Some time ago, people talk about the granting of a petition for marriage registration filed by a Muslim-Christian couple under a decision of the South Jakarta District Court. In decision number: 508/Pdt.P /2022/PN JKT.SEL, a Single Judge, Arlandi Triyogo ordered the South Jakarta Population and Civil Registration Sub-Department Office (“South Jakarta Registration Office”) to issue a marriage certificate for the interfaith couple. Related to this decision, many people think that an interfaith marriage has been allowed by the law in Indonesia. Then the question emerges on the legal implications inherent in an interfaith marriage, given many legal consequences arising from a marriage itself.
To answer this question, the author attempts to analyze the decision above through the rulings of decision in respect of case number: 508/Pdt.P /2022/PN JKT.SEL which read as follows:
- To grant the petition filed by the Petitioners in part;
- To approve the Petitioners to register their marriage with the South Jakarta Population and Civil Registration Sub-Department Office;
- To order the South Jakarta Population and Civil Registration Sub-Department Office to register the Petitioners’ Interfaith Marriage in the Register used for that purpose and immediately issue a Marriage Certificate;
- To reject the other and the remaining points of the Petition filed by the Petitioners;
- To order the Petitioners to pay the court costs in the amount of Rp.210,000 (two hundred and ten thousand rupiah).
As we can see in the rulings above, the judge granted an approval to the couple to register their marriage with the South Jakarta Registration Office. However, we should also see that the judge granted the petitioners’ petition in part and not in its entirety. After review, it turns out that there is a point in the Prayers for Relief (Petitum) (matters requested by the Petitioner to the judge for approval) submitted by the Petitioners so that the judge declares that the interfaith marriage is legitimate, which according to the judge should be rejected.
To understand why the judge essentially decided on the three points as referred to above, we can first refer to the following regulations:
- Article 2 of Law Number 1 of 1974 on Marriage (“Marriage Law”) stipulates that:
“(1) Marriage is legitimate, if it is entered into under the laws of their respective religions and beliefs.
(2) Each marriage is registered under the applicable laws and regulations.”;
- Article 2 of the implementing regulations of the Marriage Law, namely Government Regulation of the Republic of Indonesia Number 9 of 1975 on the Implementation of Law Number 1 of 1974 on Marriage (“GR on Implementation of the Marriage Law”), stipulates that:
“(1) Registration of a marriage of those who enter into a marriage according to Islam, is carried out by a Registrar Officer as referred to in Law Number 32 of 1954 on Registration of Marriage, Divorce and Reconciliation.
(2) Registration of a marriage of those who enter into a marriage according to their religion and belief other than Islam, is carried out by a Registrar Officer of the Civil Registry Office as referred to in various laws on marriage registration.”;
- Article 10 paragraph (2) of the GR on the Implementation of the Marriage Law states that marriage procedures are carried out under the laws of their respective religions and beliefs;
- Article 35 point (a) of Law Number 23 of 2006 on Population Administration (“Population Administration Law”) states that a marriage can be registered after obtaining a decision from the District Court; and
- Article 36 of the Population Administration Law stipulates that in the event that a marriage cannot be proven by a Marriage Certificate, the marriage is registered after a court decision is rendered.
In his consideration the judge referred to the Marriage Law, the Population Administration Law, and the GR on the Implementation of the Marriage Law as mentioned above, and it was emphasized that a marriage is legitimate if it is entered into under the laws of their respective religions and beliefs. The provisions in Article 2 paragraph (1) of the Marriage Law apply to a marriage between two people who have the same religion. In addition, under the Elucidation of the Marriage Law, with the formulation in Article 2 paragraph (1), no marriage outside the laws of their respective religions and beliefs is in accordance with the 1945 Constitution. Meanwhile, the laws of their respective religions include the laws and regulations that apply to their religious group and belief to the extent that they are not contradictory or stipulated otherwise in the law. Furthermore, the Panel of Judges also referred to the view issued by the Indonesian Ulema Council which stated, in one of its decisions, that an interfaith marriage according to Islam is unlawful and makes the wedding ceremony (akad nikah) of the marriage illegitimate under the religious principles. Therefore, the panel of judges cannot grant and reject the petition filed by the Petitioners regarding the validity of an interfaith marriage.
