Saturday, June 16, 2012

Impact of Divorce on Joint Property in a Mixed Marriage

When discussing the impact of divorce on joint property in a mixed marriage it is two things that must be observed, such as:

1. Consequences or legal consequences of joint property arrangements contained in Article 37 of the Act (Act) No. 1 of 1974 on Marriage ("UUP") which states "When marriages break up because of divorce, community property is set according to each jurisdiction". Further elucidation of Article 37 of the Marriage Law states that "The definition of " legal " respectively mean religious law, customary law and other laws."
H. Hilman Hadikusuma explained in the book "Marriage Law of Indonesia said: Customary Law Regulatory Law Religious" (p. 189), due to laws regarding community property pursuant to Article 37 of the Marriage Law was submitted to the parties to the divorce which the law and what law will apply , and if no agreement between ex-spouses, the judge may consider reasonable in the sense of justice. Thus, due to a divorce on community property for everyone can be different, depending on what the law and which will be used to set the property of the parties together. Further explanation of the phrase "their own legal" as an example is some of the following:
a. For a Muslim, there are provisions on the division of joint property in the Compilation of Islamic Law ("KHI"). Article 97 KHI set "divorced widow or widower of life of each reserve the right half of community property to the extent not otherwise provided in the covenant of marriage."
b. Then, Hilman described (p. 193), for Catholics there is essentially no divorce in the Catholic religion, as Catholics would reject a divorce. However, in practice, the couple divorced Catholic can still be civil, even though the Catholic divorce is considered invalid. In such a case, divorce and division of joint property based on the provisions of the Act Book of the Civil Code ("KUHPer").
Under Article 126 KUHPer, joint property disbanded by law either because of divorce. Then, after the dissolution of joint property, along with their wealth divided between husband and wife, or between their heirs, regardless of origin and where the goods (see Article 128 KUHPer).Thus, under Article 37 UUP in conjunction with Article 126 and 128 KUHPer, divorce resulted in the dissolution of joint property so that the community property should be divided between husband and wife.
c. In addition, the effect of divorce on community property can also be specified by the customary law that is used by the parties, if the parties use of customary law of divorce. So, everything about the community property are governed by customary law respectively, and there is no similarity between indigenous peoples and the other one.
For instance in matrilineal societies such as the Minang, generally applicable customary law that determines the legal consequences of divorce on community property is to be divided between husband and wife (Hilman, pp. 189-190).

2. If one party to the marriage is a foreign citizen, the marriage is an intermarriage.
Mixed marriage is a marriage between two people in Indonesia are subject to different laws, since the difference of citizenship and nationality Indonesia one of the parties (See Section 57 Marriage Act). If your marriage took place in Indonesia and Indonesia are subject to the law, which applies the provisions of Article 37 UUP as outlined above is, to determine which law applies and what the law relating to matrimonial property left to the agreement of the parties are divorced.
If there is no agreement between ex-spouses, Hilman added, the judge may consider reasonable in the sense of justice. So, if there are no agreements between the parties regarding the effect of divorce on community property, the judge who will determine what is legal and which ones will be applied. However, if the marriage was not recorded later in Indonesia, then the marriage is still subject to the law where the marriage took place. Ie, in the event of divorce, should be done where the marriage took place (Article 56 [1] UUP).


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