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Marriage and its Legal Implications in Indonesia
A married couple has the obligation to maintain a household that becomes the principal structure of any community. In Indonesia, the rights and obligations of a wife are equal with those of her husband in household life and social interaction in the community.
In Indonesia, the husband is considered to be the head of a family, while the wife is the housewife. As the head of the family, a husband is required to protect his wife and provide the household necessities, according to his capacity. A wife is required to manage the household affairs the best she can.
Under Indonesian law, if a husband or wife fails to fulfill his/her obligations, the spouse may file a petition to a court of law for proper settlement.
Property in the Marriage
In Indonesia, as in other countries, a marriage has legal consequences concerning the property of the husband and wife (including gifts and inheritance), wealth acquired during the marriage, and legal consequences to any owned property if a divorce should occur.
The property brought by the husband and wife separately and the property earned of respective parties as gifts or inheritance stays under their own possession, unless otherwise specified by respective parties. Each of the parties shall separately retain all rights and interests in all property of any kind which he or she owns to dispose of such separate property.
The property acquired during the marriage becomes joint property of a married couple. The husband and /or wife have a legal capacity to dispose of such property upon approval of both parties. In accordance with the Indonesian 1974 Marriage Law, such property shall be referred to as marital property.
In the event a marriage is terminated due to divorce, the marital property must be arranged in accordance with respective law. The respective law means religious law, ethnic (adat) law, and other applicable laws.
Children or Offspring
A marriage also has legal implication to the children born within that marriage. Furthermore, pursuant to law, children are divided into two categories, namely:
- Legitimate children, which are children born in the legitimate marriage;
- Illegitimate children, which are children born out of wedlock.
A husband may deny his fatherhood of a child given birth by his wife if he can prove that his wife has committed adultery and the child is the result of such activity. The party that will decide the legitimacy of the child is a court of law upon request of the relevant party under oath.
Evidence of Child Origin
The origin of a child can only be proven with an authentic birth certificate issued by the officer of civil registry. If the birth certificate doesn't exist, a court may issue a determination on the origin of the child after conducting a hearing based on lawful evidence.
Based on the court decree, a birth registration agency in the jurisdiction of the court will in turn issue a birth certificate for the child.
The Rights and Obligations of Parents and Children
Parents are required to raise and educate their children properly. These obligations apply until the child gets married or becomes independent.
A child under the age of 18 years, or those who have yet to marry, remain under the control of the parents so long as the parent's authority is not annulled as parents. The parents represent the child in any legal action inside and outside an Indonesian court of law. Parents are not allowed to transfer the rights any permanent property owned by the child, unless otherwise desired for the child’s interest.
Either or both parents may have his/her/their parental authority revoked for one or more children for a certain period. The meaning of authority doesn't include power as the guardian in a marriage. The parents' authority may be revoked through court decision in the event that:
- They seriously neglect their power over the child;
- They have extremely bad behavior.
Although the parents have their authority revoked, they still have the obligation to provide child support to the children.
Children are required to respect their parents and comply with their will properly. In the event the child has grown up, he/she is required to take care of his/her parents and family in a straight line and above if they need any help according to his/her capacity.
Guardianship
A child under 18 years of age or those who have yet to marry are still under the authority of the parents as the guardian authority. Such guardianship applies to the child and his/her property.
A guardian can be appointed by a person to execute the parents' authority before he/she dies, with a testamentary will or orally before two witnesses. The guardian should be, as far as possible, chosen from the child's relatives or someone else that is an adult, healthy in mind, fair, honest and possessing good manners.
A guardian may have his/her authority revoked in the event he/she fails to fulfill his/her obligations and has extremely bad manners. If such authority is revoked, a court will appoint another guardian as the replacement.
In executing his/her authority, a guardian has the following obligations:
- to take good care of the children and their property by respecting the child's religion and beliefs;
- to make a list of property and to record any changes to such property;
- to be responsible for the property and to bear any damage arising out of his/her negligence. The replacement is specified by court decision upon the claim from the child or the child's family;
- Not to transfer the right or pawn the child's permanent property, unless otherwise demanded by the child.
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 June 13, 2020