UNREGISTERED MARRIAGES IN

INDONESIA ON THE PERSPECTIVE OF

POSITIVE LAW

Arranged by:

Tareq Muhammad Aziz Elven

20150610358

INTERNATIONAL PROGRAM FOR LAW AND SHARIA

FACULTY OF LAW

UNIVERSITAS MUHAMMADIYAH YOGYAKARTA

YOGYAKARTA
2016
 CHAPTER I
INTRODUCTION

A. BACKGROUND
Marriage is a spiritual relation between men and women is institutionalized in
a solid institution, and acknowledged both religiously and legally. Al Qur'an,
normatively encourages many people to live in pairs which aims to achieve a happy
and peaceful family. Relating to marital status, the Qur’an also mentioned in Surah
an-Nisa (4): 21, that marriage as Mitsaqan Galidhan, namely a solid bond. The bond
began to be recognized as an unspoken agreements contained in the consent form and
qabul.

One of the initial framework to obtain legal security in a marriage is by listing

it to the relevant authorities. This not only applies to people who are Muslims, but
also for those who are Christian, Catholic, Hindu and Buddhist. As stipulated in Law
no. 22 1946 j.o. Law No. 32 of 1954 on Registration of Marriage, Divorce and Refer
(explanation of Article 1) also in Law No. l Year 1974 on Marriage article 2, paragraph
2, which is reinforced by PI RI no. 1 of 1991 concerning Islamic Law Compilation
chapters 5 and 6.

In Islamic law, marriage law is one aspect of the most widely applied by
Muslims around the world compared with the laws of another Muamalah (Anderson,
1994: 46). Marriage is Mitsaqan Ghalidan, or a bond that is strong, that is considered
valid when it has qualified and harmonious marriage. Based on the Qur'an and the
Hadith, the scholars conclude that things are included pillars of marriage is a husband,
wife nominee, guardian of marriage, two witnesses, and qabul consent. The obligation
will be the witnesses of this is the opinion of Shafi 'i, Hanafi and Hanbali (Yunus, 1996:
18). As for the terms of the validity of marriage, according to Wahbah Zuhaili is between
husband and wife no relationship nasab, sighat Islamic marriage contract is not
limited in time, their testimony, there is no compulsion, no clear candidate for a
husband and wife, not in ihram, no dowry, no deal to hide one of the marriage
ceremony the bride is not currently suffering from a chronic illness, their carers
(Zuhaili, 1989: 62).

Look at the criteria and requirements of marriage pillars above, there is no

mention about the recording. The existence of the witness is considered to have
strengthen the validity of a marriage. The parties concerned could not hold a denial
of contract had occurred. This could be based on the time of the Prophet himself
wedding nothing listed. In the book of classic Fikh was no discussion of marriage
registration.

On the other hand, basically the Qur’an advocate posted about something
related to the contract. However, by the majority of jurists it is only considered as a
suggestion, not an obligation. This is to ensure that each of the parties does not forget
what has been held. Marriage at the time of the Apostles, there is no provision for
registration have not been many cases that developed around the problem of marriage
as it does today. The times today demands a strict legal settlement of various problems
of marriage. Therefore, the presence of two witnesses considered insufficient. Because
of the mobility of people is increasing and requires proof of authenticity. Although
Islamic law is not included in the terms and the pillars of marriage, registration of
marriage compulsory part to avoid difficulties in the future. In Chapter II, Article 2 of
Law No. 1 of 1974 on Marriage called on registration of marriages with a variety of
the procedures. This is made clear in KHI (Compilation of Islamic Law) Article 5 (1)
which states, "To be guaranteed order of marriage for Muslims every marriage must
be recorded". Likewise, in Article 6 (2) affirmed that "marriage performed outside the
supervision of the Registrar of Marriage Officer does not have the force of law".

In fact, the practice of marriages taking place in society is not entirely based on
the law. Some of the mating process refers to each religious institute. This fact should
be recognized as the recognition of the State of legal pluralism cannot be ignored.
Consequently, the choice of law in the field of family tend to be delivered as personal
authority. For example, the case of unregistered marriages are legal options based on
the context of religion, the emphasis is not only the essence of the legal relationship,
but rather the consequence of the practice of worship to God.
 The phenomenon happens, Registration of marriage is one that must be met in
terms of the government's recommendation, Ulil Amri, which in this case includes
temporal affairs. While some Muslim societies, it considers that the validity of the
religion, the more important because it contains elements Ukhrawi more reassuring,
while mundane side had been a complementary element that can be done after the
main elements are met. In this case the earthly elements, namely marriage to be listed
is the second step after the peace of mind gained.

From this and cases of unregistered marriage or a marriage under the hand
flared up into its own phenomenon. Sirri marriage is a marriage, despite having
qualified pillars of marriage, but for some reason, is not recorded in the Office of
Religious Affairs. In Islamic law, the marriage is considered valid by some quarters
for having met the criteria for the validity of marriage that their consent, qabul, two
brides, guardian and two witnesses. Sirri marriage is still often used as an alternative
in anticipation of promiscuity among men and non-mahram woman, psychologically,
morally and materially not have the readiness to marry formally.

The number of people who consider it legitimate, raises the image of the
community that marriage is something that is easy to implement, as a result, the ship
sailed home tanggapun journey undertaken without considering the formal legal
aspects applicable. In fact, it raises various issues and domestic conflict that affected
the legal issues that are very detrimental to women.

The number of people who consider it legitimate, raises the image of the
community that marriage is something that is easy to implement, as a result, journey
through day after day was lived without considering the formal legal aspects. In fact,
it raises various issues and domestic conflict that affected the legal issues that are very
detrimental to women.

Marriage is a legal process, so things or actions that arise as a result of marriage

is a legal action that is protected by law. If the marriage is not legally registered, the
issues related to the result of marriage cannot be resolved legally. For example, the
wife's right to make a living and spiritual birth, child's birth certificate cannot be taken
care of, custody of children, the right to education of children, wife inheritance rights,
child custody rights for women getting married and many other problems.

The problems will only bring negative impacts on women as those who marry,
while the man is not burdened with formal responsibility. Even if the men in denial
have the wedding, he will not have any legal sanction, because there is no authentic
evidence that the marriage has occurred. This will certainly open a wide space for
violence against wives.

Violence against wives stems from many factors which basically leads to the
dominance of the concept of a patriarchal society. The concept is translated as a male-
dominated system that oppresses women through social institutions, political and
economic. The reality is that the patriarchal culture manifest in historical forms of any
kind. Whether it be in the feudal system, capitalist or socialist (Arivia, 2003: 16).

Although it was widely acknowledged that in principle the marriage Sirri

disadvantage women, but until now the phenomenon is often encountered. The
practice of unregistered marriages is not only happening in communities that lay the
law, less educated, or the middle class down, but also a lot going on in the
neighbourhood educated society who understand the law, or in society the middle
class that economically can be said very well established. It is common among the
general public, students, artists, scholars and even officials.

Appeared some guesses about the reasons why unregistered marriages with all
the risks are still being used as an alternative. Among the people who lay the legal and
economic society is weak, it could be possible due to limited funds so the procedure
that practically no charge, marriage can be implemented. When viewed from the
religious aspect, it is possible for fear of committing a sin and fall into immoral acts,
then the marriage with a quick procedure and considered valid has provided peace of
mind of its own.

Based on the explanation above, this study becomes important because there
are many women who feel "comfortable" status as the wife of the marriage process
Sirri. This is where gender sensitivity has not been touched, even from women
themselves. By using gender analysis and legal phenomenological approach,
researchers are trying to uncover the underlying factor holding of marriage Sirri along
with the legal problems that accompany it.

B. PROBLEM FORMULATION
Based on the background of the above problems can be formulated it as follows:

1. What factors are behind the occurrence of Sirri marriage?

2. What is the problems that accompany marriage Sirri?

3. How the legal implications of marriage Sirri for women?

C. PURPOSES
1. To know what is Sirri Marriage is

2. To know the legal basis of Sirri Marriage

3. To know the legal implementation of Sirri Marriage for women

4. To know the problematics of Sirri Marriage in Indonesia

5. To know the legal consequences of Sirri Marriage for women

 CHAPTER II

DISCUSSION

1. Causes of Sirri Marriage

The phenomenon of marriage under the hand or Sirri marriage for Muslims in
Indonesia is still quite a lot. Not carried out by the lower class, but also by the middle
and upper levels of society. Such conditions occur due to several factors that lie behind
them. Of course, to know how much percentage of perpetrators of marriage Sirri and
any factor to trigger the occurrence Sirri marriage they still need careful study. But in
general Sirri marriage can be caused by several factors, namely:

a. Lack of Legal Awareness in Society

There are many of our society who do not understand fully how important
the registration of marriages. Even if in fact the marriage was recorded at KUA some
of them may be just a mere bandwagon; think of it as a tradition that is commonly
done by local people; or registration of marriage was only seen just a matter of
administration; has not been accompanied by awareness aspects will fully benefit
from the civil registry.

The problem is, why is it so low legal awareness of some of our

communities, and how our efforts to raise awareness of the law for them, it certainly
is our collective responsibility. If a group of people in a jurisdiction in Indonesia does
not have the legal awareness is high, this is certainly not merely the fault of society
itself but also due to lack of its full role and efforts of government agencies that exist,
in this case the Ministry of Religious Affairs and Local Government less intensively
educate the public about how important it is to register marriages.

Remote regions especially in remote inland areas, lack of public awareness

of the importance to register marriages can take a look at some of the predominantly
Muslim village, there are many people whose marriage were not recorded by the local
KUA. It can be seen clearly, with the number of people who apply for marriage ithbat
to local religious court for approval of their marriage legally State.

Number of applications positive thing marriage cannot be separated from

efforts led by local religious court which has sought to hold legal counselling
especially in certain districts the majority of the people are Muslims. Seeing the
enthusiasm of people to get that certification of their marriage in the religious court
after gaining an understanding of the law, indicates that the legal awareness of the
society and thus began to rise. Expected start of the growing awareness that a good
starting point for the creation of public awareness as a whole in the area. Because with
this awareness at least if they marry their children later will not repeat the same
mistakes they did.

Thus, the low level of public awareness as it needs to be enhanced through

both formal legal counselling conducted by relevant agencies and institutions
informally through the speakers at the forum recitation of Islamic study groups and
so forth.

b. The Apathy Attitudes of Society toward Law

Most of the community is apathetic to stipulations concerning marriage.

Sheikh Puji case of marriages with underage girls named Ulfah as revealed in the
media are a clear example apathy toward the enforceability of the law of the State.
From preaching there, we can see there are two things that are ignored by Sheikh Puji,
namely, first, the marriage is polygamy that is not through the permit in court, and
secondly, he does not want to apply for a dispensation to marry despite the obvious
candidate's wife is still under age.

Such attitudes of apathy, especially those committed by a public figure, it is

a major obstacle to the implementation of the legal enforceability. Because what is
done by a figure normally be emulated by those who idolize. Therefore handling of
legal cases involving Sheikh Puji is the right to not be a bad precedent for the
Indonesian people who are currently working to position the rule of law.
 c. The Provisions of the Marriage Registration not Decisive

As we know, the provisions of Article 2 of Law No.1 / 1974 is a fundamental

principle of the validity of marriage. The provisions of paragraphs (1) and (2) in that
article must be understood as the conditions are cumulative, not alternative conditions
the validity of a marriage. From a legal fact and / or law norm that is enough to be the
basis for the obligation of Muslims to register their marriage. However, the provision
contains a weakness for multiple interpretations of the article and also not
accompanied by sanctions for those who break them. In other words, the marriage
registration provisions in the legislation are not decisive.

That is why the last few years the government has made the bill for Applied
Legal Affairs Religious Courts Marital which until now has not passed in parliament.
In the bill obligation registration of marriages were formulated expressly and with
clear sanctions for those who violate them.

Article 4 of the bill states: every marriage shall be recorded by the VAT
legislation in force. Then Article 5 paragraph (1) states: to comply with the provisions
of article 4, any marriage shall take place before VAT. Recording obligations as
stipulated in article 4 and article 5 paragraph (1) is accompanied by criminal sanctions
for those who violate them.

Criminal provisions relating to the registration of marriages violations

stated in Article 141 of the bill states: any person who knowingly enter into marriage
is not in the presence of VAT as referred to in Article 5 (1) shall be punished by a fine
of 6,000,000, - (six million rupiah ) or a jail term of 6 (six) months.

Article 145 of the bill states: VAT breached its obligation referred to in Article
4 is punishable by a maximum confinement of 1 (one) year or a fine of Rp 12,000,000,
- (twelve million).

Article 146 of the bill states: every person conducting marriages and acting
as if as VAT and / or guardian or a judge referred to in article 4 and article 21 shall be
punished by a maximum imprisonment of three (3) years.
 Thus, non-stress conditions listed in the applicable law is still giving ample
space for the implementation of Sirri marriage for some people who do it and be one
factor causing Sirri marriage.

d. The tight Permits of Polygamy

Law No.1 / 1974 adheres to the principles of monogamy, but still made
room for those whose religion allows for polygamy (one of which is Islam) with very
strict requirements. A person who wants to practice polygamy must meet at least one
of the conditions specified for limitative alternative in the law. They are:

a) wife could not carry out his duty as a wife;

b) wife gets disability or illness cannot be cured;
c) wife could not bear offspring (Paragraph (2) of Law 1/1974)

Otherwise the court will take into consideration and will give permission
for polygamy when someone begs cumulative conditions are met as follows:

a) there is an approval from his wife

b) there is a certainty that the husband is able to ensure the needs of life of
his wives and their children;
c) there is a guarantee that the husband would be fair to his wives and their
children;

Intended to guarantee the necessities of life for their wives and their
children are very relative in nature. Similarly, the husband would be fair to their wives
and their children are very subjective in nature, so that an assessment of the last two
requirements will depend on the sense of justice into their own hands.

When we examine difficult for the fulfilment of the requirements mentioned

above by a husband, then it can cause: marriage "clandestine" and live together
(samenleven). Marriage "clandestine" marriage practice is legally eligible, but there
are defects juridical in it. For example, a prospective husband in the notification will
marry a virgin or admitted using a fake license.
 Tight permit polygamy also lead to the preferred marriage under hand or
marriage Sirri for implementation (procedures) wedding at the hands of a much
simpler and faster to achieve the purpose of marriage itself.

Special for civil servants both civilian and military, to be able to polygamy
but must meet these conditions also must obtain permits superiors authorized,
pursuant to Regulation No.10 / 1983 on Licensed Marriage and Divorce for civil
servants jo. PP 45/1990. Likewise for the TNI must obtain permission from his
superiors in accordance with applicable regulations, so for those concerned shall go
through a long process.

Difficult and lengthy process as well as obstacles in the form of bureaucracy

in licensing is aimed at strengthening selectively favours polygamy for civil servants
and avoid arbitrariness in terms marry more than one, so that civil servants are
expected to be an example and a good example in accordance with its function as a
servant of the State and civil servant. As a result of the prohibition of polygamy or the
difficulty of obtaining permission for polygamy would open the door prostitution,
concubine, live together and polygamy illegal.

According Soetojo, with the enactment of Law 1/1974 digits to marry more
than one (polygamy: Pen) showed decreased dramatically but polygamy is illegal in
all its forms is increasing, which is caused by:

a) the absence of high legal awareness of the public;

b) for those who are bound by a certain tightening because the official was
overshadowed by the fear of the boss in addition to the procedure that
is too long and difficult;
c) the absence of firm action against illegal polygamy;

Polygamy illegal forms that are commonly found in the community are:

a) living together without marriage is legitimate and commonly known as:

cohabitation, concubine, mistress;
b) For those who are Muslims, polygamous marriage without registration.
 The latest research results Soetojo shows that tightening the permission for
polygamy is one factor the emergence of marriage under the counter, or marriage that
is not recorded, a.k.a marriage Sirri.

B. The Legal Status of Sirri Marriage on the Perspective Positive Law

From the point of view of the applicable law in Indonesia, Sirri marriage is
a marriage that do not comply with the legislation in force. As we understand that
under the provisions of Article 2 paragraph (1) and (2) of Law No.1 / 1974 Jo. Article
4 and Article 5 (1) and (2) KHI, a marriage in addition must be done lawfully religion,
should also be recorded by the authorities. Thus, in the perspective of legislation, Sirri
marriage is illegal and invalid marriage.

For among Muslims in Indonesia, there are two basic requirements that
must be conditioned as cumulative requirements that make their marriage legally
valid positive, namely: first, the marriage must be done according to Islamic law, and
second, every marriage should be recorded. The marriage registration is done by the
VAT Law No.22 / 1946 jo. Law No.32 / 1954. Thus, the non-fulfilment of one of the
provisions in Article 2 of the cause of marriage void or at least legally flawed and can
be cancelled.

But if the provisions of that article is still understood as a condition of an

alternative, then the marriage is considered valid even though only performed
according to religious law and not listed at KUA. Legal issues concerning the validity
of a marriage that is not recorded will always be a prolonged polemic when the
provisions of its own legislation does not set it explicitly. In a sense the registration
obligation must be stated clearly and with penalties for those who break them.

For Muslims, the interests of the recording itself actually has a strong legal
basis for considering Islam marriage is a covenant is a legal act of higher and higher
levels. That is, Islam considers marriage was more than just a common agreement. In
Islam, marriage is a very strong agreement (Mitsaqan Ghalidhan). How could a very
strong bond taken lightly? Why logic of some Muslims against compulsory
registration of marriages like distorted? We need to convince Muslims that marriage
is obligatory Syar'i. It is very wrong when marriage for Muslims are not recorded in
accordance with applicable law. While common agreement, such kind of debts in the
banking institutions or purchase such land should be noted, which is why the
marriage bond above agreements allowed to proceed without the presence of the
recording by the competent authority. It is the irony of his religious teachings of Islam
that emphasizes order and regularity, but they ignored him.

Allah says in the Qur'an. An-Nisa 'verse 59, which reads as follows:

“O you who have believed, obey Allah and obey the Messenger and those
in authority among you. And if you disagree over anything, refer it to Allah and the
Messenger, if you should believe in Allah and the Last Day. That is the best [way]
and best in result.”

Based on the arguments of the Word of Allah mentioned above, it can be a

fine line about their legal burden "must" for those who have faith to obey Allah and
obey the Messenger SAW and also obey Ulil Amri. Until this point we all agreed that
as a people who believe responsibility is imperative (mandatory) according to the
command of Allah SWT. But when commands obedience to Ulil Amri positioned as
required to obey the government, automatically includes a command to obey the laws
and regulations on the registration of marriage, then by some Muslims themselves be
a rejection of the understanding is that case of marriages under the hand still lot
happening and regarded as something not violate the provisions of Islamic Shari'ah.
Problems still many Sirri marriage among Muslims lies in understanding the meaning
of Ulil Amri who is referred to in the preceding paragraph. There are many opinions
about who ulil amri it, among others, there is a saying that ulil amri is Ahlul Halli
group Wa Aqdi and some suggestion that ulil amri is the government. In this paper,
the authors do not want to argue about who Ulil Amri it. That should be emphasized
is that the understanding of Islamic law it must be comprehensive in accordance with
the characteristics of Islamic law.

Comprehensive, (Islamic law) it can be seen from the enforceability of law

in Islam in society, as submitted by Yusuf Qaradawi, namely that: The law does not
set only to an individual without a family, and not assigned to just one family without
people, nor to a society separately from other communities within the scope of the
Muslims, and he did not set out to just one race separately from the nations of the
world to another, both the religions of the Book and the idolaters (pagan).

In this context it is important to understand the legal reasoning in the

preceding paragraph comprehensively. Therefore, the approach to reasoning
meaning known it, in conjunction with the obligation marriage for Muslims, we can
understand that the Law of the Republic of Indonesia Number 1 Year 1974 About
Marriage and other laws related to it is a product of national legislation manufacturing
process involves various elements ranging from the Government, Parliament, scholars
and intellectuals and other experts that the whole is Ahlul Halli wal Aqdi. Thus, when
the law ordered the marriage to be recorded, then a legal syar'i for Muslims in
Indonesia to follow the provisions of the law.
 CHAPTER III

CONCLUSION

A. CONCLUSION

From the above description can be derived some conclusions that Sirri marriage
or marriage without recording either single or married because polygamy is a
marriage that is illegal, this happens due to lack of understanding of the law and the
lack of legal awareness of some communities on the importance of registration of their
marriage. Marriage under the hand does not have the force of law. So, marriage Sirri
is a legal act which does not have the force of law in a country called Indonesia.
Therefore, the Indonesian Islamic community should avoid the practice of underage
marriages or Sirri Marriage.

Indonesian Islamic community needs to be reassured that the registration of

marriages is obligatory, not only viewed from the perspective of positive law but also
in the perspective of Islamic law.

Marriage is the initial formation of households is the smallest unit of society of

a great nation Indonesia. Therefore, strengthening the rule of law of marriage is a
necessity for the nation of Indonesia. Society's view of "marriage Sirri is the act of
legitimate" needs to be clarified in order not to set a precedent for future generations,
especially for the initial formation of harmonious family in accordance with Islamic
teachings and guidance lawsuits applicable legislation.

B. RECOMMENDATION
1. The need for dissemination to the public, the government and the religious
leaders would be negative impacts of Sirri Marriage.
2. Needs to be revisited on the validity of Sirri Marriage in Islam.
3. For women, it is necessary to reconsider the Sirri Marriage, because the
impact of the law very detrimental to the woman and her child later.
4. The need for further research and more details about the perpetrators of
Sirri Marriage from various circles.
 REFERENCES

Laws

1. 1945 Constitution of Indonesia

2. Law No. 1 of 1945 on Marriage
3. The Compilation of Islamic Law

Books

1. Al Quran and Translation (1999), the Ministry of Religious Affairs, Jakarta

2. Arivia, Gadis. 2003. Filsafat Berperspektif Feminis. Jakarta: Yayasan Jurnal
Perempuan.
3. Anderson, J.N.D. 1994. Hukum Islam di Dunia Modern. Yogyakarta: Tiara
Wacana.
4. Assad, Mohammad. 1980. The Message of the Alqu’an. Giblartar.
5. Bisyri, Mohammad Hasan. 2004. Problematika Nikah Sirri dalam Negara Hukum.
Jurnal Hukum Islam STAIN Pekalongan. Pekalongan. Vol. 2, No.1, April
2004.
6. Halim, Abdul. 2003. Nikah Bawah Tangan dalam Perspektif Fuqoha dan UU No.1
Tahun 1974. Jurnal Sosio-Religia,Vol.3 No. 1, November 2003
7. Hidayati ,Titiek Rohanah. 2002. Perempuan dan Pernikahan Siri di Kalangan
Mahasiswa STAIN Jember. Jurnal Fenomena, STAIN Jember, Vol.1 No.2, Juli
2002.

Website

1. http://www.hukumonline.com/klinik/detail/lt527c5976c75aa/status-
hukum-perkawinan-siri-tanpa-sepengetahuan-keluarga 08.19 am. 17th of
October, 2016