Another Marriage Law Controversy: Is Reform Overdue?

Interfaith marriage is a frequent source of controversy in Indonesia. Screenshot by Ayu Kartika Dewi (YouTube).

In mid-March, one of President Joko Widodo’s special employees, Ayu Kartika Dewi, sparked controversy across Indonesia. But it was not because of corruption, abuse of power or any other type of political scandal. It’s simply because Ayu Kartika, a Muslim, married her Catholic boyfriend, Gerald Bastian.

The day after the news broke, Indonesia’s quasi-state Council of Ulama (MUI), which advises the government and society on matters of Islamic law, strongly stressed that interfaith marriage is not permitted under of the Indonesian Marriage Act (No. 1 of 1974). . The Archbishop of Jakarta, who married the couple, was then forced to publicly defend his decision to officiate at the ceremony.

The case sparked new thinking about the 1974 Marriage Law – a landmark piece of legislation and arguably one of the most discussed and debated laws in Indonesia. Indeed, the law is one of the most frequently contested pieces of legislation before the Constitutional Court. At least 10 cases arguing that provisions of the Marriage Act are unconstitutional have come before the court since its inception in 2003.

The question of how religious laws should be interpreted and implemented within the framework of marriage law has been at the center of debates even before the enactment of the marriage law.

In two years, the law will be 50 years old. Is it time to revise the law? What is the probability of this happening?

The law and its history

Marriage law is no ordinary law. After Indonesia gained independence in 1945, several failed attempts to establish a national family law system to unify the various laws governing marriage in the country. Looking back at the passionate drafting process, it is remarkable that the Marriage Act ever passed.

It is also important to remember that although often criticized today, the law was seen as a major improvement for women’s rights in marriage at the time it was passed.

Before the Marriage Act was passed, marriages were governed by a patchwork of Dutch laws, religious and customary. For example, marriages of Europeans and ethnic Chinese were governed by the Colonial Civil Code (Burgerlijk Wetboek), Christian Indonesians were subject to Dutch colonial regulations (Huwelijk Ordonnantie Christen Indonesians, HOCI), marriages of “foreign Orientals” non-Chinese (Indians and Arabs) were governed by their respective customary laws, while most Muslim Indonesians married under a mixture of Islamic and customary laws. A Dutch colonial regulation (Staatsblad 1898 No. 158) also permitted mixed marriages.

Indonesian women’s organizations had been pushing for marriage law reform since the early 1900s, advocating for women’s equal rights in marriage and divorce. Finally, in 1973, under Soeharto’s new order, the government launched a marriage bill and submitted it to the legislature.

Elements of the bill were highly controversial. In the initial draft, the minimum age for marriage was 21 for men and 18 for women, marriages had to be registered to be considered valid, polygamy and divorce could only take place with the court approval and interfaith marriage was possible.

Islamic organizations expressed vocal opposition to these proposals, which they saw as conflicting or interfering with the requirements of Islamic law. In the legislature, the Islam-based United Development Party (PPP) opposed the bill, while the government’s political vehicle, Golkar, the Indonesian Democratic Party (PDI) and the military faction all supported him.

The government eventually realized that compromises with the Islamic community would have to be made. After tense negotiations, the legislator finally reached an agreement: Islamic marriage law could not be changed or modified; any article of the proposed bill that could not be adapted to Islamic law would be deleted; and failure to register a marriage with the state would not render it invalid. The article that allowed inter-religious marriage was completely dropped. The law was enacted in January 1974 after a seven-month process.

The result is that the Marriage Act 1974 states that: a marriage is valid if solemnized in accordance with the laws of each person’s religions and beliefs (section 2(1)), but any marriage must be registered in accordance with the laws and regulations in force (Article 2(2)). Thus, a marriage can only be valid if it is solemnized according to the rules of a recognized religion and, although marriages must be registered, failure to do so will not render them invalid.

Some Muslims have interpreted Article 2(1) as prohibiting interfaith marriage, as they note that Islamic teaching does not allow Muslim women to marry non-Muslim men. Indeed, in 2005, the MUI also issued a fatwa (religious opinion) stating that inter-religious marriage is prohibited for Muslims. Although MUI fatwas are not a source of law and are not legally binding on the Indonesian state or society, they are often very influential.

