Some common problem involving inheritance law is determining the heirs or parties who are most entitled to inherit from the wealth of a deceased. The division of inheritance is indeed not a rare problem for families in Indonesia.
In fact, the Civil Code has stipulated that inheritance is one way to obtain property rights. In particular, articles 832 and 852 letter a of the Civil Code state that the parties entitled to become heirs are blood relatives either bound by registered marriage or unregistered marriage and the widow or widower. Article 250 of the Civil Code states that every child born in a registered marriage has the right to inherit property.
However, problems arise when a marriage is not registered under applicable laws. Although a marriage is considered legal religion-wise, unregistered marriages are considered non-existent by law.
In Indonesia, marriage registration is carried out at the Office of Religious Affairs (KUA) for Muslim residents, while for non-Muslim at the Civil Registry Service Office.
Obligation of Marriage Registration Based on Indonesian Positive Law
Marriage must be recognized by the state. Article 2 paragraph (2) of Law No. 1/1974 on Marriage stipulates that every marriage must be recorded according to the applicable regulations. Provisions regarding marriage registration are regulated in Government Regulation No. 9/1975 on the Implementation of Law No. 1/1974 on Marriage.
Law No. 23/2006 on Population Administration states that registered marriages must be reported to the relevant agency at the place where the marriage take place no later than 60 days from the date of the marriage. In response, the relevant agency issues Marriage Certificates, each of which is given to a husband and a wife.
The provisions regarding the marriage registration are applicable to Indonesian citizens and to foreign nationals conducting their weddings in Indonesia at their requests.
Marriage of Indonesian citizens with foreigners abroad is beyond the scope of Indonesian laws. However, Article 56 paragraph 1 of Law No. 1/1974 allows the marriage of a couple both of whom are Indonesian citizens or an Indonesian citizen with a foreign citizens. The marriage is considered valid if it is carried out in accordance to the applicable laws in the country where the marriage is taking place and, for Indonesian citizens, does not violate the provisions of the applicable laws and regulations in Indonesia. Indonesian laws.
From the description above, for Indonesian citizens who are Muslims, the marriage must also meet the provisions of the sharia law. Marriages of Indonesian citizens who are not Muslims must also be carried out according to the laws and regulations of the their respective religions
Article 37 of Law No. 24/2013 on amendments to Law No. 23/2006 on Population Administration states that marriages performed outside the territory of Indonesia must be registered with the competent authority in the country where the wedding is held or reported to the representative of the Republic of Indonesia in that country within 30 (thirty) days.
Based on Article 107 of Presidential Regulation No. 25/2008, if the reporting period exceeds the specified period, an administrative fine will be imposed according to local regulations.
Juridical Implications of Unregistered Marriages
Normative marriage registration is not ruled as a condition for the validity of a marriage because the laws determining the legality of the marriage is the religious law and belief of the bride and groom.
Marriage registration is authentic evidence in case of problems in marriage, such as problem to determine the status of children born in marriage, and that in the case of divorce. Marriage certificates can be used as evidence to resolve such problems.
Marriage registration serve as a valid written evidence for litigating domestic matters in court, as well as for administrative matters of husband and wife and their children.
Unregistered marriages potentially have a detrimental impact on wives and women in general, both legally and socially, as well as for children. A legitimate child refers to a child who is born from a registered marriage between the child’s father and mother. The laws in Indonesia rule that legal descent is based on the existence of a registered marriage.
Although Law No. 1/1974 does not explicitly regulate sanctions or legal consequences if marriages held abroad are not registered in Indonesia, Supreme Court Circular No. 3/2015 states that “In the event of a marriage carried out abroad that is not registered at the civil registry service office in Indonesia, the marriage is considered to have never existed.”
The juridical implications of unregistered marriage affect the verification of marriage; husband and wife; children born out-of-wedlock and for the assets that are made in the marriage.
Legal consequences of unregistered domestic and foreign marriages, include:
a. Child Status
Religion-wise, children from unregistered marriages have the same status and rights as children of registered marriages. However, in practice, children from unregistered marriages do not get their civil rights easily from their fathers, such as legal rights to child support, inheritance, or birth certificates.
An unregistered marriage can be interpreted as a marriage that are not exist. As a result, children born from such marriages are categorized as illegitimate children based on Article 42 of Law No. 1 of 1974 which states that “A legitimate child is a child born in or as a result of a registered marriage”.
Based on article 43 paragraph 1 of Law No. 1/1974, a child out of wedlock will only have a civil relationship from his/her mother and the mother’s family, while the same child has no civil relationship with the biological father and the father’s family. Likewise, in the case of registering a child’s identity in the form of a birth certificate, the birth certificate of a child out of wedlock only includes the name of the mother, while the name of the father is not listed in the certificate.
The Constitutional Court through Decision Number 46/PUU-VIII/2010 has stated that Article 43 paragraph 1 of Law No. 1 of 1974 is contrary to the 1945 Constitution if it eliminates civil relations between a child and with a man – who based on science and technology and/or other legal evidence is proven to have blood relations as the child’s father.
The Constitutional Court stated that Article 43 paragraph 1 of Law No. 1 of 1974 must be read, “Children born out of wedlock have a civil relationship with their mothers and mothers’ families as well as that with men – who based on science and technology and/or other legal evidence have blood relations with the children as their fathers, and the men’s families”.
b. Inheritance Rights Status and Joint Assets
As a result of unregistered marriages, the legal relationship between husband and wife is unclear and vague in terms of the formation of marital property, as well as inheritance relationships. Thus, there is no legal guarantee for the wife’s inheritance rights.
By law, a woman is not considered as a legitimate wife in terms of the distribution of joint property. She is not entitled to a living and an inheritance from her husband if he dies. In addition, the wife is not entitled to joint property or other assets in the event of a separation, because the marriage is considered to have never exist before the laws.
Author / Contributor:
 | Hari Prakosa, S.H. Associate Contact: Mail : hari@siplawfirm.id Phone : +62-21 799 7973 / +62-21 799 7975 |