The Position of Unlawful Marriage in Batu Gajah Village Reviewed from the Perspective of Indonesian Positive Law

Abstract

The term "unclear marriage," also known as "nikah sirri," emerged after the enactment of Law Number 1 of 1974 concerning marriage. "Unclear marriage" describes a marriage that is kept secret and conducted according to religion alone, fulfilling the pillars and requirements for a valid marriage without registration in the state. As a result, the lack of a marriage certificate, which harms the rights of the wife and children, is detrimental. This study uses a sociological juridical approach based on primary and secondary data to describe the relevant topic through direct interviews with the local community. The data were then collected from various legal sources and analyzed qualitatively. The data analyzed using this qualitative method will be linked to the theory of legal protection and legal certainty. Based on the results of this study, it can be concluded: 1) The status of unclear marriage in Batu Gajah Village, Kab. Indragiri Hulu, when linked to positive legal provisions, is highly contradictory. As stated in Law Number 1 of 1974 in conjunction with Law No. 16 of 2019, this marriage is considered invalid and not recognized by the state because the marriage was not officially registered by the Marriage Registrar. Article 2 paragraph (2) of the Marriage Law states "every marriage is registered according to the applicable laws and regulations." The rules regarding this marriage are so clear in state law, but in reality many still carry out underhanded marriages, so this marriage is considered a marriage that does not meet the requirements in the state. On the other hand, the status of the wife and the status of the child is also problematic in this marriage, where the wife is not entitled to maintenance, inheritance or joint property if a divorce occurs or one of the partners dies. This is because the marriage does not have a Marriage Certificate. However, the results of the study also found that many people in Batu Gajah Village, Kab. Indragiri Hulu do not really care about the issue of the wife's status they only prioritize the status of the child because the child must obtain a birth certificate to continue their education and future. 2) Children are considered illegitimate children because their parents' marriage is not officially registered, so that legally the state is considered to have never existed. Based on Article 43 paragraph (1) of the Marriage Law before its amendment, a child only has a civil relationship with his mother and her mother's family. This made it difficult for children to obtain legal certainty in the form of a birth certificate. The child would also not be an heir to his father and would not have the right to legally claim maintenance or education costs. In Constitutional Court Decision No. 46/PUU-VIII/2010, a child can have a civil relationship with his biological father if proven through a DNA test or other evidence. However, this procedure is very complicated and expensive. Therefore, to obtain full legal protection, parents need to have their marriage legalized in a Religious Court.