Marriage is a physical and mental bond between a man and a woman as husband and wife, with the main purpose of forming a happy and eternal household (family) based on God Almighty as stipulated in Article 1 of Law No. 1 of 1974 concerning Marriage, then in Article 2 paragraph (1), marriage is valid if it is carried out according to the laws of each religion and belief, and in paragraph (2) it is stated that marriage is recorded according to the applicable laws and regulations.

Based on the above provisions, it can be said that marriage registration is not a condition for the validity of marriage, because marriage is considered valid if it has been carried out according to religion and belief.

Regarding the validity of a marriage, it is further emphasised in Article 4 of the Compilation of Islamic Law which states that a marriage is valid if it is conducted according to Islamic law in accordance with Article 2 paragraph (1) of Law No. 1 Year 1974 concerning Marriage. Furthermore, Article 5 of the Compilation of Islamic Law states: (1) In order to ensure the orderliness of marriage for the Islamic community, every marriage must be recorded, (2) The registration of marriage as mentioned in paragraph (1) shall be carried out by a Marriage Registration Officer as stipulated in Law No. 22 of 1946 in conjunction with Law No. 32 of 1954 concerning the Registration of Nikah, Talak and Rujuk.

Marriage registration, as described above, aims to create order in society. This is an effort regulated through legislation, to protect the dignity and sanctity (misaq algalid) of marriage, and more specifically women in married life, by recording a marriage that can be proven by a marriage certificate, and each husband and wife gets a copy, if there is a dispute between them or one party is not responsible, then the other can take legal action to defend or obtain their respective rights, because with the deed the husband and wife have authentic evidence of the legal actions they have taken.

According to Article 6 of the Compilation of Islamic Law, a marriage that is not registered or cannot be proven by a marriage certificate does not have any legal effect. This means that if the husband or wife does not fulfil their obligations, then one of the parties cannot claim anything to the court, either regarding the maintenance of the wife and children or the joint property that they have obtained during the marriage. Even if one of the parties dies, he or she cannot inherit from the husband or wife. Furthermore, according to Article 7 paragraph (1) of the Compilation of Islamic Law, it is said that marriage can only be proven by a Marriage Certificate made by a Marriage Registration Officer.

From the above provisions it can be said that the Marriage Certificate is the only evidence of marriage, and for people who do not register their marriage (do not have a marriage certificate), all kinds of legal consequences related to the marriage event cannot be resolved through legal channels, such as filing for divorce to the court, division of joint property, division of inheritance, status of children and so on.

On the one hand, the Indonesian Legislation states that marriage registration is the only evidence of marriage, but on the other hand, the legislation provides a way out for people who cannot prove the existence of marriage by way of Determination of Nikah (Istbat Nikah) from the Religious Court, as stipulated in Article 7 paragraph (2) of the Compilation of Islamic Law which states ‘In the event that a marriage cannot be proven by a Marriage Certificate, Itsbat Nikah can be submitted to the Religious Court.’ Itsbat nikah is the determination of a marriage performed by a couple, who have married in accordance with Islamic law by fulfilling the pillars and conditions of marriage, so that in fiqh law the marriage is valid.

Furthermore, according to Endang Ali Ma’sum (Judge of Banten Religious Court) in the Legal Research Activity of Puslitbang entitled Legal Certainty of ‘Itsbat Nikah’ Towards Marital Status, Status of Children and Status of Marital Property held on 14 May to 16 May 2012 in Serang – Banten, according to him there is a common perception among legal practitioners, especially Religious Court judges, that what is meant by itsbat nikah is a declarative legal product simply to declare the validity of a marriage that is carried out according to religious law but not recorded, with legal implications after the marriage isitsbatkan to have legal certainty (rechtszekerheid).

Based on the description above, the author is interested in discussing How is the Regulation of Itsbat Nikah and its Implications for marital status according to Indonesian Legislation, especially regarding the regulation of itsbat nikah for parents who have died by their children and its implications according to statutory regulations?

Legal Basis:

1. Law No. 1 Year 1974 on Marriage;
2. Compilation of Islamic Law.

Analysis:

Itsbat Nikah Arrangement

As is known, marriage in the perspective of Law No. 1 Year 1974 is not just a contractual relationship between two individuals of different sexes, but also includes eternal physical and mental bonds and is based on religious beliefs. Article 2 paragraph (1) of Law No. 1/1974 states that a marriage can only be said to be a valid marriage if the marriage is carried out according to religious law. Then Article 2 paragraph (2) states that every marriage is recorded according to the applicable laws and regulations.

Marriages conducted in accordance with this provision will obtain authentic evidence in the form of a Marriage Certificate. The Marriage Certificate is valid evidence of the existence of a marriage that has been carried out by the community. This Marriage Certificate will be useful for the parties involved in the marriage, if problems occur in the future and is useful for their children if they take care of administrative and other civil matters. For example, to process a child’s birth certificate, the parents of the child must have a marriage certificate presented to the Civil Registry Office.

The Compilation of Islamic Law provides an opportunity to apply for itsbat nikah in order to obtain a marriage certificate. This regulation on itsbat nikah is contained in Article 7 of the Compilation of Islamic Law which states:

1. Marriage can only be proven by a Marriage Certificate made by a Marriage Registration Officer;
2. In the event that a marriage cannot be proven by a Marriage Certificate, itsbat nikah may be submitted to the Religious Court;
3. Itsbat nikah that can be submitted to the Religious Court is limited to matters relating to: a. The existence of a marriage in the context of a divorce settlement; b. The disappearance of a Marriage Certificate; c. Doubts about the validity or otherwise of one of the conditions of marriage; d. The existence of a marriage that occurred before the enactment of Law No. 5/2005 on the existence of a marriage. The existence of a marriage that occurred before the enactment of Law No. 1 of 1974 and e. Marriages conducted by those who do not have a marriage impediment according to Law No. 1 of 1974.

