Providing Justice to the Justice Seeker: - Family Court of Australia

The importance of family law cases andbirth certificate cases being heard in thecourts…the right to be recognised before the law’ is one of the most central human rights. The state isthus under the obligation to give formal, legal recognition that a person exists. Legal Empowermentrequires an affordable document with which the bearer can prove his or her identity. Without suchproof of their legal identity the poor, in particular, are often excluded from the formal protectionsof the state legal system and as beneficiaries of public goods and services. 17Requirement of Indonesian LawIndonesian law requires all divorces to be approved by the Religious Courts for Muslims andthe General Courts for non-Muslims in order to be legally valid (Law No. 1 of 1974 concerningMarriage). It is therefore mandatory that divorce cases are brought before the Indonesian courtsif the marriage is to be formally dissolved.Access to justice for allA principle of justice is that it be universal. If Indonesian law mandates that all divorces must beheard before Indonesian courts then all Indonesian citizens who divorce should be able to bringtheir cases to the court regardless of how rich or poor they are, how educated they are, or howfar they live from a court.Legal CertaintyJudges, court clients and members of the community who are too poor to bring their divorcecases to the courts, agree that divorce through the Indonesian courts provides legal certainty. Aformal divorce through the courts also clarifies legal responsibilities for the care and financialsupport of former spouses and children from the marriage. Without a legal divorce it is notpossible to legally remarry in Indonesia. This in turn has implications for obtaining birthcertificates for children from subsequent marriages as the father’s name cannot be put on thebirth certificate without a legal marriage certificate.Poverty alleviation49% of Indonesian citizens live under US$ (PPP) 2 per day with 14% of this group living onless than US$0.66 per day. 18 Households that have experienced the sudden loss of the head ofhousehold through death, divorce or abandonment often enter a downward spiral of povertythat can last for generations as children are withdrawn from school and prematurely placed intolabour markets. 19 Divorce through the courts has the potential to distribute household assets ina more equitable fashion and in a way that supports the parent who has day-to-day care for thechildren from the marriage (in most cases the mother).17 2008, Making the Law Work for Everyone Volume 1, Report of the Commission on Legal Empowerment of thePoor.18 Bappenas UNDP (2007) Report on the Achievement of Millennium Development Goals Indonesia 2007, p 12 andProfil Kemiskinan Di Indonesia Maret 2009, Badan Pusat Statistik, Berita Resmi Statistik No. 43/07/Th. XII, 1 Juli 2009.19 S Guggenheim, PEKKA Proposal.22 Providing Justice to the Justice Seeker A Report on the Access and Equity Study in theIndonesian General and Religious Courts 2007–2009