Financial Exploitation by Spouse, a Crime in Private Space:

An Overview based on Indonesian Legal System

Rahel Octora

and Fauzan Hanif M.

Faculty of Law, Maranatha Christian University, Jl.Surya Sumantri 65, Bandung, Indonesia

Keywords: Financial Exploitation, Crime, Private Space.

Abstract: Family is the smallest organization in the social structure. Family resilience affects community resilience and

sustainability. An event that may disrupt family resilience is domestic violence, which from the perspective

of Indonesian law, is regulated in Law Number 23 of 2004 concerning the Elimination of Domestic Violence.

In this law, violence is categorized into physical, psychological, sexual violence and domestic neglect.

Domestic neglect is considered to be equivalent to financial violence, even though in the regulation, the

concept of domestic neglect is formulated without adequate explanation. It may potentially bring up multiple

interpretations in law enforcement. There are various action that fall into the category of financial violence,

but this paper focuses on financial exploitation by spouse in a marriage. This paper uses normative juridical

research method, using secondary data such as relevant laws and regulations, as well as various literature in

the field of law. This paper will review how the current laws and regulations in Indonesia do not clearly

regulate the act of financial exploitation by a spouse in a marriage, and its legal consequences. From a criminal

law perspective, the act of exploiting one's property is categorized as mala in se.

1 INTRODUCTION

The family was formed through the marriage process.

Marriage is a bond between a man and a woman.

Physical and mental union as result of marriage, have

consequences including financial consequences.

Properties obtained in marriage, is a common

property that can be utilized based on mutual consent.

Here is the essence of marriage, which is the

existence of unity and togetherness.

What the Law expect to be done, does not always

go well. Based on data obtained from the Director

General of Religious Justice of the Supreme Court, on

the causes of divorce, quarrels are the highest cause

(46.6 percent), economic factors (28.2 percent) and

abandoning spouses (18.2 percent). From the data, it

appears that financial factors are one of the factors

causing divorce (Andini, 2021)

The social system and the legal system in

Indonesia place men as parties who have obligation

to work and make money. This is mentioned in the

provisions: Article 31 paragraph (3) of Law Number

1 Year 1974 concerning Marriage: Husband is the

https://orcid.org/0000-0002-6966-2358

https://orcid.org/0000-0001-7070-5557

Head of Family and wife as the housewife. In

addition, the Marriage Law states in Article 34

paragraph (1) that the Husband is obliged to protect

his wife and provide all things the necessities of

married life in accordance with his ability. (2) The

wife shall take care of the household affairs as best as

possible.

The formulation of this regulation gives rise to a

narrow view, namely the view that economic

problems in the household is identical to the condition

of insufficient economic needs, which is entirely the

responsibility of husband. Whereas in reality,

economic problems in the household have a broader

meaning. For example, women who use their

husband's income irresponsibly or otherwise. In this

case, we can see that it is not always the husband as

the lawbreakers.

Examples of financial problems can also be in the

form of dishonesty of the spouse (either husband or

wife) about financial problems, for example by hiding

assets, hiding transactions, and financial exploitation

by the spouse (either husband or wife).

322

Octora, R. and M., F.

Financial Exploitation by Spouse, a Crime in Private Space: An Overview based on Indonesian Legal System.

DOI: 10.5220/0010751500003112

In Proceedings of the 1st International Conference on Emerging Issues in Humanity Studies and Social Sciences (ICE-HUMS 2021), pages 322-328

ISBN: 978-989-758-604-0

In fact, there may be situations where one party

uses property that is the work of the spouse, or even

the spouse's property arbitrarily without consent. This

condition shows that there has been exploitation of

the financial aspects of the household. This paper will

use the terminology "financial exploitation".

The term “financial exploitation” is not found in

the laws and regulations in Indonesia. The authors use

the term to describe the concept of the occurrence of

arbitrary or excessive utilization of property / money

belonging to couples in marriage.

