Artikel ini pernah dimuat dalam Jurnal Voice of Constitution and Human Rights Vol.2 No.2 Februari 2009 hal. 199-208, Lembaga Penelitian Universitas Sebelas Maret Surakarta, 2005
By: Manunggal Kusuma Wardaya
Perkawinan, kendati dianggap sebagai hal yang natural dan diamanatkan oleh kode moral, telah menjadi suatu peristiwa hukum, yang oleh karenanya kini lebih menjadi artifisial sifatnya. Tak seperti di Australia misalnya, sahnya perkawinan di Indonesia antara lain ditentukan apabila ia telah memuaskan persyaratan yang ditentukan oleh agama. Tulisan ini hendak mebandingkan hukum perkawinan antara dua sistem hukum yang berbeda. Diharapkan dengan analisa perbandingan, tulisan ini mampu memberi masukan terhadap pembaharuan hukum perkawinan, terkhusus hukum perkawinan Indonesia.
- A. Introduction
It is generally said that the main purpose of marriage is the procreation of children and for that reason, sexual relations are permitted only between spouses.[i] The law sees cohabitation and the sharing of lives and a home as the essence of marriage and recognizes rights and duties arising from the cohabitation, for example the right to intercourse and the duty to maintain. None of such rights and responsibilities belong to the unmarried or those who live together outside marriage.[ii]
Since marriage is a unification of two people and imposes duties as well as confers rights and brings many consequences[iii], the state interferes with legislation. Legislation determines conditions and the consequences for parties bound by marriage are determined. Legislation also determines things like marriageable age and how to end marriage. Accordingly, the parties do not determine the term of marriage and marriage is not a contract freely entered by adults. Only certain people under specified conditions according to law can have a valid marriage[iv].
In order to get legal recognition, the parties must perform their marriage in certain ways as prescribed by law. Marriage law between one country and another country will be different since marriage law as any other law is influenced by the values in the society where the law exists. Country where religious values dominate may apply law with religious values and procedures.
This paper focuses specifically on marriage legislations in Australia and Indonesia. This paper will not discuss marriage in broader terms like cohabitation or de facto relationships. Instead, it will only discuss de jure relationship and the legal requirements that should be satisfied by parties in order to get legal recognition of their marriage.
In doing so, legal regulations on marriage in the two countries will be scrutinized. Furthermore, the purpose of this paper is to make a comparison of the two different legal regulations and to conclude some important aspects from both legislations in order to improving legislation on marriage in the two countries.
- Marriage Law In Indonesia
The Indonesian Marriage Act[v] defines marriage as a “both physical and mental bond between a man and woman as husband and wife with the purpose of building a harmonious family based on deity”[vi]. From the definition, one can conclude that marriage in Indonesia is not merely a physical bond that gives the rights for both parties to have sexual intercourse. Its establishment is not merely to satisfy biological needs, but more than that, marriage encompasses a mental relationship.[vii] Hence, parties who want to marry cannot bind themselves only in just a physical or mental relationship.
Moreover, from the definition one can also conclude that parties to a marriage in Indonesia can only be a man and a woman. It means that Indonesian law does not recognize homosexual marriages, like other countries such as in Netherlands[viii]. However, it is not clear what the legal definition of “woman” and “man”, since the law gives no strict definition. For example, it would be a problem in the future when a transsexual which is legally a man but borne as a woman wants to marry a woman.
Furthermore, the physical and mental bond of marriage is intended to establish a harmonious family. A harmonious family is the main purpose, not anything else such as material benefit or sexual aims.[ix] From the aim of marriage to establish a harmonious family based on deity, it is obvious that in Indonesia, couples must have embraced a certain religion before the marriage in order to get legal recognition.
From a human rights perspective, this paper believes that the provision that parties must embrace a certain religion before marriage is an interference into basic rights. To have a religion is a right and not an obligation.
- Monogamous or Polygamous?
