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Marriage and divorce practices across Southeast Asia have transformed as a result of the social and economic changes associated with industrialisation. The understanding of marriage in traditional Southeast Asian societies as both a civil and religious union has been increasingly challenged, along with changes in perceptions of self, family, and society. This is true for Indonesia too.
One of the unavoidable results is that divorce, especially among Muslim families (the majority in Indonesia), has become more common. The dominant idea that marriage is a central component of Islam and a requirement for leading the life of a good Muslim now seems open to negotiation. While many see the rise in legal divorces as alarming, the fact is that in many cases divorces are just a formalisation of existing marriage failure, for example, where the wife and children are abandoned by the husband, an event common in Indonesia.
Divorce cases form the single largest group of contested cases in the Indonesian judicial system. In fact, in 2010, divorce cases represented 80 per cent of all civil cases heard in Indonesia. Data from Indonesia’s Religious (Islamic) Courts, which have exclusive jurisdiction over Muslim marriage and divorce, show that there has been a significant increase in the number of state-sanctioned divorces over the past decade.
While 251.208 cases of divorce were decided by Religious Courts nationally in 2010, the number increased by half again to reach 382.231 cases in 2014. About 80 per cent of the divorce applications were made by women and were granted by the courts.
Legal scholars explain that the rise in the number of successful divorces is a result of a series of judicial reforms, which started in the 1990s with the introduction of fee waiver and circuit courts, as well as capacity building programs that have strengthened judges’ awareness of women’s rights and gender.
Islamic family law was liberalised by the introduction of Law No.1 of 1974 on Marriage, which allowed women to petition for divorce for the first time, and the 1991 Compilation of Islamic Law, which limited the rights of husbands to unilateral divorce (talak) by requiring all divorces to be heard in court, and regulated rights to spousal maintenance and child support post-divorce. These legislative instruments have become hallmarks of Islamic family law reform in Indonesia.
The Compilation was authored by the Ministry of Religious Affairs and Supreme Court judges and aimed to promote consistency in the application of Islamic law on marriage, inheritance and charitable giving. It states that both husband and wife have equal rights to apply for divorce and to present one or more grounds to be granted a divorce by Religious Courts. Article 116 of the Compilation details eight grounds for divorce: 1) illicit sexual relations by the wife or husband, intoxication, drug addiction, or gambling; 2) the absence or disappearance of a spouse; 3) the imprisonment of a spouse; 4) cruelty by a spouse; 5) an acute illness preventing a spouse from performing her/his duties; 6) a protracted dispute between spouses; 7) violation of a conditional talak (ta’liq talaq) by the husband; and 8) the conversion of a spouse from Islam to another religion. A Supreme Court regulation also requires courts to offer mediation to both parties regardless of who applies for divorce.
These conditions are particularly important because Indonesia has ratified the United Nation’s Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which emphasises the equality of rights between men and women in all fields.
Article 41 of the 1974 Marriage Law requires the husband and father to be responsible for his children’s wellbeing and education post-divorce, and states that the court has the right to order the husband to provide financial support to his former wife.
Article 41(c) stipulates: “the Court can make a specific order that the ex-husband cover his ex-wife’s living expenses”. Likewise, Articles 149(d) and 156(c,d) of the Compilation of Islamic Law state that the father is responsible for the wellbeing and education of children until they reach the age of 21, and that the husband is required to provide financial support during the subsistence of marriage, during the iddah (waiting period), and also to pay mut’ah (consolation gift), and maintenance post-divorce.
But research conducted in South Sulawesi and the West Java district of Cianjur has found that many judges do not include orders for the provision of maintenance in talak divorces (by the husband). And many women “are not willing to put much effort into claiming child support and maintenance because they know too well enforcement mechanisms are difficult to access”. This is a serious impediment in realising women’s rights post-divorce and challenges Indonesia’s commitment to CEDAW. Women’s activists and reformist Muslim scholars have been working to address enforcement mechanisms in the bill on the family court (RUU Peradilan Keluarga), which is still being drafted.
Why are women’s rights following divorce so important? Divorce for many Indonesian women is not only psychologically upsetting – in part because of the social stigma of being a divorced woman –it is also a major financial burden.
Many Indonesian women, in both rural and urban areas, are housewives, and therefore financially dependent on their husbands. This arrangement is largely inspired by patriarchal interpretations of Islamic teaching, which prescribe that a husband is responsible for providing physical and psychological sustenance to his wife through the duration of their marriage. The Marriage Law and the Compilation of Islamic Law reinforce this understanding by defining the husband as the head of the family, responsible for supporting and protecting the family, while describing the wife as responsible for domestic matters.
Consequently, divorce means that many women lose their male breadwinners. They are suddenly confronted by the fact that they have to find their own employment and source of income after a long period of formal unemployment. Worse, having not participated in the workforce for years, many lack the skills to compete with other jobseekers.
Women are not only responsible for meeting their own needs, they are often also required to provide for their children. In line with the Compilation of Islamic Law, children who have yet to reach the age when they are considered to be able to identify what is in their own interests (mumayyiz) – generally accepted to be around seven years – are to remain in their mother’s care, unless she is unable to guarantee their safety and well-being.
Indonesia has also seen an increase in the number of female heads of households over recent years. In 2010, there were about nine million households where a female was the sole parent, equivalent to about 14 percent of the total 65 million households.
Indonesia would do well to learn from its neighbours Singapore and Malaysia, which have put in place mechanisms to promote enforcement of legal guarantees for the wellbeing of women and children. The legal system in Singapore requires that divorces are accompanied by a maintenance order that states “the amount to be paid, when it is to be paid, to whom it is to be paid and the method of the payment”. If the court order is not fulfilled, parties may lodge a complaint with a judge or magistrate in the Family Registry. Likewise, Malaysian Islamic Family Law grants divorced wives the right to claim support from their husbands based on a court order. If a husband fails to fulfil the order, a divorced wife can bring the case back to court, and the court can penalise the husband.
Divorce, regardless of who wants it, puts women in a less fortunate position than their husbands. Not only do they have to deal with the psychological impacts of divorce, they must also juggle motherhood, work and the wellbeing of their children. And they have few avenues for redress if their former husbands don’t pull their weight. It is time for the Indonesian government to enforce the law and hold men accountable for failing to comply.
Dina Afrianty is working on the Shariasource initiative at the Australian Catholic University’s Institute for Religion, Politics and Society (IRPS), researching women’s rights and lived experiences post-divorce.