MARRIAGE IN INDONESIA

MARRIAGE IN INDONESIA

The basic requirement to marry in Indonesian is contained in article 2(1) of the law, which states that a marriage is valid if carried out in according to the respective religions and beliefs [of those getting married]. In practice, this means that a marriage is carried out according to one religion, e.g., Islam, Christianity. Under the 2019 amendment to the law, you must be 19 to marry and, if under 21 must have the permission of both parents. Exceptions to this can be granted.

Article 2(2) then provides that a marriage must be registered. The constitutional court has clarified this matter, in that a marriage is valid as soon as it meets the religious requirements, and the article 2(2) is merely an administrative requirement.

UNREGISTERED MARRIAGES AND ‘NIKAH SIRIH’

There is a common phrase ‘nikah siri’ in Indonesia, which can refer to anything between a temporary liaison with a prostitute, to a couple who live together as man and wife, but have not done any kind of wedding, or it can also refer to a marriage which has been done according to religion but has not been registered.

Those who have a religious wedding but have not fulfilled their administrative obligations, are likely to find that this is inconvenient and expensive in the future, and in the case of divorce, etc. without having correct paperwork will need to spend money on lawyers etc. to prove their marriage in a court.

MARRIAGE UNDER MUSLIM LAW

The religious and administrative steps of a Muslim wedding are well-integrated in Indonesian law. Accordingly, a proposed marriage should be notified (‘kehendak nikah’) to the registrar at the Religious Affairs Office (KUA) 10 working days or more before hand (permission to reduce this can be obtained, but expect more trouble in this case).

The requirements to kehendak nikah are:

• birth certificate, or statement of age in lieu by the ‘kepala desa’ or ‘lura’, of both parties
• information about name, address, religion, job
• written permission if aged under 21
• court permission for a polygamous marriage
• death certificate or divorce certificate if previously married
• written permission if a member of the armed forces
• ‘surat kuasa’ (power of attorney’) with materai stamp, for both parties, if they do not attend in person
• for a foreigner, they must have permission from their embassy, OR permission from their foreign country which has further been legalized at the embassy
• parents’ data, for foreigners
• for foreigners all documents must be translated into Indonesian by an official translator

A notice of the intended marriage is made, and the marriage is performed according to religion before the Registrar with two witnesses, and the marriage certificate is signed.

Marriage is free (59/2018), however if the marriage is done out of the KUA, there is a 600,000rp fee that is charged.

MARRIAGE OTHER THAN UNDER MUSLIM LAW

The law states that a marriage between can be recorded (Article 37, presidential regulation) if:

• there is a document from the religion stating that the marriage has been performed
• photographs of the couple, typically required to be 4×6, side-by-side
• for a foreign ITAS holder, they must provide an SKTT
• for an ITAP holder, or an Indonesian citizen, KK & KTP
• passport & stay permit (i.e. visa stamp, ITAS or ITAP) for foreigners
• death or divorce certificate for those previously married
• they have permission from their country or from their embassy/consulate, for foreigners

Note that the process is significantly different for Muslims from non-Muslims, in that the case of Muslims the process of proposing the impending marriage forms a part of the legal process, whereas for non-Muslims, the state is merely recording the marriage which has already been performed. The wedding should be reported within 60 days (article 34 population law).

The religion can charge its fees for the wedding, but charging fees for any document at the civil registry office is strictly illegal and a criminal offence under law 24/2013. However, ‘administrative penalties’ for late reports, late registrations, etc, are not ‘fees’, and in some areas are still charged.

