Legitimating the Legitimate:

Legal Certainty of Marriage Law in Indonesia

Sukiati

, Fatimah

, Muhammad Hidayat

, Nurcahaya

and Syafruddin Syam

Universitas Islam Negeri Sumatera Utara, Jl. Willem Iskandar, Medan, Indonesia

Keywords: Islamic law, itsbat of marriage, legal certainty, marriage, wedding acts

Abstract: This paper aims at discussing the problems of legal certainty of marriage in Indonesia. It is known that

marriages in Indonesia are based on Wedding Acts No. 1 year 1974. In article 2 (1) of the Acts, it is explained

that for married couple “Marriage is lawful if it is done according to the laws of their religions.” This validity

is reaffirmed by chapter 4 of KHI (Compilation of Islamic Laws) namely "Marriage is lawful if it is done

according to Islamic law.” However, so many marriages are not registered for several reasons. To fulfill the

legal certainty of marriages, it must be registered to the Islamic Court or Religious Affairs Office through

itsbat of marriage. Using some references as the data source, the authors find that the reasons in doing itsbat

of marriage is not merely for having legal certainty of the marriage, but also for having administrative

legitimization to divorce and for legitimating polygamy.

1 INTRODUCTION

In Act No. 1 Year 1974 about marriage, in article 1,

it is stated that “Marriage is the inner bond between a

man and a woman as husband and wife with the aim

of forming a happy and eternal family based on the

One Supreme God.” Furthermore, in Article 2

paragraph (1), it is explained that “Marriage is lawful

if it is done according to the laws of their respective

religion and belief.” For Muslim society in Indonesia,

the Compilation of Islamic Laws (Kompilasi Hukum

Islam) states that “Marriage is lawful if it is done

according to Islamic law, it is in accordance to

paragraph (1) Law of the Wedding Act No. 1/1974

above.

Marriage in Islamic law is declared valid if it is in

accordance with the pillars of marriage and the legal

requirements. The pillars of marriage in Islam consist

of five items: the groom, the bride, the guardian, two

witnesses, and the vow (qabul’sijab). Then, the legal

requirements of marriage itself are requirements of

the future husband, the future wife, the guardian, the

witnesses, and the ijabqabul conditions (Syarifuddin,

2006).

However, within the Indonesian legal system,

marriages that have been declared valid in religion

cannot be acknowledged administratively before they

are recorded in the authorized institution as what has

been set in article 5 of the Compilation of Islamic

Law; (1) in order to ensure marriage order for Islamic

society, every marriage should be recorded; (2) the

registration of such marriage in paragraph (1) shall be

conducted by the Registrar as stipulated in Act No. 22

of 1946 jo. Act No. 32 Year 1954. Therefore, in

Indonesia the marriage is declared valid if it meets

two procedures: first, it is carried out according to

their respective religious law, and second it shall be

recorded in accordance with applicable legislation.

In fact, the need to record marriage in the midst of

this society is still a problem itself. There are still

many marriages that are only conducted on the basis

of religion without being registered to the Religious

Court or the Office of Religious Affairs as the

authorized institution to record marriages. Some of

the reasons that people do not register their marriages

in the Religious Court are: (1) the lack of knowledge

and understanding of the need to record marriages, (2)

the geographical conditions between the residence of

the bride and the Office of Religious Affairs, (3) the

lack of necessary administrative evidence, such as

Personal Identity Cards, (4) expense, and (5) the

deliberate intentions of both brides to ensure that the

marriage being performed is not for public (Qohar,

2015).

Essentially, these unrecorded marriages have no

clear legal certainty. However, when the bride and the

groom are in a state of urgency demanding their legal

certainty on matters relating to their marital status,

686

Sukiati, ., Fatimah, ., Hidayat, M., Nurcahaya, . and Syam, S.

Legitimating the Legitimate: Legal Certainty of Marriage Law in Indonesia.

DOI: 10.5220/0008892506860691

In Proceedings of the 7th International Conference on Multidisciplinary Research (ICMR 2018) - , pages 686-691

ISBN: 978-989-758-437-4

they will start applying to register their marriage. The

attempt to record this marriage is called as itsbat of

marriage. The itsbat of marriage is often done to

overcome the problem of marriage contract which has

been executed legitimately according to Islamic law,

but not yet recorded in the Office of Religious Affairs

or Court. The marriage of people who ask for itsbat

marriage sometimes has lasted tens of years even

until they have children and grandchildren.

