of a Previously Performed Moslem Marriage
The prevailing rules in Indonesia substantially recognize unregistered Moslem marriage, and thereafter, for certain limited reasons; the marriage may be registered and administratively acknowledged accordingly.
In accordance with the 1974 Marriage Law, marriage in Indonesia must be performed according to the couple’s religion. The couple has to be of the same religion as Indonesian does not recognize mixed-religion marriages. In order to marry legally, Moslem marriages performed in Indonesia require registration at the office of religious affairs. Otherwise, it will not be legally recognized.
Marriage registration is required to obtain legal recognition and such registration must be performed in front of and supervised by a marriage registry officer. Marriages performed without the supervision of a registry officer are not legal.
Nikah Siri or Nikah Bawah Tangan
The terms of nikah siri or nikah bawah tangan are not exactly correct in Islamic Law. Nikah siri or nikah bawah tangan means a hush hush marriage. They are performed quietly. Marriage in Islamic Law requires walimah or celebration, a celebration involving people, even a simple one. Therefore, the correct term for this type of marriage should be read as religious marriage.
The religious marriage is legal religiously (sah) according to Islamic Law as long as it complies with the following requirements:
- Groom and bride;
- Ijab and qabul (marriage consent);
- Wali nikah (marriage guardian);
- Two witnesses appear at the ceremony;
Nevertheless, the marriage is not properly registered at the marriage registry, i.e., Office of Religious Affairs (Kantor Urusan Agama).
There are many disadvantages to this type of union because of the lack of legal status, some include:
- If you follow nikah siri and then try to get a visa to visit your spouse's home country, you will not be considered married and therefore can not get a visa on that basis.
- If a child results from the union, the foreign parent will not be named on the birth certificate, which will mean that the child can't obtain a passport from the country of a foreign-born parent.
- The foreign parnter will also not be eligible for a residence permit/visa based on being married to an Indonesian.
- The couple will not receive a Marriage Booklet, i.e., the passport-sized book which serves as the legal proof of the marriage registration.
Marriage: Administratively Acknowledged
A marriage can only be proven by a marriage booklet issued by a registry officer. In the event it cannot be proven with such a booklet, the marriage can be administratively acknowledged by the Religious Court.
The marriage acknowledgement provisions have been implied under Compilation of Islamic Law which was enacted by Presidential Instruction Number 1 in 1991. It provides unregistered married couples an opportunity to properly register their marriages. The provisions were enacted under the consideration that the law should not be rigidly implemented. This proceeding is called Istbat Nikah.
Administrative acknowledgement can only be filed at the Religious Court based on the following limited reasons:
- For the purpose of divorce settlement.
- Loss of official marriage book;
- Doubts in legitimacy of one of the marriage requirements;
- Marriage performed before January 2, 1974 or before the 1974 Marriage Law enacted;
- Marriage performed by a couple who is legally free to marry according to the Law Number 1 of 1975.
Marriage acknowledgement can only be filed by a husband, wife children born in the marriage, wali (marriage guardian), or other party who has any interest in the marriage.
The acknowledgement petition must be filed at the religious court and the court will in turn setup a hearing within approximately 3o days. The court hearing will examine evidence and witnesses in support of the petition. In the event the judges find them legally convincing, they will issue a court decree to order that the religious marriage previously performed has been acknowledged, and to order the office of religious affairs to issue marriage booklets.
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.
Our thanks to Asep Wijaya, Managing Director of Wijaya & Company for his contribution of this article!
Last updated November 13, 2020