CHILD BORN OUT OF WEDLOCK AND ITS LEGAL STANDING ACCORDING TO THE APPLICABLE LAW IN INDONESIA

Before discussing about Child Born Out of Wedlock and its legal standing according to the applicable law in Indonesia, we must first understand the meaning of Marriage itself. Based on Article 1 of Law Number 1 Year 1974 regarding Marriage (“Marriage Law”), Marriage is a physical and spiritual bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family (household) based on the Supreme Lordship. The criteria for a legal marriage can be seen in Article 2 of the Marriage Law, namely first: Marriage is legal if it is carried out according to the law of each religion and belief and second: Every marriage is recorded according to the prevailing laws and regulations.

Definition and Legal Standing of Child Born Out of Wedlock according to Indonesian Law

Child Born Out of Wedlock is a term that refers to Article 43 paragraph (1) of the Marriage Law, which states that: “Child Born Out of Wedlock is child who is born without a marriage bond, which only have a civil relationship with their mother and their mother's family.”

However, the Constitutional Court through Decision Number 46/PUU-VIII/2010 stated that Article 43 paragraph (1) of the Marriage Law conditionally contravenes the 1945 Constitution of the Republic of Indonesia (conditionally unconstitutional) as long as this paragraph is interpreted as eliminating civil relations with a man who can be proven based on science and technology and/or other evidence according to law has a blood relationship as his/her father. Thus, according to the prevailing law in Indonesia, changes of the legal standing of Child Born Out of Wedlock has occurred which was previously regulated in Article 43 paragraph (1) of the Marriage Law.

Based on the decision of such Constitutional Court, it has been confirmed that Child Born Out of Wedlock does not only have a civil relationship with their mother and mother's family, but also have a civil relationship with their father and/or their father's family, as long as this can be proven based on science and technology, and/or other evidence according to law which can prove that the man is truly the father of the Child Born Out of Wedlock.

Suria Nataadmadja & Associates Law Firm

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