Therefore, itsbat of marriage is intended as a proof of

the validity of marriage to guarantee the rights of

spouses in the event of divorce, and to protect the

rights of the child, such as the birth certificates, the

handling of passport, and the right of inheritance.

Although there are lots of studies discussing itsbat

of marriage, there is still very little of them which

focuses on to the factors that affect the issues of itsbat

of marriage. This paper is to examine the position of

itsbat marriage in the legal system of Indonesia, the

legal force used as the basic foundation of itsbat of

marriage, the problems encountered, and the reasons

contributing to the implementation of itsbat of

marriage.

2 THE POSITION OF ITSBAT

MARRIAGE IN THE LEGAL

SYSTEM OF INDONESIA

As mentioned earlier, marriage will be considered

valid if it is done according to their respective religion

and beliefs. For the Muslim community, marriage is

considered legitimate and officially recognized by the

people if it is carried out according to the rules and

laws of Islam. However, the state considers that

religious marriage still can not be supervised by the

state law because marriage in Islam cannot be proven.

Therefore, Indonesia requires marriage to be recorded

by the law.

In an attempt to disentangle the missing link of the

legal understanding of marriage under the laws of

law, Sheikh Jaadal-haq classifies the provisions

governing marriage to two categories, namely syara

and al-tawtsiqiy rules.

The rules of syara are those that determine the

validity or illegality of a marriage. This regulation is

established by Islamic Shari'a as formulated in the

jurisprudence books of various madhhabs.

Tawtsiqiy regulation is an additional regulation

with the aim that marriage among Muslims is

recorded in the register book of Deed of Marriage

which is made by the competent authority to be

regulated in the regulation of state administration. It

functions to protect a marriage from the negative

efforts of the parties who are not responsible. For

example, as an anticipation of the denial of marriage

ceremony by a husband in the future, it would be

more protected by the precence of official records in

the authorized institution.

Government efforts of course want to manage

marriage administration in Indonesia that will clarify

the position of family and its members in the society,

especially regarding the status of wife and husband,

children, marriage, and inheritance by law. Although

it is legally valid, if it is not recorded, it will be very

difficult to make a proof if there is a dispute.

3 THE LEGAL FORCE USED AS

THE BASIC FOUNDATION OF

ITSBAT MARRIAGE

According to Kamus Besar Bahasa Indonesia (KBBI)

– the Great Dictionary of the Indonesian Language,

itsbat of marriage is defined as the determination of

the truth (validity) of marriage (Kamus Besar Bahasa

Indonesia, 1995). Itsbat of marriage is the

endorsement of marriages which have been held

according to the Shari'a of Islam, but not recorded by

the the Office of Religious Affairs or the authorized

MARRIAGE REGISTRAR (Decision of the Chief

Justice of the Supreme Court Number KMA / 032 /

SK / 2006 on Guidelines for Implementation of

Duties and Administrative Courts).

The provisions of the Compilation of Islamic Law

(KHI) article 7 paragraph (2) mentioned: "In the case

of marriage that cannot be proven by marriage

certificate, itsbat of marriage can be conducted in the

Religious Court". In paragraph (3) it is mentioned that

the Itsbat of marriage submitted to the Religious

Courts is limited to matters pertaining to: a. The

existence of marriage in the framework of divorce

settlement; b. Loss of marriage certificate; c. The

existence of doubts about whether or not a single legal

requirement of marriage; and e. Marriage conducted

by those who do not have marital obstacles according

to Act Number 1 Year 1974.

The petition of Itsbat of marriage shall be

submitted to the Religious Court by those who can not

prove their marriage with the Marriage Certificate

issued by the Registrar of Recording Officer because

it is not recorded. The petition of marriage petition

filed by the Petitioners or by the Religious Courts will

be processed in accordance with the provisions of the

procedural law. In the Technical Manual of

Administration and Technical Religious Courts 2008

Legitimating the Legitimate: Legal Certainty of Marriage Law in Indonesia

687

published by the Supreme Court of the Republic of

Indonesia, it is mentioned that "The Religious Courts

can only grant the petition of marriage, as long as the

marriage has been fulfilled and the marriage rules of

Islamic Sharia and the marriage does not violate the

ban on marriage which is regulated in Article 8 s / d

Article 10 of Law Number 1 Year 1974 jo. Article 39

s / d Article 44 Compilation of Islamic Law. "

In general, marriages are implemented after the

enactment of Law No. 1 of 1974 on Marriage.

Whereas in a contrario (mafhummukhalafah)

marriage that was implemented after the Act no. 1

Year 1974 on Marriage, religious courts are not

authorized to conduct the itsbat marriage. However,

because Itsbat of marriage is needed by the

community, the Religious Court judges do "ijtihad"

by deviating it, then granting the petition of marriage

based on the provisions of Article 7 Paragraph (3)

letter e Compilation of Islamic Law. If the marriage

petitioned for inclusion is not a marriage barrier as set

forth in Law Number 1 Year 1974 concerning

Marriage, the Religious Courts will grant the petition

of marriage even if the marriage is held after the

coming into effect of Law no. 1 Year 1974 about

Marriage.

On the basis of ratification or determination of

marriage by the Religious Court, the applicant will

then be used as a basis to register his marriage to the

Officer of the Official of the Religious Affairs Office

(KUA) Sub-District, and on the basis of the

determination also the Registrar shall issue a

Marriage Book or Marriage certificate.

Article 7 Paragraph (3) Sub-Paragraph d,

Compilation of Islamic Law affirms; Itsbat of

marriages that can be submitted to the Religious

Courts if it is limited to the marriage that occurs

before the enactment of Law No. 1 of 1974. It is

understood that the petition of marriage that can be

applied to the Religious Courts basically only to

marriage that occurs before the enactment of Law No.

1 Year 1974 about Marriage. Therefore, in a contrario

(mafhummukhalafah) marriage that was implemented

after the Act no. 1 Year 1974 on Marriage, religious

courts are not authorized to conduct Itsbat of

marriage.

The determination of Itsbat of marriage issued by

the religious courts is then used as a basis for

registering their marriage to the Marriage Officer of

the Religious Affairs Office, and then the Religious

Affairs Office shall issue a Marriage Book or

Marriage Certificate. In addition, their marriage is

considered legal by the state. Another consequence

is that they are entitled to claim their rights as citizens

in relation to marriage (Arto, 1996).

4 THE REASONS

CONTRIBUTING TO THE

IMPLEMENTATION OF ITSBAT

MARRIAGE

Some of the reasons that contribute to the

implementation of itsbat of marriage are as follows:

4.1 To Get Marriage Certificate

The marriage certificate will fulfill the social rights of

family members, generates the social order in the

society so that it will create harmony in social life.

Married couples who have been married according to

the religious law (Islamic), but are not recorded,

simply will record their marriage to the Office of

Religious Affairs by first applying their marriage to

the Religious Court marriage, without having to re-

marry or newly married (tajdid an-nikah) because it

is contrary to the provisions of Article 2 Paragraph (1)

of Law Number 1 Year 1974 about Marriage.

4.2 To Ratify Sirri Marriage

Sirri marriage (unregistered Marriage) is a marriage

which is not recorded by the Registrar (MARRIAGE

REGISTRAR). It is a marriage that is not under

MARRIAGE REGISTRAR supervision, if it meets

the pillars and requirements according to their

respective religions and beliefs, for example in some

Muslim societies that still adhere to traditional Fiqh

perspectives. This marriage is legally valid, but has

no legal force, because it does not have legal proof of

marriage according to the prevailing laws and

regulations (Mubarok, 2005).

4.3 To Ratify Polygamous Marriage

The phenomenon that often occurs today is the

number of polygamy practices which is conducted

with sirri marriage because of various reasons and

backgrounds. In fact, sirri marriage causes problems

for the family itself, regarding the status, property or

material possessions. For children, for example, the

sirri marriage can be a problem when a child needs

his/her birth certificate for school, work and so on,

and for wives (result of sirri marriage), it also causes

problem when they need legal certainty for future

needs or when mingling within the society.

