Wijaya

Wijaya

My name is Asep Wijaya. I am an attorney. This article is about my works in the field of law I have been doing regarding legal issues in international civil law in Indonesia. You may use my articles without permission as long as you mention my name, the article tile, and our website address.

Thank you for reading my posts.

Divorce in Indonesia requires court litigation. You just can't fill a form, signed, sealed and delivered. No. You need to provide reasoning to dissolve your marriage. This is because Indonesia is a country that expects you to work hard to make your marriage work. 

Our legal system does not expect you to just give-up when you have a little fight with your spouse, and say: That's it! I am done with it. We want you to have a little effort before finally saying goodbye and burning the bridge behind you.

If you tried everything and you don't see any way out of the situation, divorce may be the ultimate solution. Your one and only solution. But you want to do it quickly and as painlessly as possible. Well, that can be done. It depends on your choices of the items in your case. 

So, let me walk you through!

The Choice of Legal Ground

We have many legal grounds that you can use to dissolve your marriage. Irreconcilable differences is one of the reasons that you should use in the event you want to do it quickly. This is quite straightforward. You don't have to prove the cause of the irreconcilable differences. This can be a long and winding road. You just have to prove that there is one in your marriage. 

You need to be very careful, using this legal ground may be common and straightforward, but it's quite tricky! I have a guy who came to me. His divorce was overruled by the Higher Court in Jakarta after a landslide win in the district court. What happened? This is why your lawyer needs to review the case before you lodge it to the court. Last thing you want is that the judges may think you are joking around with your divorce. 

Your lawyer needs to pay attention to every single detail. Not all lawyers are born the same. Just because you know a guy who knows laws, it doesn’t mean he can deliver a divorce to you. Indonesia has a very conservative legal system that values humans in flesh and blood more than evidence. You need two witnesses. They need to support your divorce application. Strong enough to dissolve a marriage.

The Choice of Court Jurisdiction

You will be surprised to know if one of the courts in Indonesia may have jurisdiction over your divorce case. There are several considerations such as your nationality, your registration of marriage, and your residency. Those three things may be involved in your case, and therefore one of the courts in Indonesia may have a jurisdiction. 

Here’s how to find out:

  1. If both you and your spouse registered your marriage in Indonesia, regardless of your nationality.
  2. If either of you is an Indonesian, regardless where your marriage was registered. 
  3. If both you and your spouse are foreigners, and you live long enough in Indonesia and you still live here until you decide to get divorce. 

If you belong to one of the above checklists, you should contact your Indonesian lawyer to dissolve your marriage here. Contact Us here and we will review the case and advise you how to move forward. 

If You Could Settle, Do It!

I didn’t mean to settle not to get divorce. You can potentially settle on the legal consequences of the divorce such as child custody, spousal support, and property division. These things can be a pain if you fail to organize them earlier. It is better for you if you identify everything from the beginning. Work with your Indonesian lawyer to guide you through the legal system in Indonesia.  

We have a woman with a PhD degree from South America, and she wants us to represent her in her divorce case. She does everything we told her. She is very cooperative.  She just wants to do it as painlessly as possible. Great lady she is! Smart and well educated. 

All the legal consequences were settled before the case hit the court. I drafted the settlement and they gave me the pointers. This is what we called out of court settlement. Judges love this, and so will you. This gives you less headache! 

Another great guy, a Dutchman. He took my advice to settle before the case hits the courtroom. It’s over before you know it. Now, he is moving on with his life and his new partner. His ex-wife is also busy with her work too. She spends time diving and snorkeling in Bali. They still talk to each other and make friends after the divorce. 

It Takes Two to Tango

This is the best part with the laws and regulations pertaining a divorce in Indonesia. You have to be in love to stay in a healthy marriage. If you think the flame is gone, and nowhere to be found, you can file a divorce at the court to dissolve your legally wedded spouse. Please take a note that this must always stay in line with the irreconcilable differences legal ground. 

Your lawyer must know this and can use this to work with your case with a favorable outcome. He needs to present the case in a way to get the judges on the same page with you. He needs to use this: “it takes two to tango” thing, to deliver the divorce to you. 

I’ve presented this thing before in front of a mediator in South Jakarta court. Our client was a great man, a Dutch man who lives in South Jakarta. Smart and handsome man. He was Ok to come to the court for mediation. I was there with him. His beautiful and respectable wife was also there with him. They still talked politely to each other. 

I told him what would happen inside. So, I wanted him to be very careful with the words he would say to the mediator. He picked them himself. The mediator dismissed the case, and he sent the case to court litigation. Lesson learned, your own words can set you free.

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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

Legal Ground

Indonesia has a complex legal framework on child legalization born out of wedlock. There was no legal recognition or even protection for children born out of wedlock in the early years. Over time, its legal framework evolves. Only recently, efforts to implement the principles of equality and children’s fundamental rights have been addressed. 

Child born out of wedlock has a legal ground in Indonesia. It was introduced by Article 43 of the Marriage Law. The legal ground stipulated that the child born outside a legal marriage has only a relationship with its mother and her family. But since 2010, it was amended by the Constitutional Court that a man with blood relationship should not be excluded as the child’s father. The relationship must be proven with science and technology and/or other evidence.

The amendment of the Article 43 was introduced with a court’s decision number 46/PUU-XIII/2010 It was a breakthrough decision and was considered to jeopardize the existence of a legal marriage in Indonesia. But the judges said that it was a protection for the child, not the recognition of an unregistered marriage in Indonesia.

Legalization and Acknowledgement

When the couple got married after the child was born, the proceeding called legalization of child born out of wedlock. If they did not get married, even after the child was born, the proceedings to get the child legalized called a child acknowledgment. The marriage between the father and the mother creates the difference.

The proceeding above is to ensure the child’s father gets his name printed on the child’s birth certificate. This is where the legal relationship between the father and the child is being created legally. 

According to Article 274 of Civil Code, an acknowledgement may be carried-out by a father in order to have his child acknowledged legally. This must be done with the consent from the biological mother. The consent is very important in order to avoid any illegal action from any man for the purpose of retrieving any benefits from the child. 

Legitimate Child

A child is considered a legitimate child when he was conceived within the religious marriage of his parents, even if the marriage is not registered yet with a marriage registry. Nevertheless, since his parents are unable to show their marriage book, the child needs a court litigation in order to prove that he was conceived within the marriage of his parents. This is required in order to secure a birth certificate with his father’s name on it. 

DNA Test

A DNA test is still required in order to prove the relationship between the child and his father. This is one piece of the evidence that was retrieved according to science and technology. Some couples may not be able to supply the DNA test. This may be a challenge since paternity is undoubtedly established according to the DNA test that shows 99.99 %

Why You Need to Do It

When you’re not married and conceived a child out of wedlock, it does not have to be reflected in your child’s situation. The children must be treated equally and fair. They must not be discriminated against and receive disadvantages in their life just because you decided not to get married. You need to do child legalization in order to protect your child’s rights. 

There are reasons why you should do it, and you should do it fast!

  1. Human Rights. Your child deserves equal treatment with other legitimate children born inside the legal matrimony. Your child must not be treated differently. According to international human rights standards, your child must be protected, whatever your marital status is. You should not deny your child’s legal recognition. You need to do a child legalization in order to avoid breaching their rights in having your family name, citizenship, and birth certificate as their identity. Your child's access to various social services may be limited if you did not do it. 
  2. Your child must not be treated unequally. Your child must not be discriminated against just because of a lack of legal status as an out of wedlock child. Their social well-being, emotional and physical, may be threatened. Your child may experience undesirable situations, such as negative stigma and disgrace, social exclusion, as well as limited opportunities in their lives. You need to eliminate the discrimination by conducting child legalization in Indonesia. 
  3. Conducting child legalization means you’re giving your child legal protection. It is extremely  important for them to have  access to their basic rights. Your child's overall development and their prospect in the long run may be affected.  Their access to essential services such as healthcare, education, and inheritance may be interrupted just because of their legal status as a child born out of legal marriage. 
  4. Your child recognition gives you parental authority in making significant decisions for them. Your child’s welfare can be secured, and you can ensure their best interests are protected. Your responsibilities as parents, regardless of your marital status, in getting legal recognition for your child born out of wedlock is definitely empowered. 
  5. By conducting child legalization, you contribute to societal harmony. You reduce any potential discrimination and promote inclusivity to your child. Your child recognition legally promotes a fair and just environment. They can live in diversity in Indonesia. 
  6. Legalization of your child born out of wedlock means that you conform to international standards. Many countries are recognizing child born out of wedlock with legalization by their parents.

Over all, it is very important for you as a father to conduct legalization of your child born out of wedlock. This is one of the means to address their legal status and uphold their rights. Child legalization also can eliminate discrimination against your child. Thanks to child legalization, your child can have access to basic rights. As a father, you can facilitate your own parental responsibilities to your child. The best thing of all, the child legalization in Indonesia conforms to international standards.

