لﺎَﻗ !
B. Talaq Divorce in Religious Court
2. Talaq divorce procedure
request is proposed to the religious court/ syar’iyah court in which its legal area covers the location the marriage was held in or to the Central Jakarta Religious Court (Article 66 verse (4) Law No. 7 Year 1989).
3 The request contains:
a. Name, age, occupation, religion and plaintiff and defen- dant’s place of residence;
b. Posita (legal and occuring facts);
c. Petitum (issues demanded based on posita).
4 Request on issue of child custody, child welfare (nafkah), wife welfare (nafkah), and mutual wealth can be proposed along with the request for talaq divorce or after saying the talaq pledge (Article 66 verse (5) Law No. 7 Year 1989).
5 Pay for litigation fee (Article 121 verse (4) HIR, 145 verse (4) R.Bg. jo. Article 89 Law No. 7 Year 1989), for those who cannot afford the fee can proceed with the litigation free of charge (prodeo) (Article 237 HIR, 273 R.Bg.).
b. Litigation Process:
No. Litigation Process
1 The plaintiff registers the talaq divorce request to the religious court/ syar’iyah court.
2 Plaintiff and defendant are summoned by the religious court/
syar’iyah court to attend trial.
3 Trial proceedings:
a. In the initial trial, the judge tries to reconcile both parties, and both husband and wife must be personally present (Article 82 Law No. 7 Year 1989);
b. If it fails, the judge subsequently obligates both parties to firstly undergo mediation (Article 3 verse (1) PERMA No.
2 Year 2003);
c. If mediation fails, then case examination is continued by reading the letter of request, replication, reply rejoinder, proving evidence and closing arguments. In the stage of reply rejoinder (prior to proving evidence) the defendant can submit a reconvention (counter claim) (Article 132 a
HIR, 158 R.Bg.);
The decisions of the religious court/syar’iyah court to the request of talaq divorce are as follow:
a. Request granted. If the defendant is dissatisfied an appeal can be proposed through the relevant religious court/
syar’iyah court;
b. Request denied. The plaintiff can propose appeal through the relevant religious court/ syar’iyah court;
c. Request unaccepted. The plaintiff can resubmit a new request.
4 If the request has been granted and the decision has acquired permanent legal force, then:
a. Religious court/ syar'iyah court determines the day to witness the talaq pledge;
b. Religious court/ syar'iyah court summons the plaintiff and defendant to carry out talaq pledge;
c. If in the period of 6 (six) months since the talaq pledge testimony trial is determined, the husband or his attorney does not execute the talaq testimony before the court, then legal force of the decision becomes invalid and the divorce could no longer be submitted based on the same legal reason (Article 70 verse (6) Law No. 7 Year 1989).
5 Once the talaq pledge has been said the court clerk must issue a Divorce Certificate as proof to both parties at the latest 7 (seven) days after testimony of the talaq pledge (Article 84 verse (4) Law No. 7 Year 1989).
After divorce (talaq divorce), a woman (talaq divorced wife) is entitled to receive assistance to limited sustenance during the ‘iddah period or during her pregnancy. Aside from the right to receive nafkah (food), kiswah (clothing) and maskan (residence/shelter), she also bears the right to mut’ah. A man who talaq divorced his wife, aside from providing nafkah
‘iddah must also provide something, which could be in the form of money, clothing or other items as mut’ah to please the wife.109
In practice, regulations regarding nafkah after divorce (talaq divorce) are very disadvantageous both to the child and ex-wife. As of today there are no technical or firm regulations or provisions on the obligation and procedures of child welfare (nafkah) provision, nafkah ‘iddah, or mut’ah, in order to secure and guarantee these rights.110
Often times after the husband’s talaq divorce request has been determined or decided by the panel of judges with the obligation of providing nafkah and mut’ah, the husband does not carry out or fulfil the obligation, regardless of whether the husband is wealthy or poor. Under this condition, the woman or ex-wife cannot do much or can only accept it.
This is because Indonesian women are very determined in economic acti- vities and enjoy the freedom it entails as well. They are not only deter- mined and vigorous during post-divorce economic endeavours, but are equally enthusiastic and active before or during the marriage.111Therefore, women’s conviction to be capable of attaining economic independence renders them to be accepting of the husband not fulfilling his post-divorce responsibilities.
In addition to that, the family or parents of the ex-wife feel they are responsible for the wife who has been talaq divorced along with her children. And also because demanding nafkah to the court will be consi- dered as an indication that the family of the ex-wife is included as a poor family, irresponsible or unable to be independent.112
In order to alleviate the burden of women, when a divorce occurs, it should be the husband who takes care of the children. However, since it is
109Daniel S. Lev, Peradilan Agama Islam di Indonesia, translation Zaini Ahmad Noeh (Jakarta: PT. Intermasa, 1986), 219.
110Ibid.
111Ibid., 119-221.
112Ibid.,221.
customary for the women to be capable of nurturing the children without assistance from the ex-husband (father of the children), then they do not want to hand over child custody to the ex-husband. This happens even though the feelings of the women are truly under pressure or it is heart breaking for them.113
3. Several causes of divorce