The status of nasab and the rights of children born out of wedlock and children from unregistered marriages in Indonesia : a comparative study with the law in Malaysia

Abstract

The study is comparison of the laws that discuss the status of nasab and rights of children born out of wedlock and children who are unregistered marriage in two countries, namely Indonesia and Malaysia. Analysis focuses on the status nasab of a child according to Islamic law, the concepts and provisions of the law on paternity based on several relevant statutes in Indonesia, as well as the rights of children born out of wedlock and unregistered marriage. Then, the concept of nasab of a child born out wedlock in Indonesia is compared with the provisions of paternity in the Malaysian law. The concept of paternity in Islamic law is examined based on the validity of marriage, evidences and acknowledgment. The study further analyzed the status of DNA test in order to determine paternity status and it can be found that according to Muslim Jurists, DNA test cannot be used as evidence, but only as a support to the evidence. The classical Muslim Jurists recognized that the paternity for a child born out of wedlock cannot be ascribed to his/her biological father. The consequence is a child born out of wedlock does not get his/her rights from the putative father. However, the child is allowed to receive a gift or a will from his/her biological father. The study also examined that the status of a child born out of wedlock or whose parent’s marriage was unregistered, thus were unable to obtain any rights of his/her biological father. However, after the decision of judicial review on Constitutional court, a child born out of wedlock is allowed to get paternity and rights from his/her biological father, even though there is no clear definition can be found in the provision of Islamic Family Law and Compilation of Islamic Law. In Malaysia however, there are clear provisions and statutes on the status or nasab of a child born out of wedlock and unregistered marriage. These comparisons can help to identify the weaknesses of the provision for paternity law in Indonesia and use as a guideline for improving the law. The study reveals the need for a clear definition of a child born out of wedlock and from unregistered marriage as the rights of these children should be protected. These children require an appropriate alternative in order to get their rights from their putative father without contradictions with the Islamic law. This study further proves that the limited provisions on paternity of illegitimate children and from unregistered marriage in Indonesian legislation are not sufficient to govern the status or nasab of these children if it is compared with Malaysian law. Finally, the study reveals that Indonesia should improve on nasab and rights for illegitimate children and children of unregistered marriage. The law is hoped that this study provides an insight of the paternity of children born out of wedlock and children from unregistered marriages, in order for these children to get the rights that they truly deserve.