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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

What is a Custody Certificate?

A custody certificate is a legal document. It is issued by competent authorities in Indonesia. It outlines your custody authority and arrangement for a child. Your child. The custody certificate basically is evidence that proves your rights and responsibilities as a parent or guardian. So, it is bonafide evidence regarding the custody of your child. 

The custody certificate can also be an agreement or an arrangement with your ex-spouse. It is an official recognition that ensures clarity and reduces ambiguity regarding the issues of your child custody. It specifies crucial details like, among others, your details as the custodial parent, your ex-spouse’s rights of visitation, your authority in decision-making, and other terms and conditions related thereto.

So, a custody certificate comes in many forms and you can retrieve it from literally many situations in your life. You can obtain it after you get divorced from your spouse. It may be retrieved from a divorce settlement. It may also be obtainable when you’re a single mother with a child born outside a legal marriage. 

Why Do You Need the Custody Certificate?

You definitely need it, especially when you’re a global citizen. Here’s why:

Clarity and legal recognition. The custody certificate is very important in verifying, laying the foundation of legal recognition, and developing the best interests of your child. 

Enforceability. In the event there is a dispute regarding the custody of your child, the certificate of custody can be very useful to serve as evidence in a court proceedings, literally everywhere. It is valid worldwide. The custody certificate also provides stability and support for your child.  

Stability and well-being of the child. In the future, the certificate of child custody may prevent potential conflicts with your ex-spouse in the event of misinterpretation of the custody arrangements. The custody certificate in Indonesia carries an important mission in making sure that the rights and well-being of your child are protected.  

How Can You Get the Custody Certificate?

The first thing that you should have in mind is: the best interest of the child. If you think you are the person that can give the best for your child, you’re the person that deserves to get the custody certificate. 

Well, it doesn’t have to be all about money. The way you upbring and nurture the child are the things that can get you to win the case. The way you spend time with your child and not out partying with your friends all night, would definitely win the judges’ heart. You’re the one! They called this situation as parental fitness. Your fitness as a parent. It is your ability to provide your child with a stable and nurturing environment. 

Another thing that you should remember is that your case is not the same as others. Each case is unique. The judge examines all related factors on a case-by-case basis. The two top priorities are the child’s best interests, and parental fitness. 

In shorts, it is basically about you giving all the best for your child. There are many Supreme Court’s decision in Indonesia to back this situation where you could potentially lose custody of your child. But, I am not going to bore you with some technicalities. I am here to discuss some casual stuff only. Do not worry about the legal things. Let me and my team handle it with care at Wijaya & Co.

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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

Introduction

There has been quite significant developments in the legalization of child born out of wedlock in Indonesia. It aims to protect and uphold the rights of those children from social stigmas. They were often marginalized and therefore had an impact on their ability to access their privileges. They have issues in getting their basic rights such as birth certificate, school, education, health services, etc. 

In 2013, significant changes took place thanks to the Constitutional Court. They imposed that the child status as “illegitimate” was unfair, biased and violated the children’s basic rights. This is a breakthrough in providing equal protection according to law for all the children. The court’s decision acknowledged equal protection to the children born out of wedlock, no matter their marital status.

A Historical Timeline

Various legal frameworks have been in place within Indonesia’s legal system in terms of child legalization born out of wedlock. The legal frameworks bring the child status within the society in Indonesia and therefore have been shaped by the laws timeline.  

The evolution has been slow but at least we recognize four (4) different eras that shaped the ups and downs of the rights and status of the children born out of wedlock:

  1. Pre-Independence Period.
  2. Colonial Era.
  3. Post-Independence Period.
  4. Reform Era.

Overall, the historical timeline of legal perspectives on children born out of wedlock in Indonesia reflects a transition from social stigma and discrimination to greater legal recognition and protection. These developments signify Indonesia's commitment to ensuring the rights and equal treatment of all its citizens, regardless of their marital status.

So, this is good news for you if you’ve decided to father your child born out of wedlock. Indonesia can be a venue for doing so and its legal framework can be very useful in getting your own paternity privilege that is recognized worldwide. 

Why Does Your Child Need It?

First of all, child legalization provides legal documentation for your child. The documents such as birth certificate, passports are important for them to access education, healthcare, and other essential services. Without those documents, your child may be left behind. Your child may not be able to participate in the society with their full potential. 

