A new Marriage Law, the first that was applicable to all Indonesians, was eventually passed in 1974 amidst much controversy, particularly with regard to such issues as permission for divorce and polygamy. Some compromises made by the government included increasing the jurisdiction of shari'a courts and eliminating registration as a requirement for validity of marriage. The Marriage Law is applied by the regular court system for religious minorities and by shari'a courts for Muslim Indonesians.
Following the controversy over the Marriage Law, since the mid-1980s Compilations of Islamic Law in Indonesia (Kompilasi Hukum Islam di Indonesia) authored by officials from the Ministry of Religion and Supreme Court judges have been used to clarify points on personal law and inheritance for application by shari'a courts. They are based on arguments from various schools, comparisons of application of Islamic law in different countries, decisions from religious courts, etc. The Compilations are presented as Presidential Instructions (Inpres) which have lower status that statutes in the Indonesian legal system. A 1991 Compilation of Islamic Law directed the restriction of hiba (gifts) to a maximum of one-third of the donors estate. While this represents a reassertion of classical interpretations, the Compilations also draw from eclectic sources, and Supreme Court judgements on appeal from the religious appellate courts diverge from classical law in many matters.
The minimum marriage age is 19 for males and 16 for females, with provision for marriage below the minimum age, subject to judicial discretion and parental consent. The free consent of marrying parties is a requirement for validity of marriage, unless the religious law governing the parties directs otherwise. The Marriage Law 1974 defines as legal a marriage "solemnised according to the laws of the respective religions and beliefs of each of the parties". Parties under 21 years require parental permission to marry; this refers to the consent of both parents, the surviving parent, or the guardian. Marriage registration is obligatory; the Marriage Registrar Office of the Department of Religious Affairs is responsible for the registration of Muslim marriages and the Civil Marriage Registrar Office of the Department of Internal Affairs for all other marriages.
The basis of marriage is considered monogamy, but the Marriage Law does not prohibit polygamy for those religions that allow it (Islam, Hinduism, Buddhism). Polygamy is permissible with the consent of the existing wife or wives and with judicial permission, by fulfilling conditions specified by law, i.e., proof of financial capacity, safeguards that husband will treat wives and children equally; and a court inquiry into the validity of the reasons for wishing to contract a polygamous marriage (e.g., the existing wifes physical disfigurement, infertility, incurable disease). The law specifies that both spouses are equal and both are responsible for maintaining the home and caring for children. The permanent resident and domicile is to be decided by both parties. The husband as the head of the family is required to protect the wife and provide for her according to his means and the wifes duty is to manage the household.
The Marriage Law provides that divorce shall be carried out only before a Court of Law, after the Court has endeavoured to reconcile the parties. A husband married under Islamic law may submit a letter notifying the religious court of his intention to divorce and giving his reasons. If the husbands reasons accord with any of the six grounds for judicial divorce outlined in the Marriage Law and the court determines that reconciliation is not possible, the court will grant a session in order to witness the divorce. Either spouse may seek a judicial divorce (preceded by reconciliation efforts by the judge) on the following grounds: the other spouses adultery; alcoholism, addiction to narcotics, gambling or "any other vice that is difficult to cure"; abandonment for two years without valid reason; cruelty or mistreatment endangering life; physical disfigurement or malady preventing performance of marital duties; constant disputes without hope of resolution; and sentencing to a prison term of five years or more.
Property acquired during marriage is considered joint property, although the Marriage Law only directs that division is according to the law applicable to the parties. The court may order alimony for children or maintenance for the former wife. In terms of custody, the Marriage Law simply provides that in case of dispute over custody, the Court shall render its judgement; the father shall have responsibility for maintenance expenses, unless he is unable to bear such responsibility in which case the Court may order the mother to share such expenses.
>> Read More: Indonesia Marriage Law : An History and Introduction...