The implementation of civil registry law is unfortunately not only the subject of national law, but also local (kabupaten/kota) regulations, so the requirements can vary slightly from area to area (and, specifically any ‘late penalties’ are set at a local law level), so ignore any blanket statements about the requirements to register a marriage. One common requirement is a ‘surat keterangan belum pernah kawin’ (i.e. a statement that they have never married) from the kepala desa or lurah, as appropriate. This is the equivalent of the ‘permission to marry’ from the foreign embassy, for an Indonesian. Some disdukcapil will refuse to register a marriage before 10 days (or 10 working days!) after it was recorded, which is based on the legal framework in the marriage law of ‘applying to marry’ then marrying, even though in practice this framework does not exist for non-Muslims, as it is merely the recording of a religious marriage in the civil registry office. Others may ask for a ‘police report certificate’ for foreigners, even though since the 2011 immigration law foreigners are no longer required to register with the police. Unfortunately you will have to comply with whatever is published by the local disdukcapil to register your marriage, and do ignore the experiences of people who have registered their marriage in other kabupaten/kota, because they can be completely different!

MARRIAGE BETWEEN TWO PEOPLE OF DIFFERENT RELIGIONS

It is allowed to perform a marriage between two different religions by article 50 of the home affairs regulation. This requires a court determination (‘penetapan perkawinan’) to be obtained, which is straightforward but does add cost.

CERTIFICATE OF NO IMPEDIMENT

As mentioned above, a common requirement for Indonesians to record a marriage is a letter from the village stating they have never married. The usual English equivalent for this phrase is ‘Certificate of No Impediment’. In practical terms, this document is ludicrous, in that there is no way to prove a foreigner has never married anywhere. Even in Indonesia, while a village head may have known a local citizen since birth, that is not always the case.

Many embassies now refuse to issue this ridiculous piece of paper, and may issue a generic document instead stating that they do not perform such ridiculous exercises. Understand that Indonesian does NOT mandate a ‘CNI’ for foreign weddings, merely ‘permission’. Therefore, a letter stating that the embassy permits a marriage should fulfil this requirement, even though the embassy has not gone through the process of a check of their marriage rolls — you do need something from your embassy, even if that something is a letter saying ‘sorry, no CNI’.

REGISTERING AN OVERSEAS MARRIAGE

In general a marriage performed overseas is legal in Indonesia. It is possible to perform a marriage overseas according to Islamic law in Indonesia, but it will usually be preferable to simply obtain a marriage certificate and then register it civilly with Indonesia.

As a matter of principle Indonesians who perform actions such as divorce or marriage overseas are required to report them to the Indonesian embassy or consulate attaching the passports of both parties and the marriage certificate, and then upon their return to Indonesia again to the civil registry office. As part of the process of reporting to the Indonesian embassy or consulate, the civil registry office may receive direct notice.

The requirements to report the marriage in Indonesia, which is supposed to be done within 30 days after returning to Indonesia (article 37, population law) (again, penalties for failure to do this in time are no longer valid) are:

the original foreign wedding certificate

the report to the foreign Indonesian embassy/consulate

They are likely to ask for more items than that, e.g., passport, KTP, KK, etc. but those are the legal minimums. Refer to your local disdukcapil website for details.

PRE-NUPS/POST-NUPS

You may see references to ‘pre-nups’. A pre-nup is normally something you would associate with a rich person protecting their assets from their spouse in the case of divorce. In Indonesia,the pre-nup is a formal document which separates the assets of the spouses which otherwise become shared assets (for assets acquired since marriage, not before, and excluding gifts/inheritance). This is nothing to do with protecting you in divorce, but because foreigners cannot own land except in limited cases, so if your Indonesian spouse buys land, then you will become part owner, by law, without a deed of separation of assets.

Since a 2015 constitutional court decision, the ‘pre-nup’ is no longer required before marriage. A couple can make a notarised akte perpisahan harta (deed of separation of assets) at any time before or after marriage. The action which would make this necessary would be buying land, or possibly setting up a business (which is regulated by foreign investment laws). Formally you have one year to do this before the land rights can be revoked on the basis of ‘part foreign ownership’. However, since the separation agreement can legally be made any time after marriage, and in practical terms cancellation of land rights on the basis of part foreign ownership is very unlikely, most couples will not bother.

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