Second, your child born out of wedlock can be protected from social stigma and discrimination. Their basic rights will be recognized. It promotes inclusivity within the society where your child lives. It also will prevent your child from having challenges in their daily social relations. 

Third, parental accountability. As a father, you are encouraged to acknowledge your child born out of wedlock. You can provide financial support and other social recognition such as inheritance rights. 

Legal Grounds for Child Legalization

Indonesia is an advanced country in terms of child legalization proceedings. We have two strong legal grounds in relation to this delicate matter. 

First, 1974 Marriage Law. This is the basic law that recognizes a child born out of wedlock in our legal system. The law imposed that the illegitimate child has only a legal relationship with their mother and her family.

Second, the decree from Indonesia’s Constitutional Court in the year of 2003 that created a paternal relationship between the child and their alleged father and his family. The relationship must be based on the law and evidence and therefore require court approval. No child legalization without court order. 

So, I need you to rest assured that the legalization of your child born out of wedlock in Indonesia is strong and legally recognized. It is also worldwide recognized. You can mirror it elsewhere. According to my experience working with various clients in this matter, you may claim citizenship by descent for your child. You may apply for a passport of your nationality for your child. This would open the world of opportunities for them. So, you’ve got to do this! Call me or email me if you need to discuss this any further.

 

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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

Why You Should Have a Prenup

When you’re getting married in Indonesia, it is very important for you to have a prenup. It stands for a prenuptial agreement. I will tell you the importance and significance of having one for married couples. So please keep reading!

Prenuptial agreement in Indonesia is your own self-made law. Yes! The law for you in protecting and defining your rights and obligations as a husband and wife. You need to make sure your prenup ensures a fair and equitable outcome. It happens if you get a divorce. Marriage dissolution such as divorce, or annulment can be daunting. That’s why this legal document provides property division according to your wish when love is in the air. Assets and debts are the most important things that’s included in your prenup customization.

Your prenuptial agreement is a means to safeguard the rights and obligations of married spouses in Indonesia. Legal protection for women is one of the primary reasons why you should have a prenup. Promoting gender equality, among others, is another reason why couples entering into marriage need to have a prenuptial agreement in Indonesia. 

Prenuptial agreement can also be used for protecting the married spouses financial interests. It can be very specific in describing assets and liabilities of each spouse. The prenup is giving them the power to every individual in holy matrimony to exercise their rights confidently. 

Child custody and spousal support are the issues that can be discussed in your prenuptial agreement. Things like visitation, child support and other parenting plan checklists are the matters that can be included into your own prenuptial agreement. Nevertheless, you cannot include inheritance because assets distribution in the event one pass-away must be held by a last will. Prenuptial agreement can only govern your assets when you’re alive. 

Intercultural marriages in Indonesia definitely require a prenuptial agreement. It serves as tools to navigate different legal systems in your mixed marriage. A marriage with different nationalities. Your prenuptial agreement can also come handy in bridging cultural practices in your mixed marriage life in Indonesia. It serves to clearly understand the legal status of your assets. Your prenup can also help you to comply with Indonesian law, as well as the cultural norms of your spouses.

Lastly, executing a prenuptial agreement shows your commitment in your relationship. Things like information sharing, transparency and having long-term stability can sustain your financial security in your marriage life. 

Is a Prenup Legal in Indonesia? It’s a Yes!

Prenuptial agreements in Indonesia are definitely legal! The legal ground around the prenup is governed by the Marriage Law number 1 of 1974. This is the legal ground in creating and enforcing prenuptial agreements in Indonesia. 

The Marriage Law is the legal framework that sustains the legality of prenuptial agreements in Indonesia. It creates the legal recognition for your prenup. The Marriage Law encourages prenuptial agreements by creating property division regime before the couples enter into a marriage. 

The 1974 Marriage Law also tells you what should be included into your prenup. Clauses which potentially violate public policy or morals are prohibited. There are also other limits imposed by the Marriage Law in terms of the creation of the prenup. It is very important to make sure that you prenup comply with Marriage Law and other relevant laws and regulations in Indonesia. 

Lawyers in Indonesia with expertise in family law like Wijaya & Co are very competent in guiding you throughout the process of incorporating the prenuptial agreement. Wijaya & Co’s lawyers can help you with your prenup and make sure it is compliant with the legal framework of Indonesia. Lawyers at Wijaya & Co are able to act carefully about your situation and your intentions. 

What Should be Included into Your Prenup?

