Civil and Criminal Aspects of Foreign Marriages
The following is a synopsis of a Legal Opinion given by a prominent Professor of Law who consults frequently
with the police and the courts.
(And note that Indonesian Law Advisory can put you in touch with nationally respected expert witnesses if you need them.
The creedence given to an expert witness by the court can often depend upon the renown of the expert witness.)
See also Criminal False Documents
for a more general overview about meaning and application of Pasal 263 and 266 KUHP.
The essence of the underlying case is that a foreign man and Indonesian woman were married legally in the husband’s home country,
and several years later they moved to Indonesia. In Indonesia they had two children who took their father’s foreign citizenship
(as required by Indonesian law prior to 1998), established businesses, and bought property.
Some years later the wife told the husband that they needed to register their foreign marriage to protect their assets.
But in fact she arranged other documents—in Indonesian language only, which the husband could not read.
One document was a Marriage Agreement—which was in fact a Prenuptial Agreement removing all the husband’s rights
to assets of the marriage—claiming in the prenuptial that she was unmarried at the time of the agreement.
She then acquired a second Certificate of Marriage or Akta Perkawinan for an entirely new marriage
as if the husband and wife were marrying for the first time.
The husband later registered the original foreign marriage after he discovered that it had never been registered.
But shortly after that the wife filed for divorce based upon the new Indonesian marriage, arguing that
the foreign marriage was not valid in Indonesia because it had not been registered in time,
and that therefore the later Indonesian marriage was legal and had occurred in Indonesia before Indonesia legally
knew about the foreign marriage.
The Mahkamah Agung did not agree with the wife’s theory, confirmed that the foreign marriage was legal
and in effect in Indonesia from the instance of the foreign marriage, and that the Indonesian Akta Perkawinan
was Batal Demi Hukum (Cancelled by Law, meaning “never existed”), and that the wife’s action
in acquiring the new Akta Perkawinan was Perbuatan Melawan Hukum or an Act Contrary to Law.
An expert Legal Opinion explains the law behind the Mahkamah Agung decision:
From what moment is a foreign marriage legal in Indonesia?
The status of a woman who is already married with a man as proven by a Certificate / Legal Document of Marriage
is a legal marriage and is binding under law to both parties as husband and wife under law.
Status by law for a man as a husband and a woman as a wife carries a legal consequence, which is
that a legal foreign Certificate of Marriage becomes the basis for status in all legal documents,
and the status of the two parties is “married.”
The status of married has legal implications, primarily regarding the two parties receiving protection under law,
in the status of their natural children, and in the legal status of the objects making up the assets in common of the marriage.
The husband and wife were married in accordance with the legal foreign Certificate of Marriage,
and it is a Certificate of Marriage which is legal and both parties certainly knew and were aware that they were legally married.
If then they moved to Indonesia and stayed in Indonesia, their legal marriage status still remains under law,
and therefore the Kantor Catatan Sipil Indonesia cannot legally issue another Certificate of Marriage,
and it is sufficient that they only report and register at the Kantor Catatan Sipil Indonesia.
The Certificate of Marriage that is legally binding is the original foreign Certificate of Marriage
between husband and wife which was then registered at the office of the Dinas Pencatatan Sipil, Indonesia.
It should be noted that because the two parties already had a legal Certificate of Marriage from the foreign country,
therefore the Kantor Catatan Sipil could not legally issue another Certificate of Marriage, and therefore the second Akte Perkawinan
issued by the Kantor Catatan Sipil cannot or does not exist under law. According to Indonesian law the condition of marriage
between the two parties can have only one legal Certificate of Marriage.
Based on this consideration, the issuance of the new Certificate of Marriage or Akta Perkawinan is not correct
and has no force of law because a Certificate of Marriage can only be issued one time.
The issuance of the Akta Perkawinan is contrary to law and is not legal and has no force of law.
What is the significance of the requirement to register a foreign marriage in Indonesia?
It is a requirement of the Law of Marriage year 1974 (Undang-Undang No 1 tahun 1974 tentang Perkawinan)
that the marriage of an Indonesian citizen married outside Indonesia must be be registered at the Kantor Catatan Sipil Indonesia
within 1 (one) year after the date of the marriage. This registration at the Kantor Catatan Sipil
does not have significance for the legality or not of the marriage, but is only of adminstrative importance.
