Constitutional Court Decision Number 46 / Puu-Viii / 2010 Reviewed
from the Perspective of Adat Law, Burgerlijk Wetboek (Bw) and
Islamic Law
Hendra Eka Saputra, Irham Zaki and Muhammad Ubaidillah Al Mustofa
Universitas Airlangga, Surabaya, Indonesia
Keywords: Adat Law, Burgerlijk Wetboek (BW) Law, Child outside, Islamic Law.
Abstract: The polemic that arises relating to the Constitutional Court hearing No. 46 / PUU-VIII / 2010 concerning
inheritance rights of children outside of marriage, provide those children with inheritance rights and civil
relationship to the father. This can be implemented as science and technology or other evidences that can be
accepted by law, prove the blood relationship. This study aims to analyse inheritance law for children
outside of marriage in the perspective of Adat law, Burgerlijk Law (BW) and Islamic law. This study uses
descriptive qualitative approach. According to Adat law, children outside of marriage does not receive
inheritance rights nor inherit from the father, except in the custom of Minahasa for the reason of humanity
aspect, which is called Mehelilikur. Burgerlijk Law (BW) article 867 and Islamic law stated that children
born outside of marriage or adultery do not receive inheritance or inherit from the father. They have only the
right to receive living expenses. In addition, the child born from a betel marriage is valid in Islamic law and
has the civil right to his father to receive inheritance and inherit.
The association between religion, moral attitudes
and behaviour is widely discussed in academic and
popular discourses. A potential effect of religion on
behaviour can be seen through ethical standards
imposed on the faith of the religion’s moral code.
One of good examples is the act of charity that plays
an important aspect in many religions. On the other
hand, throughout human history, there exist some
perceptions that showed many aggression and
violence that have been justified in the name of
religion. Little agreement found on whether
adherence to a faith is correlated with more or less
ethical behaviour. Empirical assessments are
complicated by the fact that understanding morality
might differs for religious and non-religious people,
across different faiths. Moreover, religious
affiliation may affect the way people look at the
religion, which may revealed some behaviour but
not necessarily attitudes (Isadora, Jens, and Stefan,
An imbalance between morals and religion
makes free sex more prevalent in Indonesian
younger generation especially among adolescents.
This is confirmed through the survey conducted by
National Population and Family Planning Agency,
Badan Kependudukan dan Keluarga Berencana
Nasional, BKKBN, on free sex behaviour in 2017
and concluded as follows:
Table 1: Free sex among adolescent.
No. Behavior Man Woma
1. Never do free
12.203 10.335 22.335
2. Do Free Sex 1.018 265 1.283
Total 13.221 10.600 32.821
Source: data processed from
The data mentioned above states that free sex is
still relatively high, where more than 5 percent of
total adolescents in Indonesia have conducted
adultery. Some other concerns that come after
looking at the numbers are, the brutal impact of free
sex on future generation, early pregnancy for young
women and the born of child outside marriage.
Considering of the impacts mentioned above, the
authors are interested to conduct a study with more
emphasis on children outside marriage as it has been
a major concern for many communities and families.
Saputra, H., Zaki, I. and Al Mustofa, M.
Constitutional Court Decision Number 46 / Puu-Viii / 2010 Reviewed from the Perspective of Adat Law, Burgerlijk Wetboek (Bw) and Islamic Law.
DOI: 10.5220/0007549006600663
In Proceedings of the 2nd International Conference Postgraduate School (ICPS 2018), pages 660-663
ISBN: 978-989-758-348-3
2018 by SCITEPRESS Science and Technology Publications, Lda. All rights reserved
In this paper, the authors will discuss the rights
of inheritance for children outside marriage. In
particular, the study will look at the rights of
inheritance from different perspectives of law.
The study uses a descriptive qualitative approach
with theoretical enlightenment of literature studies
from books and scientific journals.
Indonesia today is still encompassed with various
legal systems, which govern inheritance civil rights
that applicable for the citizens. The first system is
the legal system of inheritance according to the west
that is stipulated in the Burgerlijk Wetboek (Civil
Law Code), abbreviated Civil Code (UU), based on
the provisions of article 131 IS jo. Staatsblad 1917
no. 129 jo. Staatsblad 1924 no. 557, jo. Staatsblad
1917 no. 12 on submission to European law, the
Burgerlijk Wetboek (BW) that applies for Europeans
and those who are equalized with Europeans,
Chinese, Easterners, other Foreign Easterners and
Indonesians who submit themselves to the European
The second legal system come from Adat laws.
