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A JURIDICAL ANALYSIS OF ABROAD INTERFAITH MARRIAGE’S

POSISTION IN INDONESIA’S LAW

Zalma Afika Nandapratiwi

, Anjar Sri Ciptorukmi Nugraheni

, Andina Elok Puri

Maharani

Master of Notary, Sebelas Maret University, Surakarta, Central Java, Indonesia

zalma_afika@yahoo.co.id

anjarsri@staff.uns.ac.id

andinaelok@staff.uns.ac.id

PAPER INFO ABSTRACT

Received: June

2022

Revised: June

2022

Approved: June

2022

Background: The implementation of the registration of interfaith marriages

abroad and the Population and Civil Registry Service in Indonesia currently

does not exist. However, the Population and Civil Registry Office in

Indonesia continues to carry out the registration of interfaith marriages held

abroad by carrying out the registration of marriages of different religions

through an application to the local District Court for marriage permits for

prospective husbands and future wives.

Aim: The purpose of this study is to determine the position of marriages of

interfaith couples held abroad in the legal system in Indonesia and the

implementation of registration of interfaith marriages held abroad and at the

Population and Civil Registry Office in Indonesia.

Method: The study used Normative Juridical research methods. This method

was used for research on issues related to the abroad interfaith marriage’s

posistion in Indonesia’s law. The materials used as research objects of this

approach method use primary, secondary, and tertiary legal materials.

Findings: The Population and Civil Registry Service in Indonesia continues

to carry out the registration of interfaith marriages held abroad by carrying

out the registration of marriages of different religions through an application

to the local District Court for marriage permits for prospective husbands and

future wives with the consequences of various administrative requirements

that must be submitted before the District Court grants in accordance with

Law Number 23 of 2006 concerning Administration Residency must be

registered with the competent authority in the local country and reported to

the republic of Indonesia.

KEYWORDS

legality of marriage, interfaith, registration of marriages

INTRODUCTION

Marriage as a legal event is considered valid if it is carried out under the laws of their

respective religions; thus the order of Article 2 paragraph (1) of Law Number 16 of 2019

concerning amendments to Law Number 1 of 1974 concerning Marriage (UUP). In addition,

marriages must also be recorded according to the applicable laws and regulations in accordance

with article 2 paragraph (2) of the UUP. From this it can be concluded that the marriage must

be carried out according to the laws of each religion and belief, otherwise the marriage is

invalid (Shaleh, 1982). The act of recording does not determine the validity of a marriage but

states that the event does exist and occur, so it is solely administrative in nature (Hasibuan,

2019).

The ongoing marital bond between a man and a woman who are each subject to different

national legal systems will raise international civil law issues in the field of family law (Fauzi,

2018). In international civil law the main problem is which legal system should be applied to

the problems that occur (Shaleh, 1982).

A Juridical Analysis of Abroad Interfaith Marriage’s Posistion in Indonesia’s Law

1220 Interdisciplinary Social Studies, 1(10), Jul 2022

With the rampant phenomenon of couples of different religions carrying out marriages

abroad, this research is specifically for couples of different religions between Indonesian

citizens or between Indonesian citizens and foreigners who marry abroad. Cases of interfaith

marriage in Indonesia between two brides of different religions are not simple in Indonesia. In

addition to having to go through social and cultural frictions, the bureaucracy that must be

passed is also convoluted (Putri, 2018). The absence of regulations that expressly regulate the

registration of interfaith marriages will affect the procedures and authority for the

implementation of interfaith marriage registration.

However, in fact, nowadays there are still many couples who perform interfaith marriages

in Indonesia and abroad (Makalew, 2013). They took many ways to achieve what they wanted,

one of which was by smuggling the applicable laws in Indonesia. In general, this couple

performs a marriage abroad, then they return to Indonesia and register their marriage at the

civil registry office, as if the marriage is the same as a mixed marriage as referred to in article

57 of the Marriage Law. This can be seen in article 56 of the Marriage Law which reads,

"Marriages held outside Indonesia between two Indonesian citizens or an Indonesian citizen

and a foreigner are valid if they are carried out according to the applicable law where the

marriage is held and for Indonesian citizens do not violate the provisions of this Law." From

article 56, it can be seen that a person who performs a marriage abroad, namely by civil

marriage, is only valid according to local law, but is not valid according to Indonesian law

because the marriage violates the provisions of Article 2 paragraph (1) which reads "Marriage

is valid, if it is carried out according to the law of each of its agam and trust" in article 8 (f) of

the Marriage Law which reads "Marriage is prohibited between two persons who have a

relationship whose agam or other applicable regulations are prohibited from marrying".

