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.

1 INTRODUCTION

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,

2018).

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

Total

1. Never do free

sex

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 www.bkkbn.go.id

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.

660

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

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.

2 METHODOLOGY

The study uses a descriptive qualitative approach

with theoretical enlightenment of literature studies

from books and scientific journals.

3 DISCUSSION

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

law.

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,

2014).

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,

2017).

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

661

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

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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).

4 CONCLUSIONS

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

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