Legal Protection for Children as a Result of Transnational Marriage

Dissolution in Indonesian Marriage Law

Erni Agustin, Faizal Kurniawan, Rizky Amalia

Faculty of Law, Universitas Airlangga, Indonesia

Keywords: Children, Dissolution, Legal Protection, Transnational Marriage.

Abstract:

Transnational marriages are common and prevalent in the community. There are legal consequences of

transnational marriages, particularly for children born in such marriage. However, the Indonesian Marriage

Law does not stipulate any further about the consequences to the children when transnational marriage

dissolved or even annulled. This paper aims to elaborate one main issue about the legal protection for children

aftermath a transnational marriage dissoulution in accordance with Indonesian Law. Firstly, it discusses the

problems that may arise from transnational marriage dissolution for the children. Secondly, this paper will

scrutinize the legal protection for children regarding the alimony, custody, and child support when a

transnational marriage is dissolved. The analysis is based on the Indonesian Marriage Law and other Laws

related to child protection. This paper is a normative legal research using statute and conceptual approaches.

This study argues that children have rigths of protection and when a marriage is dissolved, then both parents

shall be responsible for the protection and education of their children, solely on the basis of the children’s

own best interests.

1 INTRODUCTION

Every human being naturally cannot live alone and

always wants to live side by side in a community.

This is so natural that every person gets married and

has a family life. As an important event and a precious

moment in a human life, a marriage is framed in rule

of marriage law. In Indonesia, the Act Number 1 Year

1974 on Marriage (hereinafter referred to as Marriage

Act) is applied to replace previous Laws on marriage

that were applicable in the colonialism era. This

Marriage Act is issued by the government as an effort

to form a unification on marriage law. Formerly, there

was a pluralism in marriage law that different laws

applied for different classification of people. The

various laws were as follows(Sudarsono, 2010):

a. Adat law and Islamic law applied to indigenous

people of Indonesia;

b. Huwelijks Ordonantie Christen Indonesia

applied to Christian people of Indonesia;

c. Book I of the BW with a slight change applied to

foreign east Chinese and their descendants;

d. For other foreign east people in Indonesia, their

customary law applied;

e. from Dutch law applied in Indonesia. Since this

old Dutch law on marriage was considered no

longer appropriate to the culture and

backgrounds of Indonesian people, then the

Indonesian Marriage Act was set, influenced by

culture and religions in Indonesia;

f. Book I of the BW applied to Europeans in

Indonesia and their descendants.

Marriage is defined as a physical and mental bond

between a man and a woman as husband and wife

with the purpose to form a happy, eternal and

prosperous family based on belief in the Almighty

God. Then Article 2 of the Marriage Act stipulates

that the validity of a marriage is determined by the

religious law of each party in marriage. A marriage

shall be done based on the bride and groom religious

law. Besides, every marriage also must be registered

in the official institutions for marriage registration,

namely Kantor Urusan Agama (KUA) or Religious

Affairs Office and Kantor Catatan Sipil or Registry

Office. As a legal action, a marriage has legal

consequences, including those regarding children in a

marriage, marital property, and certainly rights and

obligations if the husband and wife.

Basically, the Marriage Act reflects basic

principles that must be implemented. The principles

are as follows (Isnaeni, 2016):

1. the aim of marriage;

Agustin, E., Kurniawan, F. and Amalia, R.

Legal Protection for Children as a Result of Transnational Marriage Dissolution in Indonesian Marriage Law.

DOI: 10.5220/0010052402630267

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 263-267

ISBN: 978-989-758-482-4

263

2. the validity of marriage;

3. the monogamy principle;

4. the minimum age to enter into marriage;

5. the principle to complicate divorce;

6. equal rights and obligations of husband and wife.

Those basic principles are influenced by values in

culture and religions in Indonesia. This also reflects

the foundation of the state based on Pancasila.

A marriage can also be conducted by parties with

different nationality. This is so called a transnational

marriage, that Article 57 of the Marriage Act

stipulates it as a”mixed marriage” which is defined as

a marriage between people in Indonesia subject to

different laws as a result of different citizenship and

one of the parties is an Indonesian citizen. Such

marriage must meet requirements as mentioned in

Article 60 that the substantive requirements of

marriage should follow the national law applicable to

each person entering the marriage. The national law

of each of the party in the marriage that should be

noticed are regarding the requirements of validity of

marriage, namely marital age, consent requirements,

as well as prohibited relationship. This “mixed

marriage” should also be registered by the official

registration.