In addition to marrying abroad, these interfaith couples also take various ways so that they

can get married and their marriage is considered "valid" namely by asking for a court

determination in addition to that by means of the marriage being carried out according to each

religion (Permatasari, 2018). For example, a Christian woman marrying a man of Muslim

religion is carried out at the residence of the future husband by fulfilling the wishes of the

family of the future husband who is Muslim by saying two sentences of the creed, but then the

marriage is carried out again according to christian religious procedures located on the side of

the family the woman is Christian.

A marriage must not only comply with the provisions of Article 2 paragraph (1), but must

also be registered in accordance with the provisions of Article 2 paragraph (2) of the Marriage

Law, which determines that each marriage must be recorded according to the applicable laws

and regulations. Marriage registration aims to make the event of marriage clear both to the

husband and wife and to others and society so that if necessary at any time the registration

becomes authentic written evidence (Yudhistira, 2013). Marriage registration does not

determine the validity of a marriage, but only states that there is a marriage event so that this

marriage registration is only administrative in nature (Rahmi & Sakdul, 2017).

Basedon the things mentioned above, the author is interested in being able to research

religious marriage, by putting it in a thesis with the title "Juridical Analysis of the Position of

Interfaith Marriages Held Abroad in the Legal System in Indonesia. "The purpose of this study

is to determine the position of marriages of interfaith couples held abroad in the legal system

A Juridical Analysis of Abroad Interfaith Marriage’s Posistion in Indonesia’s Law

1221 Interdisciplinary Social Studies, 1(10), Jul 2022

in Indonesia and the implementation of registration of interfaith marriages held abroad and at

the Population and Civil Registry Office in Indonesia.

METHOD

The study used Normative Juridical research methods, a literature law study conducted by

examining library materials or mere secondary data (Sunggono, 2003). This method was used

for research on issues related to the abroad interfaith marriage’s posistion in Indonesia’s law.

The materials used as research objects of this approach method use primary, secondary, and

tertiary legal materials. Basic norms or rules, fundamental regulations, and laws and regulations

with force majeure comprise primary legal substance, which is the major body of law. This

study also incorporates secondary legal documents, such as publications from the legal

community, research findings, and draft laws, in addition to primary legal materials. The next

section includes tertiary legal resources like dictionaries, encyclopedias, cumulative indices,

and so forth.

RESULTS AND DISCUSSION

The Position of the Marriage Implementation of Interfaith Couples Abroad in the Legal

System in Indonesia

Interfaith marriages that are held abroad are now often carried out by couples of different

religions either carried out by fellow Indonesian citizens, or Indonesian citizens with foreigners

because their marriages are unlikely to take place in Indonesia. In general, this couple married

abroad, then they returned to Indonesia and registered their marriage at the civil registry office.

It is as if the marriage is the same as the mixed marriage as referred to in article 56 of the

Marriage Law. We can see this in article 56 paragraph (1) of the Marriage Law which reads,

"Marriages held outside Indonesia between two Indonesian citizens or an Indonesian citizen

with a foreigner are valid if it is carried out according to the applicable law where the marriage

is held and for Indonesian citizens do not violate the provisions of this Law" (Republic of

Indonesia, 2019).

From article 56, it can be seen that a person who performs a marriage abroad, namely by

civil marriage, is only valid according to local law, but is not valid according to Indonesian

law, because the marriage violates the provisions of Article 2 paragraph (1) which reads

"Marriage is valid, if it is carried out according to the law of each of his religion and his beliefs"

jo article 8(f) of the Marriage Law which reads "Marriage is prohibited between two persons

who have a relationship in which by his agam or other applicable regulations are prohibited

from mating."

