Rabu, 15 September 2021

Strategies for Filing a Divorce Lawsuits for Foreigners And Migrant Workers

(iStock)

By:
Mahmud Kusuma, S.H., M.H.
(Certified Attorneys At Law)

Previously, the Hukumindo.com platform has presented quite a number of articles on matters relating to divorce lawsuits, for example: a). Divorce Lawsuit in Jakarta; b). Examples of Divorce Lawsuit Reasons for Quarrel; then there is an article entitled c). Examples of Non-Muslim Divorce Lawsuits, on this happy occasion, we will discuss the Strategy for Filing a Divorce Lawsuits for Foreigners and Indonesian Migrant Workers. This article aims to find a solution to the limited time a foreigners and also an Indonesian worker is in the country (Indonesia), which is generally due to a person being bound by a work agreement abroad, or other personal reason.

1. The Plaintiff's Presence in the First Session and Mediation As an Obligation

It has been discussed previously in the article entitled: "The Obligation to Attend the First Trial for Parties in the Religious Courts", that based on the provisions of Article 82 of Law Number: 7 of 1989 concerning the Religious Courts Jo. Law Number: 3 of 2006 concerning Amendments to Law Number: 7 of 1989 concerning the Religious Courts Jo. Law Number: 50 of 2009 concerning the Second Amendment to Law Number: 7 of 1989 concerning the Religious Courts, paragraph (2) reads: "In the mediation trial, husband and wife must come personally, unless one of the parties resides residence abroad, and cannot come before personally can be represented by his proxy who is specifically authorized for it". This means that each Plaintiff and Defendant must personally be present at the first hearing on cases related to them. However, even so, there are exceptions, namely in the event that one of the parties is domiciled abroad, and cannot come before him personally, he can be specifically authorized to do so to his attorney.

Also, in the mediation meeting, as stipulated in the Regulation of the Supreme Court of the Republic of Indonesia Number: 1 of 2016 concerning Mediation, in particular Article 6 which reads as follows:
  1. "The Parties must attend the Mediation meeting in person with or without being accompanied by a legal representative.
  2. The presence of the Parties through long-distance audio-visual communication as referred to in Article 5 paragraph (3) is considered as a direct presence.
  3. The direct absence of the Parties in the Mediation process can only be made based on valid reasons.
  4. The valid reasons as referred to in paragraph (3) include but are not limited to: a). a medical condition that makes it impossible to attend the Mediation meeting based on a doctor's certificate; b). Under custody; c). have a place of residence, residence or position abroad; or d). carry out state duties, professional demands or work that cannot be left behind."
It is regulated regarding the obligations of the Parties, both the Plaintiff and the Defendant, to attend the mediation session directly, without being represented by their legal counsel. Some of the reasons for exceptions related to the discussion of this article are when the lawsuit is filed, domiciled, or resides abroad.

When reading the two provisions above, namely: a). Law Number: 7 of 1989 concerning the Religious Courts Jo. Law Number: 3 of 2006 concerning Amendments to Law Number: 7 of 1989 concerning the Religious Courts Jo. Law Number: 50 of 2009 concerning the Second Amendment to Law Number: 7 of 1989 concerning the Religious Courts; and b). Regulation of the Supreme Court of the Republic of Indonesia Number: 1 of 2016 Regarding Mediation, we can understand that there are exceptions for an Indonesian citizen who is working abroad (TKI), and also for foreigners, to deviate from his obligation to be present, both in the first trial of the lawsuit, as well as in the Mediation event.

2. Differences in Obligation of Attendance for Male and Female Plaintiffs

In addition to the two provisions as mentioned above, the provisions of Law Number 7 of 1989 concerning the Religious Courts of Jo. Law Number: 3 of 2006 concerning Amendments to Law Number: 7 of 1989 concerning Religious Courts, in particular Article 70 paragraphs (3) and (4) which reads as follows:
  • "After the stipulation has permanent legal force, the Court shall determine the day of the trial for witnessing the divorce pledge, by summoning the husband and wife or their representatives to attend the hearing."
  • "In that trial, the husband or his representative who is given special power in an authentic deed to make a vow of divorce, which is attended by his wife or proxies".
This means that after the decision has permanent legal force, for a man who submits a divorce application, there is still an event for dropping the divorce pledge as the final agenda. And as a statutory provision, it is an obligation for him to be present in person, even if a delegation is carried out through a legal representative, it must be through an authentic deed before a Notary. As for women who file for divorce, there is no obligation related to the agenda as intended.

3. Submit the need for the management of the lawsuit outside of the Plaintiff's obligation to be present to the attorney

After reading the description above, there is an event in a divorce lawsuit that requires the presence of the Plaintiff and the Defendant directly without being represented by their legal counsel. Namely in the agenda of the first trial, the mediation session and an additional ceremony for dropping the divorce vows specifically for those who propose men. Although there are exceptions, in practice it is not easy.

Difficulties in obtaining exceptions for the Parties in the agenda of the first court session and the Mediation at the practical level are administrative and non-technical in nature. Regarding domicile, domicile, or residence abroad, especially from the Plaintiff, this must obtain verification and clearance from the relevant Embassy (Kantor Kedutaan), which of course requires energy and costs. Especially for the ceremony of dropping the divorce pledge, if authorized first, it is required to use an Authentic Deed in front of a Public Notary, of course this needs to be present from the Authorizer directly to come to Indonesia, even though he is not present in front of the Panel of Judges. In addition, non-technical matters such as delays or delays in the time of trial and administrative support processes for purposes in the Court make the choice to take this 'exception' procedure not comparable to if the Plaintiff or Authorizer were present in front of the Court session directly. Therefore, the author, who is also a legal practitioner, recommends to the readers to always be more inclined to come directly before the court session. Here are tips that the author recommends.

4. Tips

After reading the description above, the time has come to provide tips for those of you readers who work as migrant workers and also a foreigners who want to file a divorce suit.
  1. Understanding the Procedural Law, this means that you must have a knowledge that there are legal rules that require someone to be present in person in front of the court when you file a divorce suit/application for divorce.
  2. Prepare your legal steps, when you understand the description from numbers 1 to 3 above, prepare your legal steps. This means, if you are 'observant' and hire a competent advocate, then the court agendas that require you to appear in person before the Court session will be held in line with the time when you are in Indonesia, or at least the time period when you are in the country. shorter and more efficient. In fact, as one of the secret tips that the author shares here, with the rapid development of technology today, it is not difficult if the Power of Attorney and the Lawsuit have been registered within 1 (one) month before you land in the country. This of course saves a lot of your time.
  3. Hire an Advocate, in order to achieve the target of time efficiency of your presence in the country while still complying with the provisions of the applicable procedural law, hiring the services of an advocate is inevitable. Of course this will have consequences on the costs you incur, but it is worth the results you will gain. There are many things that lawyers can do before and after you arrive in your country to take care of your case.

*) For further information please contact:
Mahmud Kusuma Advocate
Law Office
Tokopedia Care Tower, 17th Floor, Unit 2&5,
Outer West Ring Road, 101, Rawa Buaya,
Cengkareng Subdistrict, West Jakarta,
Jakarta - Indonesia.
E-mail: mahmudkusuma6@gmail.com

______________________
References:

1. Law Number: 7 of 1989 concerning Religious Courts;
2. Law Number: 3 of 2006 concerning Amendments to Law Number: 7 of 1989 concerning Religious Courts;
3. Law Number: 50 of 2009 concerning the Second Amendment to Law Number: 7 of 1989 concerning the Religious Courts;
4. Regulation of the Supreme Court of the Republic of Indonesia Number: 1 of 2016 concerning Mediation.

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