Reconstruction of the legal protection of civil rights for the child of adultery based on values of justice in Indonesia

AuthorSuryati, S.H.,M.H
PositionUniversity of Wijaya Kusuma Purwokerto Banyumas (Indonesia)
European Journal of Economics, Law and Social Sciences
IIPCCL Publishing, Graz-Austria
Vol. 1 No. 1
January 2017
ISSN 2519-1284
Acces online at
Reconstruction of the legal protection of civil rights for the child of adultery
based on values of justice in Indonesia
Dr. Suryati, S.H.,M.H
University of W aya Kusuma Purwokerto Banyumas (Indonesia)
Abstra ct
The child of adultery as children born outside marriage has civil rights. Indonesian
Constitutional Court Decision No. 46/PUU-VIII/2010 protects the civil rights of children
born outside of marriage, but do not give a solution for the child of adultery. In this sense a
reconstruction of the legal protection is needed. This manuscript should present an optimal
legal protection based on the Constitutional Court Decision No. 46/PUU-VIII/2010 and also a a
revision of Article 43 paragraph 1 of Law No.1/1974, Article 283 of the Civil Code and Article
26, Paragraph 2 of the Law No.35/2014. Other structural aspects such as the expansion of the
jurisdiction in deciding civil rights of the child of adultery and aspects of culture are also part
of this analysis.
Keywords: reconstruction, legal protection, civil right, adultery child.
The position of a child is very important for a family and the state. Children are part
of a younger generation. As one of the human resources, the child is a great potential
and a successor to the ideals of the nation. The child physic-, mental- and social
development must be guaranteed as a whole, harmonious and balanced (Priest 2003,
2). Children, according to Article 1, paragraph 1 of Law No. 23 of 2002 in conjunction
with Law 35 of 2014 on Child Protection states that a child is not an adult until 18
years old. Then Article 42 of Law No. 1 of 1974 on Marriage, and Article 250 Book
of the Law of Civil Law (hereina er referred to as the Civil Code), states that the
legitimate child is a child born in or as a result of a legal marriage, or in other words
children born throughout the marriage) and not like the case with children born
outside normal conditions (Satrio, 2006, 151).
MK (Mahkamah Konstitusi/Constitutional Court) Decision No. 46/PUU-VIII/2010 is
a revolutionary breakthrough in the law that protects civil rights to children outside
of marriage. Indonesian Ulema Council (MUI) assesses that the Constitutional Court
has exceeded the authority, it is excessive or overdosed. Initially the verdict was
giving civil recognition to children who are not registered at KUA, but eventually
expanded and regulated the relationship of the child of a civil adultery relationship.
Consequently ratify nasab relationship, heirs, guardians will be living among the
children of his adultery with the man who caused his birth (Mui, Ma’ruf and Selesa,
2012). Therefore, MUI Fatwa No. 11 of 2012 on the Status of Children states that:
Children do not have a relationship adultery results nasab, guardian of marriage,
inheritance, and living with a man who caused his birth.
In addition to the controversy above, the Constitutional Court Decision No. 46/PUU-

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