The following article appears in HukumOnLine.com (Original in Indonesian).
Dear hukumonline, I have a lover who was married only through the church (Protestant).
In the course of time her ex-husband made a divorce. From the marriage was born
a child bearing his father's clan name. In this connection my lover and I now want
to marry. My question is: what is the status of my beloved who was only married
in the church and then divorced? Is there a legal procedure that could give clarity
to her marital status before the woman wants to marry another man? What is the status
of the child of the marriage? Will I be able to change the child's surname to my
clan name when we were married according to the rules that apply?
Answer: by Ilman HADI
1. According to Article 2 paragraph (1) Law no. 1 of 1974 on Marriage ("UUP"), marriages
carried out in accordance with the procedures and laws of each religion is legitimate.
This means that the previous marriages performed by your beloved is valid even if
only done in the manner of Protestant marriage.
However, Article 2 paragraph (2) UUP insists that every marriage must be recorded
in accordance with the legislation in force. It is reiterated in Article 3 jo. Article
1 of Law No. 17. 23 of 2006 on Population Administration ("Adminduk Act") that marriage
is one of the Important Events that must be reported to the Implementing Agency
(in this case under Article 2 paragraph (2) PP. 9 Year 1975 on Implementation of
the Law no. 1 of 1974 Marriage is about the Civil Registry Office) to meet the necessary
requirements.
There are sanctions that can be imposed relating to the recording of this marriage.
In accordance with Article 90 paragraph (1) letter b jo. Article 34 paragraph (1)
jo. Article 37 paragraph (4) Adminduk Act, any resident may be subject to administrative
sanctions such as fines when exceeding the reporting deadline of 60 days from the
date of marriage (if done in Indonesia) or more than 30 days after returning to
Indonesia (where marriages performed outside Indonesia ).
You say that your beloved's former husband made divorce papers. We do not understand
what agency could have issued the divorce papers, because if there is no registration
of the marriage, the divorce certificate will not be issued when the marriage broke
up, because officially it is considered that there was no marriage.
In addition, we do not yet understand what sort of divorce your beloved and her
ex-husband's went through. We would need to know this to understand the status of
your beloved's previous marriage. For example, for a person who is Muslim and married
siri, divorce can be done with talak.
2. Actually, marriages performed only by religious law can be equated with marriage
siri. More information can be read article Regarding Divorce of Marriage Siri and
Regarding Marriage Siri. Marriages made only with religion do not have the force
of law.
To prove that a previous marriage relationship and a divorce has occurred, Article
36 of Law Adminduk states that if the marriage cannot be proved by a Marriage Act
or Certificate, registration of the marriage can be performed after obtaining a
court ruling. In this case, when the marriage or divorce cannot proved (by a registration),
your beloved can request the court for clarification of the status of the previous
marriage before she marries you.
3. Status of children born of a religious-only marriage is regarded as illegitimate
child because his parents marriage has not been registered. However, the child may
have a legal relationship with her father through legal mechanisms using evidence
based science and cutting-edge technology and / or legal decision by the Constitutional
Court No.. 46/PUU-VIII/2010. More information can be read in the article Civil Relationship
with the Father of a Child Born Outside Marriage with Post-Verdict MK.
4. Regarding whether you can change a child's clan surname to your clan surname,
you should review the applicable customary law. To add to the understanding of the
problem you can consult to articles Problems of Listing Clan Surnames in Civil Documents.
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. Children born of a religious-only
marriage are legally seen as illegitimate children, but may have a legal relationship
not only with the mother, but also with the father through some legal process.
So is what we know in the matter, we hope it may be useful.
Legal basis:
1. Law No. 1 of 1974 on Marriage;
2. Law No. 23 of 2006 on Population Administration;
3. Government Regulation No. 9 of 1975 on the Implementation of Law No. 1 of 1974
on Marriage;
4. Presidential Regulation Number 25 of 2008 on the Admission Requirements and Procedures
for Population and Civil Registration.
Verdict:
Constitutional Court Decision No. 46/PUU-VIII/2010
The original of this article, including footnotes and links, can be found at: HukumOnLine - Status Pernikahan di Gereja Tanpa Didaftarkan