Indonesia

Indonesia is the country with the fourth largest population in the world. In 2020, the total population of Indonesia was 270,203,917.According to gender, 136,661,899 men and 133,542,018 women, https://sensus.bps.go.id/main/index/sp2020 Indonesia is the country with the largest Muslim population in the world, with a total of 207,176,162 individuals who follow the Islamic faith, or approximately 87.18% of the population according to census data from 2010.https://sp2010.bps.go.id/index.php/site/tabel?tid=321 The distribution of the population is largely centralized in three provinces, which also has an impact on the percentage of the Muslim population, who are mostly located in West Java Province at 42,763,592 individuals, East Java Province at 36,113,396 individuals, and East Java Province with a total of 31,328,341 individuals.https://pkub.kemenag.go.id/files/pkub/file/file/Data/zuqi1368036766.pdf

Information About Muslim Family Laws And/or Practices In Indonesia

Main Laws That Govern Muslim Marriages

  • Law No.1/1974 on MarriageArticle 43 paragraph (1) regulating civil relations via the mother only does not apply, Article 29 paragraph (1), paragraph (3), and paragraph (4) on marriage agreements was amended by the Constitutional Court Decision No. 69/PUU-XIII/2015, Article 7 on marriageable age was changed to Law No. 16/2019  
  • The Compilation of Islamic Law 

The marriage of Muslim citizens refers to the Compilation of Islamic Law (Instruction of the President of the Republic of Indonesia No. 1/1991 on the Wide Spread of the Compilation of Islamic Law) 

For Muslims, registration of marriages, separations, divorces, and reconcilement at the subdistrict level is conducted by religious affairs offices (KUA) (Article 23 Law 24/2013 on Population Administration

  • Religious Courts for Muslim citizens (Law on Religious Courts) 

Presidential Regulation No.9/1975 on the Implementation of the Marriage Law regulates the registration of marriages for Muslims and non-Muslims 

Equality in Marriage

The principles of equality contained in the Marriage Law include: 

  • The principle of monogamy: 
  • Equal rights and obligations in building a family based on mutual love and affection, and in the community. 
  • Equality before the law and in carrying out legal actions (joint assets, filing for divorce in court, child care, determination of place of residence, civil relations with children)
  • Equality in the existence of an agreement between prospective spouses regarding marriage precautions, annulment, and agreements 
  • The legality of marriage through state registration 
  • The same marriageable age for both men and women, at 19 years of age. 

Reinforcement of stereotypical roles for husbands and wives, and discrimination in the Marriage Law:  the husband as the head of the household (leader), polygamy, the legality of marriage based on religion.Discrimination in the Compilation of Islamic Law: witness are required to be male, women who fall pregnant outside of marriage married to the man who impregnated them, the enforcement of the concept of nusyuz (disobedience) in women, unequal rights and responsibilities for husbands, polygamy, the enforcement of Li’an (an oath permissible in Islamic law, that allows the husband to accuse his wife of adultery without legal proof or liability).

Issues Related to Marriage

Marriage-related issues that remain an obstacle to women’s equality and justice 

  1. Marriage Dispensation: Although the marriageable age has changed, the Marriage Law still provides for marriage dispensation which enables children to marry. 
  2. Forced Marriage (Based on existing traditions in several areas, and the interpretation of the girl’s guardian) 
  3. Marriage Registration: many marriages are unregistered and conducted based on religion 
  4. Polygamy: Polygamy plays a part in unregistered marriages, and marriages of children without authentic documentation 
  5. Domestic Violence (physical, psychological, financial, and sexual) rates remain high, as well as the criminalization of women who are victims of domestic violence 
  6. Inter-religious Marriages: Muslims are not allowed to marry outside of Islam
  7. Women’s rights during and after divorce

Are Divorce Procedures Equal Between Men and Women?

Barriers against justice in the divorce process 

  • 15 reasons for filing for divorce, mostly indicating domestic violence 
  • The concept of nusyuz (disobedience) as a justification for divorce, used to cover up domestic violence on the grounds that the woman has left their husband for another woman, which results in the revocation of their right to a living, kiswah (clothing), and so on
  • The lack of legal assistance for women who are brought before the law, including in family law cases, causes obstacles and does not fulfil women’s rights in family law 
  • Barriers to execution when the ex-husband refutes the implementation of the court’s decision to grant the woman post-divorce rights to mut’ah (a form of financial compensation), Hadhanah (child custody), among others.

