FAQ: Registering a Marriage

Registering a Marriage:

Should we register our marriage in Indonesia?

 

Very short answer: YES.

We know many expatriate / Indonesian couples, however, including some well-educated Western lawyers, who have not registered their marriages.

We hear various combinations of reasons, some based on belief in the Expat Spouse Law and fear that listing a foreign marriage in Indonesia would cause government officials to target a couple’s property for confiscation. But other couples may simply have a general fear of law and government offices in Indonesia, with the consequent idea that the less the government knows about you, the better.

We know a Western lawyer in Jakarta with an Indonesian wife. They wrote up a prenuptial to enable the wife to purchase and own property, but then did not register their marriage at the Civil Office (Kantor Catatan Sipil). “To make it safer” the lawyer told me, although I never understood exactly how that would make them safer.

General distrust of the law and government officials is probably healthy, and keeping a low profile where possible is often wise. But for a marriage, whether taking place in Indonesia or overseas, registration would be smart.

To deal with the fear factor first: the idea that officials troll the records of the Kantor Catatan Sipil and Kantor Agama (for Islamic marriages) to find mixed couples, then somehow track down whether those couples have Prenuptial Agreements (which would be held at private Notaris offices with no indication in the registration records about who that Notaris might be), and then after failing to find such agreements institute legal proceedings to confiscate their properties, is ludicrous.

To begin with, the organization needed to do such a thing is unrealistic. Second, it doesn’t happen. And third, there is no Expat Spouse Law.

To the objection that “well, it hasn’t happened yet, but it might someday,” once again, there is no Expat Spouse Law.

As to the general fear of government officials, in this case it is outweighed by the benefits of registering your marriage.

 

Registration of marriage and paternity

Prior to 2012, failure to register a marriage had a catastropic effect on paternity.

According to Undang-Undang No 1 Tahun 1994 Tentang Perkawinan Sections 42 and 43

    CHAPTER IX

    STATUS OF CHILDREN

Section 42

1. The legal children of a marriage are those children born in or as the results of a marriage that is legal.

Section 43

1. A child born outside a marriage has a civil legal connection only with the mother and the family of the mother.

2. The status of such a child in paragraph (1) is arranged in Government Regulations.

The legal status of children born outside a registered marriage was anak haram or bastards. Fathers had no paternal rights.

The Mahkamah Konstitusi or Indonesian Constitutional Court in February 2012 invalidated Article 43(1) of the law on marriages. WHY DOES SIMON BUTT SAY Article 49?

Implications of the cancellation of Article 43(1) are still filtering down.

Other regulations allow mothers of children born out of wedlock to acknowledge paternity if marriage takes place after a child’s birth, but not entirely clearly what happens if the mother refuses to acknowledge paternity.

Fathers can also gain recognition of paternity through DNA testing and court order.

These processes can be aggravating and expensive, but they can be done.

Still, it would be so much easier to avoid these headaches by registering your marriage.

 

How do we register a marriage?

Earlier we discussed the vagueness of the Regulations No. 1 1974 Regarding Marriage, formalism in Indonesian law, conditions of inter-religious marriage, and the difference between “legal marriage” and “marriage with the force of law”.

To summarize, Regulations No. 1 1974 Regarding Marriage are unclear about how inter-religious marriages may take place. For that reason, maybe somewhat analogous to the confusion which causes some notaris to reject property transactions for expatriate / Indonesian couples without a prenuptial agreement, many or maybe most Kantor Catatan Sipil and Kantor Agama clerks will not register mixed-religious marriages taking place in Indonesia.

That said, we know a former justice of the Mahkamah Agung who is Muslim and his wife who is Christian, and they are legally (and happily) married, and the marriage is registered properly at the Kantor Catatan Sipil so it is also a marriage with the force of law. When we asked him how he did this, he said “because mixed marriages aren’t illegal, the only problem is registering them, and I am a judge.” By which he apparently meant he knew how talk to the clerk to get it registered.

Of course mixed marriages aren’t illegal, because marriages taking place in other countries are legal in Indonesia as long as they are legal in that foreign country. If you bring a foreign marriage to the Kantor Catatan Sipil, they will register it regardless of religions.

 

If I fail to register my foreign marriage, is it still a legal marriage?

We talked earlier about the importance of jurisprudence in Indonesia law (and the Civil Law tradition in general). The following answers depend upon jurisprudence which has been tested repeatedly and confirmed in actual court decisions.

