The Marriage Law Must Be In Accordance with the Ideology Consensus of Pancasila State
Various aspirations continue to come from various community groups to revise Law No.1 Year 1974 concerning Marriage (Marriage Law). A number of efforts to conduct a judicial review to the Constitutional Court have been done. One of the civil and Islamic Family law experts shared her views to hukumonline.
Wirdyaningsih, who is familiarly called Nunung, is a lecturer in civil and Islamic family law at the Faculty of Law, Universitas Indonesia (FHUI). The lecturer has long been a teacher of various subjects in the private law field at FHUI. Her Master’s thesis and doctoral dissertation took the focus on the theme of Islamic law in the field of private law which prevails in Indonesia.
Talking about Marriage Law cannot be separated from the theme of Islamic law. In the history of the making of the Marriage Law in 1974, there was a tug of war between the interests and social values compromised in the parliament. The result, many parties feel the Marriage Law was influenced by Islamic law.
Ranging from polygamy arrangements, the status of the head of the family in the household, to the final clause which states that legal marriage if done according to the law of each religion and belief of both bride and groom are judged by many to be influenced by religious patterns, especially Islamic law.
The following are excerpts from an interview by hukumonline with Wirdyaningsih on the idea of revising the Marriage Law.
Do you think the revision of the Marriage Law is urgent right now?
If I think, before we come forward to say whether this Law needs to be revised or not, we should look back. That is part of the deal. When I was in college, at the beginning of the lecture in 1988, my lecturer, Pak Sayuti Thalib, said the deal for passing the law was not easy. But then it became a special and agreed law, in which the law regulates the private domain.
Married people are regulated in the Law, regulated in the territory of Indonesia, which in fact consists of many religions. Different tribes, religions, cultures. Now, of course, it is not easy to make the law right. Finally, one keyword in the Act was then agreed on the terms of marriage validity. In article 2, paragraph 1, that marriage is valid if according to each religion and belief. That’s the right keywords.
If we read an article by article, such as polygamy, people can talk from any point of view. But if according to one particular religion it is legitimate, respect it. Because this is a private domain, people will speak their beliefs. It is not easy to talk about human rights and gender bias. Because there is a belief norm. Actually, the key is all we hold. If according to your religion and believe it is not appropriate, it is not valid.
Any belief always associates marriage with God. It’s very unique. It is not possible for people to say that the Marriage Law is no longer relevant. And this does not mean that I think that this Marriage Law should not be revised, this is not a scripture. This law may be changed. Please go ahead. There are also many who try to do it through the Constitutional Court.
There was a petition that was accepted, if not mistaken it was about the position of a child outside of wedlock. Also a matter of community property. It’s all accepted, no problem. This Marriage Law is unique. When linked to certain religions, the concept is not known in Islam but eventually accommodated. The question of the child outside of wedlock, the duty of a biological father to provide for the child is not required, but the decision of the judicial review in the Constitutional Court said he is obligated to provide child support.
So in my opinion, changing the Law needs to see the context first. The problem is where? Is the problem in the Law or in the implementation? About the age of marriage for minors, for example, the Marriage Law can be considered as child marriage. I agree there are negative sides but will raising the minimum age of marriage solve the problem entirely?
Talking about the age of marriage, do you think this is not a problem in marriage regulation?
There is a big problem with our young generation about promiscuity, adultery. This is a private area. We as an eastern country have not accepted that. Then we prohibit the younger generation to marry because their age limit is not sufficient and they cannot marry. What if this child is more mature biologically?
I do not ignore the possibility of possible psychological and biological constraints. But the permissibility of marriage at the age of 19 years for men and 16 years for women should also be seen as a way out.
We see the terms of the marriage, there is parental consent, the approval of the bride, must be a man with a woman, it must be fulfilled first. If his son is willing to marry, what should we do in that private area?
There should not be coercion in marriage. Both children still want to go to school and then forced to marry. In that case, I disagree. But if his son is willing, parents agree, please let them be.
This does not mean I am neglecting the negative possibilities of the child marriage, but the setting of young age permissibility for this marriage needs to be seen as a way out for the problems they face.
Keep in mind there are arrangements that the dispensation of marriage age before the 19-year and 16-year old involves judicial assessment. The important thing is there is no coercion in marriage to all grooms and brides.