In addition to marrying abroad, these interfaith couples also take various ways so that they

can get married and their marriage is considered "valid" namely by asking for a court order in

addition to that by means of the marriage being carried out according to each religion. A

marriage must not only comply with the provisions of Article 2 paragraph (1), but must also be

registered in accordance with the provisions of Article 2 paragraph (2) of the Marriage Law,

which determines that each marriage must be recorded according to the applicable laws and

regulations (Shaleh, 1982).

Before the Marriage Law in Indonesia came into force, interfaith marriage was regulated

in the Reglement op de Gemende Huwelijken (GHR) where in Article 7 paragraph (2) of the

A Juridical Analysis of Abroad Interfaith Marriage’s Posistion in Indonesia’s Law

1222 Interdisciplinary Social Studies, 1(10), Jul 2022

GHR stated that differences in religion, ethnicity, ancestry were not an obstacle to the

occurrence of a marriage, but with the enactment of the Marriage Law, the previous law was

no longer valid as long as it was not or was not regulated in the Marriage Law still in force

(Republic of Indonesia, 2019). Based on Article 66 of the Marriage Law, the marriage law

opens the interpretation that the old marriage laws and regulations are not essentially abolished

in their entirety, especially the laws and regulations in force during the reign of the Dutch East

Indies.

The abolished Marriage Regulations are only laws and regulations whose problems have

been regulated in the Marriage Law. Meanwhile, regarding matters that have not been regulated

in the marriage law, it can be interpreted to be still valid. Therefore, many parties state that

mixed marriages in this case are different religions are not regulated in the Marriage Law, so

the regulations regarding interfaith marriages still refer to the Mixed Marriage Regulations,

where in pasa 7 paragraph (2) GHR does not prohibit interfaith marriages.

In International Civil Law there are two views on the meaning of mixed marriage, namely

the view that a mixed marriage is a marriage that takes place between parties who have different

domiciles, so that to each party the rules of internal law from 2 different legal systems apply

and the view that a marriage is considered a mixed marriage if the parties have different

nationalities/its nationality. Hence, under the provisions of the marriage law, marriages of

different religions are not known, so the discussion of such a conceptual framework will be

stopped.

Based on the statement above, interfaith marriages that are carried out abroad when viewed

from a legal perspective have two aspects, firstly the marriage is carried out by two people of

different religions or different beliefs. Both marriages are held outside the territory of

Indonesia, so that both Indonesian law and the law of the place where the marriage took place

(lex loci celebrationis) the provisions of Article 56 of the UUP state that a marriage held outside

Indonesia between two Indonesian citizens or an Indonesian citizen with a foreign citizen is

valid if it is carried out according to the applicable law in the country where the marriage was

held and for Indonesian citizens not violating the provisions of this law, the provisions

mentioned above clearly appear that marriage is valid if it is carried out according to the

applicable law in the country where the marriage is carried out and for Indonesian citizens do

not violate the provisions of the UUP. Thus, if there is an Indonesian citizen of Christianity

married to a Christian Indonesian citizen abroad, it is legal if it is carried out according to the

Christian religious system and does not conflict with Article 2 paragraph (1) of the UUP.

Conversely, the marriage becomes invalid if the marriage abroad is only carried out through

the civil registry office (Before a judge and or civil registry), without performing blessings in

churches, mosques or other religious institutions.

The validity of marriages held abroad in the eyes of Indonesian law only needs to be proven

by a marriage certificate or called a marriage certificate. This is in accordance with Article 56

paragraph (2) of the Marriage Law which reads, "Marriages outside the territory of the Republic

of Indonesia are valid and recognized under Indonesian law, then the proof of marriage from

abroad must be registered with the Population and Civil Registry Office where the husband

and wife live.

If Indonesian citizens of different religions marry abroad, for example in front of the local

civil registry and still maintain their respective religions, the marriage is valid according to the

A Juridical Analysis of Abroad Interfaith Marriage’s Posistion in Indonesia’s Law

1223 Interdisciplinary Social Studies, 1(10), Jul 2022

law of the place where the marriage is carried out, but is not valid according to Indonesian law

in accordance with the provisions of Article 56 of the Marriage Law, because the marriage is

carried out in violation of the provisions of the Marriage Law. In this case, it violates the

provisions of Article 2 paragraph (1) of the Marriage Act. which states that marriage is valid,

if it is performed according to the laws of each of its religions and beliefs. This means that if

the marriage is not performed based on its religion and beliefs then the marriage is invalid.