For those who want to marry more than once will

usually perform the sirri marriage which will be

legalized through religious belief (itsbat of marriage),

rather than following the polygamy procedures

ICMR 2018 - International Conference on Multidisciplinary Research

688

according to the provisions of the marriage law. Thus,

the Religious Courts must accept, examine, consider,

and decide the petition of marriage to the Religious

Courts with careful consideration and in-depth study,

the Religious Courts must learn a lot from the cases

that have been there.

4.4 To Get a Divorce

Isbat of marriage is also done by couples who want to

divorce in front of the court when previously they

have conducted sirri marriage and not recorded. In

this case, for example, when the husband wants to

divorce a wife who is married in sirri with him, then

he applies for divorce to the Religious Court, then the

first path that must be taken is to conduct an itsbat

marriage. The existence of itsbat of marriage and

isbat for divorce becomes a new issue for the practice

of sirri marriage. This opens the opportunity for the

practice of sirri marriage as sirri marriages for

polygamy are not recorded. Therefore, itsbat of

marriage can be seen as as a two-edged knife, on one

hand itsbat of marriage is to assist the community in

resolving sirri marriage issues, but on the other hand,

they also have opportunity to open the development

of sirri marriage practice, because if sirri marriage

can be compromised, it will legalize the marriage to

the Religious Court by filing a petition bring good

virtue, and eventually marital status becomes

legitimate in the eyes of the State.

Therefore, for the judges, it will be their own

homework, whether itsbat of marriage will bring

more goodness or even bring madharat (badness) for

all parties in the family (Ali, 2006)

4.5 To Get Marital Legal Certainty for

Child’s Status and Marital

Property

Usually when people need legal certainty over their

marriage and legal certainty about the status of their

child, the couple will file a petition for the itsbat

marriage in the Religious Courts.

The existence of legal certainty of itsbat of

marriage on marital status and on the status of the

child is closely related. The legal status of a child

comes from a legal marriage. In the recognition of the

State, a legitimate child is born of a recorded

marriage. Therefore, the status of this child becomes

one of the reasons for proposing itsbat of marriage.

The status of the child is not only related to the

validity of the child's status but also is closely related

to his/her rights as the legal child including with

regard to parental rights, livelihood rights, inheritance

rights, and so on. Another reason for filing itsbat of

marriage is related to children's rights, the main

reason that the petitioners apply for marriage to the

Religious Courts is in order to deal with the Birth

Certificate of their children in addition to obtaining

the legal certainty of the marriage of the petitioners

themselves.

In line with the legal certainty of itsbat of

marriage on marital status and the status of the child,

itsba of marriage will also provide legal certainty to

the status of marital property. With the existence of

itsbat of marriage, the legal marriage, and the

settlement of marital wealth disputes can refer to the

provisions of existing legislation, such as the

provisions of Chapter VII Act No. 1 of 1974 regulate

the property in marriage. Article 35 states that (1) The

property acquired during the marriage becomes a

common property; (2) The property of each husband

and wife and the property acquired respectively as a

gift or inheritance is under the control of each other

as long as the parties do not specify otherwise.

4.6 The Role of the Religious Courts

Marriage recording is one form of government or

state intervention to protect and ensure the fulfillment

of the social rights of every citizen, especially married

couples, and children born of the marriage. Religious

Courts as State institutions with marriage have been

contributed enormously and importantly in an effort

to provide a sense of justice and certainty and legal

protection for the community. Those who do not have

a Family Card because they do not have Marriage

Books, after the establishment of marriage ceremony

by the Religious Courts will be easy to take care of

Family Card and Birth Certificate of their children so

that it is not difficult for their children to go to school.

In fact, prospective pilgrims who do not have a

Marriage Books are greatly helped by itsbat marriage

conducted by the Religious Courts in order to get

passports.

The establishment of itsbat of marriage by the

Religious Courts aims to provide protection to

children born from unrecorded marriages. The

registration of marriage is a protection and guarantee

for the fulfillment of social rights of every citizen,

especially the married couples, and children born of

the marriage. With the fulfillment of social rights, it

will generate social order so that it will create

harmony of social life.

