Formal Law Conclusion

Conclusions - problems with formal law in Indonesia


Several points stand out in the previous discussions:

  • Indonesian law is built on a complex base of legal traditions which are not well-coordinated in practice;
  • Indonesian laws can be created by a variety of government and non-goverment sources, and some of these laws can be contradictory;
  • Publication of laws is often haphazard.

Both the Tabulujan and the NYU discussions note the difficulty of obtaining printed and consolidated digests of the laws.

The Sriro article focuses entirely on the difficulty of obtaining information about statutes and regulations outside Jakarta.

All three articles leave the impression that the primary problem is finding out what the laws actually say, not the written laws themselves.

The three articles skip over the difficulties discussed in the third Library of Congress article about inter-religious marriage:

  • The laws themselves, even where complete printed copies are available, are unclear.


Laws about marriage

To repeat: the actual formal laws regarding inter-religious marriages are vague. “The Supreme Court of Indonesia has essentially found that there is a ‘legal vacuum’ in this area.”

This same situation also occurs in other vital areas of law.

In fact, as the article about marriage points out, in this legal vacuum where the registration of the marriage is described in law as one of the requirements of marriage, the law fails to make clear the conditions under which registrars may accept registration. In this vacuum, the registration itself may be interpreted as the implementation of the law. That is, the arbitrary decision of a clerk in a registration office can determine whether your marriage is legal.

And yet it can also be argued that the registration of a marriage may have been illegal, and the registration itself does not prove that the alleged event actually took place, and therefore the fact that a clerk in a registration office did accept the marriage does not make your marriage legal.

Discussion of practical application will wait for later chapters, but in brief:

  • fathers who do not wish to acknowledge or pay child support for their children, or,
  • mothers who wish to deny fathers access to their children,
find this “vacuum” useful. Because the laws are vague and the meaning or importance of registration is unclear, it is worth initiating a legal battle —even if based on false documents—if there is any possiblility of taking advantage of this issue.

But the fourth article by Ilman Hadi points up a more complex definition. “So marriage which is performed only by religious law and is not recorded is still a valid marriage, but it does not have the force of law.”

What is the difference between a “legal” marriage and a marriage with “the force of law”? Among other things, it is the difference between your children being legitimate or illegitimate, and that determines whether a father does or does not have right to custody of his own children.


Why are the marriage laws vague?

This discussion has barely scratched the surface of the debate about the interpretation of marriage laws. Discussions can become exceedingly complex, courts are inconsistent in their rulings on the issues, and many families have been torn apart due to disagreements about the laws of marriage.

Although we have used “inter-religious marriage” as an example, there are many other areas of marriage law which are just as opaque.

The Library of Congress article notes that “Marriage in Indonesia is governed by Law Number 1 of Year 1974 on Marriage (1974 Marriage Law). The 1974 Marriage Law applies to all Indonesian citizens, regardless of religion.” That is, the law has existed for 42 years, and the issues have never been clarified.

One reason for this is alluded to in the Library of Congress article: multiple legal and religious traditions prevent the Indonesian public from reaching a consensus on laws even so basic as marriage, and so to avoid provoking discord between religious and social factions, the legislature simply left a legal vacuum.


Is overseas marriage a simple solution?

The Library of Congress article also notes the common solutions “Couples may therefore choose to marry overseas or one party may decide to convert to the religion of the other.”

Without going into details here, it is worth noting that

  • overseas marriage and subsequent registration of the marriage in Indonesia has its own set of issues and vague regulations, and
  • expatriates coming from liberal humanist cultures in which the government has no authority over religion may be entirely unaware of and unprepared for the implications of converting religions in a state in which religious faith is regulated by constitutional law.


The situation as described for marriage is not unique, and the same problems beset laws about foreign ownership of property, contracts, business, and many other areas of interest to expatriates.