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The Legalities of Child Legitimacy in Indonesia

In Indonesia, the principle that a legitimate descendant is based on a lawful marriage applies. Such principle has two applicable guidelines, namely:

  1. The child is born during the marriage of its parents. In these cases it is not a matter of when the child was conceived, in the sense that it doesn’t matter if the child was conceived before or after the marriage ceremony took place;
  2. The child is conceived during the period of legal marriage, including if it is born after termination of the marriage of its parents. It is not a condition that the child is born during the marriage, but the most important determination is when the child was conceived.

The two requirements above are not cumulative requirements, but alternative requirements, in which fulfillment of either one or both is sufficient.

Therefore, we can conclude that by principle, a child whose birth meets one of the two requirements above is the child of the husband of the female that brings it into the world.

How You Prove It?

Pursuant to Article 261 of Indonesia’s Civil Code reading: “Children of legitimate descent may be proved by their birth certificates, merely that they have been registered in the register of civil registry office.”

A birth certificate proves that a child whose name is written in it is the child of the parents mentioned in the relevant birth certificate; at least from the female that gives birth to the child, whose name is mentioned in the birth certificate.

A birth certificate also mentions that the relevant child is born on a particular day and date. The time of birth and connected with the marital status of the female that gives birth to the child determines the child’s relation with the husband of the child’s mother in question.

In general, we can say that a birth certificate proves that a child whose name is mentioned therein is the descendant the person mentioned in the birth certificate.

If the birth certificate only mentions that the child is borne by a female, the certificate proves that the child is an illegitimate child.

If the mother is married lawfully, the child obtains the husband, from the female who brings it into the world, as its father, if the child is born or conceived during their marriage. It means that the child is a legitimate child of the couple.

Therefore, a birth certificate proves the child as a descendant, while the legitimate marriage of the female that brings the child into the world proves that the child is a legitimate child of both of its parents.

The birth certificate and the marriage certificate issued by the civil registry are valid as an authentic certificate, and thereby have a perfect evidentiary value, including the copy or excerpt thereof.

I don’t have Birth Certificate. What Should I Do?

In case of unavailability of a birth certificate, if the child continuously enjoys status as a legitimate child, such status serves as sufficient evidence.

This means that the relevant child has so far been enjoying parenting given by its parents, the same as it is usually done to a legitimate child. This can be observed from its parents’ measures and attitude towards the relevant child.

The existence of a special relation between the parents and the child must be proved by the relevant child. In addition, it must also be proved that such a relationship continues. Therefore, such treatment (relationship) must be visible and there are certain actions or attitudes that can be used as guidance to determine the existence or non-existence or real status as their child.

In the long run, all this certainty depends on the judgment of the judge over the facts presented by the relevant child. However, the law allows several facts to be presented as evidence that can become factors to consider, namely:

  1. The child always uses the name of its father who produces it;
  2. The father always treats the child  as his child and he has arranged for its education, care, and life;
  3. The community also acknowledges the child as the child of the person it claims to be its father;
  4. The child’s siblings also admit the child to be the child of their father.

It has been the obligation of those who struggle for status as a legitimate child to assure the judge that all facts that support their claim have been fulfilled. All this depends on whether or not the facts they provide have convinced the judge that the relevant child factually indeed obtains treatments and status as a legitimate child.
Therefore, certain facts can give proof of heredity, like a birth certificate can. However, all these matters must be determined in a judge’s ruling.

However, the facts above have not released the child from the obligation to prove the legality of the marriage of its parents by providing the marriage certificate of its parents. However, this starts with the assumption that the marriage certificate of the parents indeed exists, but it is only the birth certificate that does not exist.
Therefore, the marriage certificate of its parents and receipt of real treatment as a legitimate child by both of its parents prove a child’s status as a legitimate descendant (legitimate child) of both of its parents.

I Couldn’t Find the Marriage Certificate. It’s nowhere to be found!

If both parents of the child are still alive, their marriage may be proved only by showing a marriage certificate. However, if they have passed away and the relevant child cannot show the marriage certificate as evidence, verification needs to be conducted.

Such verification must meet several requirements so that the non-existence of the marriage certificate of the parents will not affect the child’s status as a legitimate child. Such requirements are as follows:

  1. The parents have passed away;
  2. The child can prove that in real daily living it obtained status or treatment as a legitimate child in the family of its parents;
  3. Its parents appeared to live together as a couple.

If one of its parents dies, the first thing that must be proved is that the register of marriage has never existed or has no longer existed, or in it there are lost certificates. Subsequently, the child needs to prove the existence of real treatment as a legitimate child of its parents to the child. After that, the child is given the opportunity to prove, with all possible methods, until the judge is convinced that its parents have been married.

Our thanks to Asep Wijaya of Wijaya & Co for the contribution of this article !

Disclaimer: The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.