Displaying items by tag: Child

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Child legalization in Indonesia is the only way to recognize your child born out of wedlock. This proceeding is a must-have in order to build a relationship between a father and the child. It's giving him a paternity privilege. This thing means a lot to both of them, and covers so many aspects in their lives. The proceeding is to get a DNA test as the primary scientific instrument to take a stand in the court litigation. On one side, it shall be the legal basis for the paternity claim to the court of law in Indonesia. But on the other side, DNA tests may become the potential shadowing procedure in getting a child legalized by a father. 

Read on and I will tell you what you should know.

Your Marriage First

According to Article 2 (1) Marriage Law number 1 of 1974, your marriage will only be legally recognized if it was officially registered. We have two marriage registries in Indonesia i.e. Civil Registry, and Office of Religious Affairs. The date when your marriage is officially registered will be the date of your marriage. In the event your child’s date of birth was before the marriage date, she/he is an out of wedlock child, even though she/he was born after the religious ceremony. It is the registration date that counts. Therefore, your marriage is not legally recognized according to state law. Any child conceived shall be an illegitimate one. 

So, your marriage must come first before the child, and it must be officially registered with the government's marriage registry. Therefore, your marriage is the foundation of your family. Just like what they said: your marriage first!

Your Child Comes Thereafter

In the event your child was born before the marriage officially registered, legally speaking she/he is an illegitimate child. The child is not a legitimate one according to Article 42 of the Marriage Law. A legitimate child is one who was born into its parent legal marriage. 

In another word, your child is an out of wedlock and therefore will only have a legal relationship with its mother and her family. No paternity privilege being established under this situation. Not yet. This is governed under Article 43 (1) of the Marriage Law. The only way to do so is through the biological mother. She needs to consent the child legalization. 

The Procedures

The Civil Code has imposed that in order to legitimize the child, both husband and wife need to perform child legalization. Article 274 of Civil Code further stipulates that the same rules and regulations shall be applicable to both the legitimate and illegitimate after the legalization proceeding is fully completed. 

The procedures started by getting an acknowledgment of the child by the father. He acknowledges the child as his flesh and blood, and therefore shall be willing to accept the responsibilities as a father. As part of the acknowledgement, he also allowed the child to use his family name. In some parts of the world, you need to use the same last name in order to be entitled to some privileges. 

On the other hand, the mother consents the legalization proceedings. She also needs to confirm that the child receives support from the father on a daily basis. The most important part is that she needs to confirm that the child is his. This is essential as her affidavit shall be supported with a DNA test. This is the primary procedure that has been shadowing the child legalization proceedings.

What If You’re Not Married?

If you’re not married, you can also conduct child legalization. You need to get a court to approve this case. This is quite a tricky process as you only have one bite of an apple. You need to get the process a success in the first place, otherwise they will throw the case out and you’re stuck in limbo.

Your child also needs legal protection by getting legal recognition by his/her parents. It’s reflected on his/her birth certificate with the complete parents’ name. The child born out of wedlock, they cannot have this. The child only has his/her mother’s name on it. This is awkward because you must have both parents otherwise it won’t work. The fact is, a father’s name is not printed on the birth certificate. You need to have your name as a father otherwise your child is not recognized legally. Article 43 (1) of 1974 Marriage Law allows the child born outside of legal marriage to have paternity relationship with the alleged man as his/her father.

 

“Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!”

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A guardian is a person or legal entity that perform the duty of child custody as a parent toward a child. He/she is entitled to represent it in or outside the court. The idea of having a guardian is to protect the child rights and to fulfil their basic necessities as well as to manage their assets to the best interests of the child. 

The Subject

The legal age in Indonesia is 18 years old. Any child under that age is under a guardianship of its parents or guardian. In the event its parents are unable to take that responsibility, any other party may step forward in carrying the job. Other family members may be able to replace the parents's job by meeting certain criteria. 