This transnational marriage or called as “mixed

marriage” certainly have different legal consequences

compared to marriages carried out by those of the

same nationality. The legal consequences are

regarding the child nationality, marital property, and

so on. However, a marriage does not always run as

smooth as expected. There are sometimes obstacles

that might lead to conflicts between husband and

wife. This persistent conflict may also result in a

dissolution of the marriage, especially in a

transnational marriage that each person in the

marriage comes from different nationality, different

culture, that have their own habits. Thus, it is difficult

to unify their differences, then divorce may happen.

Dissolution of a transnational marriage or “mixed

marriage” might result in complex consequences;

moreover, if there are children in the marriage. The

questions regarding who will have the custody, who

will have the obligations as parents toward the child,

and so on. Thus, this article firstly tries to find the

answers to that questions by discussing the problems

that may arise from transnational marriage

dissolution for the children. Secondly, this paper will

scrutinize the legal protection for children regarding

the alimony, custody, and child support when a

transnational marriage is dissolved.

2 MATERIAL AND METHODS

This study is conducted by analysing applicable

regulation on marriage in Indonesia and several cases

on transnational marriage. This research is a doctrinal

research using statute and conceptual approach.

3 LEGAL CONSEQUENCES OF

DISSOLUTION OF A

TRANSNATIONAL MARRIAGE

TOWARD THE CHILDREN

In accordance to Article 47 jo. 50 of the Marriage Act,

children are those who are under 18 years old or who

have never married before. The Marriage Act

stipulates rights and obligations between parents and

children. Article 45 paragraph (1) of the Marriage Act

states that every parent has an obligation so called

alimony to nurture and educate children as well as

possible. This obligation shall continue even though

the parents’ marriage dissolved. Basically, the

Marriage Act clearly stipulates that every child shall

be protected by regulating in Article 45 paragraph (2)

that the parents still have obligations to their children.

This means that the relation between husband and

wife can be dissolved, however relation between

parents and children will never end.

Divorce may only happen for certain reasons

stipulated in Article 19 of the Marriage Act, that are:

a. one of the parties has left the other party without

any permission nor reasonable matte;

b. one of the parties has committed adultery,

drunkenness, madness, gambling, and other

incurable actions;

c. one of the parties has been sentenced to 5 years

or more in prison during the marriage;

d. one of the parties has committed cruelty or

persecution toward the other party;

e. one of the parties has suffered from bodily

disabilities or diseases that result in not being

able to carry out obligations as husband or wife;

f. between the husband and wife there is a

continuous dispute and there is no hope of life in

harmony.

Generally, the legal consequences of marriage

dissolution are stipulated in Article 41 of the

Marriage Act. Firstly, this Article 41 stipulates that

both parents are still obliged to nurture and educate

their children based on the interests of the children.

When there is a conflict regarding this, the court shall

determine through its decision. Secondly, the father

shall be responsible for all of the childcare costs. In

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case the father cannot fulfil this obligation, the court

may determine that the obligation is borne by the

mother. Thirdly, the court may also determine that the

ex-husband is obliged to give living expenses to the

ex-wife. In accordance to this stipulation, the legal

consequences of a dissolved marriage, especially

toward the children, should also apply in

transnational marriage. Based on this stipulation, it

can be seen that the Marriage Act stipulates that there

is a joint custody between the parents. Yet, the

implementation of this is more complicated since the

parents are from two different countries. After the

divorce, they may live separately and become far

from each other. This lead to difficulties to

communicate and even more to force to carry out its

obligation. In case a party does not conduct his

obligations, the children will be the injured party. To

cope with this problem, the court may determine the

custody of one party.

4 PROVIDING LEGAL

PROTECTION FOR CHILDREN

IN DETERMINING RIGHT OF

CUSTODY

Every child has inherent basic rights that must be

protected, respected, and maintained. UN Convention

on the Rights of Child 1989 (UNCRC) that has been

ratified by Indonesia through Presidential Decree

Number 36 Year 1990 (hereinafter referred to as PD

36/1990), states basic principles of child are namely:

1) active protection,

2) non-discrimination,

3) the best interest of the child,

4) the right to life, survival and development,

5) respect for the views of the child.

