scholarly journals LEGAL RELATIONSHIP BETWEEN ILLEGITIMATE CHILDREN AND THEIR BIOLOGICAL FATHER: The Analysis of Constitutional Court Decree No. 46/PUU-VIII/2010 in the Perspective of Civil and Islamic Law

2016 ◽  
Vol 10 (2) ◽  
pp. 335 ◽  
Author(s):  
Marilang Marilang
Keyword(s):  
Islamic Law ◽  
Constitutional Court ◽  
Biological Father ◽  
Legal Relationship ◽  
Illegitimate Children

scholarly journals RECOGNITION OF ILLEGITIMATE CHILDREN IN VARIOUS LAWS IN INDONESIA

2017 ◽  
Vol 2 (1) ◽  
pp. 85
Author(s):  
Yunanto Yunanto
Keyword(s):  
Islamic Law ◽  
Civil Code ◽  
Constitutional Court ◽  
Legal Action ◽  
Marriage Law ◽  
Biological Father ◽  
Illegitimate Children ◽  
Biological Fathers ◽  
The Relationship

In any regulations in Indonesia, there are differences in the inherent status and rights between legitimate and illegitimate children. Consequently, it surely affects the relationship between the children and their parents. Illegitimate children only have the civil relationship with their mothers. In order that the illegitimate children have a certain relationship with their biological fathers, it requires a legal action in the form of the recognition of biological father. However, there are legal ambiguities in the regulations that govern the institution of the recognition of children as stated in the Indonesian Civil Code, Law No. 23 of 2006 in conjunction with Law No. 24 of 2013, and the Decisions of the Constitutional Court No. 46/ PUU-VIII/ 2010 as a corrective provision to the Marriage Law (UUP), and the Islamic Law Compilation (KHI). The legal effects are: the discrimination derived from legal injustice and certainty in the implementation of the child recognition.

scholarly journals The Right of a Child Outside the Legal Marriage of a Biological Father: The Analysis of Ḥifẓ Al-Nafs as Law `Illat

2021 ◽  
Vol 5 (1) ◽  
pp. 153
Author(s):  
Ali Abubakar ◽  
Juliana Juliana ◽  
Maisyarah Rahmi Hasan
Keyword(s):  
Civil Rights ◽  
Islamic Law ◽  
Court Decision ◽  
Constitutional Court ◽  
Biological Father ◽  
Islamic Jurisprudence ◽  
The Right ◽  
Biological Fathers ◽  
Legal Marriage ◽  
Protection Of Life

This article aims to analyze the protection of life (ḥifẓ al-nafs) as the law reason (`illat) of the rights of children outside of legal marriage (ALPS) of biological fathers. Ḥifẓ al-nafs is assumed to be `illat emerging from many neglected ALPS phenomena and resulting in negative stigma and discrimination. This research is a study of Islamic law using the theory of `illat in analyzing the problem of children's rights outside of legal marriage. The research concludes that the presence of the 2010 Constitutional Court decision regarding the civil rights of ALPS with biological fathers reveals new spaces in seeing the nature of ALPS rights. This is different from the fatwa of the Indonesian Ulema Council and classical fiqh (Islamic jurisprudence) arguments, which tend to only link the child to the mother. Based on the Constitutional Court decision, the essence of ALPS rights from biological fathers is limited to civil rights. The responsibility of the biological father to ALPS is in the form of physical and mental support, while denying other rights such as guardianship of marriage; ALPS rights today have been largely abandoned. Thus, the protection/care is necessary. `Illat (the reason of law) in ḥifẓ al-nafs (protection of the life) is real and can be juxtaposed with `illat ḥifẓ al-nasl (protection of heredity). Ḥifẓ al-nasl does not completely fulfill the real requirements of an `illat which can abolish the abandonment of ALPS.

scholarly journals Nasab Anak Luar Kawin Pasca Putusan Mahkamah Konstitusi Nomor 46/PUU-VIII/2010

2016 ◽  
Vol 12 (1) ◽  
pp. 57
Author(s):  
Achmad Irwan Hamzani
Keyword(s):  
Islamic Law ◽  
Court Decision ◽  
Constitutional Court ◽  
Islamic Religion ◽  
The Status ◽  
Illegitimate Children