Financial exploitation bring harm to victims. The

losses that arise are both material and immaterial

losses. The act of financial exploitation by the spouse

will also have an impact on the psychological

condition of the victim. Financial exploitation has not

been clearly regulated in the Indonesian legal system.

It causes difficulties to protect the victims.

The vagueness of this regulation is caused by the

definition and qualification of actions in Law

Number. 23 of 2004 on Elimination of Domestic

Violence (hereinafter referred to as the Domestic

Violence Law). The Domestic Violence Law

provides a definition:

"Domestic violence is any act against a person,

especially a woman, resulting in physical, sexual,

psychological, and/or domestic neglect, including

threats to commit acts, coercion, or unlawful

deprivation of liberty within the domestic sphere."

The Domestic Violence Law concern on women

protection, although in fact, women can also violate

the law.

The Domestic Violence Law classifies violence

into physical, mental, sexual violence and domestic

neglect. The phrase "domestic neglect" refers more to

the actions of a person (especially the husband) who

relinquishes responsibility to the household, so that

the scope is narrower than financial abuse in a broad

sense.

Financial abuse is part of Domestic Violence,

which contains elements of manipulation and

exploitation, and results in violence causing misery.

(Syarqiyah, 2019).

The definition of financial abuse

was developed by various studies, but until now the

substance of the Domestic Violence Law has not

changed, so there is still confusion in law

enforcement.

This study will examine the concept of financial

exploitation and the qualifications of such actions

from a criminal law perspective, given that there is a

very vague boundary between the private aspect of

financial relations between husband and wife, and the

existence of a public aspect in which acts of violence

in any form, are criminal acts. (Kurniawan &

Setiawan, 2016)

2 METHODS (AND MATERIALS)

2.1 Problem Identification

1. Can the act of financial exploitation by a

spouse in a marriage be categorized as a

criminal act?

2. How does the Indonesian legal system

regulate law enforcement in cases of financial

exploitation by couples in a marriage in order

to accommodate the protection of victims?

2.2 Method

This research is done by using normative juridical

methods. This is a descriptive analytical research.

This research uses statute approach and conceptual

approach.

The data used are secondary data in the form of

legal materials as follows:

1. Primary Legal Materials, law and regulations

such as:

a. Indonesian Civil Code

b. Indonesian Criminal Code

c. Law Number 1, Year 1974 concerning

Marriage

d. Law Number 23, Year 2004 concerning

Elimination of Domestic Violence

2. Secondary legal materials, such as literature,

books and journals.

This study is intended to analyze the

qualifications of financial exploitation by spouses

from the perspective of the criminal justice system in

Indonesia, as well as to examine how law

enforcement in order to protect the rights of victims.

3 DISSCUSIONS

3.1 Definition of “Financial

Exploitation by Spouse”

Marriage has consequences for property. The concept

of Indonesian law recognizes the principle of unity of

property, in which the property obtained during

marriage becomes a joint property. Based on Article

36 paragraph 1 of Law Number 1 Year 1974

concerning Marriage, (hereinafter referred to as the

Financial Exploitation by Spouse, a Crime in Private Space: An Overview based on Indonesian Legal System

323

Marriage Law), the use of joint property is required

based on mutual consent.

The arbitrary use of marital property, dishonesty

regarding financial aspects and irregularities in

financial behavior in the household, have not received

clear arrangements in the Indonesian legal system.

Rules relating to property in marriage are listed in

the Marriage Law. The Marriage Law is a purely civil

regulation. This means that this rule does not reach

things that contain elements against the law from the

point of view of criminal law, including about the

potential for abusive behavior towards property.

The term financial abuse becomes a concept that

must be defined clearly. Various studies explain the

concept of financial abuse as follows:

a. Khadijeh Abolmaali, Hayedeh Saberi, &

Sausan Saber : Financial or economic violence

includes behavior such as maintaining control

over finance, creating a barrier to spending

money, withholding access to money, making

the victim financially dependent, not allowing

the victim to work, income control and taking

credit card or spouse’s money, interpellation

for spending money and financial abuse by the

offender. (Abolmaali&Saber, 2014).

b. A study conducted by a team of researchers

from several universities in the UK presented

a concept “financial infidelity in romantic

relationship”. Definition of financial

infidelity is: engaging in any financial

behavior expected to be disapproved of by

one’s romantic partner and intentionally

failing to disclose this behavior to them.

