Submitted by crinadmin on
Summary: An estimated 50 per cent of Indonesian children do not have birth certificates, due to several reasons, including unregistered marriages, and Sharia law dictating that children born out of wedlock do not have inheritance rights.
[18 February 2012] - The Constitutional Court issued a landmark ruling on Friday stipulating that the civil rights of children born out of wedlock should be recognised by their biological fathers. Judges at the court made their decision in response to a judicial review filed to overturn the 1974 Marriage Law that stipulates that only mothers and their immediate families have responsibility for children born out of wedlock. Constitutional Judge Ahmad Fadlil Sumadi said the 1974 Marriage Law contravened the 1945 State Constitution which guarantees equality before the law. “Children born out of wedlock are entitled to a relationship with their fathers,” Fadlil said, reading out the verdict. The ruling also ordered the amendment of the Marriage Law to include provisions for civil relationships with fathers that could be established using science and technology, witness testimony or other evidence recognised by the country’s legal system. Friday’s ruling, however, was not unanimous as Constitutional Judge Maria Farida dissented. Maria said that the 1974 Marriage Law had taken into account religious and social norms as well as local customs and traditions. The judicial review was filed by dangdut singer Machica Mochtar, who had an unregistered marriage with Moerdiono, a former minister of the New Order era. Machica filed the review to uphold the civil rights of her 16-year-old son, who was fathered by Moerdiono. The 42-year-old singer reportedly wed Moerdiono in 1993 in a religious ceremony but she failed to register the marriage with the Civil Registration Agency. The 1974 Marriage Law deemed children of an unregistered marriage, or nikah sirih, as born out of wedlock, along with children resulting from adultery, infidelity or cohabitation. Constitutional Court spokesperson Judge Akil Mochtar said that the court’s ruling rendered some parts of the Marriage Law irrelevant especially on the definition of children born out of wedlock and its legal consequences. “The [Court’s] ruling will force buaya darat [womanisers] to acknowledge their children born out of wedlock,” Akil said. Responding to the ruling, Machica said it was a redemption for all children in the country who shared the same situation as her son. “I will soon apply for a birth certificate for my son. He is the one who will benefit from this ruling, he still has to go to school and has a future ahead of him,” she said. Machica said that the ruling also gave her the confidence to speak out publicly. The Indonesian Ulema Council (MUI) hailed the ruling saying that it could be used as a legal basis for judges to rule in child custody disputes. “There are two possibilities for children born out of wedlock, being acknowledged by their father or not. Now if a father declines to recognise a child’s legal status, he must first go to the court to prove that he is not the father of the child,” Umar Shihab of MUI said. Umar said that according to sharia children born out of wedlock could not have inheritance rights. “They will retain their rights if they are born of a marriage sanctioned by religion, even if it is unregistered,” he said. The National Child Protection Commission (KPAI) said the ruling could prevent child-abandonment. “Now it means that a biological father can no longer just walk away if the marriage is not registered,” KPAI deputy chairman Asrorun Niam said. The KPAI estimated that 50 per cent of Indonesian children did not have birth certificates, due to several reasons, including unregistered marriages. Further Information: