Legal Status, Inheritance Rights, and Protection of Children Born from Unregistered (Sirri) Marriages under Indonesian Law

Kenny Wiston

INTRODUCTION

This memorandum addresses the legal status, inheritance rights, and protection mechanisms for children born from unregistered (sirri) marriages in Indonesia. The analysis is based on prevailing statutory provisions, relevant Constitutional Court decisions, and administrative regulations. Key issues include the civil status of such children, the evidentiary requirements for establishing paternity, the implementation of legal protections in court, and the legal consequences for children born to women who marry while pregnant. The memorandum aims to provide a comprehensive legal framework and actionable recommendations in accordance with Indonesian law.

DISCUSSION

1. Legal Status and Inheritance Rights of Children Born from Sirri Marriages

• Under Indonesian positive law, children born from sirri marriages—marriages not registered with the state—are classified as “children born out of wedlock.”
• Pursuant to Article 2(2) of Law Number 1 of 1974 concerning Marriage, only marriages registered with the state are legally recognized.
• Article 43(1) of Law Number 1 of 1974, as reinterpreted by Constitutional Court Decision Number 46/PUU-VIII/2010, provides that children born out of wedlock have civil relations with their mother and her family, and with their biological father if a blood relationship can be scientifically or legally proven.
• Inheritance rights for such children are governed by Burgerlijk Wetboek (Civil Code), specifically Articles 862, 863, 865, and 867:
  • If the deceased leaves legitimate descendants or a spouse, a recognized out-of-wedlock child inherits one-third of the share of a legitimate child (Article 863(1)).
  • If there are no legitimate descendants or spouse, but there are ascendants or siblings, the child inherits half the share (Article 863(2)).
  • If only more distant relatives exist, the child inherits three-quarters of the share (Article 863(3)).
  • If there are no legal heirs, the child inherits the entire estate (Article 865).
  • Children born from adultery or incest are only entitled to necessary maintenance, not inheritance (Article 867).
• Thus, children from unregistered marriages are treated as out-of-wedlock children, and their inheritance rights are subject to the specific provisions for recognized out-of-wedlock children.

2. Judicial Implementation after Constitutional Court Decision No. 46/PUU-VIII/2010

• Following Constitutional Court Decision Number 46/PUU-VIII/2010, courts now recognize that children born out of wedlock have civil relations not only with their mother and her family but also with their biological father, provided a blood relationship is proven scientifically or by other legal evidence.
• In practice, courts examine petitions or lawsuits filed by the child or mother seeking recognition of a civil relationship with the biological father.
• Proof is required through scientific means (e.g., DNA testing) and/or other legal evidence, in accordance with the Constitutional Court’s interpretation of Article 43(1) of Law Number 1 of 1974.
• If sufficient evidence is presented, the court will issue a ruling establishing the civil relationship, which includes inheritance, maintenance, and education rights as stipulated in Articles 41 and 45 of Law Number 1 of 1974.
• Such court decisions serve as the basis for administrative registration of the child’s birth certificate, as regulated in Articles 27 and 28 of Law Number 23 of 2002 concerning Child Protection.
• This judicial practice ensures that children born out of wedlock who can prove a blood relationship with their father are entitled to equal legal protection.

3. Sufficiency of Biological Father’s Acknowledgment versus Scientific Proof

• A mere acknowledgment by the biological father is insufficient to establish a civil relationship with an out-of-wedlock child.
• Article 43(1) of Law Number 1 of 1974, as interpreted by Constitutional Court Decision Number 46/PUU-VIII/2010, requires scientific proof (e.g., DNA testing) and/or other legal evidence to establish a blood relationship.
• Presidential Regulation Number 96 of 2018stipulates that child acknowledgment must be supported by a written statement from the biological father, approved by the mother, or a court ruling if the mother is a foreign national.
• For children born out of wedlock, registration of acknowledgment is based on a court ruling (Article 51(1) of Presidential Regulation Number 96 of 2018), requiring the court to assess evidence, including scientific proof.
• In judicial practice, courts require scientific or other legally valid evidence, not just unilateral acknowledgment, to establish a civil relationship.
• Therefore, acknowledgment by the father must be accompanied by scientific and/or other legally valid evidence to create a civil relationship.

4. Legal Construction Required to Protect the Rights of Children Born from Sirri Marriages

• Comprehensive legal construction is necessary to ensure full civil recognition and protection for children born from unregistered marriages.
• Key elements include:
  1. Recognition and Proof of Civil Relationship
     • Article 43(1) of Law Number 1 of 1974, as interpreted by Constitutional Court Decision Number 46/PUU-VIII/2010, requires scientific or other legal proof of paternity.
  2. Registration of Acknowledgment and/or Legalization
     • Article 281 of Burgerlijk Wetboekallows acknowledgment of out-of-wedlock children by authentic deed, to be noted on the birth certificate margin.
     • Minister of Home Affairs Regulation Number 108 of 2019governs the procedure for registration of acknowledgment and legalization.
  3. State Protection of Children’s Rights
     • Articles 21 and 23 of Law Number 23 of 2002 concerning Child Protectionrequire the state to respect, fulfill, and protect children’s rights without discrimination.
  4. Court Determination
     • Article 267 of Burgerlijk Wetboekauthorizes courts to adjudicate the status of children, with court rulings serving as the basis for administrative registration.
  5. Inheritance Protection
     • Once civil relations are established, inheritance rights follow the provisions for recognized out-of-wedlock children under Articles 863 and 865 of Burgerlijk Wetboek.

• Thus, the required legal construction includes scientific or legal proof of paternity, administrative registration, court determination if necessary, and state-guaranteed protection of children’s rights.

5. Legal Status and Consequences for Pregnant Women Married by the Biological Father

• Article 42 of Law Number 1 of 1974defines a legitimate child as one born in or as a result of a legal marriage.
• If a pregnant woman is legally married to the man who impregnated her, the child is considered legitimate, unless rebutted through a court process as provided in Article 44 of Law Number 1 of 1974.
• The child thus enjoys full civil rights, including inheritance, maintenance, and legal protection, as stipulated in Article 45 of Law Number 1 of 1974and Article 26 of Law Number 23 of 2002 concerning Child Protection.
• The child’s identity must be registered at birth, in accordance with Article 27 of Law Number 23 of 2002.
• If the marriage is not registered (sirri), the child is considered out of wedlock under Article 43(1) of Law Number 1 of 1974, but may establish civil relations with the father if scientific or legal proof is provided, as per Constitutional Court Decision Number 46/PUU-VIII/2010.
• In summary, if the marriage is legally registered before the child’s birth, the child is legitimate with all attendant civil rights, unless rebutted in court. If not registered, the child’s status and rights follow the provisions for out-of-wedlock children.

CONCLUSION

Based on the above analysis, it is concluded that children born from unregistered (sirri) marriages are classified as out-of-wedlock children, with civil and inheritance rights contingent upon scientific or legal proof of paternity. Judicial and administrative mechanisms exist to recognize and protect these rights, provided the necessary evidence is presented. For pregnant women married by the biological father, the child is legitimate if the marriage is registered before birth. It is recommended to pursue court determination and administrative registration to ensure full legal protection for the child in accordance with Indonesian law.

ATTACHMENT OF LEGAL BASIS

• Law Number 1 of 1974 concerning Marriage
• Constitutional Court Decision Number 46/PUU-VIII/2010
• Burgerlijk Wetboek (Civil Code)
• Law Number 23 of 2002 concerning Child Protection
• Presidential Regulation Number 96 of 2018
• Minister of Home Affairs Regulation Number 108 of 2019