A child is born out of wedlock when its mother was pregnant by a man without any legal marriage in Indonesia. It’s a simple definition indeed, but we have broader definitions depending on the situation. It’s according to Civil Law. The child was born and the marriage of its parents was not properly registered. The child was born out of the parents and they never married before, both religious and civil marriage. The definition of child born out of wedlock also include the child born to parents who aren’t legally marry to each other. It means, they are still legally attached to their spouses. In another words, the child was born out of adulterous relationship. On the other hand, the 1974 Marriage Law defined that a legitimate child is a child was born into the legal marriage of the parents, or as a result of the legal marriage of its parents. The marriage of the parents is legal and registered. They performed the marriage legally proper according to the religion and law procedures. So, basically the out of wedlock child was born when the legality of its parents’ marriage is still in question.
This is very interesting and pretty challenging issues, as Indonesia’s Constitutional Court amended the ruling in 1974 Marriage Law that the child has legal relationship with the mother and its biological father, even though their marriage is still in question. They are establishing a civil law relationship between the child and its alledged father, through a DNA test, while on the other hand, the validity of the marriage is fuzzy enough to call it legal. The idea was to give legal protection to the children born out of wedlock, and that they need to make sure that the children can access its rights. Know all men by these presents, in Indonesia when a man got a woman pregnant, he is legally related to the child, regardless the marriage do exist or not. The last thing they want is to punish the child for something that the parents did.
The application for bringing the legality to the child must be made by either parent, if not by both of them, to the court of law. According to Article 44 (2) of the Marriage Law, the court has the authority to determine the legality of the child. This proceeding depends on the father’s acknowledgment of the child, because it creates the relationship between the father and the child legally. The Civil Code in Article 280 imposed that situation. Legal consequences are being established, between the father and child, such as child support, guardianship, using of father’s family name, and inheritance.
The implementation of this proceeding is to issue a birth certificate for the child, with complete names of the mother and the alledged father. According to the Article 55 of the Marriage Law, the birth certificate is the authentic proof of the child’s origin. Child born out of wedlock can only have the mother’s name printed on its birth certificate. The name of the father can only be printed as well if he acknowledges the child. Article 284 of Civil Code imposed that the biological mother must approve such acknowledgment. The proceeding must have her consent. So, yes, it takes two to tango.
There is one thing you should bear in mind. This is the legalization of the child that born out of legal marriage. This is NOT the legalization of the marriage itself. It’s quite challenging because you must meet our statutory requirements as imposed by the Marriage Law and its implementing regulations. Basically, the laws in Indonesia based on monogamous marriage. You need to legally free to marry to legalize your marriage. Please call me or email should you would like to discuss the issues any further. You can reach me here: http://www.wijayaco.com/contact
My name is Asep Wijaya. Thank you for reading my posts.
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