Banda Aceh Shari'a Court Decision No. 111 of 2015: Irrevocable Divorce

The parties were married on 19 May 2003, after which they lived with the plaintiff's parents in Banda Aceh for two years, until the end of 2005. In 2006 they moved, and had lived in Banda Aceh until 2015, during which time they had had two children. The plaintiff submitted that the parties had lived harmoniously until 2008, after which time they had begun to quarrel regularly, because the defendant:

  1. frequently left the matrimonial home, only to return the next morning, if at all, without showing any regard for the plaintiff and their children, and if the defendant did return home, he would often be angry with the plaintiff for no apparent reason;
  2. frequently physically assaulted the plaintiff, and would even, oven minor matters, resort to physical violence, hitting and kicking the plaintiff;
  3. showed no care for the plaintiff and their children whatsoever, rather, prioritising himself over domestic needs such as costs associated with the parties' children.

The plaintiff informed the court that she had previously filed an application for a judicial divorce with the Banda Aceh Shari'a Court on 3 October 2011, however, had withdrawn that application after reconciling with the defendant. Moreover, that between the parties they had reached a reconciliation agreement (perjanjian damai) on 11 July 2002 before Chief Justice Drs. H. Idris Budiman. As the defendant had failed to maintain his end of the bargain, the plaintiff submitted that she had legal grounds to file an application for judicial divorce. The plaintiff also sought IDR 2 million per month in child maintenance.

In the defendant's absence, the court acceded to the plaintiff's application for an irrevocable divorce (talak ba'in shughra), acknowledging that the purpose of marriage, as envisaged in art 1 of Law No. 1 of 1974 on Marriage, and surat Al-rum verse 21, being a peaceful, hopeful and loving (sakinah, mawaddah dan rahmah) homelife was no longer feasible. Moreover, that ongoing conflict between the parties was sufficient reason to grant a divorce, pursuant to art 39(2) of Law No. 1 of 1974 on Marriage, art 19(f) of Government Regulation No. 9 of 1975, and art 116(f) of the Compilation of Islamic Laws.

In regards to their children, the court found that while they remained the joint responsibility of the parties, the plaintiff would be better placed to rear and educate them given their still being pre-pubescent (belum mumayyiz). This also accorded with the requirement contained in art 105(a) of the Compilation of Islamic Laws. The court emphasised its belief that a mother would be more patient and meticulous in raising the children, and that to separate them from the plaintiff would be incredibly problematic given their age. The court also cited art 59(2) of Law No. 39 of 1999 on Human Rights, which acknowledges the rights and needs of children to maintain a personal relationship with their father. Accordingly, it granted the defendant visitation rights, as well as the right to be consulted regarding his children's education and development, as contained in art 26(1) of Law No. 23 of 2002 on Child Protection. The court did not accede to the plaintiff's request for IDR 2 million per month in child maintenance, but instead ordered the defendant to pay to the plaintiff IDR 1 million per month in child maintenance.

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