الميزة(ات) الإيجابية لأحكام قوانين الأسرة المسلمة

  • The legality of marriage (registration and divorce in court) 
  • Minimum age requirement for marriage of 19 years old. 
  • Agreement of spouses upon marriage, marriage agreements, prevention or annulment of marriage, joint assets, child custody rights before adulthood and father’s childcare responsibilities. 
  • The right to a place of residence and facilities within the place of residence during the iddah period after the death or divorce of a woman’s husband  
  • The right to receive mut’ah, the right to a living, maskan (a place to live) and kiswah (clothing)
  • Entitlement to childcare payments up until 21 years of age 
  • Entitlement to ½ of all joint assets upon death of a woman’s husband 
  • The right to legal aid for women who cannot afford it 
  • Existence of guidelines for cases of women dealing with the law.

Administration Of And Access To Justice On Marriage And Family Matters

The court has made legal breakthroughs to improve access to family law, including: 

  • Guidelines for judges in dealing with cases of women in conflict with the law; 
  • Decisions by the religious chamber of the Supreme Court in cases related to divorce, guardianship, and child custody; 
  • The jurisprudence decision of the Supreme Court, which provides legal breakthroughs and justice for women. 

However, obstacles to legal justice for women include: 

  • Discriminatory regulations in family law and marriage law in Indonesia; 
  • Behaviours and perspectives among judges that are not women-friendly;
  • Lack of access to legal aidThe National Conference on Legal Aid in the Context of Expanding Access to Justice by Optimizing Quality Legal Aid Services Page 4, http://mappifhui.org/2020/03/25/laporan-konfenas-ii-bali/ ;
  • The identities of women victims are publicized in mass media publications and the judge’s decision; 
  • Barriers faced by women with disabilities in the legal procedures as perpetrators, victims, and witnesses;Ibid 
  • Stigmatization of legal assistance for women in conflict with the law 

Constitutional Provisions and National Legislation

Constitutional Provisions

Indonesia guarantees equality and the principle of non-discrimination in the constitution, including in Article 27, Article 28B(1), Article 28D(1), Article 28G(1), Article 28G(2), Article 28I(2), Article 28H(1), and Article 28H(2).

Other National Laws

  • Indonesia has passed the Law on the Elimination of Domestic Violence (Law No.23/2004), and the Law on Sexual Violence Crimes.
  • The Criminal Code regulates criminal forms of persecution in general (either conducted inside/outside the home).Regulated in Articles 351-355. However, if the crime is committed against a family member, the Criminal Code stipulates a third punishment (Article 366) if the crime is committed against their mother, legal father, wife, or child. Rape outside of marriage is regulated in Article 285-289 of the Criminal Code.  
  • The article on rape within the household is regulated by the Law on the Elimination of Domestic Violence. 
  • Female circumcision is regulated by the Regulation of the Minister of Health No. 6/2014, which states that female circumcision is not a medical procedure but continues to allow the practice.
  • Several national laws relevant to marriage and family law include: the Human Rights Law, the Population Development and Family Development Law, the Health Law, the Witness and Victim Protection Law, the Citizenship Law, and the Population Administration Law.Law No.39/1999, Law No.52/2009, Law No.36/2009, Law No. 31/2014, Law No.12/2006, Law No.14/2013

 

مبادئ حقوق الإنسان الإقليمية والدولية

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

Indonesia ratified CEDAW on 24 July 1984 through Republic of Indonesia Law No. 7/1984Indonesia has submitted five periodic reports to the CEDAW committee since 1988 (when they submitted the first report). The second and third reports were submitted in 1998, the fourth and fifth reports in 2007, the fifth report and the sixth-seventh period in 2012, and absent from submitting a report in 2016. The last report was sent in 2019.https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/countries.aspx?CountryCode=IDN&Lang=EN , and the reservation of Article 29 paragraph 1, was signed by the OP in February 2000, but has not been ratified to datehttps://asiapacific.unwomen.org/en/focus-areas/cedaw-human-rights/indonesia. The issue of marriage law in Indonesia has continually been questioned by committees to the Indonesian governmentSteps taken by the government in regard to issues that discriminate against women in marriage law, Acehnese qanun (laws), child marriage, and discriminatory articles in the Marriage Law (polygamy, child marriage age, roles of husbands/wives, equality in inheritance, etc.) In the Concluding Observations, in regard to marriage and family law, the committee underlined several issues that need to be followed up by the government, including: Child Marriage: clear priorities on how child marriage can be addressed, particularly in rural areas, as dispensations are imposed by the courts. .