You should employ the clauses that encourage equality and fairness. You should put to work clauses that safeguard both parties’ rights and interests in the future matrimony. You should take advantage of the following various clauses:

  1. Separation of Property. This clause describes the situation of how both parties acquired assets during the course of marriage, and how they divide them in the event of divorce. 
  2. Spousal Support. This clause is applicable in the event of divorce.This is financial support from a husband to his wife in order to support her during divorce takes place. 
  3. Dispute Resolution. This is an exit clause in the event both parties faces disputes and outlining how disputes can be resolved along with the methods such as mediation or arbitration. 

These clauses must be available in your prenuptial agreement. If you did not see any of them in your document, you should insist on having them on board. Those clauses encourage fair outcomes, and support fairness, and mutual appreciation between both of you.

If You Get a Divorce…

I suggest you and your spouse perform fair and equal property division in the event of a divorce. The following is a few suggestion that you can consider with your spouse:

  1. Financial Disclosure. Information about assets, and debts as well as financial resources in their possessions. 
  2. Customized Settlement. You can settle the property division during a divorce according to your original contribution instead of equal distribution.
  3. Inheritances. In Indonesia, inheritances are separate property. It is free from claims from your spouse. Somewhere else may not be free from claim, but not here in Indonesia. Keep your hands off!
  4. Future Earnings. When you divorce, you divorce. Future earnings are not part of the property division. There is a limitation to the assets distribution during divorce in Indonesia. 

Those suggestions must be considered when you incorporate a prenuptial agreement in Indonesia. A fair and equitable division of property revolving their marital situation.

Advice from the Legal Expert

Legal experts like lawyers in Wijaya & Co are very important during drafting and incorporating a prenuptial agreement. Prenup is a legal document. It is a binding document legally, and it describes assets and liabilities distribution during hard times like divorce. Therefore, it is very important to have highly experienced lawyers like the legal experts at Wijaya & Co to walk you through the process. 

You need to make sure that complicated legal implications of a prenup are navigated with the help of lawyers from Wijaya & Co. Potential issues must be addressed at the early phase. Unfair provisions must be identified. Both parties must communicate honestly and openly. Lawyers from Wijaya & Co can assist in facilitating and liaising both parties.

 

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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

Introduction

A last will is an important legal instrument when it comes to estate planning. It ensures the distribution of your assets. It also honors the wishes of the testator after their death. Last will in Indonesia serves a crucial purpose. Its legal strength cannot be downplayed. Last will in Indonesia serves as strong protection and clarity to the testator, their family members, and loved ones. Distribution of assets among beneficiaries systematically provided as a legal framework by a last will in Indonesia. The last will outline who gets what. It identifies the individuals that will receive inheritance. The ones that inherit specific assets, such as financial assets, property or other belongings. This situation requires a testamentary plan. The assets division process will not be concluded smoothly. It can be a complicated process without a last will in place. Potential disputes may arise, and families will face disagreement. This is the last thing you want.

As a testator, you must have intentions. Your last will serves as your own testament. The last will clearly certify the distribution course of your assets. It completely gets rid of multi-interpretation. Your intention will not be wrongly interpreted. Unwanted influence can be avoided. Lastly, you Last Will can assure that your assets are distributed according to your wishes. There is no way that intestacy will exist after you’re gone. Intestacy is the situation when you die, and there's no Last Will in place. 

You should prepare your own last will and make sure your loved ones feel safe with stability. You need to make sure that your inheritance is distributed as per your intentions. Therefore, a last will in Indonesia is crucial for you. It cannot be overlooked. Your last will can safeguard your financial inheritance. It fosters long term harmony in your family you left behind. You need to make sure your loved ones get what they deserve according to your last will. 

Let me explain further. Please stay on this post!

Why Do You Need to Have a Last Will?

Last will, according to the context of the legal system in Indonesia, provides importance for you in terms of personal and business interests. Your last will can help your future. It should be considered as your plan to ensure that your wishes are honored, and your property as well as assets are distributed according to your intentions. 

When it comes to your personal affairs, your last will can give you peace of mind. It can make sure that your family is taken care of. This legal document allows you to express who you want to be the beneficiary of your assets after you’re gone. Furthermore, your last will can eliminate any possible conflicts and disputes among your family members. It will take care of your assets distribution to your loved ones. Your last will can help you with a smooth transition of your wealth. 

