JURIDICAL IMPLICATIONS OF THE LEGAL NORM VOID OF INTERFAITH MARRIAGES IN INDONESIA

Kadek Wiwik Indrayanti, Suhariningsih Suhariningsih, Masruchin Ruba’i, Nurini Aprilianda

Abstract


Legal void of interfaith marriages in Indonesia to date has not offered legal certainty and sense of fairness to couples of differing religions. Particularly, their rights to form a family and to freedom of religion are unprotected; whereas those rights are guaranteed by the 1945 Constitution of the Republic of Indonesia. Furthermore, the Constitutional Court’s ruling had rejected Judicial Review on Article 2 section 1 of Law No. 1 of 1974 against the 1945 Constitution of the Republic of Indonesia. The consideration provided by the Bogor District Court regarding the rejection was that the judge’s interpretation of article 2 section 1, yielded the assertion that marrying couples should have been of the same faith. The judge also took into consideration the religious values embraced by the prospective applicant who happened to be a Catholic widow while the prospective groom was a Muslim. A similar consideration was made by the Constitutional Court where in, among others, it was stated that the constitutional rights of marriage entailed the obligation to respect the constitutional rights of other people. Therefore, to avoid any conflicts in the implementation of those constitutional rights, it is necessary to have a regulation on the implementation of constitutional rights conducted by the state.

Consequently, the juridical implications of interfaith marriage legal norm void give rise to the judges’ differing interpretations which are unfavorable to interfaith couples. The validity of these marriages cannot be accomplished, resulting in the marriages to be deemed invalid, implicating the status and position of women and children as well as heritance issues.

Keywords


Juridical implication, legal norm void, interfaith marriage

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References


Ali, Achmad. 2000. From Legalistic Formal to Delegalization: The Face of Law in the Reformation Era. Bandung: Citra Aditya Bakti.

Darmabrata, Wahyono. (2003) Review of Law No. 1 of 1974 on Marriage, with the Law and Its Implementation Regulations. Jakarta: CV Gitama Jaya.

Rahardjo, Satjipto. (2006) Legal Studies (6th ed.). Bandung: Citra Aditya Bakti.

---------------------. (2009) On Judges Who Decides the Cases. In Compendium of the Writings by Prof. Dr. Satjipto Rahardjo: A Textual Reading for Students of the Law Doctorate Program of UNDIP. Semarang: UNDIP.

Regulation

Law No. 1 of 1974 on Marriage

Law No. 24 of 2013 on Civil Affairs.

Court Decision:

the Constitutional Court judge No. 68/PUU/XII/2014, dated June 18, 2015, on the Judicial Review on Article 2 Law No. 1 of 1974 on Marriage against the 1945 Constitution of the Republic of Indonesia

Decision No. 527/Pdt/P/2009/PN.Bgr was issued by Bogor District Court .

Decision No. 136/Pdt.P/2009/PN.DPS of August 19, 2009 was issued By Denpasar Court

Internet

www.hidayatulalah.com. Since 2004-2011 there had been 1,109 interfaith marriages. March 31, 2012. Retrieved on January 30, 2017.

www.bbc.com. June 2015 Talk with Nurcholish Achmad and Interfaith Marriages. Retrieved on January 30, 2017.




DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.01.07

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