Unregistered marriages (nikah siri) in Indonesia are a familiar thing, despite the ensuing controversy. The most recent polemic surrounding the issue concerns Garut Regent Aceng Fikri, who has come under fire for marrying a 17-year-old girl, identified only as FO, in an unregistered Islamic marriage ceremony on July 14, only to divorce her via text message four days later.
The case has drawn public attention, including from President Susilo Bambang Yudhoyono, who through Home Minister Gamawan Fauzi, asked for an investigation of the regent, whom he said had violated women’s rights.
The big question is why unregistered marriages persist despite their adverse impact on women.
Many cases of unregistered marriages have come to the fore, as women have not been able to claim their rights as a wives as stated in Law No. 1/1974 on marriage. Their rights include the right to housing and post-divorce rights, such as jointly held property. The loss of their marital rights will also affect children born of the unregistered marriage.
Under the law, marriage is defined as a bond between the inner (batin) and outer (lahir) of a man with a woman as husband and wife to form a family, happily and eternally.
Unlike a conventional marriage, a nikah siri is not registered with the Religious Affairs Ministry. Consequently, parties to a nikah siri do not have marriage certificates.
Aceng is not alone in his nikah siri. What has transformed the story of the regent’s unregistered marriage into a national issue is his status as a public figure and as a leader who people look up to. People assume the regent is knowledgeable about the laws in force in Indonesia, including the marriage law.
However, it turns out that election as a regent does not guarantee that one possesses knowledge of the law, which became apparent after Aceng gave several interviews on television.
Some of the regulations allegedly flouted by the regent include Law No. 1/1974 on marriage, Law No. 7/1989 as amended by Law No. 3/2006 and the second amendment of No. 50/2009 on religious courts, Government Regulation No. 9/1975 on the implementation of Law No. 1/1974, Presidential Instruction No. 1/1991 on compliance with of Islamic law, and Government Regulation No. 10/1983 as amended by Government Regulation No. 45/1990 on marriage and divorce for civil servants.
The Marriage Law and its derivative rules define a marriage as legitimate if it is conducted according to the laws of an individual religion. The 1974 law clearly stipulates that marriage registration is mandatory.
Unfortunately, the penalties imposed for violation of the article on marriage registrations are too lenient. Government Regulation No. 9/1975 says that failure to register a marriage is punishable by a Rp7,500 (78 US cents) fine, which is far from a deterrent. The popular acceptance of unregistered Islamic marriage ceremonies and the very light penalties for their non-registration may have aided the spread of nikah siri in Indonesia.
Aceng’s unregistered marriage also sparked another legal controversy as he basically practices polygamy. The regent has three children from his first wife, Nurrohimah.
Although the purpose of polygamy is to avoid prohibited acts such as adultery, Aceng failed to take practice the fiqh principle al-dlararu laa yuzaalu bi al-dlarari, which requires a state of emergency for a second marriage.
If Aceng is a widower, he must show his divorce certificate. If he is married, he has to get permission from the Religious Court to practice polygamy. Apparently, he does not have a certificate or permission.
A man must follow very tight procedures to obtain permission to seek a second wife, including obtaining approval from his first wife. In Aceng’s case, he needed the consent of his superiors, as do all civil servants or public officials, and had to prove other requirements, such as his wife’s inability to fulfill her marital obligations. Aceng would have had to present all this evidence to judges at a religious court.
The Marriage Law was made to accommodate the social realities in place in the country, including religious norms and practices. The law unifies elements of both the law and religion that have long been preserved in the country.
Therefore when Aceng allegedly breached the law when it came to an unregistered marriage and polygamy, he also violated Islamic law.
Learning from the Aceng case, it is not enough for women for a religious ceremony to be validated, as it does not guarantee their martial rights.
The case should serve to provide momentum for stakeholders to impose harsher penal sanctions for those who do not register marriages. Punishment for perpetrators of unregistered marriages should be incorporated in the law in Indonesia.
The writer is a judge at the Marabahan Religious Court in South Kalimantan and a graduate student at the University of Lambung Mangkurat law school in Banjarmasin. The opinions expressed are his own.