In the field of business affairs, your last will can help your business to operate smoothly. The last will in Indonesia can facilitate smooth transfer of power in your company. Therefore, it safeguards your company interests and its employees. You can also consider the last will for your business in preserving the continuity and integrity of your company. You can state in your last will the nominated individuals that will take over the roles and responsibilities after you’re gone. 

All of these can happen thanks to Indonesia's Civil Code. The stipulation in this law is governing  your property distribution and successor's appointment for your business. Therefore, individuals and business owners in Indonesia are recommended to create a last will in Indonesia. 

How Do You Do It?

Your last will must be prepared by legal experts like lawyers at Wijaya & Co. Our lawyers can make sure that your Last Will comply with the rules and regulations imposed by the Civil Code. As a testator, you should sign your last will witnessed  by two adult witnesses. They also must sign your last will document in order to ascertain its authenticity. 

The last will you sign becomes legally binding upon your death. Nevertheless, your family members can contest it in court. They will argue that your capacity is not mentally fit. They will say that you were undue influence when you signed the last will. They may argue in the court that you are under duress when you create the testament.

Therefore, you need to make sure you have a valid and legally binding last will. You need to make sure the enforceability of your last will in Indonesia. It depends on the compliance with the legal grounds and therefore avoid any evidence that suggest invalidity of your last will. Therefore, you need to make sure that you consult legal experts highly experienced in family laws in Indonesia. Wijaya & Co can help you in drafting your last will that holds substantial legal validity and enforceability. 

Legal Grounds for Last Will in Indonesia

There are two legal grounds in Indonesia regarding last will and testaments. 

Firstly, the Indonesia’s Civil Code that provides general rules and regulation for last wills in Indonesia. The Civil Code comes-up with prerequisites for your last will. It must be done in writing and signed by you as a testator. You need to sign it in front of two witnesses. Civil Code also imposed the requirements regarding the capacity required from you as a testator when making a valid last will. 

Secondly, the Basic Agrarian Law that was enacted in 1960 to further expand legal grounds for Last Wills. This law specifically discusses property and estates as assets. 

Navigating the legal system of Indonesia can be a daunting experience. Therefore, seeking progressional legal advice is highly recommended. Lawyers at Wijaya & Co can help you to assure that your Last Will is drafted and executed according to the prevailing laws and regulation in Indonesia. 

What If You Die without a Last Will?

if you did not have any last will, often referred to as intestacy, the court will distribute your assets according to applicable inheritance laws in Indonesia. The distribution of your assets without your last will is called intestate distribution. This situation may not be according to your intention. This condition also creates ambiguity to your loved ones. 

If you die without a Last Will, your assets will be distributed according to the intestacy rules in Civil Code. The appointment of your successors is also subject to Civil Code’s ruling. This may not be according to your personal preferences, and business interests. This is the last thing you want. 

 

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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

Child custody in Indonesia is one of the consequences of a divorce between a husband and a wife, Divorce may be the solution for both of you. It may be your best way out, but the law suggets it can only be used as a last resort. It means both of you should work hard to keep your marrriage intact. In Indonesia, you should have enough reason to dissolve your marriage. You just can’t say: “I have enough of you! Let’s get divorce!” They won’t allow you to get divorce on this ground. Article 39 (2) of the Marriage Law stipulated that in order to get a divorce, both husband and wife must have enough reason that they will not be able to live in harmony.

There are legal grounds of filing for divorce that every divorce lawyer in Indonesia has to advise his clients with, and they have been regulated in the Marriage Law, which are, in the event one of the parties:

  1. has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;
  2. has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;
  3. has been sentenced to imprisonment for five (5) consecutive years or a longer period;
  4. has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;
  5. has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or
  6. has irreconcilable differences.

For couples married in Moslem ceremony, Article 166 of Islamic Compilation Law added two more legal ground to get divorce. They are:  a. You may get divorve in the event a husband broke his taklik talak. It’s a marriage vow soon after the Moslem couples performed the marriage. If you forget about it, you may want to check the back page of your marriage book; b. Apostate.  In the event your spouse convert back to his/her previous belief, other than Islam. The above legal grounds are optional. I mean, your divorce case doesn’t have to meet all of the legal grounds. You just have to include ome of them, and supply two witnesses to take the stand at the court room. 

