, appeal. Yeah, in Indonesia, you can take a divorce all the way to the Supreme Court. But this is all very time consuming (and expensive), so if you're heading down this path, make sure you have a clear schedule. And this is only to end a marriage, splitting up the assets and custody of your kids comes later.

SO WHAT ABOUT THE KIDS AND THE MONEY?

This is going to work out in one of two ways, Alfiansyah explained. The custody and assets are split up after the divorce is granted, so you first need to go down the road a ways before you even start to talk about how the split works.

Well, that's not entirely accurate, Alfiansyah told VICE. According to the nation's religious courts law, a woman can submit a parallel lawsuit covering custody, alimony, and the division of assets at the same time as their divorce suit, but the courts won't split up any couple's assets until after the divorce is actually official.

SCENARIO #1: YOU'RE RICH AND YOU HAVE A LOT TO DIVIDE UP
Well, first of all, congrats for having all that money I guess. Now get ready for the hard part. If you own multiple homes or a lot of land, then you're going to need to through a separate property lawsuit. If you don't break the property portion of your divorce off from the rest of the proceedings, then the whole thing is going to take FOREVER because the courts will need to assess both your combined and individual wealth as well as the causes of the divorce.

If you just can't get along anymore, or if you need to get out of there ASAP, then separate the two to expedite the entire process.

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SCENARIO #2: YOU'RE NOT ALL THAT RICH OR YOU HAVE A CLEAR BREAKDOWN OF WHO OWNS WHAT
So if you're not rich, or if you signed a prenuptial agreement or some other legal document that clearly demarcated who owns what then you can just go through with a consolidated trial, Alfiansyah explained.

THE TRIAL PROCESS

Divorce hearings are conducted in several stages. But they are also closed to the public (to protect everyone's privacy), so you might be a bit nervous about the whole process. Here's how it's going to work: first you're going to go before the judge and answer some questions about whether it's possible for you two to eventually work your issues out. This part typically includes mediation in separate rooms.

Then both parties are asked to tell their sides of the story. The court then verifies that the marriage is actually legal in the first place before witnesses are called in to verify each person's stories.

If the husband and wife agree to work it out, then the trial is over. If not, then the process continues. There's a findings trial, where lawyers for both sides present their evidence, and then there's a verdict trial, where the court issues a ruling. The whole process typically takes about 12 weeks from start-to-finish.

But even then, the two of you aren't immediately divorced. The law requires a 14 day period to mull the whole thing over. During this window either party can file an objection with the court's decision, which then sets into motion the appeals process. The appeals go to the High Court first, then the Supreme Court after.

THE AFTERMATH

The trial is only half the battle, Alfiansyah told VICE. If you don't have a prenup detailing what to do in the case of a divorce, then here's the other stuff you're going to need to take into account:

CHILD CUSTODY
If your kids are 12 years old or younger, they aren't allowed to decide who they live with. According to the law, the mother is automatically granted custody because culturally mothers are seen as having a closer connection to younger children than the fathers. There are always exceptions to this rule though, like if the mother was proven to be unable to fulfill her role in the course of the trial.

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CHILD SUPPORT
What if you were granted custody of your young child, but you were a housewife before the divorce? Who is going to pay for the child's upbringing? Most housewives in Indonesia don't have a separate savings account, and their husbands might have gotten the house.

Money, then, become an issue. So there's some good news here and some bad news. Under Indonesian law, the father is financially responsible for supporting his children, so he has to pay child support to cover their upbringing, plus school fees. But once a divorce is final, he no longer owes any money to his ex-wife.

The way it typically works is that the man usually gives his wife a "gift," on his own initiative. Or she can ask the judge for her former partner to grant her a gift. Usually this is done when the woman is in a bad financial situation, especially if they have to support a child alone. But this doesn't count as child support (that needs to be paid too) and it isn't an obligation.

DIVIDING THE WEALTH
The courts determine a couple's wealth by measuring the money earned by both parties during the course of the marriage. If the couple signed a prenup before tying the knot, they will leave with whatever they made on their own.

But if no one signed a prenup before, then the law says that whatever money is earned during the course of the marriage belongs to both parties. So the courts will try to divide the wealth equally, regardless who made more money while the marriage was still in-effect.

Personal assets, like gifts, inheritance, or any assets they had before being married (like property or a house) still belong to the individual. The split is the subject of a court hearing, and since we're talking about money you can bet on this part of the divorce getting pretty ugly.

Well, that's about it. Not so easy is it? So I guess couples need to think twice before they put a ring on it. And again before they toss it. Or just do the sensible thing and see a lawyer beforehand.