The diverse legal systems of Adat law that concern
with inheritance rights are influenced by ethical
practises and traditions in different geographic areas.
For instance, the unilateral system in Java and
alternered unilateral (unilateral switching systems)
which found in Rejang Lebong and Lampung
Papadon. Some Indonesian, who strongly relate
themselves to the Adat law, commit and comply the
concerned law according to their beliefs and
customs, which prevail in certain community.
Third, the implementation of inheritance cases in
the religious court, the judges have agreed to use
book II of the Compilation of Islamic Law (KHI) on
inheritance law as a reference, even though by law,
the status of KHI is still under the Civil Code (UU)
(Yani, 2016).
3.1 Inheritance from the viewpoint of
Adat Law
Theoretically, the ancestral system in Adat law can
be divided into three features, namely: the Patrilinial
system, the descent system that is drawn according
to the father line, where the position of the man is
more prominent than the position of the woman in
inheritance. Matrililinal system, a descent system
that is drawn according to the maternal line, where
the position of a woman is more prominent than the
position of man in inheritance. Patrental or Bilateral
System, a descent system that is drawn according to
parental lines, or two-sided lines (father and
mother), where the position of men and women is
not differentiated in inheritance. The position of the
child outside of marriage in Adat law with a
patrilineal and matrilineal system has a civil
relationship with the mother and the mother's family.
The child is not entitled to receive inheritance rights
and inherit from the father as he or she does not have
a civil relationship with the father (Lucy, 2015). In
Minahasa custom, the child born outside of marriage
can have a legal relationship with the father. In local
Minahasa Adat law, the father can give customary
gifts to the child as evidence of recognition (Ellyne,
3.2 Inheritance from the viewpoint of
Burgerlijk Wetboek (BW) Law
The Civil Code (BW) refers to children outside of
marriage with the term Naturlijk Kind, natural
children (Edyar, 2016). BW inheritance law
recognizes three principles, first, individual or
personal principle where being an heir is an
individual or personal not a heir group and not a
clan, tribe or family group. This can be seen in
Article 832 jo. 852 BW, which determines that the
person who has the right to receive inheritance is the
husband, or wife who lives the longest, the child and
his offspring. Second, bilateral principles, meaning
that a person does not only inherit from father but
also from the mother, so does the brother inherit
from his brothers, or his sisters. This bilateral
principle can be found in Articles 850, 853 and 856
BW, which regulates that if children and offspring as
well as husbands or wives who live the longest are
no longer available, the mother, father, and relatives
of both brothers and sisters inherit the inheritance of
the deceased. Third, the principle of classification,
giving those closer relative to the deceased more
rights to receive inheritance and inherit than further
relative. To facilitate the distribution of inheritance,
the heirs must go through classification process to
identify who are closer and further relatives (Oemar,
For unmarried children as stated in Article 283
BW (Burgerlijk Wetboek), namely children born due
to acts of adultery and desecration, the provisions
Constitutional Court Decision Number 46 / Puu-Viii / 2010 Reviewed from the Perspective of Adat Law, Burgerlijk Wetboek (Bw) and
Islamic Law
regarding the right to inheritance do not apply to
them. Adultery and discordant children will only get
a living right that is measured based on the ability of
the father or mother and his legal heirs according to
the law (Ismawati, 2015). Unmarried children that
can be recognized are based on Article 272 BW,
namely: "An extramarital child who can be
recognized is a child born to a mother but who is not
seeded by a man who is in a legal marriage with the
child's mother", and not including groups of
adulterous children and discordant children
(Youdhea, 2017).
3.3 Inheritance from the viewpoint of
Islamic Law
According to the Compilation of Islamic Law (KHI),
article 99, the scholars agree that: There is no right
of inheritance between his biological father and the
child. The child has only legitimate relationship
(nasab) and can inherit from the mother. His
biological father is not entitled to be a guardian
because the child was born due to adultery
(Purbasari, 2017). If a child is born of a woman,
called her biological mother, due to an act of
adultery with a man, also called biological father,
then the law cuts off this child’s descent relationship
with his father. However, the descent relationship of
the child with her mother remains. Thus, this means
that the adulterous child does not inherit and receive
inheritance with the biological father, but he or she
still has inheritance relationship with the mother and
only mother’s family. Thus, if the father dies, the
adulterous child will not be included in the list of
heirs. Similarly, his biological father does not
become the heir of the adultery child if the
adulterous child dies (Achmad Yani, 2016).