Yes, a foreign marriage is legal and has the force of law in Indonesia from the moment the foreign marriage takes place, whether it is registered in Indonesia or not.

This is in consequence of international law, also in consequence of Regulations No. 1 1974 Regarding Marriage:

UNDANG-UNDANG REPUBLIK INDONESIA

NOMOR 1 TAHUN 1974 TENTANG PERKAWINAN

Pasal 56

1. Perkawinan yang dilangsungkan di luar Indonesia antara dua orang warganegara Indonesia atau seorang warganegara Indonesia dengan warganegara Asing adalah sah bilamana dilakukan menurut hukum yang berlaku di negara di mana perkawinan itu dilangsungkan dan, bagi warganegara Indonesia tidak melanggar ketentuan-ketentuan Undang-undang ini.

Or in English:

CIVIL CODE OF THE REPUBLIC OF INDONESIA

NUMBER 1 YEAR 1974 REGARDING MARRIAGE

Pasal 56

1. A marriage that takes place outside Indonesia between two Indonesian citizens or an Indonesian citizen with a foreign citizen is valid if carried out according to the laws of the country in which it takes place and if for the Indonesian does not violate the conditions of these Regulations.

Note that this also applies to “ a marriage that takes place outside Indonesia between two Indonesian citizens.” Indonesia follows international law and recognizes marriages taking place in other nations according to the laws of that nation. There is no restriction on religion even for Indonesian citizens. The problem in Indonesia is registration.

Now you could propose the caveat that the meaning sah or “legal” in this case is unclear, that it doesn’t distinguish whether this means “legal marriage” or “a marriage with the force of law”. In fact those terms don’t show up in the Regulations Regarding Marriage No 1 1974. They were apparently developed later in attempts to explain the meaning and consequences of the 1974 laws. But by jurisprudence and actual court decisions, this does mean “a marriage with the force of law”.

 

If I fail to register my Indonesian marriage, is it still a legal marriage?

Meaning what, exactly? “Legal marriage” yes, but “a marriage with the force of law”, maybe not.

Legal marriage in this case means that you are not committing a sin by having sex together, that you cannot be arrested for extra-marital sex with your legal marriage partner, that your mesjid or church or pura recognizes your marriage and children.

But regarding other important legal aspects, it is not “a marriage with the force of law”, and so the government of Indonesia and the Indonesian courts do not fully recognize your marriage and children.

So does not registering the marriage give protection against the Expat Spouse Law?

1) Remember that the Agraria Law was issued in 1960, that the Regulations No 1 Regarding Marriage were issued in 1974, that even the 1974 marriage regulations don’t distinguish the consequences of “legal marriage” versus “a marriage with the force of law” so the meaning of the Agraria law of 1960 certainly cannot specify which condition of marriage they are referring to when they say “marriage” because they are in fact referring to marriage in the sense of the earlier Section 119 BW/KUHPerdata. So not clear how this would apply, except...

2) There is no Expat Spouse Law.

Although Indonesian law requires belief in God through officially recognized religions, this does not mean that the government and Indonesian law are entirely in synchrony with the various religious institutions, which are in any case certainly not in agreement with one another.

Estimates are, by the way, that about 60% of marriages in Indonesia are not registered at the government offices. Issues arising from divorce, paternity, and inheritance are generally handled through the local religious organizations or adat.

However, if you are reading this website, issues arising from your marriage will almost certainly be handled through the Indonesian court system and that includes the Religious Court or Pengadilan Agama for Islamic marriages. So Indonesian law applies to you.

So what about Mick Jagger and Jerry Hall?

They were married in Bali, but the British court ruled it was not recognized as a legal marriage in Britain. So does that mean Indonesian marriages are not recognized internationally?

No, the problem with Mick Jagger’s marriage was that it was not legal in Indonesia. The conditions of a legal Balinese marriage are that the two partners must be of the Bali Hindu religion, and then the marriage must be registered at the Kantor Hindu Dharma Parisada. Mick Jagger and Jerry Hall were not Bali Hindu and so the marriage was not a “legal marriage” and it wasn’t registered, so is was not a “marriage with the force of law”. If it had been a legal marriage and a marriage with the force of law satisfactory to Indonesian law, certainly the British courts would have recognized it.

What happens if we fail to register our marriage within the specified time period?

Either nothing, or disaster.