Therefore, registration at the Kantor Catatan Sipil at some point in time beyond that one year does not cause
a cancellation of the marriage relationship between the husband and wife. Marriage between the two parties according to the laws of marriage
is legal and binding to both husband and wife regarding all rights and responsibilities and all legal consequences.
Also the unfinished / late registration of a legal marriage outside the country at the Kantor Catatan Sipil Indonesia is an administrative issue
that can result in administrative sanctions (such as a fine, a warning, etc) but it cannot cancel the legal marriage relationship
which was created by the marriage occuring.
Are the actions of the wife in acquiring a new Akta Perkawinan an Act Contrary to Law?
The wife gave an explanation in order to obtain the Akta Perkawinan so that the Akta Perkawinan was issued,
and then she used the Akta Perkawinan to file an Accusation of Divorce against her husband,
so it can be concluded that the wife did give false information in order to obtain the Akta Perkawinan,
and that she then used the Akta Perkawinan which contained false information.
According to law, a woman and man who are married have a mutual legal responsibility to provide true information
when acquiring legal documents that their status when acquiring those legal documents is “married.”
If a man or woman who is married intentionally gives information that their status in “unmarried,”
the party who gives such information has commited falsification in an Akta Otentik
(if that information becomes the basis for producing an Akta Otentik or legal document)
or falsification in a legal document (if that information becomes the basis for producing a legal document)
and is an Act Contrary to Law and therefore that action fulfills the requirements of a criminal act.
Did the actions of the wife in acquiring a new Akta Perkawinan cause a loss to the husband or children?
The wife was at that time tied in marriage (status “married”), then used a false or falsified document stating herself “unmarried”
and then arranged a new Certificate of Marriage at the Kantor Catatan Sipil causing to be issued the Akta Perkawinan,
then used this document to file an Accusation of Divorce against her husband, and so the actions of the wife include providing information
contrary to the truth, or false, and using a Certificate of Marriage or Akta Perkawinan based on false information to file an Accusation of Divorce
with the court.
This action of using the Akte Perkawinan issued by the Kantor Catatan Sipil Kabupaten to file an Accusation of Divorce
at the Pengadilan Negeri that ultimately resulted in the the decision Putusan Makamah Agung affirming the legality of the foreign marriage
caused a loss to the legal rights of the husband and their two natural children, and these losses were
- The wife already had a plan to not admit her status of legally married with her husband that took place in the foreign country,
and this caused a loss of legal rights of the husband because based on the legal marriage he acted and carried out the reponsibilities
as the husband of the wife and together they had two children.
- The actions of the wife in filing an Accusation of Divorce based on Akta Perkawinan issued by the Kantor Catatan Sipil
and not based on the original legal foreign Certificate of Marriage caused a loss of legal rights in connection to the assets in common
(assets acquired during the marriage) which were in the name of the wife who is a citizen of Indonesia,
that is the assets of the marriage from the date of the foreign marriage.
- The actions of the wife above caused a loss to the legal rights of the two natural children,
both born before the date of the Akta Perkawinan which means they would be considered children born outside the marriage,
although in fact the two children are natural children born inside the original foreign legal marriage, with the legal consequence
that they would lose their legal status as children born of the marriage.
The change in the status of natural born children of a marriage to children born outside a marriage is a criminal act
that can cause serious psychological damage to children which are at that age highly vulnerable
and it is included in the responsibilities of a parent (a mother) to care for her children.
Based on the above points, the use of the Akta Perkawinan has caused both material and immaterial loss to the husband / father
and to the two children of the marriage.
The wife’s purpose in these complex inventions of documents apparently had to do with puchasing and selling properties which were assets in common without her husband’s permission.
During the marriage, and before the wife acquired the Akta Perkawinan, the husband and wife purchased a property
and acquired a Land Certificate (Sertifikat Tanah) attaching a Certificate of Domicile saying that the wife was
status “Married.”
But after the wife filed for divorce she sold the property by attaching the Prenuptial Agreement.
There was an obvious conflict which apparently did not trouble the notaris: when the property was purchased
the wife claimed the status “married” but at a later date the wife prepared a Prenuptial Agreement
claiming the status “unmarried.”