Although the final Marriage Act was weaker than the original proposal, it resulted in several crucial improvements in women’s rights. For example, the law clearly states that a marriage must be based on consent, women are equal to men in terms of rights and position in marriage, divorces can only take place with court approval.

Likewise, polygamy is restricted – men must meet certain conditions and go to court if they wish to take another wife. It’s not widely understood, but a polygamous marriage that isn’t approved by a court can be a criminal offence. Negotiations also resulted in a minimum age of marriage of 19 for men and 16 for women, but still allows child marriage if approved by parents and a court.

The law in action

Changing deeply rooted customary practices related to marriage is a challenge. The law may have been successful in reducing high rates of polygamy, but its impact on child marriage has been weaker.

However, since husbands are required by law to go to court if they wish to take other wives, unregistered polygamy is still widespread. In a famous case, dangdut singer Machica Mochtar caused a scandal when she revealed that she had married the already married former Secretary of State Moerdiono in a religious ceremony in 1993.

A major concern with unregistered polygamous marriages is that women and children are poorly protected. Children from polygamous marriages may find it difficult to obtain legal identity documents, access to education, social protection, etc. Indeed, until 2012, children from unregistered polygamous marriages were only considered to have a civil relationship with their mother and her family. It was not until Machica challenged the marriage law in the Constitutional Court that these children were also considered to have a civil relationship with their father, if such a relationship could be proven. Meanwhile, women in illegal polygamous marriages are at high risk of gender-based violence and have no rights to divorce, custody or inheritance, as their marriages are not officially registered.

Although most Indonesians have interpreted the Marriage Act of 1974 as not allowing interfaith marriage, this problem has not gone away. Indeed, as early as the 1980s, there was a notable case involving a Muslim woman, Andi Vonny Gani Parengi, and a Christian, Adrianus Petrus Hendrik, who applied for registration of their interfaith marriage through the offices of religious affairs and of civil status. When the two refused, the Supreme Court ruled that nothing in the Marriage Act 1974 prevented interfaith marriage and that the civil registry must register the marriage. At the time, the Supreme Court urged the government to resolve this “legal loophole”, but very little has been done.

In another landmark case in 2014, a group of students from Universitas Indonesia attempted to challenge Section 2(1) of the Marriage Act in the Constitutional Court to clearly allow inter-religious marriage. But they did not succeed.

On the issue of child marriage, in 2019 the Constitutional Court issued the startling ruling that the minimum marriage age of 16 for women was unconstitutional. The court ruled that the Legislative Body (DPR) must revise the Marriage Act within three years so that the age of marriage is equal for men and women. The DPR followed later that year, setting the minimum age at 19 for both men and women. This legal change alone will not be enough to eliminate underage marriage, which is motivated by multiple factors. But it was a major and welcome reform.

And after?

Considering the convoluted and passionate drafting process that led to the passage of the Marriage Act of 1974, and the way it has been interpreted and discussed ever since, the prospects for a full and thorough debate on its revision seems indeed very limited. The law touches on a very sensitive but common practice involving all religions in Indonesia and, indeed, all citizens in one way or another. It would take a considerable effort to achieve the necessary consensus to amend it.

On more than one occasion, a decision of the Constitutional Court has been powerful enough to cause a different interpretation of the law or lead to its modification, for example in relation to child marriage. Encouragingly, the Supreme Court followed up on the child marriage ruling by issuing guidelines (Perma No. 5 of 2019) for judges on reviewing applications for marriage licenses from minors. Guidelines place strong emphasis on child protection, saying judges must review reasons for marriage, ensure there is no coercion, hear children without their parents present and reminding all present of the risks involved (relating to the termination of education and teenage pregnancy). If permission is granted, parents must pledge to continue supporting their children’s finances, health, education and social affairs.

As Indonesian society continues to change, its laws must also follow. Given the highly controversial nature of the Marriage Act 1974, the Constitutional Court may be the only hope for future reform.

Ayu Kartika and Gerald may have been married in a religious ceremony, but it’s unclear if they will be able to register that marriage. It’s clear, however, that they won’t be the last interfaith couple to want their marriage recognized by the state.

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