INTRODUCTION
Marriage is a physical and mental bond between a man and a woman as husband and wife with the aim of forming a happy and lasting family (household) based on the Almighty God (Article 1 of Law Number 1 of 1974 concerning Marriage).
A marriage is valid if it is carried out according to the laws of each religion and belief (Article 2 paragraph 1 of Law Number 1 Year 1974 on Marriage). This means that if a marriage fulfils the conditions and pillars of marriage or if Ijab Kabul has been performed (for Muslims) or a priest/pastor has performed a blessing or other ritual (for non-Muslims), then the marriage is valid, especially in the eyes of the religion and beliefs of the community.
Marriage registration is in principle a basic right in the family. In addition, it is an effort to protect husband and wife and children in obtaining family rights such as inheritance rights and others.
In reality, many people think that because their marriage is considered valid, it does not need to be registered. It can be for reasons of high costs, complicated procedures or to eliminate traces and be free from lawsuits and administrative penalties from superiors, especially for second and subsequent marriages (for civil servants and ABRI). This unregistered marriage is known as an underhand marriage (Nikah Siri). Article 2 paragraph (2) of Law Number 1 Year 1974 concerning Marriage also states that every marriage is recorded according to the applicable laws and regulations. In the general explanation, it is stated that the registration of marriage is the same as important events in a person’s life, for example birth, death, which are stated in the certificates of an official deed which are also included in the registration list. The act of recording does not determine the validity of a marriage, but states that the event does exist and occur, so it is merely administrative in nature (K. Wantjik Saleh, ‘The Law of Marriage’). Wantjik Saleh, ‘Marriage Law in Indonesia’, Ghalia Indonesia: Jakarta, 1976, p. 16).
Referring to Law No. 1/1974 on Marriage Article 2 paragraphs (1) and (2) which stipulate that a marriage must be carried out according to the laws of each religion and belief and registered according to the applicable laws and regulations, this provision is a unity that cannot be chosen. If only one of the provisions is fulfilled, then the marriage event does not fulfil the legal elements determined by the law.
Further arrangements regarding marriage registration are regulated in Articles 67 – 69 of Presidential Regulation Number 25 of 2008 concerning Requirements and Procedures for Population Registration and Civil Registration which regulates that marriage registration is carried out at the implementing agency or (Regional Technical Implementation Unit) of the implementing agency where the marriage occurs. Marriage registration is carried out by bringing complete documents in the form of:
a. A certificate of marriage from a religious leader/priest or a marriage certificate of Penghayat Kepercayaan signed by the Pemuka Penghayat Kepercayaan;
b. ID cards of husband and wife;
c. Photo pass of husband and wife;
d. Excerpts of the husband’s and wife’s birth certificates;
e. Passport for husband or wife of Foreigner.
As for those who are Muslims, the recording is done at the Sub-district Religious Affairs Office, then submitted to the Implementing Agency to be recorded into the population database.
Thus, for those who marry according to Islam, the recording is carried out at the Office of Religious Affairs (KUA), generally at the same time as the marriage ceremony because the marriage registration officer from the KUA is present at the marriage ceremony. For those who practice religions other than Islam, such as Catholicism, Christianity, Buddhism and Hinduism, the registration takes place at the Civil Registry Office after the bride and groom have married according to their respective religions. For example, for those who embrace Catholicism or Christianity, the bride and groom first carry out a marriage procession in the church, bringing proof (marriage certificate) from the church, then the marriage is recorded at the local Civil Registry Office.
For marriages based on a court order, registration is also carried out at the implementing agency or (Regional Technical Implementation Unit) of the implementing agency where the marriage occurred by presenting the court order.
LEGAL BASIS FOR NON-MUSLIM MARRIAGE REGISTRATION
Some legal bases regarding the registration of marriage/marriage, among others:
Law Number 1 Year 1974 Concerning Marriage Article 2 Paragraph 2: ‘Every marriage shall be recorded in accordance with the applicable laws and regulations.’
A valid marriage based on the provisions of laws and regulations must be reported by the Resident to the Implementing Agency in the place where the marriage event occurs no later than 60 (sixty) days from the date of marriage. This is regulated in Article 34 paragraph (1) of the 2006 Law on Population Administration which stipulates as follows:
A valid marriage according to the Laws and Regulations must be reported by the Resident to the Implementing Agency in the place where the marriage occurred no later than 60 (sixty) days from the date of marriage.
Thus, every valid marriage performed according to the law of each religion and belief is obliged to be registered within 60 days after the execution of the marriage of the religion and belief.
BENEFITS OF MARRIAGE REGISTRATION
There are several benefits of marriage registration:
- Receive legal protection.
For example, in the case of an unregistered marriage and domestic violence (KDRT). If the wife complains to the authorities, her complaint as an abused wife will not be justified. The reason is because the wife is unable to show authentic evidence of an official marriage certificate.
2. Facilitate other legal actions related to marriage.
A marriage certificate will help a husband and wife to fulfil other legal needs. For example, if they want to perform the Hajj pilgrimage, apply for a child’s birth certificate, marry off their daughter, apply for health insurance, and so on.
3. The formal legality of marriage before the law.
A marriage that is considered legal is one that has been recorded by the state. Therefore, even though a marriage is considered legal religiously without a marriage register, it is illegal under state law.
This formal legality provides legal certainty for the validity of a marriage bond for husbands and wives, provides legal certainty for children who will be born, administers birth certificates for their children, administers family benefits for civil servants, TNI / POLRI, BUMN / BUMD and private employees, administers inheritance.
