Rights of Illegitimate Children

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International Journal of Sciences:
Basic and Applied Research
(IJSBAR)
ISSN 2307-4531
(Print & Online)
http://gssrr.org/index.php?journal=JournalOfBasicAndApplied

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The Inheritance Rights of Illegitimate Children outside Marriage in the Perspective of Children’s Rights
Bahruddin Muhammad a*, Thohir Luthb, Abdul Rachmad Budionoc, Jazim Hamidid a

Candidat Doctor, University of Brawijaya, Indonesia

b

Prommotor, Professor, University of Brawijaya, Indonesia

c

Co-Prommotor, Professor, University of Brawijaya, Indonesia

d

Co-Prommotor, Professor, University of Brawijaya, Indonesia
abahruddin1957@gmail.com

Abstract
In 2012, the Constitutional Court of the Republic of Indonesia concerning the inheritance rights of illegitimate children. Based on Constitutional Court Decision, No. 46/PUU-VIII/2010, Article 43 (1) of Law No. 1 of 1974 on Marriage, which states "Children who are born outside marriage have only a civil relationship with their mothers and maternal family," is contrasting with the Constitution of the Republic of Indonesia of 1945. Based on the Constitutional Court, Article 43(1) Marriage Act has no legal binding force; therefore, the status and the rights of the illegitimate children, including biological children in the marriage and inheritance law have the same status and rights as the legitimate children (born out of a valid marriage). Such decision has provoked the contradiction between the legal norms and concepts, especially the religious norms and the prevailing concept of inheritance rights in Indonesia. Based on the Court, these children including the children of adultery achieve the inheritance rights because they have a lineage to the biological fathers which is in fact are established by technology and science.

Keywords: Children rights, illegitimate Children, Constitutional Court of the Republic of Indonesia, Constitution of the Republic of Indonesia of 1945.
-----------------------------------------------------------------------* Corresponding author. E-mail address: abahruddin1957@gmail.com.

49

International Journal of Sciences: Basic and Applied Research (IJSBAR) (2014) Volume 14, No 1, pp 49-62

1.

Introduction

Based on the law of the legitimate marriage, the children born outside marriage are the children born outside legal marriage. Based on applicable marriage law in Indonesia, the marriage can be termed as a valid marriage if it meets two conditions rule of law that are based on religion and beliefs being adhered by the parties and recorded in the authentic document, which is in the record of marriage register book. The valid marriage is required by both religion (e.g. Islamic law) and the juridical laws (marriage law). To observe the status and rights of the children of the marriage, it certainly depends on the two conditions above. The status and rights of the illegitimate children, thus also depends on the validity of marriage as the two applicable laws mentioned earlier. In 2012, the Constitutional Court concerning the inheritance rights of the illegitimate children. The court has been granted a judicial review of Article 43 (1) of Law No. 1 of 1974 on Marriage (hereinafter abbreviated UUP) proposed by Machica Mochtar who had unregistered marriage, known as “sirri marriage”. Sirri marriage is unregistered marriage or “Sirri”, in the terminology of valid marriage based on the requirement of Islamic law but it is not registered officially in the marriage book. Based on Constitutional Court decision No. 46/PUU-VIII/2010, Article 43, (1) of Law No. 1 of 1974 on Marriage (State Gazette of the Republic of Indonesia Year 1974 No. 1, Supplement to State Gazette of the Republic of Indonesia Number 3019), which states "Children born outside marriage have only a civil relationship with their mother and maternal family”,...
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