Academic journal article Forum on Public Policy: A Journal of the Oxford Round Table

Justice and the Identities of Women: The Case of Indonesian Women Victims of Domestic Violence Who Have Access to Family Court

Academic journal article Forum on Public Policy: A Journal of the Oxford Round Table

Justice and the Identities of Women: The Case of Indonesian Women Victims of Domestic Violence Who Have Access to Family Court

Article excerpt

Introduction

Feminists have an assumption that family law rather than the criminal justice system gives women victim of domestic violence more autonomy to make choices and decisions, which in turn empowers them. (1) However, in fact, Indonesian women victims of domestic violence have encountered some difficulties to explore their autonomy in making choices and decisions in order to obtain justice. The difficulties derived from the legal system (both criminal and family law) including its elements (such as prosecutor, lawyer and judge) and its legislation, financial dependency on the abuser, and social, cultural and religious values. Although the legal system has become the main obstacle for women victims of domestic violence in accessing justice, the victims of domestic violence rely for their solution on the legal system, in particular family law, as the last resort in order to cope with the violence, and to obtain their rights. To what extent Family Law in Indonesia ensured the rights of women victims of domestic violence in accessing justice during an abusive marriage and after marital breakdown, exploration of the legislation (such as the Marriage Act 1974 and other legislations in terms of marriage and divorce issues) and its practice through the experience of Indonesian women victims of domestic violence will be examined below.

The Marriage Act 1974 and the Women's Rights

The Marriage Act 1974 was passed in the New Order era (1966-1998) during which time the State emphasised the need to protect women's rights or more precisely, to protect the wife's rights from the arbitrary act of her arbitrary husband (in terms of divorce). (2) Under the provisions of this law, all marriages were required to include a religious ceremony and state-approved registration, and all divorces must be determined through a court's decision (the Religious Court for Muslim couples and State Court for non-Muslim couples). (3) The new law also requires the consent of the parties to marriage which targets the elimination of forced marriage. The aim of marriage, according to this legislation, is to establish a happy and prosperous family; and polygamous marriage is regulated more strictly. (4)

Under this Act, a man can generally have only one wife and a woman can only have one husband. Therefore, one can say that Indonesian Marriage Act is monogamous in intent, though polygamous marriage is not prohibited. (5) The Marriage Act 1974 insisted that a husband and a wife are equal and have the same rights before the law and in the community. They have obligations and rights to work, help, and to assist to each other. However, there are two contrary Articles to the 'equality between a husband and a wife' since it regulates the gender role of a husband as a 'head of household' and a wife as a 'housewife'. The concept of a husband as a 'head of the family' and a wife as a ' housewife' or 'mother of household' is believed by many to be the main cause of subordination of women to men within marriage. For example, married women are never considered as 'main income earners' unless they are certified as widows or if the husband is unable to work and such status is conferred only upon request.

Another provision of the Marriage Act 1974 involves divorce. Based on the Marriage Act 1974, both a wife and a husband can present as a litigant before the court. Under the Marriage Act 1974, a husband as well as a wife must submit a petition to the court for a divorce, and both of them are required to give 'sufficient reasons'. The implementing regulation of the Act (namely is Implementing Regulation No 9 of 1975 (PP 9/75)) gives examples of sufficient reasons. These reasons are: adultery; compulsive drinking, drug taking, or gambling; desertion for two consecutive years; the spouse having a jail sentence of more than five years; endangerment of one spouse by the other; disease or handicap which prevents the carrying out of marital duties; continuous argument caused by irreconcilable differences. …

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