Do you see that the role of the State for marriage has been sufficient in preventing the adverse effects of child marriage?
Look, for example, the child wants to get married and then parents do not agree, of course, the child can not get married. Or vice versa, their child is forced to marry. Now there is the role of the marriage registrar, for example, the Office of Religious Affairs. As state officials, they can decide not to officiate the wedding. The State has the role here. Dispensation through the courts does enable the judge to first check the evidence as a consideration.
As to the legitimate requirements of marriage based on religion, why should private affairs be linked to religion? Indonesia is not a religious country, right?
This is the unique thing about Indonesia. Indeed there is a private domain in marriage but is locked by religious norms and beliefs. So whatever the religion says if it is allowed then it is okay. Vice versa. So is for any religion.
For example, polygamy in Hinduism is permissible for women who are siblings. In Islam, this is prohibited. But for Hindus, they are legitimate to carry out such polygamous marriages.
Indonesia is not a religious state but a rule of law state. In the Pancasila sense, the law in this country refers to the consensus of the basic ideology of the state. There is an acknowledgment of the value of God Almighty, of course, this is religious values.
All that correlation is there. Any law may not marginalize religious values. It must be understood even every article of the Marriage Law that is not in accordance with the religious teachings that are believed by the groom or bride must be set aside in their marriage. There are many religions, so it is difficult to set one by one.
For example the question of polygamy, Christianity prohibits polygamy, the regulation of polygamy does not apply to them. It can not be done because it is prohibited by the religion. As long as it is set in the religion, please do so. Vice versa.
How about the status of the husband as the head of the family and the wife as a housewife? This is considered discriminatory for women.
I think it’s a matter of sharing functions and roles. In essence, the Marriage Law does not require women to earn a living, but it does not prohibit them. Keep in mind there are different biological basic functions that men and women have. The Marriage Law respects this. There is an obligation burden for men. But in fact, it is regulated that there are still men who do not work to support their families. It is the wife who has to earn a living. How about if it is not arranged so? Women are more disadvantaged.
I do not see as more rights for men, but share roles while putting greater obligations on men. I think if there is a need for criminal sanction if the man as a husband does not fulfill this obligation.
If the women who are working so hard demand that it should be changed that they too could be the head of the family, wouldn’t it only be a burden for women? There is no chance for them to demand responsibility for their husbands.
There is human nature in this matter. Biologically, there are natural differences between men and women. There is a heavy role for women to conceive, breastfeed, and become a mother. The demands of women, as well as families, will weigh more. If there is an agreement between the husband and wife that his wife may work, just go ahead. But not by setting it as the norm in the Law.
Marriage must be seen as an institution in the private area involving religion, belief, and law. We as outsiders from every marriage cannot generalize it with a personal perspective. The Marriage Law currently does more administratively regulate roles and responsibilities in marriage by giving more to husband and wife agreements based on their religious norms. The State respects the arrangement of private territories which they have chosen themselves through the religion they believe. Therefore there is no place for atheism in Indonesia.
If it really needs to be changed, please just change the term housewife to become the head of the household. So it no longer has the impression that women should not be working. But even more urgent if it is necessary to change, I think criminal sanctions for husbands can be arranged if they do not perform their obligations. Another thing about more protection for women and children can also be changed, but it still does not ignore the norms of religion. This is unique in Indonesia with the ideology of Pancasila.
Actually, the role of the state already exists, it only needs to be strengthened through the relevant institutions in its implementation. For example, there is a Counseling Agency for Coaching and Conservation of Marriage.
I admit that there have been marriages that are inconsistent with the Marriage Law. We know that there are legal loopholes about interfaith marriages that can still be registered or there is still forced marriage for children. Therefore, the sanction for violation of norms of the Marriage Law should be considered. The Office of Religious Affairs officers can be the spearhead of enforcing the Law.
Another important thing about marriage registration. How to get people to register their marriages for state legal guarantees. This is an important issue. Please pay attention to the complete study, not just to refer to human rights without looking at it completely. The Marriage Law must relate to the consensus of the Pancasila state, if you want to marry the same sex, for example, please prove it first if there is a religion that accepts such a concept?
