Analysis of Regulations on the Birth of Children of Indonesian Descent Outside of Marriage Occurring Outside Indonesian Territory
Image Source : https://www.freepik.com/free-vector/wedding-concept-illustration_7171680.htm#query=marriage&position=29&from_view=search&track=sph&uuid=80302d1d-1c38-4c2d-9c47-fba7fafd3183 From: A.M Oktarina Counsellors at Law Contributors: Pramudya Yudhatama, S.H., Khaifa Muna Noer Uh’Dina, S.H., Raysha Alfira, S.H. Reviewer: Noverizky Tri Putra Pasaribu, S.H., L.L.M (Adv). Ricki Rachmad Aulia Nasution, S.H. A. Background Marriage is an important and sacred event for all citizens. This is because through marriage, an individual will cause a relationship bound by rights and obligations to the marriage. Of course, as the purpose of marriage, it will produce descendants. Today, however, there are several status classifications of these “descendants”, or in general they can be referred to as children. For the status of children themselves, there is a classification, namely legitimate children born from marriages that are religiously recognized and legally valid, and children born outside marriage religiously and legally. Seeing the increasingly dynamic development, of course this in practice can happen to an Indonesian Citizen (“WNI”) and Foreign Citizen (“WNA”), who can become a child born out of wedlock and born outside the territory of Indonesia. On this matter, the next question becomes, what is the legal certainty and citizenship for the child? B. Legal Basis 1. Law Number 1 of 1974 concerning Marriage j.o Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 concerning Marriage. (“Law No.16/2019”) 2. Law Number 35 of 2014 concerning Amendments to Law Number 23 of 2002 concerning Child Protection jo. Law Number 1 of 2023 concerning the Criminal Code. (“Law No. 35/2014”) 3. Law Number 12 of 2006 concerning Indonesian Citizenship. (“Law No. 12/2006”) 4. Law Number 23 of 2006 concerning Population Administration jo. Law Number 24 of 2013 concerning Amendments to Law Number 23 of 2006 concerning Population Administration. (“Law No.23/2006”) 5. Government Regulation Number 40 of 2023 concerning the Fourth Amendment to Government Regulation Number 31 of 2013 concerning Implementing Regulations of Law Number 6 of 2011 concerning Immigration. (“Government Regulation No.40/2023”). 6. Decision of the Constitutional Court of the Republic of Indonesia Number 46/PUU-VIII/2010 (“Constitutional Court Decision No.46/2010”). In principle, the birth of a child in a marriage is an inseparable part of human survival to continue the descendants produced by legal or unmarried couples. We can see by definition in Article 42 and Article 43 paragraph (1) of Law No.1/1974 explains that: Article 42 of Law No.1/1974: “A legitimate child is a child born in or as a result of a legal marriage.” Article 43 paragraph (1) of Law No.1/1974 jo Constitutional Court Decision No.46/2010: “A child born out of wedlock has a civil relationship with his mother and his mother’s family and with a man as his father which can be proven based on science and technology and/or other evidence according to law to have a blood relationship, including a civil relationship with his father’s family” Based on the two provisions above, it should be noted, that the civil relationship of children outside marriage, only to their mothers. But what if we look at the context from the citizenship side? Furthermore, before looking at the citizenship aspect, it is necessary to know that for children’s rights first, we can refer to the provisions of Article 1 paragraph 12 of Law No. 35/2014, which states that: “Children’s rights are part of human rights that must be guaranteed, protected, and fulfilled by parents, families, communities, states, governments, and local governments.”. Every child as an individual has human rights that must be guaranteed and recognized, so that with the differences in the status of children previously described, there will be no distinction between the rights of a child. Basically, children born outside the legal marriage of WNI and WNA couples, then the child is an WNI because there are provisions in citizenship regulations. This has been strengthened by the provisions in Article 4 letter h, and Article 5 paragraph (1) of Law No.12/2006 which states: Article 4 letter h of Law No.12/2006: “A child born out of legal wedlock to a Foreign Citizen mother who is recognized by an Indonesian father as his child and the recognition is made before the child turns 18 (eighteen) years old or unmarried;” Article 5 paragraph (1) of Law No.12/2006 “Children of Indonesian citizens born outside of legal marriage, not yet 18 (eighteen) years old and unmarried legally recognized by their foreign fathers are still recognized as Indonesian citizens.” Looking at the provisions above, it can be seen that children born outside marriage between WNI and WNA, either by lineage through father, or mother are still recognized as WNI. After knowing his citizenship status, the next step is administrative registration related to the child’s documents. That every child born outside the territory of Indonesia must be registered by the Indonesian representative and reported to the local civil registry agency. Even though the child was born outside the territory of Indonesia, the child born still receives the same registration treatment in administrative matters, as explained in Article 29 of Law No.23/2006 which reads: (1) “The birth of an Indonesian citizen outside the territory of the Republic of Indonesia must be recorded at the competent agency in the local country and reported to the Representative of the Republic of Indonesia. (2) If the local country as referred to in paragraph (1) does not provide birth registration for foreigners, the registration shall be carried out at the local Representative of the Republic of Indonesia. (3) The Representative of the Republic of Indonesia as referred to in paragraph (2) records the event of birth in the Birth Certificate Register and issues a Birth Certificate Citation. (4) Birth Registration as referred to in paragraph (1) and paragraph (2) shall be reported to the Implementing Agency no later than 30 (thirty) days after the Indonesian citizen concerned returns to Indonesia” As required by regulations, later after the child turns 18 (eighteen) years old, the child must choose his nationality. This is in accordance with Article 6 paragraph 1 of Law No. 12/2006. This must be done considering that Indonesia does not recognize the concept of dual citizenship in