One of the main objectives of Indonesian Marriage Law was to reduce the frequency of polygamous marriages. Under the law, a man can have only one wife and a woman can only have one husband. Therefore, one can say that Indonesian Marriage Act is monogamous in intent. However, Religious Court can give permit to a husband to have more than one wife (polygamous marriage) if he can obtain consent from relevant parties[x]. A man must fulfill the requirements set out in law to get permission from a Religious Court. According to the law, he must show that he:
- has gained the approval of his wife or wives.
- can and will guarantee to provide the necessities of life for his wives and their children.
- can and will act justly in regard to his wives and children[xi]
The court can grant permission to take another wife if his current wife or wives:
- is or are unable to perform her duties as a wife.
- suffers from physical defects or an incurable illness
- is or are incapable of bearing children
From the legal requirements above, one can conclude that basically, The Indonesian Marriage Act only acknowledges monogamous marriage. However, it is possible for a man to have more than one wife as long as he can satisfy legal requirements. Some scholars even believe that The Indonesian Marriage Act is a reflection of male and state domination toward women.[xii]
It can be argued that such a provision is unjust towards women since a husband can have more than one wife simply if his wife cannot bear a child for him. This is unfair since there is no provision that gives a woman equal right to have more than a husband if her husband proves to be sterile. Concerning sterility, the legislation should give equal opportunity to have more than one spouse. It should not only give the privilege to husbands but also to wives.
However, a wife’s inability to bear a child as a reason for polygamy is weak and unreasonable. The purpose of marriage as written in the law is to build a harmonious family and not merely to produce offspring. Therefore, it is arguable that the achievement of a harmonious family is not dependent on the possession of children.
- Legal Requirements
Under The Indonesian Marriage Act, the requirements of valid marriage are determined by sections 1 – 12. Requirements under section 6:
a) Consent from parties.
b) If a person has not reached age 21, he or she must have permission from his or her parents.[xiii]
c) In the case that one of the parents has died, party shall obtain permission from the parent that is still alive.[xiv]
From the requirements set out by law, one can conclude that men and women who have reached age 21 do not need permission from their parents. Only those who have reached age 19 for males and 16 for females can obtain such permission. Below those ages, a marriage is invalid even with parent’s permission.[xv]
The limitation of age seems intended to ensure that parties are mature enough both physically and mentally, so that the aim of marriage can be achieved without divorce. This limitation also serves to control population growth. By limiting the age, it was hoped that the number of population could be controlled.[xvi]
- The Importance of Religious Ceremony
A marriage should be performed through religious rules and be registered according to valid legislation. According to the explanation of the act, there can be no marriage outside religious rules.
The consequence is that couples who want to get married have to celebrate their marriage under certain religious rules. For example, Islamic law determines the validity of Muslim marriages. Moreover, Government Regulation No 9 1975 determines that the marriage of Muslims must be carried out in Kantor Urusan Agama /KUA (Religious Affair Office), and non-Muslims in a Civil Register Office. [xvii]
Muslim couples do not have to go to KUA, but they have to complete their marriage in front of a marriage celebrant. A celebrant witnesses the marriage, and if he declares the marriage as lawful under Islamic rules, an official will then register the marriage and a marriage certificate will be produced to the couple. The same condition applies for Catholics or Christian; a relevant priest must formalize their marriage.
According to Hazairin[xviii], there is no possibility for Muslims to marry other than in accordance with their own religious rules. Similarly, Christian, Hindus, and Buddhist cannot ignore religious rules to perform a marriage. Therefore, religious rules are essential to determine the validity of marriage.
It is clear that under Indonesian Law a marriage must be performed in accordance with religious rules and beliefs from each party otherwise, a marriage is not valid. Marriage by a Civil Register or without a preceding religious ceremony is not valid[xix].
This legislation provides no impediment for couples that already embrace a particular religion. Muslim couples will not finding difficulty to perform their marriage in Islamic rules. A Buddhist couple will not find it difficult to do marriage. However, the situation can be different for people who do not embrace a certain religion. In addition, couples with different beliefs will encounter a problem. For instance if a Catholic wants to marry a Muslim, they have no way to legalize their marriage.
