Inside Indonesia’s Religious Courts: An Argument for Domestic and Family Violence Screening and Exemption from Compulsory Mediation

Abstract

Abstract In Indonesia, Islamic norms have been codified into State family law and divorce petitions are handled by State ‘Religious Courts’ (Pengadilan Agama). Formal, court-annexed mediation at the Religious Courts exists alongside customary (adat) mediation at the community level. In cases involving domestic and family violence, victims are socially expected to mediate at the community level before proceeding to the Religious Courts for formal determination of divorce petitions. At the Religious Courts, mediation is currently compulsory for all divorce petitions, even where there is proof or allegations of domestic and family violence. We argue that mediation should not be compulsory for victims of domestic and family violence who seek divorce via State family law avenues. In practice, victims bringing divorce petitions to the courts have generally already participated in mediation at the community level and therefore, further mediation has little—if any—utility. Further, there are well-documented risks for victims of domestic and family violence in mediation contexts. We draw on the comparative models of family violence screening from Australia and Canada to argue that similar screening processes should be introduced into Indonesia’s Religious Courts in order to exempt such cases of violence from compulsory mediation.