The First International Conference On Islamic Development Studies 2019, ICIDS 2019, 10 September 2019, Bandar Lampung, Indonesia

Research Article

Political Reconstruction of Law towards the Rights of Non-Marital Child through the State Recognition of Unregistered Marriage in Indonesia

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  • @INPROCEEDINGS{10.4108/eai.10-9-2019.2289417,
        author={Herni  Widanarti and Benny  Riyanto and Yunanto  Yunanto},
        title={Political Reconstruction of Law towards the Rights of Non-Marital Child through the State Recognition of Unregistered Marriage in Indonesia},
        proceedings={The First International Conference On Islamic Development Studies 2019, ICIDS 2019, 10 September 2019, Bandar Lampung, Indonesia},
        publisher={EAI},
        proceedings_a={ICIDS},
        year={2019},
        month={11},
        keywords={non-marital child unregistered marriage reconstruction of law constitutional court decision},
        doi={10.4108/eai.10-9-2019.2289417}
    }
    
  • Herni Widanarti
    Benny Riyanto
    Yunanto Yunanto
    Year: 2019
    Political Reconstruction of Law towards the Rights of Non-Marital Child through the State Recognition of Unregistered Marriage in Indonesia
    ICIDS
    EAI
    DOI: 10.4108/eai.10-9-2019.2289417
Herni Widanarti1,*, Benny Riyanto1, Yunanto Yunanto1
  • 1: Diponegoro University, Jl.Prof. H. Soedarto, S.H. Tembalang, Tembalang, Kota Semarang, Jawa Tengah, 50275, Indonesia
*Contact email: herniwidanarti13@gmail.com

Abstract

It should be noted in Indonesia that daily practice of law shows there has been a legal pluralism caused by civil relations among its people who daily hold on to religious law, customs law, or entirely subjected to the national law. As an implication of legal pluralism, there is a collision amongst them. The pluralistic people also affect the implementation of marriage, which only relies on religious law or their beliefs, without registering their marriage as an act of law based on Law no. 1 of 1974 on Marriage. As a result, there would be no authentic proof of marriage as a legal act that causes the children born out of the legal wedlock, hence illegitimate children have less legal protection and guardianship to their biological parents. This provision was soon to be discontinued as The Constitutional Court ruled that the child born out of unregistered marriage can validate his/her legal relationship with biological parents based on scientific tests or other legitimate means of validation. The conclusion of this paper is first, judges deciding the case with the positivistic way of thinking must be abandoned. This way of thinking positivistic is a way of thinking that bases itself on the rule, so judges must think progressively. Second, there is a need for reconstruction of the law, since the establishment of the law and its implementation are based on the values that are agreed upon the nation.