Article 50 (1) of the Marriage Law imposed that children who are not under the age of 18 or have never entered into a marriage, that are not under the authority of the parents, are under the authority of a guardian. The guardianship concerning the child's private matter and its property. Furthermore, the guardian has the responsibility in taking care the child as well as its property at his best by respecting the child's religion and belief. 

Are You Qualified?

Furthermore, according to the Procedures of Guardian Appointment of 2019, you may be a guardian of a child only if you meet the following capacity:

  1. Family of the child;
  2. Relatives;
  3. Other parties; or 
  4. Legal entities. 

The above parties can only become the guardian in the event the parents of the child are not longer available to do the job, their whereabout is unknown, or due to any specific reason they are unable to perform their duties. Those parties may step forward in the event the case meet the above situation.

The family of the child shall become the first priority to be appointed as the guardian. In this case, the family shall refer to as the smallest unit in society consisting of husband and wife, or husband and wife and children, or father and child, or mother and child, or blood relatives in a straight line up or down to the third degree. The relatives of the child may replace child's family in the event they are not willing to take the job, unknown, or they are not qualified as a family of the child. The same way goes to the next party.

Required Consent

The consent required is from the Social Ministry in the form of a recommendation. This requirement is similar when you're conducting an adoption application. The social worker will perform assessment to the person or legal entity being appointed to become a guardian. 

This may be the bottleneck in application for the guardianship at the court. But it may be a new standard operating procedures to monitor the duties of guardians. The state presence is reflecting in reviewing, and supervising the duties performed by the guardian. Regular reports and updates serve as the monitoring instrument in conducting the guardianship duties.

The End of It

The guardianship end when your case meet the following situation:

  1. The child reaches the age of 18;
  2. The child passes-away;
  3. The guardian passes-away;
  4. The legal entity guardianship files for bankruptcy.

 Your authority as the guardian, may also be revoked by the court. The revocation is due to the situation as follows:

  1. Neglecting your obligations as a guardian. As a guardian, your authority may be revoked if you're neglecting the child under your care;
  2. You're incompetent in performing any legal action. The incompetency must be reviewed by the court and an application must be submitted so they are able to reconsider your position as a guardian. This is a big case. You need to make sure you have enough evidence to turn back the ruling;
  3. Abusing your authority as a guardian. This has something to do with the management of the child's assets. This is a serious violation. They may not be able to revoke you as the guardian, but may also file complaint against you;
  4. Committing acts of violence against children under his/her care. Conducting duties as a guardian is not easy. This is similar with becoming a parent. They said it's the hardest job you'll ever love. But do you? 
  5. Parents are considered able to carry-out the obligation. When the child's parents are back on their feet and able to do the their jobs, the guardianship may be revoked and the court return the authority to them. 

 

“Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!”

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Origin of a child in Indonesia is a procedure to legalize your offspring and you through a strict legal mechanism in order to recognize the child legally. This is the procedures that protected by our 1945 Constitution as imposed on Article 28B (2): "Every child has the right of survival, growth, and development, participating and entitled to protection from violence and discrimination as well as civil rights and freedoms."

The implementation of the constitutional protection for the child is with the Child Protection Law of 2014 stipulates that the child has the right to know its parents. If you were married in a legal and recognized way, the child will not be having difficulties to access its rights under the laws. Nevertheless, if you were not legally married, the child will have problems in recognizing its rights and their access will be denied.

Before we go further in getting to review the offspring origin within Indonesia's legal system, you need to identify the type of child status according to our prevailing laws and regulation, as follows:

Legitimate Child

Article 42 of 1974 Marriage Law stipulates that a legitimate child is a child born within or as a result of a legitimate marriage. A legitimate child can also be born of the results of both spouses actions outside of his wife's womb.

The latter is pretty advanced ruling as this may be interpreted to include babies born using an artificial uterus or womb or even through a surrogate mother. Although, the last one is not considered legal yet according to the health regulation in Indonesia.