Legitimating the Legitimate: Legal Certainty of Marriage Law in Indonesia

689

5 THE PROBLEMS

ENCOUNTERED IN ITSBAT

MARRIAGE

5.1 The Legal Protection of Itsbat

Marriage

The main obstacle for the Religious Courts to be able

to perform its optimal function in undertaking itsbat

marriages for unrecorded or unregistered marriages is

the absence of a strong legal protection. Article 7

paragraph (1) The Compilation of Islamic Law

published in 1991 states that "Marriage can only be

proven by the Marriage Certificate made by the

Registrar Officer".

This legal norm is intended to encourage married

citizens to register their marriages in order for written

evidence, recorded by the state that they are married.

However, the existence of the article is still not able

to actualize that every marriage event will be

recorded, and will get their marriage certificate.

Article 7 number (2) the Compilation of Islamic Law

states that "In this case, marriage cannot be proven by

marriage certificate, they can propose the itsbat

marriage to the Religious Court."

The availability of this law is still of a relaceless

nature, and there is an impression of coercive law

enforcement that is obligatory. The lack of a legal

protection on this itsbat of marriage is due to the

Compilation of Islamic Law (KHI) which is not

included in the hierarchy of the Legislation

Regulation especially the one mentioned in Article 7

of Law Number 10 Year 2004 on the Establishment

of Legislation. Therefore, the establishment of

marriage ceremony by the Religious Courts is no

more than a policy to fill the legal gap that regulates

the establishment of marriage which is implemented

after the enactment of Law Number 1 Year 1974

regarding Marriage.

5.2 The Sociological Administrative

Condition and the Cost of Itsbat

Marriage

Itsbat of marriage is the determination of marriage of

a man with a woman as husband and wife who have

been implemented in accordance with the provisions

of Islam (the fulfillment of terms and marriages), but

this marriage has occurred in the past and not

registered to the authorized officials (the Office of

Religious Affairs).

One of the disadvantages of not having a marriage

certificate in terms of population administration

aspect is that a child of unregistered marriage cannot

obtain a birth certificate. This condition is not

conducive, and becomes a legal issue, and the legal

impact is great enough for the child. The problem

becomes more severe after the issuance of Law

Number 23 Year 2006 regarding Population

Administration and its amendment (Law Number 24

Year 2011) which aims to realize the orderly

administration of population. Then, the ownership of

demographic documents becomes very important in

the fulfillment of the civil and political rights of every

citizen.

In reality, a family who do not have a marriage

certificate and have children cannot obtain a birth

certificate for their children. Indonesians who have

not recorded marriages are predominantly Muslim,

where there is an obligation to conduct the itsbat of

marriage in the Religious Courts prior to the

registration of marriage by the Office of Religious

Affairs. However, the cost of itsbat of marriage

turned out to be one of the obstacles for couples who

want to register his marriage, because the fees set by

the Religious Court is quite expensive. In fact,

couples who have not recorded marriages are

generally classified as poor, making it difficult to

expect them to prioritize the funds they have to do for

marriage. This is quite ironic, considering that for

non-Muslim residents, there is no provision of itsbat

or court, but it is enough with a massive blessing that

does not require a big cost, and afterwards can be

recorded at civil registration without cost.

For example, according to the data from Qohar’s

study (2015), the cost of conducting itsbat of

marriage is as follows: Religious Court Karawang

Regency: Rp. 791.000, Religious Court of Madiun

Regency: Rp. 791.000, - Religious Court of West

Sumbawa Regency: Rp. 811.000, - Religious Court

Batam Rp. 600.000, - Religious Court of

SampangRegency: Rp. 400,000, - the amount of the

fee may change as the cost is based on the zone or the

distance radius between the applicant's location and

the Religious Courts office. The further the

applicant's location, the greater the cost is. The fee

usually does not include the cost of purchasing the

seal which is also the responsibility of the applicant.

6 CONCLUSIONS

Marriage in Islamic law is declared valid if it is in

accordance with the harmonious and legal

requirements. However, within the Indonesian legal

system, marriages that have been declared legally

valid cannot be recognized administratively before

ICMR 2018 - International Conference on Multidisciplinary Research

690

being recorded in the authorized institution. In fact,

there are still many marriages that are only based on

religion without being registered to the Religious

Courts or the Office of Religious Affairs. This

unrecorded marriage does not have a clear legal

certainty on matters relating to marital status. For

that, itsbat of marriage is often done to overcome the

problem of marriage contract that has been executed

legitimately according to Islamic law, but not yet

recorded in the office of religious affairs or court.

