Marital Status

Legal Marriage


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Question: Marital Status for Marriage in the Church Without Civil Registration

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.


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