Constitutional Court Decision No. 46/PUU-VIII/2010 granted the petition Machica Mochtar, who is married with Moerdiono the Islamic religion in accordance, but not recorded. If the marriage was born a boy named Mohammed Iqbal Ramadan. After the decision of the Court, the status of illegitimate children has a civil relationship with his father and his father’s family. Child outside  marriage  include  children born of the marriage legitimate religion, but not recorded, and the children born from adultery. According to Islamic law, the Constitutional Court’s decision is appropriate when applied to the child of a valid marriage according to religious but not registered. Meanwhile, when applied to children outside marriage, adultery result, the Court’s decision is contrary to Islamic law.

scholarly journals STATUS HUKUM ANAK LUAR KAWIN PASCA PUTUSAN MAHKAMAH KONSTITUSI NOMOR 46/PUU-VIII/2010

2017 ◽  
Author(s):  
Ida Martinelli
Keyword(s):  
Science And Technology ◽  
Legal Protection ◽  
Constitutional Court ◽  
Biological Father ◽  
Legal Relationship ◽  
Civil Status ◽  
The Law

Decision of Constitutional Court gives the child outside the civil status married to the biological father, the purpose of which provide legal protection to children outside of mating, so that the child’s rights as a whole can be obtained. The legal relationship between the child outside of mating with her biological father must be proven with science and technology and/or other evidence according to the law have blood relations.

scholarly journals THE BIOLOGICAL FATHERS HAVE CIVIL RIGHTS WITH EVIDENCE AND CONVICTION OF THEIR CHILDREN

2020 ◽  
Vol 18 (2) ◽  
pp. 127
Author(s):  
Anwar Hafidzi ◽  
Nadiyah Khalid ◽  
Rina Septiani
Keyword(s):  
Civil Rights ◽  
Islamic Law ◽  
Court Decision ◽  
Constitutional Court ◽  
Dna Testing ◽  
Biological Father ◽  
Comparative Aspect ◽  
Biological Children ◽  
Biological Fathers ◽  
Correct Data

This paper aims to prove that Biological Children can provide Civil Relations with their fathers if they have an apparent legal force. This study differs from other researchers in the comparative aspect of normative Law and Islamic Law. This difference lies in the Constitutional Court decision results, which states that children produced outside of marriage have a civil relationship with the mother and family of their mother, father, and family of their biological father, which can be proven by DNA testing between them. Meanwhile, according to Islamic Law, children outside of marriage (Zina) only have a civil relationship or blood relationship with the mother and the mother's family. The method used in this research is a literature review with a normative approach to the Constitutional Court decision and the Scholar's opinion on children outside of marriage (Siri). This research found that children can biologically provide civil relations with their parents if done in marriage and proven by clear legalities such as witnesses and marriage documents. The presence of a decision of the Constitutional Court is a legal assurance or defense of the human rights of a citizen, whether they have the correct data and facts to their civil relations.

scholarly journals ANALISIS MAQÂṢID ASY-SYARÎ’AH TERHADAP PUTUSAN MK NOMOR 46/PUU-VIII/2010 DAN IMPLIKASINYA TERHADAP HUKUM KELUARGA ISLAM DI INDONESIA

2017 ◽  
Vol 10 (1) ◽  
pp. 37
Author(s):  
Muhammad Ubayyu Rikza ◽  
Siti Djazimah
Keyword(s):  
Islamic Law ◽  
Constitutional Court ◽  
Biological Father ◽  
The Status ◽  
The Law

