Mary Anugrah Rasita
Children born out of wedlock or into unregistered marriages can now claim inheritance from their fathers after the Constitutional Court on Friday revoked an article in the country’s marriage law.
The court scrapped a section of the 1974 Marriage Law that stipulates children born outside of marriage only have civil ties with their mother and their mother’s family.
The nine justices of the court agreed that the article was unconstitutional.
The court ruled that children born outside of legal marriages could have civil ties with both their parents’ families “as long as the children can be proven scientifically or with equipment in accordance with the law to have blood ties with the man.”
The ruling was issued following a law review filed by dangdut singer Aisyah Mochtar, also known as Machica Mochtar, who has a son from her unregistered marriage or nikah siri (temporary marriage under Islamic law) with Moerdiono, a former minister during the New Order.
Moerdiono’s family has rejected the ties of Machica’s son, Muhammad Iqbal Ramadhan, to his father, who died in October last year.
Machica married Moerdiono in 1993 and divorced him in 1998. Iqbal was born in 1996. However, Moerdiono’s family does not acknowledge him, and has dismissed Machica’s claim that he is Moerdiono’s son.
She challenged Moerdiono and Iqbal take a DNA test, but family ignored the demand.
Until she can prove Iqbal is Moerdiono’s son, Machica is still unable to benefit from the law’s revision.
Justice Ahmad Fadhil Sumadi explained that ties between father and son could not be determined just by marriage but also through proof of blood ties, regardless of the parents’ legal marriage status.
“The law should give children their fair legal guarantee and their rights despite the marriage status of their parents,” he said.
Islamic law allows polygamous marriages, and many Muslim men have children with multiple wives. Many husbands don’t register their marriages in order to hide them from their wives or the public.
The revision of the marriage law also means that children born out of wedlock can now claim legal ties with their father and inherit his assets, Ahmad said.
Activists and experts welcomed the court’s ruling, calling it a victory for the country’s women and children.
Henny Warsilah, a sociologist from the Indonesian Institute of Sciences (LIPI), said the decision was a positive development for the nation as a whole.
“The ruling will protect the victims of nikah siri, which has been on the rise since the influx of Middle Eastern men,” she said. She added that now children would no longer be termed “illegitimate,” which would reduce the insults they face.
Masruchah, the deputy chairperson of the National Commission on Violence Against Women (Komnas Perempuan), expressed skepticism over the ruling, saying the it could encourage fathers’ families to attempt to take custody children.
“Women should be tougher in defending their rights even when having children outside of marriage, including defending their children from fathers’ claims,” she said.