Indonesian Supreme Court Decision No. 252 of 2014: Irrevocable Divorce Cassation

The parties were married on 14 August 1987 and had two children (born 1988 and 1990). Initially, the marriage was harmonious, but, on 2 October 1995, the cassation applicant filed for divorce in the Surabaya Religious Court (lower court) (950/Pdt. G/1995/PA. Sby). During the divorce proceedings, on 18 and 23 September 1996, the cassation respondent reported the cassation applicant to the police for domestic abuse. During the proceeding, the cassation respondent successfully requested the lower court's permission for herself and the parties' children to live separately from the cassation applicant.

On 15 October 1996, the lower court dismissed the cassation applicant's request for a divorce, citing the interests of the parties' young children as its primary reason. This decision was later upheld by the East Java High Religious Court (No. 189/Pdt.G/1996/PTA.Sby), as well as the Indonesian Supreme Court (No. 157 K/AG/1998) on 5 February 1999.

While the parties remained under one roof, pursuant to court orders, they had not communciated nor been physically intimate with one another for 17 years. After the cassation applicant refused to act as his daughter's marriage guardian, the cassation respondent asserted that the family could no longer depend on the cassation applicant as a husband or father, and requested that the Surabaya Religious Court (lower court) grant her a divorce. The lower court (No. 355/Pdt.G/2012/PA.Sby), on 5 June 2013, granted the cassation respondent an irrevocable divorce (talak satu bain sughra) and ordered her to pay court costs (IDR 316,000).

The cassation applicant lodged an appeal in the Surabaya High Religious Court. The Surabaya High Religious Court (No. 304/Pdt.G/2013/PTA.Sby), on 29 October 2013, upheld the decision of the lower court, in favour of the cassation respondent.

On 19 December 2013, the cassation applicant submitted a cassation application to the Indoneisan Supreme Court, submitting that the decision of the lower court should be overturned because:

  1. The cassation respondent had failed to fulfil the formalities required for the trial, and that the lower court should not have accepted the cassation respondent’s submissions if they did not satisfy the formal requirements;
  2. The cassation respondent, as a civil servant, had failed to obtain permission from her superior officer to file for a divorce, pursuant to Indonesian Government Regulation No. 10 of 1983 on Permission to Marry and Divorce for Civil Servants, in conjunction with Indonesian Government Regulation No. 45 of 1990.

The Supreme Court held that these matters were non-justiciable at cassation level, found that the Surabaya High Religious Court had not erred at law, and dismissed the cassation applicant's reasons for cassation, ordering him to pay court costs (IDR 500,000).

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