To fulfill the requirement, usually couples that encounter this problem will change their religion. This maybe permanent or temporary. A Moslem man, for instance will become Catholic in order to legitimate his marriage. In other words, he will formally be a Catholic. After the marriage, he will continue to hold his previous beliefs.[xx]
Another possibility is to get married abroad. Usually a couple with religion differences will seek a country like Australia. This usually happens to a couple with strong beliefs in their religions.
To conclude, having a religion is a condition for marriage in Indonesia. Although not clearly stated by law, without having a religion, there can be no valid marriage for parties. It can be argued that to have a religion is an obligation for Indonesian people in relation to marriage. This is contradict with article 18 of The Universal Declaration of Human Rights that states to have a religion as a right and not an obligation.
- E. Marriage Law in Australia
Unlike the Indonesian Marriage Act that defines marriage, there is no such definition in The Marriage Act 1961(Cth). Similarly, no marriage definition can be found in the Commonwealth Constitution. However, an indirect definition of marriage can be found in the Family Law Act 1975[xxi] that requires the court in exercising its jurisdiction under the act to have regard to:
“(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into life.”
From the Family Act, one can conclude that in Australia, marriage means a union of a man and a woman, that is, only a man and a woman marry. However, there is no official definition of “man” and “woman” in any of the relevant legislation.
However, Justice Chisholm stated that whether a person is a man or a woman is to be determined at the date of marriage, and the meaning of “man” has its ordinary current meaning according to Australian usage. [xxii]
Because marriage is a union between a man and a woman, one can conclude that Australian law does not give opportunity for homosexuals to have recognition of their marriage. Gay and lesbian activists in Australia see the regulation as discriminatory, and they want the law to be changed.[xxiii] They insist the state acknowledge their right as a citizen and be treated equally like any other citizen.
The requirements for a valid marriage in Australia are defined in s 23B of the Marriage Act. This states:
- That neither party is at the time of marriage validly married to another person
- That the parties are not within the relationship of brother and sister or ancestor and descendant, including relationship created by adoption;
- That the ceremony of marriage was performed by, or in the presence of, a person who under Australian law is an authorized celebrant;
- That the consent of each parties to the marriage was freely given, and not affected by fraud, duress, mistake or mental incapacity; and
- That each of the parties was, at the time of the marriage, of marriageable age according to Australian law, that is, 18 for males and 16 for females.
There is no condition that the marriage follow religious procedures, therefore, one can say that religious ceremonies are not a factor that determine the validity of marriage. Moreover, from the points above, we can conclude that in Australia, parties are not obliged to embrace a certain religion before marriage in order to get legal recognition of their marriage. Moreover, the limitation of marriageable age was intended to prevent marriage breakdown.
- Australian Law on Polygamous Marriage
Marriage in Australia is valid if neither party is at the time of marriage validly married to another person. From this sentence, one can conclude that Australian law only recognizes monogamous marriage. A man cannot have more than one wife and a woman cannot have more than one husband.
Indeed the rejection of polygamous marriage is the traditional attitude of English and Australian courts. Established in England in Hyde v Hyde (1886) LR 1 P&D 130, the rejection was confirmed in Australia in Khan v Khan.[xxiv] Under Marriage Act (Cth), a marriage celebrated in Australia can only be monogamous. Therefore, the law does not recognize polygamous marriage commonly celebrated by Aborigines or Muslims in Australian jurisdiction. Such marriage according to Nygh is a complete nullity as far as the courts are concerned. [xxv]
- G. Similarities and Differences
There are clear similarities and differences between Indonesian and Australian legislations on marriage. The first similar thing is that marriage in both countries must be celebrated under consent from parties. This means that marriage that arising from fraud or forced marriage is not valid.
Secondly, only a man and a woman can have a valid marriage. Indonesian and Australian laws do not recognize a marriage between homosexual couples. Both laws only recognize one-man one-woman marriage (monogamous). It means that it is impossible for gay or lesbian couples to have a valid marriage in the two countries. Their relationship will not have legal recognition like any other ‘normal’ couples.
