RECOVERY OF CHILD SUPPORT & FAMILY MAINTENANCE ; THE CASE OF INDONESIA Lita Arijati, LL.M Senior Lecturer of Private International Law at Faculty of Law – Universitas Indonesia Hong Kong, 9-11 November © Lita Arijati

Regulations on Child Protection in Indonesia 1. Indonesia Civil Code (ICC) as inherited from Dutch Civil Code during the Colonialism; 2. Law No. 1 of 1974 on Marriage; 3. Government Regulation No. 9 of 1975 on The Implementation of Law No.1 of 1974 on Marriage; 4. Law No. 4 of 1979 on Child Welfare; 5. Presidential Decree No. 36 of 1990 on Ratification of Convention on the Rights of the Child; 6. Law No. 7 of 1989 jo. Law No. 3 of 2006 jo. Law No. 50 of 2009 on Religious Court; 7. Presidential Instruction No 1 of 1991 on Compilation of Islamic Law; 8. Law No. 23 of 2002 jo. Law No. 35 of 2014 on Child Protection; 9. Law No. 23 of 2004 on Domestic Violence. 2© Lita Arijati

Rights and Responsibilities between Parents and Children  Art. 45 Law on Marriage stipulates: a.“Both parents shall be responsible for the maintenance and education of their children to the best of their ability. b.The responsibility of the parents referred to in paragraph (1) of this article shall be inforce until the children married or are able to support themselves and shall continue to be inforce notwithstanding the marriage between both parents having been dissolved.” 3© Lita Arijati

Existing Mechanism of Child Maintenance in Indonesia Child Maintenance Law on Marriage 1974 (applies universally) Compilation of Islamic Laws (only applies to those who are Moslems) 4© Lita Arijati

Child Maintenance (based on Law on Marriage ) Art. 41(a) & (b) Law on Marriage stipulates: The consequences of divorce is:  “the mother as well as the father shall continue to have the responsibility of maintaining and educating their children, solely by virtue of the interest of the children....”  “The father shall be responsible for all necessary cost of maintenace and education for the child, if the father is not be able to bear such responsibility, the Court may determine that the mother shall bear such cost.” © Lita Arijati5

Child Maintenance (based on Compilation of Islamic Laws)  Compilation of Islamic Laws (CIL) applies only to Moslems, whose dispute is examined by Religious Court in Indonesia.  Art. 105 CIL stipulates, in the case of divorce,: a.“if the child has not reached 12 years old, the custody rights shall be given to the mother.” b.If the child has reached 12 years old, the child shall choose the mother or the father as the holder of his/her custody rights.” c.“the child maintenance cost shall be born by the father.”  Usually, the Judges in Religious Court still consider the best interest of the child in determining the holder of child custody rights in the case of divorce. © Lita Arijati6

Cases on Child Maintenance in Indonesia  In regard to maintenance, the Indonesian court usually decides that the father shall be responsible for the maintenance and education cost for the child, in the case of divorce.  However, since there is no coercive instrument, the father usually does not comply with the Court Decision.  If the father still stays in Indonesia, the mother is suggested to sue the father based on KDRT Law and ask the father to provide the maintenance and education cost. 7© Lita Arijati

Cases on Child Maintenance in Indonesia  It will be more difficult if the father is already located outside Indonesia.  Usually, the mother will ask help from the Indonesian embassy. However, this does not ensure that the father will comply with the Indonesian Court Decision and pay the maintenance cost for his child. © Lita Arijati8

Recognition and Enforcement of Foreign Judgment in Indonesia A foreign judgement CAN NOT be recognized and enforced in Indonesia. (Article 436 Reglement op de Rechtsverordering).  Therefore, if there is a foreign judgment to be recognized and enforced in Indonesia, the case must be brought before the Indonesian judge (court) as a new claim.  The foreign judgement may be used as an evidence by the judge. 9© Lita Arijati

Indonesia’s View on the 2007 Hague Convention There is no discussion yet on the Indonesia’s participation (accession) to the 2007 Hague Convention. The discussion is on the Indonesia’s preparation to access 1980 Child Abduction Convention. 10© Lita Arijati

THANK YOU!! 11© Lita Arijati