4. Guaranteed safety.
An officially registered marriage is secured against the possibility of forgery and other fraud. For example, if a husband or wife wanted to falsify their name on the Marriage Certificate for some unauthorised purpose. Then, the authenticity of the Marriage Certificate can be compared with the copy of the Marriage Certificate found at the Civil Registry Office or Religious Affairs Office where the person was previously married.
According to Saidus Syahar (Saidus Syahar, Marriage Law and its Implementation Problems Viewed in Terms of Islamic Law, Bandung: Alumni, 1981, p. 108), the importance of marriage registration and registration is:
- So that there is legal certainty with strong evidence for those concerned about their marriage, making it easier for them to conduct relationships with third parties.
- To better ensure public order in family relationships in accordance with the morals and ethics upheld by society and the state.
- So that religious values and norms and other public interests in accordance with the state foundation of Pancasila can be better enforced.
LEGAL CONSEQUENCES OF NOT REGISTERING A MARRIAGE
- Marriage Considered never to have existed.
Even though the marriage is performed according to your religion and beliefs, in the eyes of the state your marriage is considered never if it has not been recorded by the Office of Religious Affairs or the Civil Registry Office. This will make it difficult to organise Civil Registry documents when important events such as births and deaths occur.
2. The child only has a civil relationship with the mother and the mother’s family.
Children born out of wedlock or unregistered marriages, in addition to being considered illegitimate children, also only have a civil relationship with the mother or the mother’s family (Articles 42 and 43 of Law No. 1/1974 on Marriage). While the civil relationship with the father does not exist.
3. The child and his mother are not entitled to maintenance and inheritance.
A further consequence of an unregistered marriage is that neither the wife nor the children born of the marriage have the right to claim maintenance or inheritance from the father.
4. Fine of IDR 1.000.000,-
Another consequence of not registering a marriage is a fine of Rp. 1,000,000 (one million rupiah). The provision for the imposition of this fine is regulated in Article 90 of Law Number 23 of 2006 concerning Population Administration, which stipulates as follows:
Every resident is subject to an administrative sanction in the form of a fine if the reporting deadline for Important Events in the case of marriage registration is 60 days as referred to in Article 34 paragraph (1). The administrative fine is a maximum of Rp. 1,000,000.00 (one million rupiah).
MARRIAGE REGISTRATION REQUIREMENTS AND PROCEDURES
Marriage Registration Procedures for Non-Muslims as stipulated in Article 34 of Law No. 23/2006 on Population Administration have been further regulated in Presidential Regulation No. 25/2008 on Requirements and Procedures for Population Registration and Civil Registration in Article 67 of Presidential Regulation No. 25/2008 on Requirements and Procedures for Population Registration and Civil Registration which stipulates as follows:
Marriage registration is carried out at the Implementing Agency or Regional Technical Implementation Unit (UPTD) of the Implementing Agency where the marriage occurs. Marriage registration is carried out by bringing complete documents in the form of:
a. A certificate of marriage from a religious leader/priest or a marriage certificate of Penghayat Kepercayaan signed by the Pemuka Penghayat Kepercayaan;
b. ID cards of husband and wife;
c. Photo pass of husband and wife;
d. Excerpts of the husband’s and wife’s birth certificates;
e. Passport for husband or wife of Foreigner.
If a marriage has not been recorded so that there is no evidence of a Marriage Certificate, then marriage registration is carried out at the Implementing Agency in the place where the marriage event occurred after a court decision (Article 36 of Law Number 23/2006 concerning Population Administration).
CLOSING
In December 2006 civil registration in Indonesia was regulated in national law through Law No. 23/2006 on Population Administration. Ordinances that previously regulated civil registration in Indonesia were declared invalid. The considerations for the establishment of this Law are:
a. Negara Kesatuan Republik Indonesia based on Pancasila and the 1945 Constitution is obliged to provide protection and recognition of the determination of personal status and legal status for every population event and important event experienced by Indonesian residents who are inside and / or outside the territory of the Unitary State of the Republic of Indonesia.
b. To provide protection, recognition, determination of personal status and legal status of every population event and important event experienced by Indonesian residents and Indonesian citizens who are outside the territory of the Negara Kesatuan Republik Indonesia, it is necessary to regulate Population Administration.
c. Regulations on Population Administration can only be implemented if supported by professional services and increased awareness of the population, including Indonesian citizens who are abroad.
d. The existing laws and regulations regarding Population Administration are no longer in accordance with the demands of orderly and non-discriminatory Population Administration services so that comprehensive arrangements are needed to become a guide for all state administrators related to population.
The purpose of reforming population administration with the establishment of Law No. 23/2006 on Population Administration is to provide fulfilment of administrative rights such as public services and protection related to population documents without discriminatory treatment.
The 1945 Constitution after the fourth amendment guarantees every person the right to form a family and to procreate through legal marriage (Article 28B). Furthermore, in Article 29(2), the state guarantees each citizen the right to practice his or her religion and belief freely. Based on this, it is clear that marriage is one of the human rights protected by the Constitution and is non-discriminatory.
Protection and recognition of the personal status and legal status of every civil event and all important events experienced by residents who are within the territory of Indonesia, is provided by the state. Marriage is an important event related to a person’s legal status and is a civil right of citizens. Marriage registration is an administrative action and not a condition for the validity of marriage, but it is still very important to do, because it is authentic evidence of a person’s legal status. The form is in the form of a marriage book for Muslims or a marriage certificate for non-Muslims, which shows that the marriage has actually occurred and is legally valid.
Author: Abhimanyu SM Soeharto, S.H., M.H., C.P.L.
