The Position of Children from Unsecured Marriages in The Distribution of Inheritance: A Study of National Civil Law and Islamic Law

Abstract

Unregistered marriages that are religiously valid but not registered by the state often raise issues regarding the status of children in inheritance. This phenomenon is increasing in society, but has not been balanced by an adequate understanding of the legal consequences for the status of children. This study uses a normative juridical method with a statutory regulatory approach and a comparison between National Civil Law and Islamic Law. The results show that in National Civil Law (Marriage Law and Civil Code), children from unregistered marriages are categorized as illegitimate children and only have a civil relationship with the mother, unless there is evidence and a court ruling. Constitutional Court Decision No. 46/PUU-VIII/2010 expands the civil relationship with the biological father, but its application still relies on formal evidence so that children's access to inheritance rights is still indirect. In contrast, in Islamic Law and the Compilation of Islamic Law, the validity of a marriage is determined by the fulfillment of the pillars and requirements of religion; children from unregistered marriages are considered legitimate children and automatically have a lineage relationship and inheritance rights to the father based on the principle of al-walad lil-firāsy. Thus, there appears to be a disharmony: Civil Law prioritizes administrative certainty, while Islamic Law prioritizes substantive justice and the protection of children's rights.

Keywords

• Children
• Siri Marriage
• Inheritance
• Civil Law
• Islamic Law