Thirdly, both legislations give an age limit for people to have a valid marriage. Not everybody can have a legal recognition of marriage. One should have achieved a particular age set out by law. This is good to ensure that couples who want to unite their life have achieved a mature stage of their life so that a marriage can achieve its goal.
Beside similarities, one can also draw differences of the two legislations. Firstly is that in Australia, religious procedures are not included as a condition for a valid marriage. Couples can have a valid marriage even though they do not embrace a certain religion. In Indonesia, to have a valid marriage parties must celebrate their marriage through both religious procedure and civil register. Even if parties do not have a certain religion, they ought to have at least a religion.
Secondly, marriageable age in Indonesia for a male is higher than in Australia (19 for Indonesia, and 18 for Australia). The distinction however is not significant (only one year). However, this paper believes that the intention of the limitation set out by both legislations was intended to ensure that parties are mature enough to bear rights and duties of marriage.
Thirdly, even though the legislations in both countries support monogamy, it is still possible for a man in Indonesia to have more than one wife. This possibility is included in the legislation as long as he can meet legal requirements of the law, while in Australian law it is not possible for a person to have more than one spouse. However, there is a guarantee provided by the Family Act on the validity of polygamous marriage celebrated outside Australia.
- H. Conclusion
This paper has argued that the provision requiring parties to celebrate their marriage in accordance with religious procedure in Indonesian Marriage Law is an indirect intrusion of fundamental rights. By such provision, parties are forced to have a religion even only temporarily to fulfill the legal requirement.
From a civil rights perspective, this is not acceptable, since The Universal Declaration of Human Rights has stated that to have a religion and belief is a right, and not compulsory. It is person’s morality and not the state that has the right to decide whether he or she should embrace a particular religion. In this respect, Indonesia can learn from Australia that has no provision requiring religious marriage.
In regards to civil rights, both legislations should give opportunity to gay and lesbian so that they can enjoy their rights like any other ‘normal’ citizens. Article 16 of the Universal Declaration of Human Rights has guarantees that everyone has a right to marry. It means that as citizens, people who are gays and lesbians also have the right to enjoy their life and get recognition from state. The exclusion of gay and lesbian from legal regulation of marriage laws in both countries is a formal and clear discrimination to them who considered as ‘abnormal’ by the society.
Last of all, Australian law can learn from Indonesia that allows a person to have more than one spouse. Australia’s reluctance to allow people to have more than one spouse is an explicit denial of diversity and culture of its citizen. However, the legal conditions of polygamous marriage in Indonesia should firstly be improved. If the government will permit polygamy, consequently men and women must be treated equally by also legalizing polyandry.
In conclusion, marriage law of both countries should facilitate citizens to enjoy their basic rights, pursuit of happiness. States should not impose conditions that could intrude the enjoyment of other fundamental rights as a condition for marriage. Instead of restricting and limiting, a responsive marriage law should be established to guarantee the enjoyment of people’s right.
[i] Homer H. Clark, ‘The New Marriage’ in Harry D. Krause, Family Law (1996) 441. However, this general opinion is arguable, since many people procreate outside marriage. See Hon Justice Alastair Nicholson, ‘The Family Court and The Legal Regulation of Marriage’ (2003) 17 Australian Family Lawyer 1, 6.
[ii] Martin L. Parry, The Law Relating to Cohabitation (1988) 169.
[iii] like right and duties between parties, right of children, duties of parents and children.
[iv] Katherine O’Donovan, Family Law Matters (1993) 43.
[v] Law No 1 1974
[vi] s 1
[vii] Djoko Prakosa & I Ketut Murtika, Azas-azas Hukum Perkawinan di Indonesia (1987)2.
[viii] ‘Belanda Tinggalkan Toleransi?’ (2003) Kompas Cyber Media <http://www.kompas.com/kompas-cetak/0301/23/1n/92076.htm> at 10 May 2004.