I am here not to discuss methods of how babies are born. That's not really my department. I am putting those mechanism just to bring those to your attention that such things exist and what the laws think about it.

Let's carry on!

Child Born Out of Legal Marriage

According to the decision from the Constitutional Court number 46/PUU-VIII/2010 dated 17 February 2012 on the amendment of 1974 Marriage Law especially Article 43 (1) imposed that a child born out of wedlock has civil law relationship with its mother and her family as well as with the alleged man as the father to the extent of the scientific evidence and/or other evidence according to the laws have blood relationship, including civil relationship with his family.

According to the records of the court, the marriage of the parent was not registered or recorded. It means, the marriage was not legal. But previous marriage has been conducted but did not performed legally according to the Marriage. Therefore, the couple did not receive any marriage book or marriage certificate. 

As for the evidence, you need to supply DNA test that shows you are not excluded as the biological father. It must shows 99.99%. Well, you can put as many as "number 9" on the results. It just give you more bonafidity as the alleged father. So, the more "number 9" on the DNA certificate, the better.

Child Born of Adulterous Relationship

The relationship between the woman and the man who got her pregnant is without any marriage. The child has no legal relationship with the father and his family. Its only has relationship with its mother and her family. Therefore, the child is not able to inherit from its father, nor its can inherit to its father.

On the other hand, the man who got its mother pregnant has legal obligation in supporting the child financially, and to facilitate the child to inherit from his own last will.

In the event the woman is in marital relationship with her husband, and the man who got her pregnant claims the child as his, the law imposed that the child belongs to the woman's husband. Unless, if he denies the child. He may file an application to the court to deny the child and declare the child born of its mother's adulterous relationship.

Those three types of child legal status determine your situation and its level of difficulties in working with the legal system. I am not to say that one child may be better than the other. They have every rights to be legally protected, and the protection starts when you are there as their parents to support them, to feed them, to nurture them, to educate them, to teach them to get back on their feet after they felt, and to teach them to stand on their own.

You know, all the things a father would do for his child.

 

“Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!”

 

Child born out of wedlock in Indonesia has only legal relationship with its mother, and her family. This situation reflects in the child's birth certificate where you won't see the father's name on it. Without the marriage to the mother, the alleged father will not be able to retrieve custody privilege.

Apart from the marriage, the father may also acknowledge the child in order to create relationship with the child. The father must acknowledge the child as his flesh and blood. According to Article 280 of Civil Code that stipulates the acknowledgement of a natural child creates a civil relationship between that child and his father or mother.

The father's acknowledgement  requires consent from the biological mother, otherwise it won't be legal. This is a statutory requirement as set-out by the prevailing laws. So, you know, it takes two to tango!

On another subject, you need to perform a DNA test too. This is to prove the child is yours, scientifically. The evidence that created according to the science and technology, and shall be required by the court in order to legalize the child born out of wedlock in Indonesia. Make sure you get the right version of DNA test, not the otherwise. The court may not accept your application just because you have incorrect test results.

Under the latest enforcement from the Constitutional Court in Indonesia, a marriage is not required to gain custody privilege of a child. You need to acknowledge it only, and get a court approval before your acknowledgment is legal recognized. Participation of the child's mother is required. If you're not in good terms, you need to talk to her and get her to sign the consent papers. You need to make her happy. This is the only way. Courtesy of nine months pregnancy. 

We have a lot of portfolio in this case. We have high successful rate in getting legalization of child born out of wedlock in Indonesia. Talk to me or email me. I am happy to help. Please contact me should you wish to discuss any further about this.

 

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

The laws and regulation in Indonesia recognize two (2) types of public and private adoption. Public adoption is applicable in the event, the child was abandoned or neglected by his/her birth family, and raised by a foster care institution managed by the government. The relevant institution in this matter is Ministry of Social Affairs. As for the private adoption, the proceeding takes place between the biological parents and the adopting parents directly. 

