Deciphering Legalization of Child Born Out of Wedlock in Indonesia

Wijaya
Wednesday, 02 August 2023 10:41
117

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!

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.

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