3.4 Review of Decisions of the
Constitutional Court No. 46 / PUU-
VIII / 2010 from the Perspective of
Adat, Burgerlijk Wetboek (BW)
and Islamic Laws
As a country with the biggest Muslim population,
the position of a Muslim in Indonesia cannot be
separated from the religious rules that apply to every
Muslim individual. These rules are the guidelines for
life in this world to the hereafter, especially for a law
enforcer. They must weigh and give justice to the
people, not only Muslims, but also other religious
communities. In 2012, an atmosphere of tension
marked the history of marriage law in Indonesia
over the decision of the Constitutional Court of the
Republic of Indonesia concerning the inheritance
rights of children outside marriage. Based on the
decision of the Constitutional Court No. 46 / PUU-
VIII / 2010, article 43 paragraph 1 of Law No. 1 of
1974 concerning marriage which states that, "Child
born outside of marriage only have a civil
relationship with their mother and family, and with a
man as his father that can be proven based on
science and technology or other evidences that
according to the law can clarify a blood relationship,
including civil relations with his father's family".
Based on the above provisions, biological rights
of child such as inheritance rights and others can be
recognized constitutionally. The birth of the
Constitutional Court's decision on the position of the
biological child raises various problems in
Indonesia, both normative and social issue.
Normatively, Constitutional Court ruling No. 46 /
PUU-VIII / 2010 dated February 17, 2012 has
deconstructed sacred principles in the order of
marriage laws such as Article 43 paragraph 1 of Law
No. 1 of 1974 concerning marriage. The position of
the child in article 43 paragraph 1 UUP which
incidentally is an extraction that is built from
classical Fiqh values from time to time. These
values are destroyed by the appearance of the
Constitutional Court's decision (Bahruddin, 2014).
This Constitutional Court decision has brought a
new paradigm in the system of civil law and family
law, especially in Indonesia. The submission of the
judicial review was outlined in the Constitutional
Court Decision No. 46 / PUU-VIII / 2010 with the
pronunciation date of February 17, 2012. However,
the decision has a lot of controversy with pros and
cons. Some opinions state that the decision will
provide a legal change in the effort to protect
children's rights. While other opinions in some
communities identified that, the decision of the
Constitutional Court will rise new problems. It
disturbs the order of life for Muslims and affect the
Islamic law concerning of inheritance in the country.
To some extent, the majority of the communities
stated that the decision of the Constitutional Court
had legalized adultery in Indonesia (Pahlefi, 2015).
Based on the provisions of Law Number 1 of 1974
concerning Marriage, it has been stated that marital
relations that are not in accordance with Article 2
paragraph (1) and paragraph (2) are illegal marriages
and have legal consequences. The legal
consequences is in accordance with Article 43
paragraph (1) Law Number 1 of 1974 concerning
Marriage which states, "Children born outside of
ICPS 2018 - 2nd International Conference Postgraduate School
marriage only have a civil relationship with their
mother and family" (Monica, 2016).
Adat law is inherited from the principles that
arise from the communal and concrete thoughts of
the Indonesian nation (Stevi, 2017). In Minahasa,
the child born outside of marriage can have a legal
relationship to the father (Ellyne, 2014).
Constitutional Court Decision No. 46 / PU-VIII /
2010 is contrary to Adat law, Burgerlijk Wetboek
law, and Islamic law. Adat law, which give
inheritance rights for children outside of marriage, is
in Minahasa custom. Burgerlijk Wetboek's law puts
pressure on out-of-wedlock children to get
inheritance rights from their mother and family.
Whereas in Islam, inheritance rights for children
outside of marriage can apply if the child is the
result of a Betel marriage in which marriage is not
recorded in the civil record in this case the religious
affairs office, while for children resulting from
adultery there is no inheritance right from the
biological father. It is recommended that the
Constitutional Court Decision Number 46 / PUU-
VIII / 2010 must be followed up by the government
in this case the legislative institution to revise the
legal regulations related to Law No. 1 of 1974 which
became a foundation of the Constitutional Court in
providing results of decisions regarding inheritance
rights for children born outside marriage. This
Constitutional Court's decision is still multi-
interpretation in practice, which can lead to cross-
opinion between experts and legal practitioners. For
this reason, the government should take quick steps
to improve the situation.
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Constitutional Court Decision Number 46 / Puu-Viii / 2010 Reviewed from the Perspective of Adat Law, Burgerlijk Wetboek (Bw) and
Islamic Law