[ix] See Simon Butt, ‘Polygamy and Mixed Marriage in Indonesia: The Application of the Marriage Law in The Courts’ in Timothy Lindsey (ed), Indonesia: Law and Society (1999) 122, 128.
[x] s 3 (2).
[xi] s 5 (1) Government Regulation No 9, 1975 states that the request must be in writing (s 40) that the wife is consent, if oral must be pronounced before the court (s 41(b)).
[xii] ‘Ketentuan UU Perkawinan Rugikan Perempuan’ (2001) Kompas Cyber Media <http://www.kompas.com/kompas-cetak/0011/02/iptek/kete10.htm> at 10 May 2004.
[xiii] s 6 (2)
[xiv] s 6 (3)(4)
[xv] Hilman Hadikusuma, Hukum Perkawinan Indonesia Menurut Perundangan Hukum Adat dan Hukum Agama (1990), 29.
[xvi] Sudarsono, Hukum Perkawinan Nasional (1991), 8.
[xvii] s 2 (1) (2)
[xviii] See Wantjik Saleh, Hukum Perkawinan di Indonesia (1976), 6.
[xix] Hadikusuma, above n 15, 29.
[xx] Ibid 19.
[xxi] s 43
[xxii] Nicholson, above n 1, 3. See also Mark Thomas, ‘What Makes a Man a Man’ (2003) 57 Plaintiff 45.
[xxiii] See Julie McCrossin, “Always A Bridesmaid, Never A Bride”-Recognizing Same Sex Relationships’ (1999) The Sydney Papers, 145.
[xxiv]  VR 203
[xxv] However, polygamous marriages celebrated outside Australia are still valid by s 6 of The Family Law Act. See PE Nygh, Guide To Family Law Act (1986), 20; Adam Reynolds, ‘Marriage: Time For a New legal Definition?’ (2002) 16 n.2 Australian Family Lawyer
Butt, Simon, ‘Polygamy and Mixed Marriage in Indonesia: The Application of The Marriage Law in The Courts’ in Timothy Lindsey (ed), Indonesia: Law and Society (The Federation Press, Melbourne, 1999)
Clark Jr, Homer H, ‘The New Marriage’, in Harry D Krause, Family Law (Dartmouth, Aldershot, 1992)
Donovan, Katherine O’, Family Law Matters (Pluto Press, London, 1993)
Hadikusuma, Hilman, Hukum Perkawinan Indonesia Menurut Perundangan Hukum Adat Hukum Agama (Mandar Maju, Bandung, 1990)
Nygh, P E, Guide to the Family Law Act (4th edition, Butterworths, Sydney, 1986)
Parry, Martin L, The Law Relating To Cohabitation (2nd edition, Sweet & Maxwell, London, 1988)
Prakoso, Djoko & Murtika, I Ketut, Azas-azas Hukum Perkawinan di Indonesia (Bina Aksara, Jakarta, 1987)
Sudarsono, Hukum Perkawinan Nasional (Rhineka Cipta, Jakarta, 1991)
McCrossin, Julie, “Always A Bridesmaid, Never A Bride”-Recognizing Same Sex Relationships’ (Winter 1999) The Sydney Paper
Nicholson, HJ Alastair, ‘The Family Court and The Legal Regulation of Marriage’ (2003) 17 n 1 Australian Family Lawyer
Thomas, Mark, ‘What Makes Man a Man?’(June 2003) 57 Plaintiff
Government Regulation No 9 1975
Indonesian Marriage Act 1974
Family Law Act 1975
Marriage Act 1961 (Cth)
Universal Declaration of Human Rights 1948
—————–, ‘Ketentuan UU Perkawinan Rugikan Perempuan ‘(2000) Kompas Cyber Media <http://kompas.com/kompas-cetak/0011/02/iptek/kete10.htm>
—————–, ‘Belanda Tinggalkan Toleransi?’ (2003) Kompas Cyber Media <http://www.kompas.com/kompas-cetak/0301/23/1n/92076.htm>