Those principles are also reflected in the Act

Number 23 Year 2003 that has been amended by the

Act Number 35 Year 2014 on Child Protection

(hereinafter referred to as The Act on Child

Protection). However, problems still often arise when

a child becomes the divorce victim. This problem

relates to the protection of children’s welfare,

including physically and mentally protection to the

children, since the dissolution of marriage put the

children in a weak position. This protection to the

children is surely also needed in case of dissolution of

transnational marriage.

The dissolution of transnational marriage in

Indonesia shall be done in the District Court for them

who registered the marriage in Official Registration

or in the Religious Court for them who registered the

marriage in Religious Affairs Office. This is in

accordance with the Article 63 of the Marriage Act.

The Judge should consider which party that is

more capable and shall be borne by the responsibility.

Since children are still incapable to conduct legal

actions by themselves. The guardian plays an

important role to guard and be responsible for the

child. Commonly in courts decisions, the mother is

determined to have the custody, unless there are

certain conditions that make it unlikely for the

children to be with his or her mother. However,

actually, based on Article 29 of the Child Protection

Act, if a divorce happens in a transnational marriage,

the child has a right to choose to be under whom

custody or guardianship.

In order to give protection for the children, Article

48 jo. 52 of the Marriage Act stipulates that the

parents nor the guardian is not allowed to transfer the

rights of immovable properties of the child, unless

this is for the interest of the child. Pursuant to the

principle of for the best interest of the child, every

child must be close to his or her mother. However, the

responsible for the living expenses shall be on the

father’s side (Hadikusuma, 2007). In accordance to

Subekti, the relation between the parents and children

or so called parental authority (ouderlijke macht) ends

after the divorce of the parents. Here, guardianship or

custody (voogdij) emerges (Subekti, 1982). To deal

with this, the court should determine regarding the

guardianship or custody for the children’s interest.

The court decision is important and needs to consider

the relatives opinion. The judges play an important

role to decide the child custody by considering the

best interest of the child principle.

This best interest of a child principle is regarding

the child’s rights developed from Article 3 of the

UNCRC that states that “in all actions concerning

children, whether undertaken by public or private

social welfare institutions, courts of law,

administrative authorities or legislative bodies, the

best interests of the child shall be a primary

consideration”. This means to measure and equalize

all the factors that are necessary to decide in a certain

situation for a specific individual child or group of

children. This principle is recognized widely in child

right protection. Notwithstanding its very partial

jurisprudential origins, the principle of the best

interest of the child is, represented in many national

and legal systems and has essential similarities in

varied cultural, religious and other customs (Alston,

1994). Though, this clear situation is complicated by

various interpretations toward the principle under

different backgrounds (Degol, Dinku, 2011). Related

to this, the most general issue of the principle turns

Legal Protection for Children as a Result of Transnational Marriage Dissolution in Indonesian Marriage Law

265

into the struggle to recognize the standards that

should be used to assess potential alternatives to

perform in the child’s best interests. Mnookin’s then

argued that (Alston, 1994):

“The choice of criteria is inherently value laden; all too

often there is no consensus about what values should inform

this choice. These problems are not unique to children’s

policies, but they are especially acute in this context

because children themselves can’t speak for their own

interests.”

From the discussion above about this principle,

then it can be said that to implement the principle,

case by case has to be assessed to find the criteria and

determine what is best for the child. In case of

divorce, the judge should look into the child’s views

and aspirations, the child’s identity, personal history

and background, the family environment, relations,

situations of vulnerability, and so on. The morality

and character of the party can be a consideration

besides the financial ability to determine to whom the

right of custody will be given.

Furthermore, several principles or theories are

considered important to determine the custody of a

child, namely theory of justice, theory of certainty,

and legal expediency (Alston, 1994). These theories

are very essential but certainly it is not easy to apply

them in balance. In practice, the judge will put the

legal expediency at first to give legal protection for

the child. This theory best fits the principle of best

interest of the child. This theory relates to the growth

and future of a child, therefore, a judge will consider

the situation case by case to determine the custody of

a child that will give benefit the child. The closeness

of a child with his or her parents will be taken into

consideration by the judges.

The Act on Child Protection mentions that

children are an inseparable part of sustainability of

human life and the continuity of a nation and state.

Therefore, every child needs to get the widest

opportunity to grow and develop optimally

physically, mentally, and socially. It is necessary to

carry out legal protection to provide children

prosperity by guaranteeing the fulfilment of their

rights without discriminatory treatment. Article 14

states that in case a separation must happen between

a child and the parents, each child is entitled:

a. to meet and have personal relationship

permanently with the two parents;

b. to get parenting, maintenance, education, and

protection for the growth process from both

parents according to ability, talent, and his or her

interest;

c. to obtain life funding from both parents;

d. to obtain other children’s rights.