(Garbinsky, 2019)

c. The research argue that financial infidelity

arises from conflict between one’s own

financial preferences, goals, and desires, and

those dictated by a significant other. The

disagreement represents a form of normative

conflict (Ottar Olsen and Grunert 2010;

Packer 2008). When normative conflicts arise,

partners must make a choice: forgo their own

preference, follow their own preference at the

risk of partner disapproval, or follow their own

preference and hide the behavior (Thomas,

Jewell, and Wiggins Johnson 2015). It is this

latter behavior—hidden financial behavior

that one anticipates will elicit disapproval

from their partner—that describes how we

conceptualize financial infidelity. Because

relationship partners are a single unit,

whatever one does affects the other’s financial

well-being and the couple’s financial health as

a whole. (Garbinsky, 2019)

Based on the definition arising from the study, the

author gained an understanding that financial

violence is a variety of actions against property

(money / assets) committed by a person (in this case-

a spouse), in which case the action has an impact on

the appearance of losses either personally on the

spouse, or loss to the overall household finances.

Using an inductive approach, the authors identified

12 categories of financial infidelity behaviors:

1. hiding or lying about savings (e.g., amount of

savings, presence of account);

2. hiding or lying about spending;

3. spending saved money;

4. lying about paying bills/expenses;

5. creating undisclosed debt;

6. hiding personal financial matters;

7. undisclosed gambling;

8. hiding or lying about investments;

9. directly harming spouse financially (one’s

gain is the other’s loss);

10. giving money to others;

11. inappropriate tax behavior; and

12. hiding or lying about income (e.g., source or

amount, additional income received).

(Garbinsky, 2019)

From the 12 forms of behavior, the study will

focus on the 9

form (directly harming spouse

financially (one's gain is the other's loss); where the

behavior is a form of exploitation. According to the

Oxford Dictionary, exploitation means the fact of

using a situation in order to get an advantage for

yourself. (Oxford, 2021)

3.2 The Concept of Property Unity in

Indonesian Marriage Law

Family is formed through the events of marriage.

Based on Article 1 of Marriage Law, marriage is

defined as physical and mental bond between a man

and a woman as husband and wife with the aim of

forming a happy and eternal family based on the

Almighty God.

The definition shows that from the perspective of

Indonesian law, marriage is not only related to the

physical aspect, but relates to the mental and spiritual

aspects. As a birth bond, marriage is a legal

relationship between a man and a woman to live

together as husband and wife. This bond is a formal

relationship that is real, both for those who bind

themselves and for others, and society. (Saleh, 1976)

As an inner bond, marriage is a mental connection

that is intertwined because there is an equal and

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324

sincere willingness between a man and a woman to

live together as husband and wife. (Saleh, 1976)

Marriage has consequences for physic and mental

unity, as well as on the property owned in marriage,

the Indonesian legal system recognizes the concept of

shared property ownership. Article 35 paragraph (1)

of the Marriage Law states that property obtained

during marriage becomes a joint property.

Based on this article, shared property is the

property of the husband and wife obtained during

marriage. The one who gets can be a husband and

wife together, or a husband who works and a wife

who does not work or a working wife and a husband

does not work. It is not determined who obtains the

property but it is obtained during marriage. (Djuniarti,

2017).

Article 36 paragraph (1) of the Marriage Law

stipulates that regarding joint property, the husband

or wife may act with the consent of both parties. The

concept of shared property means that each party has

the right to take advantage of the property owned, but

must be with the consent of the spouse.

In building a marriage, it takes trust or mutual

trust between the two parties, including related to the

utilization of property in marriage. But in reality, it

can't always be realized. Financial exploitation can

occur while the wife or husband in a marriage,

especially those who do not work demand the

fulfillment of needs or desires unreasonably and

unilaterally by using the property produced by the

spouse. This triggers a conflict in the private space.