In learning the judge’s consideration in granting the approval to the couple, we have to look at the facts revealed at the hearings, namely the Interfaith Marriage between the Petitioners was entered into at the Nusantara Christian Church which resulted in Church Marriage Certificate No. 394/NIK/GKNJNDRS/V/2022 being issued on 31 May 2022 (“Marriage Certificate”). Despite their different religions, the Petitioners held a Christian wedding, which was Petitioner I’s belief. They had a priest conducted the wedding ceremony and blessed them. Based on the above facts and the provisions of Article 2 paragraph (2) of the GR on the Implementation of the Marriage Law and Article 10 paragraph (2) of the GR on the Implementation of the Marriage Law, the judge in this case decided for the couple to register their marriage with the South Jakarta Registration Officel, by taking into account that the marriage had been previously registered with the church and in accordance with the procedures in the relevant religious law as evidenced by the Marriage Certificate. Therefore, it is not true to state that the interfaith marriage of the couple is validated by the Indonesian positive law and religious law.
The Constitutional Court in its Decision Number 68/PUU-XII/2014 once decided to reject a Petition for judicial review to validate an interfaith marriage in Indonesia under the provisions of Article 2 paragraph (1) of the Marriage Law. The Constitutional Court was of the view in its legal considerations of the decision that:
“In the life of the nation and state under the Pancasila and the 1945 Constitution of the Republic of Indonesia, religion is the basis, and the state has an interest in marriage. Religion is the basis for a community of individuals which becomes a forum for collective individuals in their relationship with the God Almighty. Therefore, a marriage should be seen not only from the formal aspect, but also from the spiritual and social aspects. Religion stipulates the validity of marriage, while the law stipulates that the administration is carried out by the state.”
Thus, the Constitutional Court decided that the petition filed had no legal basis, and stated that it rejected the petition filed by the Petitioners in its entirety. This further confirms that an interfaith marriage is not deemed valid in Indonesia to the extent that under the respective religious laws the marriage is not allowed. This is supported by the Constitutional Court’s Decision Number 46/PUU-VIII/2010 in which there is a provision that a marriage registration is not a legal factor that determines the validity of a marriage.
In plain view, we may be able to see that a marriage registration is already a “solution” for an Interfaith Marriage, because the Marriage Certificate issued by the Registration Office can be evidence for the couple that a marriage has taken place and has been registered. Therefore, the author is of the view that this should be a concern for legislators and the government to immediately evaluate and confirm the arrangements related to Interfaith Marriages because the provisions of Articles 35 and 36 of the Population Administration Law seem to provide space for interpretation that to the extent that a marriage can be proven by a Marriage Certificate, this means the marriage exists with all the legal consequences, although essentially under the Marriage Law it is not valid.
Although the panel of judges of the South Jakarta District Court has taken an initiative in accordance with the mandate of Article 10 paragraph (1) of Law Number 48 of 2009 on Judiciary Powers (“Law on Judiciary Powers“) stating that the Court is prohibited from refusing to examine, adjudicate, and decide on a case filed under the argument that the law does not exist or is unclear, but it is obliged to examine and adjudicate them, and in the Indonesian judicial system the “Ius Curia Novit” principle applies, which requires judges to accept all cases that go to the court even though the provisions do not exist or there are no clear provisions. Nevertheless, with the approval granted to register the interfaith marriage above, it has the potential to open a legal loophole that will cause a problem in the future, and lay people may assume that an interfaith marriage has been allowed by positive law in Indonesia.
According to Julianto Asis, S.H., M.H. in responding to the question of an interfaith marriage, one must follow his/her own religion, because we have to look at the future aspects of a household, namely related to the legal consequences both in civil rights (such as livelihood obligations and guardianship) and the inheritance rights. The purpose is to avoid the family and descendants of the couple from facing difficult situations in the future. Another consideration is that the couple who share the same religion often experience legal problems as referred to above. Therefore, the polemic will be even deeper if this happens to the couple who had an interfaith marriage.
It has been explained that, based on positive law in Indonesia, an interfaith marriage is not legitimate; therefore, if the marriage continues and it is blessed with a child, the child then becomes an illegitimate child (born out of the wedlock). This is confirmed in Article 42 of the Marriage Law that a legitimate child is a child born in a wedlock or as a result of a legitimate marriage. In other words, in an interfaith marriage in the future inheritance matters will potentially cause conflicts in the family. Therefore, it can become an obstacle to the inheritance rights for the child born in the interfaith marriage.
ConclusionIn principle, the registration of a marriage is not a requirement for a marriage to be legitimate, hence it does not affect the legal status of husband and wife. The registration as referred to in Article 2 paragraph (2) of the Marriage Law is only authentic evidence that protects the rights arising from a marriage. Therefore, even though a registration is not a requirement for a marriage to be legitimate, a marriage that is not registered may cause legal consequences that arise from a marriage such as problems with civil rights. Therefore, the state and judicial institutions should be consistent in responding to the phenomenon of interfaith marriages to protect the interests of descendants or families which will later cause potential problems in the future. This is also to maintain the purpose of the Marriage Law which puts forward a religious foundation to accommodate a lasting household for all time.