Links to  to CEDAW reports that refer to Muslim family laws and practices 

  1. Indonesia | OHCHR
  2. https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/countries.aspx?CountryCode=IDN&Lang=EN
  3. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fIDN%2f8&Lang=en

Links to Concluding Observations That Refer to Reform of Muslim Family Laws and Practices

  1. https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/countries.aspx?CountryCode=IDN&Lang=EN
  2. https://documents-dds-ny.un.org/doc/UNDOC/GEN/N21/353/89/PDF/N2135389.pdf?OpenElement

Link to Musawah’s CEDAW reports on Indonesia

  1. Musawah & Rahima Joint Thematic Report on Indonesia (2021)
  2. Musawah Thematic Report on Indonesia (2012)

Any other relevant regional or international treaty or convention signed by Indonesia

Other international treaties

Indonesia has ratified several international human rights instruments, including: the CRC (1990), CAT (1998),  ICCPR (2005), CED (2010), CERD  (1999), CESCR (2006), CMW- (2012), CRC-OP-AC-(2012), and CRPD (2011) https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/countries.aspx?CountryCode=IDN&Lang=EN

Sustainable Development Goals

Indonesia is one of the countries that committed to implementing the SDGs as outlined in the document “Transforming Our World: The 2030 Agenda for Sustainable Development” (Regulation of the President of the Republic of Indonesia No. 59/2017 on the Achievement of the Sustainable Development Goals)https://country-profiles.unstatshub.org/idn#goal-15

Key Resources About Muslim Family Law

Several studies that prioritize the experiences and perspectives of womenNina Nurmila, Women, Islam and Everyday Life Renegotiating Polygamy in Indonesia (2009), Research Results on Cultural-based Violence against Women, https://komnasperempuan.go.id/pemetaan-kajian-prosiding-detail/kekerasan-terhadap-perempuan-berbasis-budaya, Sulistyowati Irianto (2006) , Perempuan dan hukum ( 2006) and studies conducted by researchers from outside of Indonesia regarding family lawDaniel S. Lev, Lev Islamic Courts in Indonesia, A Study in the Political Bases of Legal Institutions 1972), Susan Blackburn, Women and the State in Modern Indonesia (2004), Maria Platt, Marriage, Gender and Islam in Indonesia, Women Negotiating Informal Marriage, Divorce and Desire, ( 2017), Tim Lindsey, Simon Butt, Indonesian Law (2018)

Organizations that conduct studies on Islam and women

  1. Rahima
  2. Kupipedia
  3. Mubadalah.id
  4. Fahmina Institute
  5. Rumah KitaB
  6. https://pekka.or.id/
  7. http://mappifhui.org/buku
  8. https://www.koalisiperempuan.or.id
  9. https://www.infid.org
  10. https://leip.or.idf
  11. https://smeru.or.id
  12. https://puskapa.org/en/
  13. https://www.jurnalperempuan.org/
  14. https://fpl.or.id/

Ministries/institutions, including human rights organizations, that conduct research and implement programmes related to marriage and family law

  1. The National Commission on Violence Against Womenhttps://www.komnasperempuan.go.id/
  2. The Ministry of Women’s Empowerment and Child Protectionhttps://kemenpppa.go.id
  3. The Ministry of ReligionWhich has the authority to oversee the registration of marriages of Muslim citizens, give guidance to extension workers, and as the advisory body for Marriage Disputes and Divorce.
  4. Religious Courtshttps://badilag.mahkamahagung.go.id/
  5. Statistics Indonesia (BPS), in terms of statistical data on gender, divorce, and familieshttps://www.bps.go.id/

National Campaigns

  1. Joint Movement for the Prevention of Child Marriage (GEBER PPA) stop child marriage campaign. https://kemenpppa.go.id/index.php/page/read/29/2018/bergerak-bersama-cegah-perkawinan-anak
  2. 16-day Violence Against Women Campaignhttps://komnasperempuan.go.id/kampanye-detail/16-hari-anti-kekerasan-terhadap-perempuan
  3. #HearMeToo https://asiapacific.unwomen.org/en/news-and-events/in-focus/ending-violence-against-women/2018
  4. Campaign No! Go! Tell!https://magdalene.co/story/kampanye-no-go-tell-ajak-perempuan-katakan-tidak-pada-kekerasan-seksual
  5. Shoes Art Installation’ to push for the passing of the Sexual Violence Bill.https://www.tbsfightforsisterhood.co.id/content/01-Jan-1970/shoes-art-installation-the-body-shop–indonesia

Key organisations working on one or more Muslim family law related issues at community or national level