In its development, from the point of view of civil

law, the state provides a means for couples who do

not want to adopt joint property through marriage

agreements in which the separation of property may

executed. Prevention of the risk of financial

exploitation can be overcome by marriage

agreements.

The purposes of the Marriage Agreement are:

a) Separating the property between the husband

and the wife so that their wealth does not mix.

Therefore, if at any time they divorce, the

property of each party is protected.

b) On the debts of each party they make in their

marriages, each will be solely responsible.

c) If either party wants to sell their property there

is no need to ask permission from their spouse

(husband/wife).

d) As well as the loan facilities they apply for,

they no longer have to seek prior permission

from their spouse (spouse) in terms of securing

assets registered in the name of one of them.

(Widanarti, 2020)

Asset separation agreements in marriage can

actually be a solution to prevent or avoid potential

financial exploitation by spouses. With that

agreement, the parties clearly know that they are only

entitled to take legal action against their property. The

asset separation agreement must be agreed upon by

both parties. The formulation of this agreement is

based on the principle of freedom of contract.

Bernadette M. Waluyo, stated the principle of

freedom of contract means the existence of four kinds

of freedom, namely:

a) Freedom for the parties to make or not make

agreements.

b) Freedom to determine with whom the parties

will enter into an agreement.

c) Freedom for the parties to determine the

agreement in a certain form or not.

d) Freedom for the parties to determine the

content, validity and terms of the agreement

(Agustine, 2017)

The law does not give compulsion for the making

of this marriage covenant. The parties (husband and

wife) are given the complete freedom to choose

whether or not to make a marriage agreement

according to the conditions of their needs in real time.

The law provides a means to prevent potential

financial exploitation by spouse in marriage through

private law regulations. In this case the initiative

comes from the parties and the state only facilitates

the needs of the parties through procedures that must

be taken based on the prevailing laws and regulations.

In the event that a property separation agreement

is not made and an act of financial exploitation by the

spouse occurs, based on the civil legal system in

Indonesia, there is no possibility of a civil lawsuit

from the aggrieved party related to the amount of

assets exploited. In practice, such conditions lead to

divorce lawsuits on the basis of continuous

quarrels/disputes.

In the next sub-chapter will be described an

analysis of financial exploitation from the point of

view of the Indonesian criminal law system.

3.3 Criminal Law Perspective on

Financial Exploitation

Financial exploitation by spouses in marriage, is not

currently strictly regulated. Based on the description

in the previous sub-chapter, from the perspective of

civil law, financial exploitation by spouses have no

legal consequences. The authors argue that acts of

financial exploitation as part of financial violence so,

it will need to be regulated also by criminal law.

Financial Exploitation by Spouse, a Crime in Private Space: An Overview based on Indonesian Legal System

325

Criminal law is a whole of principles and

regulations followed by the state or another common

law society, where they as preserved from the public

order have prohibited the conduct of unlawful acts

and have associated violations of its rules with a

special suffering in the form of punishment.

(Lamintang, 1966). As part of a legal system, Andi

Hamzah argues that criminal law in a country is the

moral code of a nation. There we can see what is

actually forbidden, not allowed, and what to do in a

society or country. (Hamzah, 2017).

Criminal law is a public law. It is not an individual

who acts in case of violation of the law, but the state

through the law enforcer. There are some exceptions,

for example in the certain crimes, that require

denunciation from the aggrieved party. (Hamzah,

2017).

Article 51-53 of the Domestic Violence Law

formulates physical violence, mental violence and

sexual violence as certain crimes that require

denunciation from the aggrieved party, but regulation

regarding classification of crimes for domestic

neglect has not been explicitly regulated.

