Rethinking the Implementation of Child Support Decisions Post-Divorce Rights and Access to the Islamic Court in Cianjur, Indonesia
van Huis, Stijn Cornelis, Law, Social Justice and Global Development Journal
With a population of 240 million Indonesia is the world's biggest Muslim country and the third largest democracy after India and the USA. Indonesia has a plural legal system which implies that as regards family law, different laws apply to different socio-cultural identities. Muslims in Indonesia (constituting about 86 percent of the population), (1) must bring a divorce to the Islamic court to have it officially recognised by the state. The Islamic courts apply a unified form of Islamic family law, based on the scholarship influences of maddhab, an Indonesian School of Islamic Law (Hooker & Lindsey 2002). Indonesian family law for Muslims recognises spousal and child support rights and women can request the Islamic court to determine a monthly amount of (child) support in a court decision (see Section 3).
The principal argument of this article emerges from the finding that although a portion of Muslim women living around the poverty line face real difficulties after divorce, a substantial majority of them find their own self-supporting means without realising the right of support they are entitled to. Women know they have a right to child support and spousal support, yet prefer other safety nets that are available to them. My claim in this article is that if in their daily practice poor Muslim women do not regard post-divorce support rights and entitlements sufficiently important to spend time and money in a court process to pursue those rights, then the common assumption about the link between post-divorce rights and the welfare of divorced women should be reconsidered.
There may well be other reasons responsible for the low number of request for support than difficulties in accessing the legal system. The task of a researcher, then, is to enquire why the legal problem is not a social problem, or in this case study, why is support not of particular importance to most divorced women in Cianjur? What are the cultural factors that might play a role in this? Whilst acknowledging that access to Islamic courts is important for obtaining a state-recognised divorce (which enables women to register a remarriage, which in turn can improve, at least in theory, their access to birth certificates, inheritance rights, etc.), what in the end is questioned is whether with regards to post-divorce rights better access to Islamic courts will have a significant effect for the women in Indonesia who live just above or under the poverty line.
Before proceeding to the substance of this enquiry, it is important to emphasise that the purpose of this study--the implementation and enforceability of court orders on post-divorce rights--is based on the claim that access to Islamic courts is only useful to divorced women if their decisions on post-divorce rights can be honoured and enforced. Following this introduction, the article is organised in four subsequent sections. Section 2 focuses on the relevance of the implementation of court decisions on child support and spousal alimony. In section 3, the discussion turns to the Islamic court of Cianjur. My aim here is present the findings of the field research on how the law concerning Muslim post-divorce rights is applied by judges and the extent to which court decisions on spousal and child support are executed in practice. Section 4 explores the relevance of a quantitative study on local child and spousal support practice based on initial research findings. Section 5 presents the results of this quantitative study. It concludes that in the context of child and spousal support in heterogeneous societies, knowledge of the interplay of local culture and sociological factors are essential, which implies that a methodology that incorporates socio-legal research is imperative.
2. Focus on Implementation of Court Decisions
In what follows, I sketch the reasons why I chose implementation of court decisions on child support and spousal alimony as subject of my field research. …