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.