In the concept of criminal law, deeds are classified

into mala in se and mala prohibita. The Latin term

mala in se translates to mean “wrong in itself,” or

“evil in itself.” In the legal system, mala in se refers

to acts that are inherently wrong, or an act that is

wrong in and of itself. This is in contrast to mala

prohibita, which is an act that is wrong because it is

prohibited by law. (Weda, 1996)

Cases of financial exploitation in marriage,

closely related between the private aspect and the

public aspect. The state needs to affirm the existence

of acts of financial violence, including financial

exploitation by couples in marriage. This is certainly

to provide protection against property obtained

during marriage.

The discussion in this section focuses on how acts

of financial exploitation are qualified based on the

point of view of criminal law, both theoretically and

normatively based on the applicable law in Indonesia.

Criminal law, which is basically public law, has a

role in providing protection for crimes in private

spaces. For example: domestic violence. The state has

a role in providing legal protection for its citizens.

Domestic violence law is a form of state

responsibility in ensuring the fulfillment of security

for all citizens.

The consideration of the Domestic Violence Law

states unequivocally that all forms of violence,

including the domestic violence are crimes against the

dignity of humanity. Based on this consideration, it is

necessary to affirm that all forms of domestic

violence are crimes so that the perpetrators deserve

criminal sanctions.

Article 5 Domestic Violence Law: Anyone shall

be prohibited to carry out violence in household

against an individual within the scope of the

household, be means of:

a. physical violence;

b. psychic / mental violence;

c. sexual violence; or

d. negligence of household

Article 9

(1) Anyone shall prohibited to neglect an individual

within the scope of the household, whilst in fact

according to the law prevailing on him/her or on

account of acceptance or agreement he/she shall

be obliged to provide livelihood, treatment, or

care for the individual.

(2) The negligence referred to in paragraph (1) shall

also apply to anyone bringing about economic

dependence by limiting and/or prohibiting an

individual to work properly inside or outside the

house thereby the victim is placed under the

control of the individual.

The above article can be applied in the context of

the occurrence of abandonment by a person against

his family, among others:

a. Abandonment of wives by husbands

b. Abandonment of children by parents

c. Abandonment of family members

(Prastyananda, 2016)

For the context of financial exploitation, it needs

to be discussed further, whether financial exploitation

included in the violation of Article 9. To state whether

an event can be qualified as a criminal act, it is

necessary to affirm whether the event meets the

element as mentioned in the articles.

Article 9 paragraph (1) has the following

elements:

1. Abandon; means do not perform maintenance

2. People in the household sphere, meaning

family members who are in the house

including the household assistant

3. According to the law or by consent: The main

context in the provisions of the article must be

understood there is the phrase "according to

the law or by agreement or agreement he is

obliged..." where in this phrase it is interpreted

that there must be an alliance in the form of

marriage that makes the emergence of an

obligation not to neglect the household or not

to commit economic violence. (Irawan, 2019)

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Article 9 paragraph (2) contains elements of

economic dependence so that the victim is under the

control of the perpetrator. This article needs to be

adequately explained by law. Grammatically, this

chapter refers to the actions of a person who in such

a way makes the victim financially dependent on him.

Grammatical interpretation of financial

exploitation does not meet these elements. If the

perpetrator allows the victim to work and then

exploits the results of his work, then in this case the

perpetrator is financially dependent on the victim.

This is clearly a different meaning, and even contrary

to the grammatical meaning of the word

"abandonment".

As has been explained in the previous section,

financial exploitation is declared as violations of the

Domestic Violence Law, according to various

studies, but not yet affirmed by legislators.

According to research conducted by the

"Convention Watch" – Working Group at Center for

Women and Gender Studies University of Indonesia,

Article 9 of the Domestic Violence Law includes

abandonment carried out in the household sphere in

the form of any act that restricts people (women) to

work inside or outside the home that makes money

and or goods; or let the victim work for exploitation;

or abandon family members (Kelompok Kerja, 2000).

If we return to the issue of whether financial

exploitation by spouses in marriage can be

categorized as criminal acts, then we need to return to

the principle of legality stating that an action can only

be criminalized if it is stipulated in written rules.

