Legal Literacy - This article discusses unregistered marriage (nikah siri) law in Indonesia and its consequences for wives and children. Let's understand through the explanation in the article below!
Unregistered Marriage (Nikah Siri) in Indonesian Law
Although unregistered marriage (nikah siri) is recognized as valid in Islam, Indonesian law, especially civil law, does not recognize the validity of unregistered marriage (nikah siri). Furthermore, there is no law that specifically regulates the law of unregistered marriage (nikah siri). In addition, the Marriage Law specifically regulates marriage law.
Article 2 paragraph 1 of the Marriage Law states that a marriage is valid if it is carried out according to the laws of their respective religions and beliefs. Article 2 paragraph 2 of the Marriage Law states that every marriage must be registered according to the prevailing laws and regulations.
Then, in part 4 (b) of the General Explanation of the Marriage Law, it is explained that the registration of each marriage is related to the occurrence of important events in a person's life, such as birth, death, which are recorded in deeds and official deeds and announced in the registration list.
The Impact of Unregistered Marriage (Nikah Siri)
In unregistered marriage (nikah siri), there is no unregistered marriage (nikah siri) certificate. This indicates that the marriage is not registered and has no legal force. Thus, the wife does not have legal status in this country. Later, she cannot claim inheritance or marital property in the event of a divorce. Therefore, the wife cannot file any claims.
Children from divorces cannot be considered "legitimate" in the eyes of the law. Children from sexual relations have the same status as children born from marital relations. Article 42 of the Marriage Law defines a child as a child born within or as a result of a legal marriage.
Furthermore, Article 43 paragraph (1) of the Marriage Law. Article 100 of the Compilation of Islamic Law (KHI) states that children born out of wedlock only have a lineage relationship with their mother and the mother's family, unless science, technology, and/or other legal evidence can prove the existence of a blood relationship as the father.
It is important to note that children from a divorce can still be found in court. However, only the mother's name is listed on the death certificate. A court order is required for a father to be able to acknowledge a child from a divorce.
As long as a court order regarding the acknowledgment of a child has not been issued, the relationship between the father and the child from an unregistered marriage is not recognized. Therefore, the child does not have the right to inherit from the father. If recognized under Islamic law, a child from a divorce is only entitled to a mandatory bequest (wasiat wajibah). Meanwhile, according to Article 863 of the Civil Code, if a person dies leaving behind a child who is legally recognized or a husband or wife, then the children inherit one-third and the share they should have received if they were legally recognized children.
Registration of Unregistered Marriage (Nikah Siri) in Religious Courts
To avoid problems caused by unrecognized marriages, married couples need to register their marriage with an isbat nikah. For information, isbat nikah is an application for ratification of marriage submitted to the court stating that a marriage is legal and can be ratified.
Iѕbаt nikah is permitted if there are reasons or necessities that are determined. These factors are regulated in the KHI. Furthermore, Article 7 paragraph 3 of the KHI explains that іѕbаt nіkаh that can be submitted to the Religious Court is limited to matters relating to: 1. the existence of a marriage in the context of divorce proceedings; 2. the nullification of the marriage contract (akad nіkаh); 3. doubts about the validity of one of the marriage requirements; 4. the existence of a marriage that occurred before the enactment of the Marriage Law; and 5. the existence of a marriage of a person who does not meet the requirements for marriage.
An isbat nikah application can be filed by the husband, wife, child, or guardian. However, according to the Tigaraksa Religious Court, the application is subject to certain conditions. Both the husband and wife must be the ones to file the application if they are still alive. After that, if one of the spouses has died, the application is made by the surviving spouse. In addition, the death of the defendant/applicant in a divorce case does not affect the outcome of the case.
After the issuance of a marriage certificate, the marriage is considered legal and has legal force. The court's determination is then used by the KUA (Office of Religious Affairs) to obtain a marriage certificate. The married couple has a legal relationship that gives rise to rights and obligations, such as inheritance rights and joint property. The couple no longer needs to worry about the legitimacy of their children, as they will be recognized as legitimate children and the processing of their birth certificates will be facilitated.
References
Hukum Online, "Consequences of unregistered marriage for wives and children", 2023. Hukum Online
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