Are the actions of the wife in acquiring and using a new Akta Perkawinan criminal?
The Certificate of Marriage which has the force of law is the original legal foreign Certificate of Marriage,
therefore all the legal consequences and legal documents in connection with the marriage between husband and wife
that are not based on the legal foreign Certificate of Marriage are not valid and use of a document which is not valid
is a criminal act because it is using a false document as meant by Pasal 263 KUHP or using an Akta Otentik
with false information as meant by Pasal 266 KUHP.
Are the actions of the wife in using the Prenuptial Agreement criminal?
That the actions of the wife in purchasing the property and claiming to be “married,”and then later acquiring a Prenuptial Agreement
claiming the status “unmarried”can be explained as follows:
- Regarding the Certificate of Domicile stating “married” together with the Prenuptial Agreement claiming “unmarried,”
it needs to be questioned that the status of marriage is based on what Certificate of Marriage and to what husband she is married?
If it is based on the husband in question, this means it must be based on the foreign marriage.
- If it is true that her status was married, the legal action of making a Sales Agreement must contain also an agreement
from the husband in the Sales Agreement as proof that the property in question is owned by husband and wife or with
the status of assets in common of the marriage.
- The Prenuptial Agreement was made during the marriage meaning that it was made after the legal foreign marriage.
The issuance of this document is not correct and has no basis in the laws regarding marriage, because a Prenuptial Agreement
must be made prior to a marriage. If it is made after the occurance of the marriage it it not legal and has no force of law,
because at the issuance of the legal foreign Certificate of Marriage there was no prenuptial agreement
and the laws which apply since then are the laws of marriage.
Based on the above principles, the action of selling the properties in the name of the wife as if the properties were her own personal properties,
although she knew that the properties were assets in common of the marriage based on the original foreign Certificate of Marriage,
then all documents that are not in accordance with the status “married” based on the original foreign Certificate of Marriage are false.
According to Pasal 263 KUHP:
Pasal 263
(1) Whosoever makes a false document or falsifies a document that can create a right, a tie or a release of a debt,
or is intended to be used as legal evidence about something other than the actual truth with intention to use
or to cause another person to use that document as if the contents are true and not falsified, can be charged with falsification of a document,
with a criminal sentence of imprisonment for a maximum of six years.
(2) Can be charged with the same sentence, whosoever intentionally uses a false document or a document falsified as if it is true,
if the false document can cause a loss.
Basic points of Pasal 263 ayat (1) KUHP:
1) Making a false document or falsifying a document,
2) that can create a right, a tie or a release of a debt, or is intended to be used as legal evidence
3) with intention to use or to cause another person to use that document as if the contents are true and not falsified
4) if that use can cause a loss.
The essential elements of Pasal 263 ayat (1) and (2) KUHP, include:
1) The condition of making a false document or falsifying a document:
- Making a false document, means that before a document exists, then a document is made with contents
which are not in accordance with reality or the contents are untrue.
- Falsifying a document, means that a document already exists, but that then the contents are altered,
so that the contents are not in accordance with the truth or the contents are not in accordance with the original document.
The change in the document or its contents can include adding, removing, or changing entirely, for example adding a sentence, word, number,
or signature; erasing a sentence, word, number, or signature;
altering a sentence, word, number, or signature; this change in the documents then causes and change in the appearance and contents
such that it alters the original purpose of the document.
2) The condition that can create a right, a tie or a release of a debt, or is intended to be used as legal evidence.
- that can create a right, a tie or a release of a debt.
- can be used as legal evidence, that is that creates a right and responsibility, such as a sales agreement, a debt agreement,
a work agreement, a rental agreement, etc. which creates a right because or a tie or agreement placed in the document or can be proven
by use of the document. There are documents which directly create rights including a bill of lading, a check, a money-order, etc.
- That can be use to prove something.
3) The condition with intention to use or to cause another person to use that document as if the contents are true and not falsified.
- A person making a false document can be sentenced for criminal act if in the production of that document he has the intention to use the document.
The person has the intention to use or to cause someone else to use the document as if the document is true and not false.
The person may present the document as true, although it in fact contains false information or is false, and the falseness
of the document is known by the person.
4) The condition that the use of the document could cause a loss.