So, as long as Article 9 of the Domestic Violence

Law does not provide an authentic interpretation of

whether financial exploitation is included in the

article, then financial exploitation cannot be

penalized. Although if we look, there is an element of

loss to the victim both materially and mentally, and

the action is clearly contrary to moral rules.

Based on theoretical conception, the act of

exploiting a partner’s properties, is basically a crime,

and may classified as mala in se. The act of afflicting

a person is certainly an evil act.

The act of exploiting a spouse's property has

elements in common with extortion, namely the

coercion of the victim so that the victim gives

something to him. It's just that this action happens in

a private space and the victim does not receive threats

of physical violence, but it is possible that the victim

experiences psychological distress if she/he does not

meet the request from the perpetrator.

The requirement that must be set by the law to

criminalize such acts of exploitation is the result of

misery on the victim. To criminalize such actions,

legislators need to regulate them more firmly with the

use of consistent terms, so it will not potentially cause

multi-interpretation.

This paper states that the term “financial

violence” in the Domestic Violence Law will be more

suitable for use. Domestic neglect and financial

exploitation should be part of the financial violence.

With the use of the terminology "violence", it will

become clear that the act deserves to be punished.

Similarly, subjects that can be considered as

perpetrators are not only men / husbands, because

exploitative actions against the spouse's property can

also be done by women or wives.

3.4 Law Enforcement for Financial

Exploitation Cases

Financial exploitation by spouses has not been clearly

stated in criminal law. A victim of financial

exploitation will not get access to justice as long as

the rules are not clearly state, whether this act of

exploitation is a criminal act or not.

Criminal law enforcement is certainly based on

the existence of written law. Until now, law

enforcement can be implemented against cases that

meet the element of "neglect" as stipulated in Article

9 of the Domestic Violence Law. Criminal law does

not justify an extensive interpretation, so financial

violence cannot be widely interpreted.

To discuss about law enforcement, this paper

tries to analyze some of the judge's verdicts related to

the application of Article 49 of the Domestic

Violence Law. The verdicts analyzed include: Case

No. 797/Pid.B/2013/Pn.Rap. The defendant was

sentenced to 8 months in prison for allegedly

abandoning his children by not providing a living.

The judge bases his verdict on the regulation of

Article 9 paragraph (1) and Article 49 of the Domestic

Violence Law, in which the defendant's actions fulfill

the element of “neglect”. Similarly, in the case No.

205/Pid.Sus/2013/PN. KPJ, the judge sentenced the

defendant to 2 months in prison, because the

defendant has been proven legally and convincingly

committed acts of abandonment by not providing for

his wife and children.

Punishment in Article 49 of the Domestic

Violence Law is a maximum 3-year prison sentence,

but in reality, the verdict handed down is much lower

than the maximum sanctions threats. As far as

searches are conducted, the judges' rulings only cover

cases of domestic abandonment, while cases of

financial exploitation by spouses not yet be confirmed

through criminal law mechanisms.

Financial Exploitation by Spouse, a Crime in Private Space: An Overview based on Indonesian Legal System

327

4 CONCLUSIONS

Based on the principle of legality, the act of financial

exploitation by a spouse in a marriage, has not been

explicitly regulated. As criminal law prohibits

extensive interpretation, until now the act cannot be

classified as a criminal act, even if the nature of the

act is eligible to be designated as a criminal act.

Law enforcement is basePd on the principle of

legality, where violations that can be punished by

criminal law is an offense that meets the element of

abandonment / neglect. Parties who are harmed by

acts of financial exploitation by the spouse, usually

file a divorce lawsuit. This means that, under

Indonesian law, cases of financial exploitation by

spouses have not been able to be criminalized.

Recommendation

For the government / legislators: revise article 9 of the

Domestic Violence Law by changing the term

“domestic neglect” into “financial violence” and

adding authentic interpretations / official

explanations with regard to the scope of financial

violence in which exploitation and abandonment

become part of the financial violence.

For law enforcement: to apply the rules based on

the principle of legality in order to ensure legal

certainty. For the community: to be more aware of

financial exploitation potentially done by spouses and

to study various prevention efforts.

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