As previously described, Itsbat nikah is the determination of a marriage performed by a couple, who have married in accordance with Islamic law by fulfilling the pillars and conditions of marriage, so that in fiqh law the marriage is valid.

By looking at the description of Article 7 paragraphs (2) and (3) KHI has given more authority than that given by the Law, both by Law No. 1 of 1974 concerning Marriage and Law No. 7 of 1989 concerning Religious Courts. Article 7 paragraph (2) of the Compilation of Islamic Law provides a very broad absolute competence regarding this itsbat nikah without limitations and exceptions, even though the explanation of the articles only states that this article is enacted after the enactment of Law No. 7 of 1989 concerning Religious Courts.

Marriage with all its rules is prescribed by Allah SWT which regulates family life. This is very important because the family is a small, solid society. The alliance is woven with a very strong inner bond, namely with a deep sense of affection. This is also regulated in Law No. 1 of 1974 concerning Marriage contained in Articles 1 and 2.

Based on the provisions in the Article above, it can be said that a valid marriage is a marriage that fulfils the provisions of religious law, namely in accordance with the provisions of fiqh for Muslims. This valid marriage must fulfil the terms and conditions of marriage. According to the author’s opinion, a valid marriage (fulfilling the terms and conditions of marriage) is a marriage that can be recognised. Due to the unrecorded marriage, so that it does not have authentic evidence (Marriage Certificate) and because the parents’ marriage is not recorded, their children must apply for validation /itsbat nikah so that the marriage has legal force, to obtain legal recognition through the legalisation of marriage through a court decision.

The requirements for Itsbat Nikah Applications are to make, submit and register an Itsbat Nikah Application to the local Religious Court by attaching evidence: A certificate from the local Religious Affairs Office (KUA) stating that the marriage has not been registered, a certificate from the Village Head/Lurah explaining that the Applicant is married and the KTP, KK, Birth Certificate/Birth Certificate of the Heir as the applicant for Itsbat Nikah.

Implications of Itsbat Nikah

The function and position of marriage registration according to Bagir Manan is to ensure legal order which functions as an instrument of legal certainty, legal convenience, as well as one of the evidence of marriage.

Therefore, if there is a couple who has entered into a marriage that is valid according to religion, but has not been recorded, then according to Bagir Manan, it is sufficient to record it. If the couple is required to do a marriage contract again, then it is contrary to Article 2 paragraph (1), as a result of which the new marriage becomes invalid.

With the existence of marriage registration, the legal effect is that a marriage is considered valid if it fulfils two conditions, namely:

1. Has fulfilled the provisions of material law, namely that it has been carried out by fulfilling the conditions and pillars according to Islamic law.
2. Has fulfilled the provisions of formal law, namely that it has been registered with the authorised Marriage Registration Officer. Conversely, a marriage that is not recorded (marriage under the hand) and is not also requested for itsbat nikah, then the position of the marriage is:
3. The marriage is not recognised by the state or has no legal force because it is considered that no marriage ever took place, so it has no legal consequences.
4. Children born from such marriages only have a civil relationship with the mother and the mother’s family, while there is no civil relationship with the father.
5. Neither the wife nor the children born of the marriage have any right to claim maintenance or inheritance from the father.

After the granting of itsbat nikah, implications for marital status where the marriage has legal force. Likewise, children born from the marriage received State recognition, where the children are entitled to inheritance from their father. In addition, the property obtained since the marriage is joint property.

Thus, marriage registration is a formal requirement for the validity of marriage, this formal requirement is procedural and administrative in nature. Itsbat nikah has implications for providing more concrete legal guarantees for the rights of children and wives in the marriage and also if the couple divorces. Or in other words, itsbat nikah is the legal basis of marriage registration which gives birth to legal certainty regarding marital status, child status and property in marriage.

Closure:

Based on the above, the author concludes as follows:

Itsbat Nikah is an application for marriage validation submitted to the court to declare the validity of marriage and have legal force. If a marriage that is not registered, as evidenced by the absence of a marriage book, does not have legal force, then you must apply for validation /itsbat nikah so that your marriage has legal force.

By not registering the marriage with the state, the marriage can be said to be a siri marriage, which is a marriage that is carried out religiously but not registered with the state and in the absence of such registration, the marriage is not a legal act.

Article 7 paragraph (2) of the Compilation of Islamic Law explains: ‘In the event that a marriage cannot be proven by a Marriage Certificate, itsbat nikah can be submitted to the Religious Court.’

Then article 7 paragraph (3) of the Compilation of Islamic Law, states that itsbat nikah can be submitted to the religious court regarding matters relating to:

1. The existence of a marriage in the context of a divorce settlement;
2. Loss of marriage certificate;
3. There is doubt about the validity or otherwise of one of the conditions of marriage;
4. The existence of a marriage that occurred before the enactment of Law No.1 Year 1974; and
5. Marriages entered into by those who have no impediment to marriage under Law No. 1 of 1974.

Itsbat Nikah applications can be submitted by husbands or wives, their children, marriage guardians and parties with an interest in the marriage, this is in accordance with the provisions of Article 7 paragraph (4) of the Compilation of Islamic Law can apply for Itsbat Nikah against the marriage of his parents who have died at the Local Religious Court.

Author: Rahmat Nur Najib, S.H.