Based on Article 38 of the Indonesian Marriage Law (UUP), marriage can be dissolved due to death, divorce, or a court decision. Additionally, Article 39 paragraph (1) of the UUP states that divorce can only take place in court after the court has attempted but failed to reconcile the parties. Divorce is a significant event in life that can have major consequences, especially for spouses and children. In Islamic law and Indonesian legal regulations, divorce can occur through two main methods: cerai talak (divorce by repudiation) and cerai gugat (divorce by petition).
Cerai Talak vs. Cerai Gugat
1.Cerai Talak:
Cerai talak is a divorce initiated by the husband by pronouncing talak (repudiation) to his wife.
Article 114 of the Compilation of Islamic Law (KHI) states:
“The dissolution of marriage due to divorce can occur through talak or a divorce petition.”
Talak refers to a declaration by the husband in front of the Religious Court, which results in the dissolution of marriage. Simply put, cerai talak is a divorce petition filed or requested by the husband.
In Islam, talak can be pronounced once, twice, or three times, depending on the circumstances and the husband’s intention. After talak is pronounced, the divorce must be legalized through the Religious Court to ensure all legal requirements are met.
To summarize, if the wife initiates the divorce, it is called cerai gugat (divorce by petition). Conversely, if the husband initiates the divorce, it is called cerai talak (divorce by repudiation). After pronouncing talak, the husband remains responsible for providing nafkah iddah (financial support during the waiting period) to his wife until the waiting period (iddah) ends. If the wife is pregnant during this period, the financial obligation continues until she gives birth.
2.Cerai Gugat:
Cerai gugat, or divorce by petition, is a lawsuit filed by either the husband or wife (or their legal representative) in the court that has jurisdiction over the defendant’s residence (Article 40 UUP in conjunction with Article 20 paragraph [1] of Government Regulation No. 9/1975). The wife can file for divorce based on specific reasons such as the husband’s failure to fulfill his obligations, domestic violence, or irreconcilable disputes.
In the context of Islamic law (as stipulated in KHI), the term cerai gugat differs from its definition in the UUP and Government Regulation No. 9/1975. According to these regulations, either the husband or wife can file for divorce. However, under KHI, cerai gugat specifically refers to a divorce petition filed by the wife, as stated in Article 132 paragraph (1) KHI:
“A divorce petition is filed by the wife or her legal representative at the Religious Court with jurisdiction over the plaintiff’s residence unless the wife has left the marital home without the husband’s permission.”
Children’s Rights After Parental Divorce:
Based on Article 105(c) of the Compilation of Islamic Law (KHI), the obligation to financially support the child falls upon the father. Additionally, Article 41 of the Indonesian Marriage Law No. 1 of 1974, amended by Law No. 16 of 2019, outlines the consequences of divorce:
- Both parents remain responsible for the care and education of their children, prioritizing the child’s best interests.
- The father is responsible for all necessary financial support and education costs. If the father is unable to meet this obligation, the court may rule that the mother shares the financial burden.
- The court may require the former husband to provide financial support or determine other obligations for the former wife.
Rights of the Mother After Divorce:
Apart from child-related rights, a mother also has certain rights after a divorce, whether through cerai talak or cerai gugat. These rights include:
- Right to Receive Financial Support During the Iddah Period After divorce, the wife is entitled to financial support from her former husband during the iddah period (waiting period), which typically lasts three months or until childbirth if she is pregnant.
- Right to Receive Mut’ah (Compensation Money) Under Islamic law, the wife is entitled to mut’ah, a form of financial compensation from her former husband as a token of appreciation for the marriage. The amount is usually determined based on the husband’s financial capability and mutual agreement.
- Right to Marital Property (Gono-Gini) If there are shared assets accumulated during the marriage, the wife has the right to a fair share based on her contribution. The division of marital property is typically settled through mutual agreement or a court decision.
- Right to Child Custody As mentioned earlier, the mother is usually given priority for child custody after divorce, especially if the child is still young. However, this right is subject to the best interests of the child.
If the former husband fails to fulfill his financial obligations after the divorce, the wife can file an execution request with the Religious Court to ensure her rights are protected.
Conclusion:
Cerai talak and cerai gugat are two recognized divorce mechanisms in Islamic law and Indonesian legal regulations. While divorce legally ends the marital relationship, the rights of the child and mother remain protected under the law. Children are entitled to financial support, education, and proper care, while mothers are entitled to financial support during iddah, mut’ah, and a fair share of marital property. Regardless of the circumstances, the best interests of the child should always be the top priority for both parents.