Adopting your step child in Indonesia can bring your family close together. You adopt your spouse's child, and legally you are family as if the child was born into your marriage. Your spouse may insist you to do it, but your willingness to do it that keep the marriage intact. You know, things a man do for his wife and his family.  At Wijaya & Co, we always pay attention to details of our client’s case. 

There are some pointers that you need to be aware of regarding the adoption of your step-child, they are:

Consent Required

Consent is required from the biological parents, both the child's father and mother, if the child was born into a legal marriage. In the event the child was born out of wedlock, the consent from the child's mother is a must. The mother has full authority as vested by the Civil Code as related to the child, including when the alleged father wish to acknowledge the child. The authority of the mother solely comes from the Article 284 of the Civil Code: "No acknowledgment of a natural child is, during the lifetime of the mother, notwithstanding that she may be of Indonesian descent or descended from a similar indigenous group, be accepted, if the mother does not approve the acknowledgment." I am not saying that as the alleged father of the child you don't have any right at all, you do. The Constitutional Court confirmed your rights, but you must willing to go the extra mile in order to do that. 

The Best Interest of the Child

The adoption proceeding that you are conducting is promoting the interests and welfare of the child. You must be able to prove this by supplying information that you are doing everything in your power to provide the child. You need to prove that the aim of the adoption is obtaining the welfare and protection of the child. You need to enter into a declaration that you are willing to be responsible for supporting the child on daily basis.

Habitual Residence

Basically, we pride ourselves with our nationality principle that all the Indonesian men are subject to the Indonesian law, wherever they are. This is the basis from the continental legal system. If you were married to a foreigner, your foreign spouse must use the Indonesian partner's jurisdiction and therefore a choice of forum is applicable. You may choose the jurisdiction of your Indonesian spouse through her/his domicile. This can be seen on his/her ID card. Article 14 of Administration of Population Law certifies that the ID card (so called KTP/Kartu Tanda Penduduk) is the official identity of a resident and is valid within the entire territory of the Republic of Indonesia. So, this is your jurisdiction as well as our laws do not require you to have a habitual residence to perform an adoption of your step-child in Indonesia.

Indonesia is not one of the Common Law countries that imposed you to have a minimum contact by having a residency at least for six (6) months. Nevertheless, you need to further consider about the requirements from your country of origin if they require you to have a residency in Indonesia. You may retrieve a spousal dependent visa in order to meet the requirement imposed on you regarding the habitual residence during the adoption proceeding. Please contact me should you wish to discuss any further about this.

 

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

The origin of a child is a legal proceeding conducted with the child born out of wedlock in Indonesia. This is to create a relationship between the child and the biological father. It happens when you conceived a child before your marriage legally registered. This may be happen for so many reasons, among others; either of you are not legally divorce when the child was born, you're both legally free to marry but think that the marriage is not for you; or you performed the religious marriage, but not the civil one. So the child comes first, and then the marriage thereafter. By law, the child has only relationship with the mother and her family. You need some extra efforts to establish the connection between the child and its father. The laws in Indonesia has set-out the way forward and it's up to you if you're willing to go the extra mile. Other people have done it, and now it's time for you to do it.

We have Article 43 (1) of Marriage Law certifying that the child has the legal relationship between both the mother, and the father as well as their families. Nevertheless, such claim must be supported with scientific evidence, and other related evidence to prove their blood connection, including civil law relationship with the family of its father. The revised version of this Article has been amended by the Constitutional Court with the verdict number 46/PUU-VIII/2010 on February 17, 2012. In another words, you need to retrieve a DNA test. The results must be 99.9999% that you are not excluded as the father of the child. Take a test of you and the child. They will take your saliva with a tiny cotton bud. It will take less than 30 (thirty) minutes, and then you can call it a day. They will let you know within approximately three (3) weeks. Nervous? You tell me. 