As for the child custody, the decision follows after the marriage has been dissolved. The custody of a child under the age of 12 belongs to the mother. Article 105 of Islamic Compilation Law imposed that a child aged 12 (twelve) has a freedom to choose between its mother or father. They tend to give the custody to the mother because they think women is the best figure to nurture the child. They are more compassionate than men. They think women can do it better than men. In short, they think the Islamic Compilation Law has maternal preference. It's also has sole custody principle that allow one parent to be a custody holder, and the other parent is a non-custody parent. But, in the field of practice those things are not always happen. They don't always do their jobs. They can be either mentally unstable, committing adultery, leaving the child at home during night time to meet friends, hang out and partying all night, or even jeopardizing the child's well-being. Those are the circumstances where you as the father may take over the custody of your child. You can’t just say that you’re financially better than your wife, and you think you deserve the custody. Our Marriage Law considered husband is a bread maker in the family. You have the obligation to support your children. This is the universal value every where, I supposed.

The ultimate consideration of having a child custody is for the best interests of the child. It's imposed by the 2002 Child Protection Law. The judges assess and measure your ability in providing what’s best for your child. Factors included in the assessments are physical and mental health, intellectuality, independence, and utmost good faith in allowing his/her ex-spouse to have parenting and visitation. In another words, you still need to talk to you ex-spouse even though you are no longer married to each other. This is for the best interests of the child. The one that meets the requirements is the most eligible to serve as custody holder of the child.

I would like to bring your attention to the court verdict number 110K/AG/2007 issued by the Supreme Court in December 2007. The holding from the court was, among others, the ultimate consideration of having child custody (Hadhanah in Arabic term) is for the best interests of the child, not merely the most normatively entitled to. The court further stipulated that even though the child was only 7 (seven) years, and the mother frequently travelling overseas and leave the child all alone by herself, while the father actually always be there for the child giving her steady and stable life, so therefore they found the father was entitled to the custody of the child. This is one of the most brilliant court's products in Indonesia, and considered as "jeopardizing" the maternal preference since the Islamic Compilation Law enacted in 1991. But I mean, apart from that, you know, you can really lose your rights in getting child custody, even though the law prefers you due to gender preference. As parents, I believe we must put ourselves behind the children's interests and put them as our priority in life. I am sure we're all love our children so very much. 

 

Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!

A child is born out of wedlock when its mother was pregnant by a man without any legal marriage in Indonesia. It’s a simple definition indeed, but we have broader definitions depending on the situation. It’s according to Civil Law. The child was born and the marriage of its parents was not properly registered. The child was born out of the parents and they never married before, both religious and civil marriage. The definition of child born out of wedlock also include the child born to parents who aren’t legally marry to each other. It means, they are still legally attached to their spouses. In another words, the child was born out of adulterous relationship. On the other hand, the 1974 Marriage Law defined that a legitimate child is a child was born into the legal marriage of the parents, or as a result of the legal marriage of its parents. The marriage of the parents is legal and registered. They performed the marriage legally proper according to the religion and law procedures. So, basically the out of wedlock child was born when the legality of its parents’ marriage is still in question.

This is very interesting and pretty challenging issues, as Indonesia’s Constitutional Court amended the ruling in 1974 Marriage Law that the child has legal relationship with the mother and its biological father, even though their marriage is still in question. They are establishing a civil law relationship between the child and its alleged father, through a DNA test, while on the other hand, the validity of the marriage is fuzzy enough to call it legal. The idea was to give legal protection to the children born out of wedlock, and that they need to make sure that the children can access its rights. Know all men by these presents, in Indonesia when a man got a woman pregnant, he is legally related to the child, regardless the marriage do exist or not. The last thing they want is to punish the child for something that the parents did. 

The application for bringing the legality to the child must be made by either parent, if not by both of them, to the court of law. According to Article 44 (2) of the Marriage Law, the court has the authority to determine the legality of the child. This proceeding depends on the father’s acknowledgment of the child, because it creates the relationship between the father and the child legally. The Civil Code in Article 280 imposed that situation. Legal consequences are being established, between the father and child, such as child support, guardianship, using of father’s family name, and inheritance. 

The implementation of this proceeding is to issue a birth certificate for the child, with complete names of the mother and the alleged father. According to the Article 55 of the Marriage Law, the birth certificate is the authentic proof of the child’s origin. Child born out of wedlock can only have the mother’s name printed on its birth certificate. The name of the father can only be printed as well if he acknowledges the child. Article 284 of Civil Code imposed that the biological mother must approve such acknowledgment. The proceeding must have her consent. So, yes, it takes two to tango. 

