Children and Divorce

Children and Divorce


We can’t begin discussion of children and law in Indonesia without pointing out realities that are true everywhere in the world.

Our adult imaginations probably cannot even understand the pain children feel when the bedrock warmth and security of two loving parents’ arms is lost.

Even in the best cases when mother and father cooperate for the happiness and safety of the children they brought into the world together and still love together, divorce is traumatic. But too often battles between parents become bitter and hateful, and children become end up helpless victims in the middle, reduced to prizes or bargaining chips.

Every parent should know this, but in the pressure of divorce, too many parents forget.

The impact of Indonesian law on children can be so devastating that any parent should pause to reflect on the needs of their children before starting. Breakups which could be difficult in other legal environments can become far worse in Indonesia, and even simple divorces can soon go disastrously wrong.


Family Court

Many countries have Family Courts backed by extensive legislation and social services to help protect children from the worst.

Family Courts are a recent invention, born of the concept of gathering all legal and social services which which may impact families in difficulty into a single coordinated venue so that divorce, custody, visitation, child support, psychological counseling, division of marital assets, and other family-oriented services can be taken care of at once, efficiently, and with the least trauma for all involved.

The objectives of Family Courts are specified by legislation: they are to put the children first, to ensure that they continue to receive access to the love of both parents, and to provide for their physical and financial welfare.

To protect children, family courts will step in energetically to prevent children being used as hostages in battles over assets.

But Family Courts are only ever a last resort. Realistically, for any family which finds itself in Family Court because the parents are unable to cooperate, the children have already experienced more pain than a child should have to bear. Family Courts cannot make things better, they only can try to head off worse disasters for children whose parents have failed them.

Children come first. Only secondarily will Family Courts consider adult issues like division of assets.


Indonesia does not have Family Court

No matter how devastating it is to find your family in Family Court, it is far worse to have no Family Court when you need one.

Absence of Family Court means that every legal action must be handled separately, subject to the same delays and appeals as any other court process. Social services are largely unavailable. Issues like visitation and custody can end up being contested with street fights and threats between parents.

Making it worse:

particular features of Indonesian law actually encourage children of expatriate / Indonesian marriages being used as hostages.

These are:

  • The laws regarding marriage and the legitimacy of children,
  • The absence of lawyers specialized in Family Law and regulated through a reputable Family Law Bar Association,
  • Indonesia’s absence from the Hague Convention on International Child Abduction.

Before discussing those issues, let’s consider the legal status of children under Indonesian law.


The law regarding marriages

The first problem stems from the formal law itself: prior to 2012 Indonesia did not recognize paternal rights to a child born outside legal marriage.

For more about this law see FAQ Registering a Marriage.

This often came as an unpleasant surprise to expatriates coming from Western traditions. In Europe and the Americas, both Civil Law and Common Law countries recognize the broad rights and responsibilities of parentage. In some countries the rights of children are so firmly established that many couples are casual about the formal procedure of marriage; ceremonies and marriage registrations can take place years after starting a family, if then.


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Indonesian law takes an entirely different view.


As we have seen, what is and is not a legal marriage, or the difference between a “legal marriage” and a “marriage with the force of law,” or a marriage which has been properly registered, can be vague. The only clear point of this section is that a child born outside of marriage—whatever “marriage” might mean—has a legal connection only to the mother.

The ambiguity of laws defining “marriage,” and the uncertainty and manipulation of law and documents in government records offices—the Kantor Catatan Sipil and Immigration in particular—and in the courts creates an opportunity.

The result is that Indonesian spouses, particularly Indonesian wives since they receive sole custody of children born out of wedlock, may find incentive to falsify marriage, birth, and family registration documents. And since the Indonesian spouse is usually the one filing the documents in Indonesia, it is relatively easy to do.

As discussed earlier in the chapter Government Offices, this can be done either before or after the events recorded; it can involve falsifying or changing birth certificates, marriage certificates, immigration documents, family registration cards, KTP or national identification cards, and more.

An altered set or a second set of documents, even if contradictory to the first set, does not need to be perfect. They only need to be enough to get past a judge who has incentive not to inspect them too closely.

There are two reasons an Indonesian wife might do this. First, like many parents, she may want sole custody. In the ideal world two parents may divorce and yet still respect one another; more important, they may recognize that their children need love from both parents, and they are happy to cooperate in joint custody.

But then there are other parents, especially if a marriage has broken down in bitterness, who want sole custody.

In many family courts this attitude is a red flag. I have heard a judge of the California Family Court admonish all present at the start of every session “Any parent who comes in here seeking sole custody, who can’t think of half a dozen good things to say about the other parent, who can’t treat the other parent with the respect they deserve as the mother or father of children who need that other parent just as much as they need you, is ninety percent on the way to losing all custody!”

But in Indonesia, there is no question of custody at all if the child was born outside marriage. Whatever “marriage” is.

In an Indonesian / expatriate marriage, it is possible for children to be illegitimate in Indonesia and legitimate in the expatriate's home country. An expatritate father could have paternal rights in his home country, and no paternal rights in Indonesia.



The other reason an Indonesian mother might wish to remove a father’s rights to paternity is as a bargaining chip.



It is possible, though difficult, to correct recognition of paternity. One way, listed in the UU No 1 1974, is that if children are born outside a marriage, and the mother then signs a document attesting the man to the father of the children before mother and father marry, the father gains paternity.

If the mother does not agree to this, however, or if the couple marry without the declaration, or if the couple do not marry, there is no legal paternity.



A more recent law provides a broader recognition of paternity:

No Family Law Lawyers Associations...

Lawyers are more likely to focus on winning assets than welfare of the children.

Assets can be quantified, childrens welfare cannot.


The Hague Convention on International Child Abduction...

The second problem is that Indonesia does not recognize judgements of foreign courts and is not a signatory to the The Hague Convention on International Child Abduction

Causes problems in your home country, but not in Indonesia.Limits expatriates options.


Sorry, still under construction. More coming soon...