Itsbat of marriage is intended as a proof of the legal

marriage to guarantee the rights of spouses in the

event of divorce, and to protect the rights of the child,

such as the birth certificate, passport, and inheritance

rights.

Although there are a lot of studies related to itsbat

of marriage, still very little attention is given to the

factors that contributes to the problems of itsbat of

marriage. Therefore, it is necessary to study the

position of marriage in Indonesian legal system, the

force of law which is used as the foundation of itsbat

of marriage law, the reasons that affect the

implementation of marriage, and the problems faced.

After the cases in the Religious Courts and the

Office of Religious Affairs are analysed, it can be

seen that itsbat of marriage has an important position

in the legal system of Indonesia because the state

considers that religious marriage is still not able to be

supervised by state law. The itsbat of marriage

implementation will assist government efforts to

discipline marriage administration in Indonesia

which will then clarify the position of family and its

members in the society, especially regarding the

status of wife and husband, children, marriage, and

inheritance by law.

Then, the law force of the marriage principle is

based on the Compilation of Islamic Law (KHI)

Article 7 paragraph (2) which states that "In the case

of marriage cannot be proven by marriage certificate,

itsbat of marriage can be conducted in the Religious

Court". In paragraph (3) it is mentioned that The

itsbat of marriages submitted to the Religious Courts

is limited to matters pertaining to; a. The existence of

marriage in the framework of divorce settlement; b.

Loss of marriage certificate; c. The existence of

doubts about whether or not a single legal

requirement of marriage; and e. Marriage conducted

by those who do not have marital obstacles according

to Law number 1 Year1974.

In contrario (mafhummukhalafah), marriage that

was implemented after the Act no. 1 Year 1974 on

Marriage, religious courts are not authorized to

conduct itsbat of marriage. However, because the

itsbat of marriage is needed by the community, the

Religious Court judges do ijtihad by deviating it, then

granting the petition of marriage based on the

provisions of Article 7 Paragraph (3) letter e

Compilation of Islamic Law. If the marriage

petitioned for inclusion is not a marriage barrier as set

forth in Law Number 1 Year 1974 concerning

Marriage, the Religious Courts will grant the petition

of marriage even if the marriage is held after the

coming into effect of Law no. 1 Year 1974 about

Marriage.

The reasons that contribute to the implementation

of itsbat of marriage are because the married couples

(1) want to get marriage certificate or their marriage

certificate is lost, (2) want to ratify sirri marriage, (3)

want to ratify polygamous marriage, (4) want to get

divorced, and (5) want to get marital legal certainty

for child’s status and marital property. Itsbat of

marriage may also take place because of the role of

religious courts.

The problems faced in itsbat of marriage are the

lack of a legal protection on this itsbat marriage due

to the Compilation of Islamic Law (KHI) which is not

included in the hierarchy of the Legislation

Regulation especially the one mentioned in Article 7

of Act Number 10 Year 2004 on the Establishment of

Legislation, and the Sociological administrative

condition and the cost of itsbat of marriage. The

further the applicant's location, the greater the cost is.

REFERENCES

Ali, Z., 2006. Hukum Perdata Islam di Indonesia, Sinar

Grafika. Jakarta.

Arto, A. Mi., 1996. “Masalah Pencatatan Perkawinan dan

Sahnya Perkawinan”. MimbarHukum No.28 Tahun

VII. Mei-Juni.

Departemen Pendidikan dan Kebudayaan. Kamus besar

Bahasa Indonesia, 1995. Balai Pustaka. Jakarta.

Mubarok, J., 2005. Modernisasi Hukum Perkawinan di

Indonesia. Pustaka Bani Quraisy. Bandung.

Qohar, A., 2015. “Problematika Itsbat Nikah Isteri

Poligami pada Adat Merari”. JurnalScienticaVolume

II No. 2.

Syarifuddin, A., 2006. Hukum Perkawinan Islam di

Indonesia. Kencana. Jakarta.

Legitimating the Legitimate: Legal Certainty of Marriage Law in Indonesia

691