Section 56 of the Regulations No 1 1974 Regarding Marriage as above go on to say:

2. Dalam waktu 1 (satu) tahun setelah suami istri itu kembali di wilayah Indonesia, surat bukti Perkawinan mereka harus didaftarkan di Kantor Pencatat perkawinan tempat tinggal mereka.

Or in English:

2. Within 1 (one) year after husband and wife return to the territory of Indonesia, the certificate of their marriage must be listed at the Civil Records Office where they live.

The regulations specify that marriages taking place in Indonesia must be registerd within 60 days.

As so often the case with written law in Indonesia, the meaning is vague. Does it mean that failing registration, the marriage doesn’t exist, or is it cancelled, or is this only an administrative requirement?

It is administrative. Multiple court decisions make clear that this is a recommendation which could incur financial penalities if marriages are late in registration. More recent legislation has specified more clearly that this is adminstrative and sets out the schedule of penalties.

The problem comes from possible mischief caused by unregistered marriages.

In a very personal case recounted in Eleven Demons, an Indonesian wife at some point began to imagine that failure to register the marriage was tantamount to an automatic secret divorce of which her husband remained unaware. The damage to the family arising from her and her family’s schemes to then concoct a false marriage led to events which threatened to end in murder.

Further mischief can be caused by lawyers, police, judges, and others who claim that failure to register the marriage or late registration of the marriage has other imaginative legal ramifications.

As so often happens, the combination of vague regulations plus low educational standards regarding law plus greed can encourage plots which may spin wildly out of control. Registering the marriage removes temptation by shutting the door on some of these schemes.

Also note the conditions for marriage and divorce:

Azas-azas atau prinsip-prinsip yang tercantum dalam undang- undang ini adalah sebagai berikut:

a. Tujuan perkawinan adalah membentuk keluarga yang bahagia dan kekal. Untuk itu suami isteri perlu saling membantu dan melengkapi, agar masing-masing dapat mengembangkan kepribadiannya membantu dan mencapai kesejahteraan sprituil dan material.

b. Dalam Undang-undang ini dinyatakan, bahwa suatu perkawinan adalah sah bilamana dilakukan menurut hukum masing-masing agamanya dan kepercayaannyaitu; dan disamping itu tiap-tiap perkawinan harus dicatat menurut peraturan perundang-undangan yang berlaku. Pencatatan tiap-tiap perkawinan adalah sama halnya dengan peristiwa-peristiwa penting dalam kehidupan seseorang, misalnya kelahiran, kematian yang dinyatakan dalam Surat-surat keterangan, suatu akte resmi yang juga dimuat dalam pencatatan.

c....

d....

e. Karena tujuan perkawinan adalah untuk membentuk keluarga yang bahagia kekal dan sejahtera, maka undang- undang ini menganut prinsip untuk mempersukar terjadinya perceraian, harus ada alasan-alasan tertentu serta harus dilakukan di depan Sidang Pengadilan.

f. Hak dan kedudukan isteri adalah seimbang dengan hak dan kedudukan suami baik dalam kehidupan rumahtangga maupun dalam pergaulan masyarakat, sehingga dengan demikian segala sesuatu dalam keluarga dapat dirundingkan dan diputuskan bersama oleh suami-isteri.

Or in English:

The principles comprising the basis for these Regulations is as follows:

a. The pupose of marriage is to form a happy and stable family. For this, the husband and wife must support and complete one another so that each can reach their full personal potential to help and achieve both spiritual and material welfare.

b. In these Regulations it is stated that a marriage is legal if done according to the laws of the religions and beliefs of each; and that also each marriage must be listed according to the regulations pertaining to it. The listing of a marriage is the same significance as the listing of other important events in each person’s life, for example births and deaths which are stated in certificates as official statements which are also entered into civil records.

c. .

d. .

e. Because the purpose of marriage is to form a family which is happy, stable and provides for family welfare, therefore these Regulations are based upon the principle to make it difficult to achieve a divorce, there must be specific reason, and it must be done through a hearing in a court of law.

 

The final line “these Regulations are based upon the principle to make it difficult to achieve a divorce, there must be specific reason, and it must be done through a hearing in a court of law,” requires that a divorce “with the force of law” must act upon a marriage “with the force of law,” meaning that your marriage must be registered before it can be divorced.

Trying to do this in the midst of a divorce while the opposing party has cooked up a scheme involving failure to register the marriage is an aggravation you should do without.

 

In conclusion...

There is no downside to registering your marriage. Failure to register can encourage mischief which can end in absolute disaster. Please register your marriage.