- The word “could” cause a loss means that there does not need to be an actual loss already occuring,
it is enough that there could be a loss and the possibility of a loss is sufficient, because what is meant here by “loss”
is not only material loss, but may also be loss to the public, society, morals, etc (M.A.R.I. 29 Mei 1965 No. 10K/ Kr/ 1965).
In another example of the Mahkamah Agung (M.A.R.I. 5 Juni 1975 No. 88 K/ Kr/ 1974) the loss does not need to be apparent.
According to Pasal 266 KUHP:
Pasal 266
1) Whosoever orders false information to be entered into an Akta Otentik (official legal document) about a basis
for which that document is intended, with the purpose of using or causing another person to use the document as if the contents of the document
are true, can be sentenced if the use of that document can cause a loss, by imprisonment for a maximum of seven years.
(2) Can be convicted with the same sentence whosoever intentionally uses such a document as if the contents are true,
if the use of that document can cause a loss.
The essential elements of Pasal 266 ayat (1) KUHP:
1) The condition orders false information to be entered
- What is meant by orders false information to be entered is to request a government official preparing an Akta Otentik
to enter an explanation as if a true explanation, although in fact knowing that the explanation is false or falsified,
and not telling the government official making the Akta Otentik of that falsification.
2) The condition into an Akta Otentik
- What is meant by into an Akta Otentik is that the false explanation is intentionally provided so that it is entered into the Akta Otentik.
The party that enters it into the Akta Otentik is the government official making the Akta Otentik.
3) Condition about the basis
- What is meant by about a basis is that an explanation or a document is intended as the basis for the Akta Otentik.
For example, for a Birth Certificate, the explanation of the place and date and the natural parents of the child are
basic elements of the Akta Otentik.
4) Condition for which that document is intended
- What is meant by for which that document is intended is that an Akta Otentik is intended to be proof of something, and because of that,
the truth of the evidence is a prime purpose of an Akta Otentik.
So if an Akta Otentik has its origin in false or incorrect information, that Akta Otentik no longer has value as evidence.
5) Condition with the purpose of using or causing another person to use the document as if the contents of the document are true
- What is meant by with the purpose of using or causing another person to use the document as if the contents of the document are true
is that the information given to a public official making an Akta Otentik is false and is given intentionally to the public official
as a basis for the Akta Otentik so that the Akta Otentik is issued with false information,
and the action of providing false information is done with intent to use the Akta or cause someone else to use the Akta with that false information.
6) The condition can be sentenced if the use of the document can cause a loss
- What is meant by can be sentenced if the use of the document can cause a loss is that if the use of such an Akta Otentik
with false information can cause a loss to another party.
The essential elements of Pasal 266 ayat (2) KUHP:
1) The condition intentionally uses such a document
- What is meant by intentionally uses such a document is that the essence of the crime is the intent to deceive (dolus)
and this intent is centered on the usage of a Akta Otentik which contains information that is false which was provided to a government official
who made that Akta Otentik so that it could be use as a basis of the document by the government official who made the Akta Otentik
so that the the Akta Otentik is issued as if it were an Akta Otentik with correct information.
2) The condition as if the contents are true
- What is meant by as if the contents are true is that the Akta Otentik contains false information, but the information is false
because the government official who made the Akta Otentik did not know that the information given by the person requesting the Akta Otentik
was false information, and therefore because the information appears in an Akta Otentik the Akta Otentik appears
as if it testifies to true information, although in fact the information is false.
3) The condition for which that document is intended
- What is meant by for which that document is intended is that an explanation or a document which is intended
to establish basic evidence of an event or condition which is the purpose of an Akta Otentik. For example in a birth certificate,
the explanation of the place and date of the birth and the natural parents of the child are the basic elements meant to be established
by the Akta Otentik.
4) The condition if the use of that document can cause a loss
- What is meant by if the use of that document can cause a loss is that if after using an Akta Otentik in which the contents
are false can cause a loss to another party, then the entry of false information into an Akta Otentik can be charged as a criminal act.
Based on the above legal analysis of Pasal 263 KUHP and Pasal 266 KUHP, my opinion is that the actions of the wife
do qualify as a criminal act of entering false information or falsifying a document as meant by Pasal 263 KUHP,
if the obect is a document, and qualify as a criminal act of entering false information in an an Akta Otentik as meant by Pasal 266 KUHP.