The idea behind the verdict was not only because the marriage between the biological mother and the man that gets her pregnant, but also because the blood connection between the child and the alleged father. Apart from the marriage between the two of them, the child must be legally protected. Therefore, the birth of your child must be reported to the civil registry office within 60 (sixty) days. The strict time-frame is imposed according to Article 27 of Law number 24 of 2013 regarding Administration of Population Law. You will see only the name of the child and its mother, but it is a starting point to initiate the process. The civil registry is to register the birth of your child. They don’t have any authority to prove the relationship between you and your child. You will have to do it in the court of law. Your Indonesian attorney knows technicality like this. Get one with experience in this field. You'll get hicough-free processing case. 

Before you sign that paternity affidavit, you have to make sure that you have the consent from the biological mother. Otherwise, the process will turn sour and your application might be end-up in limbo. The consent from the mother is a statutory requirement in Indonesia. You need to secure that before the application lodged to the court. This proceeding requires both of you to work together for the best interests of the child. I am not saying that you should light the flame between the two of you again. Although this thing does not require you to get marry to each other, but at least you must be able to sit down together and talk without pointing fingers. Think you can do it? If you do, click here give me a call or drop me an email to get our legal review about your case. 

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

Child legalization in Indonesia is a very important issues. This is the proceeding to legalize the child born outside of a legal marriage. He/she has legal relationship with the mother and her family only. In order to obtain a custody privilege, the alleged father must conduct child legalization. No legal relationship will be established between the father and the child without the consent from the biological mother.

Under the laws in Indonesia, the relationship between the child and the father is not recognized when it comes to the inheritance matters. At least, if you compare it with the legitimate child. The thing is, inheritance is some arrangements that will only be done when you're gone. You don't know whether your assets are being distributed according to your wishes and whether the child entitled to them or not. This is why the legalization of child born out of wedlock in Indonesia really matters, especially if you're from a Non Moslem family. At Wijaya & Co, we always pay attention to details of our client’s case.

As you probably aware, the inheritance issues are referred to the person's religion affiliation. We have Compilation of Islamic Law for Moslem families, and Civil Code. Since the issues of child born out of wedlock is very familiar with the civil law, there the law defines the child into three (3) categories as follows:

  1. A legitimate child, is the child born in the legal marriage of a man and a woman;
  2. A child born out of wedlock, but acknowledged by his father and/or his mother. The legal relationship is being established between the three (3) of them. They are now a family recognized by law, but it does not take effect to their extended families. The acknowledgement only applicable to the three of them. The law will consider the child as a legitimate one when the two of them are married to each other. 
  3. A child born out of wedlock. No acknowledgement made by the father as well as by the biological mother. Legally, he is an orphan. Poor child. No inheritance law applicable to him.

Civil Code has a very distinctive ruling on inheritance for child born out of wedlock in Indonesia. The law refer the child born out of wedlock as a "natural child." It is comprehensive and detailed. It avoids conflict between the heirs. In the event that the deceased has left legally acknowledged natural children, the inheritance shall be implemented as the following manners: According to the Article 863 and Article 865.

Article 863 stipulated that in the event the deceased has left any legal descendants or a spouse, the natural children is inherit one third of the share, which they would be entitled to if they were legal; they is inherit one half of the estate, if the deceased does not have any descendants, or spouse, but has blood relatives in the ascending line, or brothers and sisters or their descendants; and three quarters if the only remaining family is related in a more distant degree. If the legal heirs of the deceased are related in unequal degrees, the closest relative in one line is stipulate the amount of the share to which the natural child shall be entitled, even with respect to those who are in the other line.

The child born out of wedlock may inherit all the assets in the event his father (the deceased) passed-away without any other legal heir. Article 865 imposed that if the deceased has not left any legal heirs, then the natural children shall be entitled to the entire inheritance. 