As an example, in a Court Decision Number

312/Pdt.G/2014/PN.Mdn, the judge decided to give

the right of custody to the mother. This case

concerned the divorce of an Indonesian citizen with a

Filipino citizen. Their marriage was held in the

Philippines and has been registered in Indonesia so

that it is valid under Indonesian law. The judge's

consideration in this decision to give custody to his

mother was based on the Marriage Act that, a divorce

does not terminate the relationship of the child and his

or her parents. Both father and mother are still obliged

to educate and nurture their child that must be

conducted for the best interest of the child. Regarding

the problem that the parents were from different

nations and had different citizenships, that

consequently would live separately in different

countries, and that their child still cannot decide

herself with whom she or he would choose to live, the

judges were in the opinion that for the best interest of

the child who was still 1 year old and to get continuity

of routine and regular care, the right of custody was

given to one of the parents, namely the mother.

In this case, the financial ability was not the only

factor considered by the judges. The judges argued

that the child needed special child care both

physically and mentally. The fact in general shows

that a one year old child who is still in the baby

category, is very close to his or her mother, who had

recently given birth and even still breastfed him or

her. For this reason, the judges decided to give the

right of custody to the mother who was Filipino

Citizen until the child is 18 years old. This is also

pursuant to a Court Decision Number 126 K/Pdt/2001

on 28 August 2003 that stated that if there is a divorce,

the underage child care should be left to people

closest and familiar with the child, namely Mother.

This Court Decision Number

312/Pdt.G/2014/PN.Mdn also determined the

frequency of meetings between the child and the

father to maintain the relationship between the child

and the father.

5 CONCLUSION

As a conclusion, there are several legal consequences

emerge as a result of transnational marriage

dissolution. Firstly, both parents still have civil

relation with the child and they are still obliged to

nurture and educate the child as well as they can. The

living expenses shall be borne by the father, but the

mother also can be responsible for this also when the

father cannot fulfil the obligation. Secondly, the

principle of the best interest of the child is prioritized

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in resolving disputes in courts regarding

determination of custody. The Marriage Act applied

in Indonesia determines that when a dissolution of a

marriage occurs then stipulation in Article 41 and 45

must be the basis to provide legal protection for the

children of such marriage. The court may give joint

custody based on this stipulation, however if there is

a dispute, the court must consider the best interest of

the child to make a decision on the custody. The

implementation of this court decision sometimes

finds difficulties since the parents are from different

countries and may live separately and far from the

children. The implementation of this principle shall

consider the case by case basis and backgrounds to

find the criteria in determining the child custody.

Besides this principle, the judge in practice also

considers the legal expediency theory, legal certainty,

and justice to give legal protection for the children in

a transnational marriage dissolution.

REFERENCES

Alston, Philip, 1994, The Best Interest Principle: Towards

a Reconciliation of Culture and Human Rights,

Reconciling Culture and Human Rights, International

Journal of Law, Policy, and the Family, Vo. 8, Issue 1.

Degol, Aron, Shimelis Dinku, December 2011, Notes on

The Principle ‘Best Interest of the Child’: Meaning,

History, and Its Place Under Ethiopian Law, Vo. 5 No.

Hadikusuma, Hilman, 2007, Hukum Perkawinan Indonesia

Menurut Perundangan, Hukum Adat, Hukum Agama,

Bandung: Mandar Maju.

Sudarsono, 2010, Hukum Perkawinan Nasional, Jakarta:

Rineka Cipta.

Sudikno Mertokusumo, 2010, Mengenal Hukum,

Yogyakarta, Universitas Atma Jaya Yogyakarta.

Isnaeni, Moch., 2016, Hukum Perkawinan Indonesia,

Jakarta: Refika Aditama.

Subekti, 1982, Pokok-Pokok Hukum Perdata, Bandung:

Intermasa.

The Act Number 1 Year 1974 on Marriage

The Act Number 23 Year 2003 that has been amended by

the Act Number 35 Year 2014 on Child Protection

United Nation Convention on the Rights of Child 1989

Presidential Decree Number 36 Year 1990

Court Decision Number 312/Pdt.G/2014/PN.Mdn

Court Decision Number 126 K/Pdt/2001

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