Provisions of Article 2 of the Marriage Act. this is a coercive provision so that it is a public

order for Indonesian citizens, so it cannot be violated. If these provisions are violated then the

marriage can be annulled. After all, the marriage that was carried out abroad was a civil

marriage unknown in the Marriage Act.

Implementation of Registration of the Population and Civil Registry Service in Interfaith

Marriages Abroad

Recording bada religion abroad

1) Singapore: In Singapore, if there is a marriage between religions, people will not be so

concerned, because there interfaith marriages are allowed and get legal recognition

from the state. In Singapore, there are two laws governing marriage, namely the Islamic

Law (Muslim Marriage Act) and the Civil Marriage Law (Women's Charter). The

Women's Charter is a law or regulation in Singapore created to protect and develop

women's rights and to ensure legal certainty for interfaith marriage in Singapore.

In Singapore there are 2 laws governing marriage, specifically the regulation is

implemented by the Registry of Muslim Marriage (ROMM) and the Registry of

Marriage (ROM). The Registry of Muslim Marriage (ROMM) deals with the recording

and implementation of marriages between Muslims, while for those of different faiths,

their marriages can be recorded and carried out by the Registry of Marriage (ROM).

For those who want to hold a marriage in Singapore, they must follow several

procedures and some conditions.

2) Hong Kong: For those who want their marriage to take place in Hong Kong, they must

comply with the country's regulations (Marriage Ordinace). The marriage procedure in

Hong Kong where the bride and groom are from outside the country is regulated in the

Marriage Ordinance. For those who wish to enter into a interfaith marriage in the

country of Hong Kong, they must first send a message or letter containing a statement

of their will to marry to the Marriage Registration and Records Office located at The

Marriage Registration and Records Office 3/F, Low Block Queensway Government

Offices 66 Queensway Hong Kong and also send an e-mail to the Hong Kong

immigration department (Stockinger, 1997).

An affidavit of the will to marry is made and signed by a notary where one of the

brides-to-be lives. Second, for those who hold interfaith marriages in Hong Kong,

marriages can be carried out at the marriage registry office or places of worship that

have been registered with the marriage registration office or it can also be in a place

that applies for permission to the marriage registry.

Those who have held interfaith marriages in Hong Kong are required to register

their marriages at the Embassy of the Republic of Indonesia in Hong Kong. After all

these processes are completed and have obtained a marriage certificate from the

A Juridical Analysis of Abroad Interfaith Marriage’s Posistion in Indonesia’s Law

1224 Interdisciplinary Social Studies, 1(10), Jul 2022

Indonesian Embassy, after returning to Indonesia, the marriage certificate must be

reported to the civil registry office where they live.

Analysis of Registration of the Population Service and Civil Registry in Interfaith

Marriages Abroad

Marriage must be carried out in front of the registrar of marriages and registered, there are

three legal options for the validity of marriage (Yakin, 2015). This means that for Muslims, for

example, it is open to the possibility of carrying out marriage without using Islamic Marriage

law. This is often the case in cases of marriage between people of different religions.

In article 3 of Government Regulation No. 9 of 1975, it is stated that everyone who wants

to carry out a marriage must notify the will, either orally or in writing, to the Registrar

Employee at the place where the marriage will take place, within a period of at least 10 working

days before the marriage takes place. Meanwhile, provisions beyond that (10 working days)

can ask permission from the sub-district on behalf of the regent, if there are reasons that are

deemed important.

From the perspective of religions in Indonesia, interfaith marriage is not justified because

it violates the provisions of recognized religions in Indonesia (Ashsubli, 2015). However, the

Supreme Court's ruling in its jurisprudence dated January 20, 1989 Nomor 1400K/Rev/1986 is

a loophole for interfaith marriages by allowing them to apply to the Civil Registry Office as

the only agency authorized to carry out applications for registration of interfaith marriages.

However, a valid marriage in the national marriage law is a marriage that is carried out

according to the rules of law that apply according to Islam, Christianity, Hinduism and

Buddhism.

