In Indonesia the religious courts adjudicate divorce cases for Muslim people. The legal rights of Muslim women as enshrined in marriage and divorce law are hotly debated among Islamic moderates, conservatives, and feminists. Within these groups there is a diversity of positions and opinions with each faction actively seeking to influence government, legislation, and judicial practices. In this context can the formal legal sector expand the reach and efficacy of State law to protect the rights of women? Recent reforms in the religious courts suggest it can following a sharp increase in the number of cases being brought to court, twice as many which are instigated by women than men. Elaborated below, these reforms directly address two key aspects of the WPSAC agenda, the prevention of violence and derogation of rights and protection from violence.
The Indonesian State’s blueprint of gender relations casts Indonesian women in a supporting role. Domestic affairs are women’s business subject to the overriding authority of men who dominate positions of power and institutional authority. The title ‘head of household’ (kepala keluarga) legitimates authority and access to government services via a State issued family card, which is automatically bestowed on the senior active male in any home. However the lived reality of many Indonesian women is far from this nuclear family of husband, wife and children promoted as the social norm across the nation. According to the Indonesian Bureau of Statistics, approximately 9 million (13.9%) of households are headed by women. Until a woman who is separated from her husband obtains a legal divorce she is prevented from holding a family card.
Without a family card female heads of household and their children may be excluded from government programs providing assistance such as subsidised rice, free health care and direct cash transfers. Other implications for women who have not been granted a legal divorce include a lack of legal certainty and clarity about care and financial support for themselves and any children, and an inability to legally remarry or have the name of the biological father on the birth certificate of subsequent children. This is a contributing factor to low rates of certification resulting in a range of negative implications. For example, children without birth certificates can encounter difficulties or be prevented from attending school and attaining education certificates. Further, women in Indonesia can find themselves in a precarious position when separated or estranged from their husband. In this situation it is not uncommon for women to be negatively stigmatised and socially ostracised leading to isolation and exposure to a range of risks such as sexual and gender based violence, human trafficking, denial of inheritance entitlements, or being labelled as widows evoking negative stereotypes of spinsters or older women on the margins of society.
Three recent policy initiatives have had an immediate and positive effect for Muslim women requiring a divorce in Indonesia. Firstly, the introduction of circuit courts has increased the number of women seeking certification of divorce. Transport and associated costs are frequently cited as a significant barrier to accessing religious courts located in district capitals. Since 2008 the religious courts, with a greater budget allocation from the State and financial support from AusAID, has increased their accessibility in rural and remote areas by holding circuit courts.
Secondly, the budget increase has also been allocated to waiver court fees for those with low income and to provide legal aid services. Thirdly, the Government has produced a National Access to Justice Strategy and a Presidential Instruction (No.3 2010) on justice for all has been issued which prioritises justice for children and women. These high-level policy documents serve to focus attention and provide the impetus to drive action on justice issues which can empower women, reduce gender-based violence, increase gender equity, and foster collaboration with civil society organisations. One such organisation is PEKKA which has been pivotal in conducting research and advocating for the above initiatives in addition to providing support, information and advocacy for members all of whom are female heads of households.
The success of these recent initiatives builds on the existing capacity of the religious courts in Indonesia and directly benefits women. It exemplifies effective international development cooperation and demonstrates potential for scaling-up in Indonesia. Further, this is one of the rare occasions where there is genuine scope for these initiatives to be used as a model for development in other countries seeking to increase access and equity in law for all citizens, including women.
University of Adelaide