Last September, the House of Representatives of the Republic of Indonesia passed Marital Law No. 16 Year 2019, which replaced Marital Law No. 1 Year 1974, on the minimum age of marriage in Indonesia.
The previous law allowed for women aged 16 and men aged 19 to legally marry, whereas the new legal charter changes the minimum age; both genders can only get legally married at the age of 19, without distinction. This change in the minimum age for marriage is the ruling of the of matters No. 22/PUU-XV/2017.
Indeed, there are two other Indonesian Constitutional Court issues relating to civil relations of children outside of wedlock, with their biological fathers, and about the marriage agreement between a husband and wife. However, these issues haven’t been included in the new marriage act article; it only covers the new minimum age for marriage.
Masyarakat Perkawinan Campuran (PerCa), or Mixed Marital Society, is an organisation filled with mainly Indonesian women who have married expats and are living in Indonesia, striving for equality of civil and constitutional rights for mixed marriages in Indonesia. PerCa provides information relating primarily to changes in the law that relate to both Indonesians and expats, and held a discussion on Thursday, December 5.
This was an attempt to clarify the legal strength of the Constitutional Court’s ruling about marriage agreements following a legal marriage, which was granted in October 2019, in article No. 69/PUU-X11/2015. However, the revised details on the marriage agreement are still not included in this court ruling.
An expert on constitutional law and the first chairman of the Indonesian Constitutional Court in 2003–2008, Prof. Jimly Asshiddiqie, conveyed that the court verdict is final and binding; therefore, every court ruling is equal to the law.
In the case of changing the law on the minimum age of marriage, the article regarding it was revised but not the law on marriage agreements, according to Prof. Jimly. “The court ruling does not alter but extends the meaning of the article. The marriage agreement that once could only be done before and during the marriage is now expanded into before, during, and after the marriage was held,” he explained.
Commission VIII member of House Representative Diah Pitaloka, Head of Jakarta Sub-Directorate Head of Population Office and Civil Registration Shanti S., public notary Elizabeth Leonita, and legal practitioner Deni Hariyatna gave a few pointers regarding the marriage agreement matter.
Diah was eager to listen to this matter because Commission VIII tackles issues relating to social structures, female empowerment, child protection, religion, disasters, and haj in Indonesia. “Though it will take time, I want to help legislatively, especially after the success of increasing the minimum age of marriage,” she said.
Elizabeth pointed out the ways to make a marriage agreement during her 15-minute talk. “The Constitutional Court has stated that any notary can issue a marriage agreement. The couple must be present when they propose the creation of their marriage agreement. It can be made before, during, and after the marriage, as long as the agreement follows the laws and regulations and doesn’t harm any third party,” said Elizabeth.
For those who were married overseas, the marriage certificate must initially be translated to Bahasa Indonesia, then the couple needs to ensure that the agreement is under Indonesian jurisdiction. Once made, it can be translated into another language that the notary also understands.
“A notary will ask you three things prior to making this agreement: have you ever bought any property under your name? Have you been married prior to your current spouse? Do you have any debt? Once those are clear, the notary will require information about the location of your wedding. If it was overseas, then you need to state the wedding date and provide evidence that you’ve notified it to the Indonesian embassy in that country.”
For couples married in Indonesia, they must prepare their KTP and KITAS or KITAP to take to the Population Office and Civil Registration to get registered and then the notary can process the agreement.
“But with mixed marriages, the expat’s marriage book that is issued by the Indonesian government will be withdrawn by their respective embassy. Hence only their spouses’ book exists and sometimes, it causes a fuss for them to legally register,” Elizabeth added.
PerCa Indonesia is still campaigning to have marriage agreements included in a court ruling of marital law, though they are aware that the parliamentary legislation process is time-consuming. Their drive behind this is to ensure that there are possible and visible legal solutions for mixed marriage couples to acknowledge.
Indah Purnamasari, an attendee at this Thursday’s discussion, realised the importance of making a marriage agreement. She expressed that she and her husband didn’t make one before and after their marriage.
“A lot of women nowadays are settled with their own built-in assets. Although there is a law of property to support us, I now grasp a marriage agreement that can further strengthen our rights,” Indah said. “Nobody should be biased against us.”
According to the Head of PerCa Indonesia, Juliani Luthan, mixed marriage couples face many obstacles such as immigration problems, marital registrations, childbirth registrations, and employment issues. The Indonesian government has, however, slowly provided support over the years.
For instance, the Immigration Law No. 6 Year 2011 states that permanent residency or Izin Tinggal Tetap (ITAP) can be issued to a foreign spouse after two years of marriage. The ITAP holder will only be required to report to the immigration office once every five years for an administrative renewal of Rp10 million, instead of the previous annual renewal.
“Good rules have been set, but once you go to take care of those legal matters, the implementation in the field is often disorderly. Many mixed marriage couples are unaware that there are certain steps to follow, which eventually leads them to a point where they have incomplete documents and therefore creates difficulties in the future,” said Juliani.
PerCa Indonesia always organise activities aimed at empowering the mixed marriage community, such as socialisation events about immigration residency, double citizenship for children from mixed marriage couples, and inheritance rights. They are held not only in Jakarta, but also in other areas where PerCa Indonesia representatives are at hand.
“As a society, we want to embrace one another so that more of us are conscious of the government provisions relating to our needs,” Juliani added.
PerCa Indonesia was established in 2008 as a bubble of information on mixed marriage couples based on three main pillars of activities: advocacy, socialisation, and consultation. Now, there are almost 2,000 members scattered throughout Indonesia and they have a representative in eight regions namely Batam, Bali, Balikpapan, Makassar, East Java, Central Java, Yogyakarta, and Lombok.