The above stipulation is not applicable for the child born due to incest, and adultery. The aforementioned stipulations in Article 863 and Article 865 are not applicable to children conceived through adultery or incest. This imposed by the Article 867 of the Civil Code. 

As I said, the legalization of the child born out of wedlock is really matter. In fact, it's a big deal. It protects your child from the claims that may be made by other family members. Without the legalization, he only deserve 1/3 of the portion of the legitimate child. You need to do something to protect your flesh and blood. We both know that as parents we want the best for our children, and in this case, the legalization of the child born out of wedlock does really matters. Please contact me should you wish to discuss any further about this.

 

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

Thursday, 21 March 2019 09:07

Child Custody in a Divorce Case in Indonesia

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!

Child born out of wedlock in Indonesia may include its biological father on its birth certificate. The only way to do this is by getting the father acknowledge the child. They must support the claim with a DNA test, and backed by at least two witnesses. Furthermore, the legalization of a child must be court-approved. Otherwise, the civil law relationship between the father and his child will not be established. It is very important because this is where it all begins. 

The civil law relationship between the father and his child begins with a birth certificate. When you see his name on his child’s birth certificate, you will see they have something between them. This the truth lies in the amended Article 43 (1) of the Marriage Law. The legal protection given by the Constitutional Court with its breakthrough verdict. They are giving the child an identity printed on its birth certificate with full names of mom and dad. This is the real truth. You get the legal protection for the child in the form of a birth certificate. Nothing less, nothing more. Therefore, you need to do something about it for the sake of your child's future. 

Originally, the Article 43 (1) was not allow you to include the father’s name on the child’s birth certificate. It only recognize the relationship between the child and its biological mother. Some thinks that it’s not fair. Some thinks that it’s legally bastardizing the child. Other thinks we need to allow them to use both parents’ name on the child’s birth certificate, even though the marriage of the parents is still illegitimate. So, the amendment of this article is also about giving the child what they deserve and not to punish them for something what their parents did. The Civil Code furthermore imposed that as long as the child was acknowledged by the father and the mother, he/she may inherit from the parents. But the child may only have legal relationship with the person that acknowledge it. No further relationship with the rest of the family. In general, if a parent have legitimate children, a wife or a husband, the out of wedlock child entitles to only 1/3 of the legitimate child's share. 

As for Moslem couples, you need to dig this a little deeper as the amended Article 43 (1) will not create other consequences such as inheritance, and nasab relationship, as they thought they will have those two in the area of civil law. In Islamic Laws, if you’re conceiving a child outside of religious marriage, even though the father acknowledge it, the nasab relationship will not be established, even the father voluntarily acknowledge his child. Nasab relationship is parental relationship between the father and his child, created only through legitimate marriage betwen the father and the child's mother. Without it, there won’t be a nasab even the father acknowledges his child. This one of the inconvenient truths retrieved from the child legalization proceeding under the amended Article 43 (1) of the Marriage Certificate. 

If you're a Moslem, and you have an out of wedlock child, you need to refer further to the Islamic Compilation Law. This special civil law for Moslem couples governing activities like marriages, divorces, inheritances, and other issues related to family law. As for Non-moslem couples, you need to refer further to the Civil Code. According to those laws, both the Islamic Compilation Law, and the Civil Code, they imposed that child born out of wedlock can't inherit from the father, even though he acknowledges his child. This is a further legal consequences of child legalization as amended by the Article 43 (1). It seems to me, the amendment by the Constitutional Court was only to provide the child with a birth certificate with full parents' name. The ruling stops there. It does not solve any further complication regarding the issues related to the status of being an out of wedlock child. As parents of child born out of wedlock, you must not allow this to happen to you child. You need to do something. I would suggest you draw-up a last will and testament. This is the only possible solution to protect your child from the legal limbo regarding this issue in Indonesia

 

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

Thursday, 17 January 2019 05:38

How to Retrieve a Child Custody Certificate?