  1. Fahmina Institute An organization engaged in socio-religious studies and community assistance.
  2. Rahima A non-governmental organization (NGO) that focuses on awareness raising on Islam, Gender, and Women’s Rights
  3. Mubadalah.id A popular information portal on relationships between men and women from the perspective of Islam and gender equality.
  4. https://www.lbhapik.org
  5. https://kalyanamitra.or.id
  6. https://www.jurnalperempuan.org/ The Pro-Prolegnas Women’s Network is a civil society network that cares about women’s issues and policy advocacy, consisting of a network of women’s organizations
  7. Cedaw Working Group Indonesia Consisting of 10 member organizations that monitor the implementation of CEDAW (Organizations that also focus on women’s rights advocacy issues)
  8. Indonesian Women’s Coalition An organization that focuses on advocacy around the issue of marriage.
  9. The National Commission on Violence against Women

الجدول الزمني للإصلاح

Indonesia’s Timeline on Marriage Law 

Prior to 1945

Ordinance on marriage registration, divorce, and reconciliation (Huwelijks ordonnantie Stb. 1929 no. 347, jo. Stb.1931 no. 467, Vorstenlandsche Huwelijksordonnantie, Stb. 1932 no. 98 da Huwelijksordonnantie Buitengewesten, Stb. 1932 no. 482)

1945

Indonesian Independence

1946

Law No. 22/1946 on Marriage Registration, Divorce, and Reconciliation. For regions outside of Java and Madura

1952

Regulation of the Minister of Religion No.1 and 4/1952 on wali judges in Java and outside of Java

1954

Law No.22/1946 applies to all of Indonesia through Law No. 32/1954

1955

Regulation of the Minister of Religion No.1/1955 on the Obligations of Marriage Registrants

1974

Ratification of Law No.1/1974 on Marriage

1975

Government Regulation No.9/1975 on the Implementation of Law No.1/1974, Regulation of the Minister of Religion No.3/1975 and No.4/1975 on the Procedures for Registering Marriage and Divorce

1983

Government Regulation No.10/1983 on Marriage and Divorce Permits for Civil Servants

1990

Government Regulation No.45/1900 on Amendment No.10/1983 on Marriage and Divorce Permits for Civil Servants- Law No.10/1983 revoked

1991

Instruction of the President of the Republic of Indonesia No. 1/1991 on the Compilation of Islamic Law

2002

Ratification of Law No. 23/2002 on Child Protection

2004

Law No.23/2004 on the Elimination of Domestic Violence; Decision of the Minister of Religion No. 477/2004 on Marriage Registration

2005

Regulation of the Minister of Religion of the Republic of Indonesia No. 30/2005 on Wali Judges (previous minister regulation revoked)

2006

Government Regulation No. 4/2006 on Management and Cooperation in the Recovery of Victims of Domestic Violence

2009

Law of the Republic of Indonesia No. 52/2009 on Population Development and Family Development; Law No. 50/2009 on the Second Amendment to Law No. 7/1989 on Religious Courts.

2010

The Constitutional Court Decision No. 46/PUU- VIII/2010 abolishing Article 43 of the Marriage Law, which provided a breakthrough for the civil rights of children born outside of marriage

2012

The Constitutional Court Decision No. 64/PUU-X/2012 (impacting the ability of a husband/wife to open a joint bank account)

2014

Law No. 35/2014 on the Amendment to Law No.23/2002 on Child Protection, Government Regulation No. 61/2014 on Reproductive Health, Regulation of the Minister of Health No. 6/2014, which states that female circumcision is not a medical procedure, but still allows the practice of female circumcision

2017

Decision of the Constitutional Court of the Republic of Indonesia No. 22/PUU-XV 12017, which annuls Article 7 of Law No.1/1974 on Marriage, Government Regulation No.44/2017 on the Implementation of Childcare, Supreme Court Regulation No. 3/2017 on the Guidelines for Adjudicating Cases of Women Facing the Law

2019

Law No. 16/2019. Amendment to Law No. 1/1974 on Marriage, Government Regulation No.29/2019 on the Terms and Procedures for Appointing Guardians, Supreme Court Regulation No. 5/2019 as a guide in adjudicating applications for marriage dispensation

2020

Regulation of the Minister of Social Affairs No.1/2020, which regulates the procedures and conditions for childcare arrangements, and so on.

2021

The 2021 Guidelines on Access to Justice for Women and Children in the Handling of Criminal Cases

2022

Sexual Violence Act

شكر وتقدير

This country page was prepared by Rahima as a collaboration under the Campaign for Justice in Muslim Family Laws.

References