The Constitutional Court made a revolutionary decision through the decision of Constitutional Court Number 46/PUU-VIII/2010 about the status of children outside of marriage. The decision stated that childrens born outside of marriage not only had a civil relationship with their mother and mother's family but also had a civil relationship with their biological father. Its implicates that children outside of marriage have the same rights with legal children, such as  earning a living, inheritance and equality before the law. Seen from the concept of maqâṣid asy-syarî'ah, the decision does not violate the Islamic law, otherwhise it is in the line with the principles of maqâṣid asy-syarî'ah especially the principles of ḥifẓ an-nasl and ḥifẓ an-nafs.  [Mahkamah Konstitusi telah membuat putusan revolusioner dalam putusan MK Nomor 46/PUU-VIII/2010 tentang status anak di luar perkawinan. Putusan tersebut menyatakan bahwa anak yang dilahirkan di luar perkawinan mempunyai hubungan perdata dengan ibu dan keluarga ibunya dan mempunyai hubungan perdata dengan ayah biologisnya yang dibuktikan berdasarkan ilmu pengetahuan dan teknologi. Implikasinya adalah anak di luar perkawinan mendapat hak sama dengan anak sah, mendapatkan nafkah, waris dan persamaan di hadapan hukum. Dilihat dari konsep maqâṣid asy-syarî’ah, putusan tersebut tidak melanggar hukum Islam, sebaliknya, ia sejalan dengan prinsip-prinsip maqâṣid asy-syarî’ah terutama prinsip ḥifẓ an-nasl dan ḥifẓ an-nafs.]

scholarly journals Judges’ Legal Reasoning on Child Protection: Analysis of Religious Courts’ Decisions on the Case of Child Parentage

2017 ◽  
Vol 55 (1) ◽  
pp. 127-154 ◽  
Author(s):  
Muhamad Isna Wahyudi
Keyword(s):  
Child Protection ◽  
Legal Status ◽  
Islamic Law ◽  
Legal Reasoning ◽  
Legal Philosophy ◽  
Biological Father ◽  
Legal Relationship ◽  
Legal Science ◽  
Religious Courts

This paper examines four religious courts’ decisions on child legal status, especially child parentage, after Constitutional Court’s decision on the legal status of child born out of wedlock. The Constitutional Court’s decision has triggered controversy on the rights of child born out of wedlock due to lack of explanation concerning term ‘civil legal relationship with the biological father’. To study the decisions, the author uses legal philosophy approach, both in legal science and Islamic law, focused on legal reasoning used by judges in decisions on child parentage. As the result, the author finds two types of legal reasoning employed by judges of religious courts  in dealing with cases of child parentage, doctrinal-deductive legal reasoning and maṣlaḥa based legal reasoning. It argues that the employment of doctrinal-deductive legal reasoning by the judges has not benefitted children and therefore the protection of child’s rights has not been optimally made nd that the employment of maṣlaḥa based legal reasoning by the judges has led to the better protection of child’s rights.[Tulisan ini membahas empat putusan pengadilan agama terkait status hukum anak, khususnya waris anak, setelah dikeluarkannya putusan Mahkamah Konstitusi (MK) tentang status hukum anak di luar nikah. Putusan MK telah memicu kontroversi karena kesenjangan penjelasan tentang adanya hak perdata seorang anak yang lahir di luar nikah dengan ayah biologisnya. Dalam mengkaji persoalan ini, penulis menggunakan pendekatan filsafat hukum, baik secara ilmiah atau hukum Islam, yang fokus pada argumentasi hukum para hakim dalam kasus hak waris anak. Penulis setidaknya menemukan dua tipe argumentasi yang digunakan para hakim dalam kasus tersebut, yaitu: alasan hukum legal deduktif-doktrinal dan alasan hukum berbasis maṣlaḥah. Tipe yang pertama cenderung melemahkan perlindungan hak anak, sedangkan tipe kedua justru akan menguatkan hak anak.]

scholarly journals Outer Children Marriages Status After Constitutional Court Decision No: 46/PUU-VII/2010

Rechtsidee ◽  
2016 ◽  
Vol 1 (1) ◽  
pp. 119 ◽  
Author(s):  
Sri Budi Purwaningsih
Keyword(s):  
Civil Rights ◽  
Science And Technology ◽  
Legal Protection ◽  
Court Decision ◽  
Constitutional Court ◽  
Legal Relationship ◽  
Starting Point ◽  
Illegitimate Children ◽  
The Republic ◽  
The Right