Certificate of child custody in Indonesia certifies that you are the legal holder of a custody of a child, and therefore allows you to represent him/her inside and outside the court of law. Yup, inside and outside the court room. This term has a very broad meaning. Basically, as the holder, you are the legal representative of the child for his/her best interests. You may be considered as a guardian of the child. In order to secure the certificate for the child custody some terms and conditions applied under this situation.

The child is his/her parents’ responsibility until they reach legal age. In the event the marriage has been dissolved, Indonesia recognized custody-holder parent, and non-custody parent. In best practice, joint custody is also recognized and it must be set-out with a divorce settlement entered by both parents. The court loves this. They encourage you, the parents, to discuss the well-being of your child, even though you’re divorced.

The court acknowledged the settlement reached during in-court mediation. The divorce verdict shall include the custody and parenting plan. According to Article 41 of 1974 Marriage Law stipulates that in the event the marriage dissolved by divorce, the parents have the obligation to nurture and educate the children to the best interests of their children. If there’s a dispute in regards to the custody, the court may decide the case. Remember the keyword: "best interests of the child." This should not be translated as a situation that you are the bread-winner in the family. That may help you doing your parental works to support the child financially but it may not win the custody. You may ruin your ex-spouse credibility by submitting evidence that she/he is committing sexual misbehaviour. Although, that thing may be bring the judges' attention and creates such a court-room drama, but it won't likely to win you the case. 

In pursuing a custody of your child, I suggest you need to make sure you pay attention to your child's legal rights. Law number 23 of 2002 regarding Child Protection imposed the child's basic rights as follows:

  1. Every child has the right to acquire medical services and social security according to their physical, mental, spiritual, and social needs;
  2. When the child in the custody of his parents, guardian or any other party responsible for his/her custody, the child has the right protection from discrimination treatment, exploitation, either economically or sexually, abandonment, cruelty, violence, and torture, injustice, and other mistreatment. In the event the parents, guardian or care-giver committed any form of the above-mentioned treatment, the perpetrators must be imposed weighted-sentence.
  3. Every child has the right to be raised by his/her own parents, except if there is a reason and/or valid legal regulation that the separation is being done for the sake of child's best interests and shall be made as the last resort. In the event one parent has been decided by the court as the holder of child custody, she or he is not allowed to forbid his/her ex-spouse to meet the child. The custody holder parent must give the other parent a reasonable access of visitation. 

The same legal reasoning also applicable to certificate of child custody for the child born out of wedlock. This one is specifically made for creating physical evidence of legal relationship between the mother and the child. One thing that must exist in this case: the child was born outside of illegitimate relationship. There's no legal marriage between the child's mother and the man who got her pregnant. Therefore, you need to conduct a DNA test. The consent from the biological mother must first be obtained before the proceedings is being initiated. Whatever you do, be nice. This is totally her statutory rights. You can't do it without her OK. 

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

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.

****

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.

Guardianship of a child in Indonesia is a challenging issues. Not only this is the most important part in family and matrimonial law practice, such as adoption cases, divorce cases, and custody disputes. It also plays substantial role in general civil law, such as how a judge determine a child's guardian in representing him/her in all of her legal affairs. Article 47 of 1974 Marriage Law stipulated that children under 18 years old or have never been married, are under their parent’s authority. The parent represent them in and outside of the court room. The parental authority may be revoked by the court or may also be removed voluntarily and assigned to other individual. Parental authority is the term set-out in the laws in Indonesia. It also known as Child Custody. Different terms but discussing the same thing in common. The terms have a very broad meaning: representing the child inside or outside of the court room. This include the whole legal matters involving the child's life. 