The Marriage Law does not contain any provision stating that religious differences

between prospective husbands and future wives constitute a prohibition on marriage, which is

in line with the 1945 Constitution Article 27 which specifies that all citizens simultaneously

have their position in the law, covered by the similarity of human rights to marry with fellow

citizens even though they are of different religions and as long as by law it is not determined

that religious differences are the prohibition for marriage, then the principle is in line with the

soul. Article 29 of the 1945 Constitution on the guarantee by the state of independence for

every citizen to embrace their respective religions.

The deadline for reporting marriages abroad based on Law No. 23 of 2006 concerning

Population Administration article 37 paragraph 4, registering an overseas marriage in Indonesia

is carried out no later than 30 days after the person concerned arrives in Indonesia (can be

indicated by the Immigration stamp on the passport). Negligence in recording, can be subject

to fines (which are regulated in the written provisions in Dukcapil). The files required for

reporting are:

1) Marriage Certificate from the country of origin that has been translated into

Indonesian, and has been legalized by the local Indonesian Representative;

2) Certificate of Marriage from the Indonesian Embassy

3) A copy of the birth certificate of the husband and wife;

4) Copy of ID card and family card;

5) A copy of the husband's passport; and

6) 3 pieces of 4x6 side-by-side photos with a red background.

A Juridical Analysis of Abroad Interfaith Marriage’s Posistion in Indonesia’s Law

1225 Interdisciplinary Social Studies, 1(10), Jul 2022

Based on this, for marriages carried out abroad according to Law Number 23 of 2006

concerning Population Administration, it must be registered with the authorized agency in the

local country and reported to the republic of Indonesia. If the country does not recognize

marriage registration for foreign nationals, then the republic of Indonesia records in the

registration of marriage certificates, then a marriage certificate is issued and no later than 30

(thirty) days after the husband and wife return to Indonesia and bring proof of their marriage

which must be registered with the Population and Civil Registry Office where they live.

Otherwise, administrative fines will be threatened as stipulated in Article 107 of Presidential

Regulation Number 25 of 2008 which is an implementing regulation of Law Number 23 of

2006 concerning Population Administration and Government Regulation Number 37 of 2007

concerning the Implementation of Law Number 23 of 2006.

Thus, the process of implementing interfaith marriages in Indonesia itself must go through

the stages of applying for permission to the local District Court which will later be issued a

determination file, then the determination file is taken to the Population and Civil Registry

Office to record the interfaith marriage. Marriage registration is carried out by a civil registrar

as the executing agency or UPTD of the executing agency who records on the registration of

the marriage certificate and issues a quotation of the marriage certificate to be given to each

husband and wife.

CONCLUSION

The marital position of interfaith couples abroad must comply with Article 56 paragraph

(2) of the Marriage Law which reads, "Marriages outside the territory of the Republic of

Indonesia are valid and recognized under Indonesian law, then the proof of marriage from

abroad must be registered with the Population and Civil Registry Office where the husband

and wife live. Thus, the position of Marriage of Interfaith Couples Abroad can be said to be

legal in the country of Indonesia if the marriage held abroad in the eyes of Indonesian law only

needs to be proven by a marriage certificate or called a marriage certificate.

The implementation of the registration of interfaith marriages abroad and the Population

and Civil Registry Office in Indonesia currently does not exist. However, the Population and

Civil Registry Service in Indonesia continues to carry out the registration of interfaith

marriages held abroad by carrying out the registration of marriages of different religions

through an application to the local District Court for marriage permits for prospective husbands

and future wives with the consequences of various administrative requirements that must be

submitted before the District Court grants those in accordance with Law Number 23 of 2006

concerning Population Administration must be registered with the authorized agency in the

local country and reported to the republic of Indonesia. If the country does not recognize

marriage registration for foreign nationals, then the republic of Indonesia records in the

registration of marriage certificates, then a marriage certificate is issued and no later than 30

(thirty) days after the husband and wife return to Indonesia and bring proof of their marriage

which must be registered with the Population and Civil Registry Office where they live.

A Juridical Analysis of Abroad Interfaith Marriage’s Posistion in Indonesia’s Law

1226 Interdisciplinary Social Studies, 1(10), Jul 2022

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