Divorce is definitely an unpleasant experience for both men and women. While the desperation can stay for a while due to the sense of failure to manage the family, women will be put in a less fortunate condition than their husband when it comes to divorce. This is not a very simple justification that we put in the table, because in most of Southeast Asian countries where most of the societies are predominantly patriarchal, women tend to give up their jobs once the domestic tasks become more complex and mandatory that they need to reevaluate the priorities between career and motherhood—the event is often marked by the birth of the child. Thus, the roles of men in patriarchal societies are more emphasised: as provider, protector, and procreator; than never before.
You can argue due to industrialisation, more women participate in the job markets with a result that their position is now more financially secured than years ago, so that once they decide to be apart from their husband and lodge a divorce application they can effortlessly ensure the wellbeing of their children and their own. We do not deny this fact; however, we should pay attention to the other side of a coin. For instance, more women in Indonesia who join the labor forces and decide to divorce still experience social stigma of widows or divorcees, not to mention their primary role in motherhood should also be taken into account, making financial issue is not the sole burden women may experience. Moreover, since Indonesia has ratified the United Nation’s Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the judicial reforms in Indonesia has been set to consider equal rights of men and women.
The patriarchal nature of Indonesia is also supported by Islamic teaching that is largely believed by the majority of Indonesian families who are mostly Muslim. Islamic teaching emphasises the roles of husbands in fully providing their family members during the marriage life, but it does not stop here. Article 41 of the Indonesia’s 1974 Marriage Laws states, the men as father and husband shall ensure the prosperity of the children in terms of wellbeing and education even during the post-divorce. Furthermore, this Law can serve as a reference for judges in all type of courts—Islamic or civil courts—to order the husband to financially endorse the former wife. Similar to this, the Indonesia’s 1991 Compilation of Islamic Law, particularly in Article 149(d) and 156 (c,d) specify that the financial support for the children shall be given until at least they reach the age of 21, where post-divorce maintenance is also clearly mentioned. So, is there any problem left here?
Stijn Cornelius van Huis conducted a research in two Indonesian districts; namely Cianjur in West Java province and Bulukumba in South Sulawesi province to find out how the Islamic courts exercise their role to protect women’s rights especially during and post-divorce processes. The study reveals, at least 66% of respondents in Cianjur and more than 90% of the respondents in Bulukumba admitted, only a small number of overall divorce petitions include the spousal support claims. To make matters worse, the courts in both districts do not really enforce the children’s rights to obtain post-divorce supports, with only 3% of child support claims were submitted in Cianjur, and even lower, Bulukumba only claimed child’s post-divorce support for no more than 2% of the total divorce cases from 2008 until 2010. Whereas, the judges actually have the rights to order the husband to provide supports for their children and former wives.
With this fact, you may want to pointing fingers, claiming the judges are not aware enough to promote gender sensitivity in divorce processes. Yet, sadly, the truth is, their lack of enforcement is not the only justification. Then why do not they just point it out in the courts, isn’t it that simple? Based on the research, it is true that the judges tend to discourage the women to lodge post-divorce financial claims that are supposedly to support themselves and the children. However, the post-divorce culture in Indonesia somehow drives women to return to the family, commonly they will live under the full responsibility of their parents. Therefore, the financial consequences caused by the divorce will not really affect their lives, even they are not afraid to remarry or find a job.
Having this socially acceptable pattern, women in Indonesia have a tendency to neglect their post-divorce maintenance rights; whereas, to escalate the awareness of gender sensitivity to become gender equality, women as the subject are supposed to be aware of gender sensitivity to begin with. Indonesia can learn from its neighbouring countries such as Singapore where the legal system on marriage reinforces the wellbeing of women and children, especially during the post-divorce period. The Singapore’s marital law also orders that the divorce process should come with the consequences of women’s maintenance rights fulfilment. Women have full rights to obtain support from their former husband and penalty will be applied if breached.