There is one thing you should bear in mind. This is the legalization of the child that born out of legal marriage. This is NOT the legalization of the marriage itself. It’s quite challenging because you must meet our statutory requirements as imposed by the Marriage Law and its implementing regulations. Basically, the laws in Indonesia based on monogamous marriage. You need to legally free to marry to legalize your marriage. Please call me or email should you would like to discuss the issues any further. You can reach me here: http://www.wijayaco.com/contact

My name is Asep Wijaya. Thank you for reading my posts.

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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

 
 

Child born out of wedlock in Indonesia doesn’t have its father’s name printed on the birth certificate. He/she can only have relationship with its mother and her mother’s family. The child doesn’t have any relationship with the biological father. Not until you as the father acknowledges it or legalizes it into his marriage to the child ‘s mother. You must support your acknowledgment with a DNA test, and the two witnesses taking the stand at the court of law. This proceeding is conducted in order to prove blood relationship between the child and the father. It will then creates legal relationship between the two of them. This is the essence of the rule in Article 43 (1) of the Marriage Law as amended by the Constitutional Court number 46/PUU-VIII/2010 dated Feb. 17, 2012.  

Furthermore, the amended Article 43 (1) stipulates as follow: "The child born out of wedlock has legal relationship with the biological mother and her family, and has legal relationship with the alleged father proven with scientific evidence and/or other evidence according to the laws that they have blood relationship, including civil law relationship with the father's family."

You don’t need to fix the legality of the marriage in order to acknowledge the child born out of wedlock. This is about getting a child legalized. It’s about getting to know the child’s origin by having the father and the mother’s names printed on the child’s birth certificate. It’s not about getting a marriage legalization. Those are two different things. When you as the father acknowledges the child, the legal relationship between the child and the father will be created as stipulated by Article 280 of Civil Code.  

The legalization of child born out of wedlock is to give legal protection to all the children in this matter. The law must protect the children and make sure they get what they deserve, even though the marriage of the parents is still in question. The protection must be implemented in the form of birth certificate with all the parents’ names printed on it. Article 55 of Marriage Law stipulates that the origin of a child can only be supplied by authentic birth certificate. This is the basic rights that the child must be able to have. The certificate is very useful when the child is applying for the school, passport for travelling, and other basic rights for her/his nurturing needs.

The birth certificate of an out of wedlock child does not include the father's name. Only name of the mother. It says something like is: "Premarital son/daughter of a woman named [insert mother's name]." It's because when the child was born, it only related to the mother and her family legally. When a birth certificate does not include complete names of the parents, it does not tell you the origin of the child. It doesn't comply with Article 55 (1). In order to include the name of the father on the birth certificate, a father must acknowledge the child with the consent from the biological mother. Without it, the court may not be able to approve the legalization. So, in order to legalize your child born out of wedlock, you need to present a case with complete evidence. Otherwise, they may reject the case and your child remain illegitimate child for good. As the father, you won’t be able to have access to the child legally. You can’t have joint custody of the child. Many cases like this where fathers lost cases in the court fighting for the custody of their children. You have to be careful, because you only have one bite of the apple. You better make it works.

I am Asep Wijaya. Thank you for reading.

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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Child born out of wedlock in Indonesia has some key issues in its proceedings. If you have a child born out of legitimate marriage, you should know these and make sure you don't get conflicted by our legal system. First, we have now amended Article 43 (1) of the Marriage Law stipulates that child born out of wedlock not only has civil relationship with its mother and her family, but the child also have civil relationship with the biological father, and his family as well.

The starting point to draw a fine line between the child and the father, is by having the father to acknowledge the child. According to the Article 280 of Civil Code, the acknowledgment is to create the civil law relationship with the child, and its father or mother. After the acknowledgement, you may draw anything between the two of them. You may establish a child support, parenting and visitation. The child is also entitled to use your family name. He/she might be able to claim as your heir in the inheritance matters.

Furthermore, the amended Article 43 (1) imposed that a claim made in order to acknowledge the child and his father must be supported with a scientific evidence, like DNA test, as well as two witness that willing to take a stand at the court of law. The acknowledgment of an out of wedlock child must be approved by the court of law. The court verdict must shows the origin of the child, the acknowledgment made by the father, and the consent by the biological mother. This is an integrated paperworks. 

The idea to come-up with the amended Article 43 (1) is to provide legal protection for the child born out of wedlock. It is the duty of the state to issue a document regarding the origin of the child with full names of the parents and printed on a birth certificate. 

My name is Asep Wijaya. Thank you for reading my posts.

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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

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