When parent is no longer in the position to perform his/her job, other people, preferably family members may replace them as a guardian of the child. The guardianship of the child may voluntarily appointed by the parent. The person may accept it or he/she may refuse it. Being a parent indeed is not an easy job. So, you're excused if you think you won't be able to do it properly. Child Protection Law of 2002 stipulates that in the event of a parent is absent, or unknown, or for some reasons unable to perform his/her duty and responsibility, the job is transferable to other family member. A guardian may be appointed to do the job. They must be same blood family up to three degrees upline, such as grand father, grand mother. They can also be three level down line.

The laws further imposed how a guardian must meet criterias. He/she must at least 18 years of age, physically and emotionally healthy, fair, honest and having a good behavior. Other family members must also be supply their opinions about how he/she may be able to perform his/her duty as the child’s guardian. They also have the responsibility to choose the right guardian because everybody knows everybody. This is the beauty of family emotional bonding.

At Wijaya & Co, we handled cases like this: transferring the children guardianship from their parents to their grand mother. Both of them are busy with their works and the grand mother lives in a different country. The guardianship order serves as an immigration clearance as well that allow the grand mother to have parental rights in regards to the furnishing of immigration paperworks. She represents the children and have the legal power to decide on the parent’s behalf, as if having someone to trust to take care of your children, legally.

I am Asep Wijaya. Thank you for reading my posts.

****

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.

Monday, 05 March 2018 10:33

Child Born Out of Wedlock in Indonesia

Child born out of wedlock in Indonesia has legal relationship with its biological mother and her family only. This principle is reflected on the child's birth certificate. It means the birth certificate of a child born out of legal wedlock cannot include the name of its father. That was ancient regulation before we have a breakthrough from the Constitutional Court. Nowadays, children born out of wedlock has legal relationship with the acclaimed biological father. The claims must be supported with the scientific evidence such as DNA test, among others.

Article 43 (1) of 1974 Marriage Law has been recently amended to include the biological father as parent of the child born out of wedlock. This ruling was meant to protect the child’s basic right. Just because we recognize the legal relationship between the father and his child born out of wedlock, it doesn’t mean to attack the legal marriage and its legitimate children. The relationship does not automatically entitles the child to the legal rights as if it was born into the legal marriage. Nevertheless, it may be the basis to create "the bridge" between the acclaimed father and the child in regard to the child's rights in claiming child supports, education, inheritance, etc. Well, at least you need to start somewhere, right? 

The legal proceedings under the amended Article 43 (1) of the Marriage Law is very useful for the children born outside of the legal marriage. This is because they can have a birth certificate with complete names of the parents. Both names of the father and mother printed on its birth certificate. This is a milestone to a new world of opportunities for them. This is similar to child legalization proceeding. Without the proceeding, the child may entitle to a birth certificate with mother’s name only. They said our legal system legally bastardizing them. They won't be, as long as you as the father would like to recognize them. It's your flesh and blood anyway. So, give them what they need: the birth certificate with the full names of the parents.

The best thing about this, it does not have to come with the marriage of the parents. Do I mention something about tying the know at some point? No. It's up to you! Sometimes, messy things between the two of you doesn't have to make your "champ" suffers. All you need is to talk to each other, sit down in the same table with your Indonesian lawyer and get the ball rolling. Well, I am not the guy who against the spiritual and emotional bonds like they do have in those married couples. What's important is the father's acknowledgment. It does really matters to your child. What a simplified legal system, huh? We make things simple. It's up to you to keep it simple, or the otherwise. All you have to do is to supply the evidence. This is the most convenient way, considering the absence of your marriage certificate.

Well, let me completely be honest with you. I understand that you may not be able to supply the marriage certificate due to various reasons. You did perform the marriage, but it may not performed properly according to the marriage regulation. It's called unregistered marriage. In Indonesia, some called it "Nikah Siri." Or, you never get marry before and the child conceived out of the adulterous relationship. A marriage is one thing, and a child is another thing. I am not going to cast a stone at you. You don't have to do it if the marriage is not a scenario. So, you can do this proceeding under the Article 43 (1) of the Marriage Law without getting marry first.

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

****

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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