The decision of the Constitutional Court of the Republic of Indonesia No.46/PUU-VIII / 2010 dated 17 February 2012, granted the judicial review of Article 43 (1) of Law No. 1 of 1974 on Marriage by deciding that the article should read "Children who are born outside of marriage just had a civil relationship with her mother and her mother's family as well as with men as a father who can be proved based on science and technology and / or evidence, has blood ties according to law, including a civil relationship with his father's family". This Indonesian Constitutional Court's decision bring Juridical consequence that illegitimate children not only have a legal relationship with her mother, but also has a legal relationship with the father (biological) and his father's family, as long as it is proven with science and technology. The Constitutional Court's decision is a starting point in the legal protection of illegitimate children, namely the "right alignment" between the illegitimate child with the legitimate son. Illegitimate children have the rights to demand their civil rights toward their father (biological) as the same rights obtained by the legitimate son. How To Cite: Purwaningsih, S. (2016). Outer Children Marriages Status After Constitutional Court Decision No: 46/PUU-VII/2010. Rechtsidee, 1(1), 119-130. doi:http://dx.doi.org/10.21070/jihr.v1i1.99

scholarly journals Analisis Putusan Mahkamah Konstitusi No. 46/PUU-VIII/2010 tentang Pengujian UU No. 1 Tahun 1974 Dalam Konsep Laqith dan Wasiat Wajibah

SMART ◽  
2016 ◽  
Vol 2 (01) ◽  
pp. 95
Author(s):  
Ikhsan Fatah Yasin
Keyword(s):  
Islamic Law ◽  
Qualitative Approach ◽  
Court Decision ◽  
Constitutional Court ◽  
Biological Father

<p>Constitutional Court Decision No. 46 / PUU-VIII / 2010 raises the pro and contra in the society, the side of the pro considers the Constitutional Court decision is justice for women who are victims of fraud or wedding sirri, also to the children born from this relationship. For contra, the decision of the Constitutional Court has strayed far from Islamic law, even considered legalizing adultery. In this research, writer used a qualitative approach, writer decipher Constitutional Court Decision No. 46 / PUU-VIII / 2010 and then analyze them using concepts laqith and wasiat wajibah, laqith researchers use to justify their obligations towards their children’s biological father was borrowed and used as solutions to problems of inheritance of children outside of marriage. So, the writer concluded that based on these two concepts, the Constitutional Court Decision No. 46 / PUU-VIII / 2010 does not conflict with Islamic law.</p>

scholarly journals Fulfillment of the Principle of Justice in Making Birth Certificates for Children Born Outside of Legal Marriage Between Both Parents

2021 ◽  
Vol 8 (7) ◽  
pp. 259
Author(s):  
RR. Alysia Gita Purwasaputri ◽  
Sudarsono Sudarsono ◽  
Moh. Fadli
Keyword(s):  
Child Protection ◽  
Court Decision ◽  
Best Interests ◽  
Birth Certificates ◽  
Constitutional Court ◽  
Biological Father ◽  
Conceptual Approach ◽  
Principle Of Justice ◽  
The Status ◽  
Illegitimate Children

The problem in this study is related to the fulfillment of the principle of justice in making birth certificates intended for children born outside of marriage which is carried out legally between the two parents.  This article is normative juridical research with a statutory and conceptual approach.  The results of this legal research show that the principle of justice for illegitimate children can be fulfilled by adjusting the provisions regarding the making and issuance of birth certificates for illegitimate children based on the provisions on the status of illegitimate children in the Indonesia Constitutional Court Decision Number: 46/PUU-VIII/2010. Its cause in contrast to the provisions of the Indonesia Marriage Law regarding the distributive status of children outside of marriage, justice for children in the provisions of the status of children outside of marriage in the Indonesia Constitutional Court Decision Number: 46/PUU-VIII/2010 is more commutative. Furthermore, the provisions regarding the status of children out of wedlock in the Constitutional Court Decision Number: 46/PUU-VIII/2010 are teleologically more able to provide benefits and fulfill the purpose of establishing the rule of law and in line with the principle of child protection, namely the best interests of the child. The decision of the Indonesia Constitutional Court Number: 46/PUU-VIII/2010 can be implemented by creating a civil relationship between the child out of wedlock and the biological father and the family of the father. In addition, the Indonesia Constitutional Court Decision Number: 46/PUU-VIII/2010 also has an impact on the administrative field, namely by being able to issue birth certificates for children out of wedlock by including the name of the biological father, so that it is not limited to only including the name of the biological mother.

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