1

Based on the description above regarding to the issues presented, the writer are

interested in examining the implications of the Ithbat marriage’s rejection on marital and

children status associated with the judges rejection of the Ithbat marriage’s application

submitted by the applicants to the Arga Makmur Religious Court. With the title of the

discussion, namely: "The implications of Ithbat marriage on Marital and Children Status."

1. Identification of the Problems

Based on the background of the problems described above, it can be identified several

key issues in this research:

1. How marital status and child position if the judges rejected the Ithbat marriage’s

application at the Arga Makmur Religious Court?

2. What are the rights and obligations of parents towards the child if the Ithbat marriage’s

application is rejected by the Court?

A. RESEARCH METHODS

The research method is a system and a process that absolutely must be done in a

research and development of science. The research aims to reveal the truth systematically,

methodically and surely.1The research methodology in this writing is qualitative research that

describes phenomena that occur in the field, in this case relates to issues regarding the

implications of Ithbat marriage rejection on marital and child status. And the main study is the

analysis of the case of the Ithbat marriage’s application which was rejected at the Arga

Makmur Religious Court, and the research approach used in this thesis is empirical juridical of

legal research approach. Where this approach is used to study in depth related to the rejection of

Ithbat marriage’s application that was rejected by the judges and what their implications for
1
Soejono Soekanto, Sri Mamudji, Penelitian Hukum Normatif Suatu Tinjauan Singkat, Raja Grafindo
Persada, 1st Edition 14th Print , Jakarta, 2012, P.1.
 2

marital and child status against the refusal and reviewed according to Islamic law and the

legislation in force in Indonesia. Further to the data obtained, both primary and secondary data

that has been collected, it will be identified in accordance with the shape and type, then

processed by classifying the data according to type based on the main issues of the research.

Furthermore, the data will be presented in the description of a clear and simple sentences that

are easy to understand, to process and analyze using inductive and deductive methods.

B. RESULTS AND DISCUSSION

1. The Implications of Ithbat Marriage on Marital and Child Status Related to the

Rejection of Ithbat Marriage’s Application at the Arga Makmur Court.

In Islamic law marriage is one of the most widely applied by Muslims world

compared to other muamalah law.2 Marriage is mitsaqon gholidzon, or a solid bond, which is

considered valid if it has been fulfilled the requirements and pillars of marriage based on the

Al-Qur’an and hadist, the ulama conclude that things including marriage pillar are the

husband candidate, the wife candidate, guardians of marriage, two witnesses and ijab qobul.

These liabilities will be their witnesses are the opinions of the madzhab Syafi'i, Hanafi and

Hanbali.3As for the terms of marriage according to Wahbah Zuhaili are between husband and

wife there is no relationship of nasab, the unlimited of sighat ijab qobul, the existence of

witnesses, no coercion, clear candidate for a husband and wife, not being in ihram, the

existence of dowry, no agreement to hide the marriage contract, one of the brides not having

chronic illness, the presence of a guardians.4

Viewing at the above explanation there was no discussion of the requirements for a

marriage about the registration of marriages. The existence of the witness is considered to
2
Anderson, J.N.D, Hukum Islam di Dunia Modern, Tiara Wacana, Yogyakarta, 1994, P. 46
3
Mahmud Yunus, Hukum Perkawinan Dalam Islam Menurut Mazhab Syafi’I, Hanafi, Maliki dan hambali,
Hidakarya Agung, Jakarta, 1996, P. 18
4
Wahbah Zuhaili, Al-Fiqh al-Islam wa adilatuhu, Dar-al-Fikr, Beirut, 1989, P. 62
 3

have represented the validity of a marriage. Perhaps this refers to the marriage at the time of

the Prophet who were marriage was not recorded, and even in the books of classical fiqh it

was not found regarding the matter of recording a marriage. In Islamic law, also explicitly

does not provide for registration of marriages, except those related to muamalah transactions

that are recommended by the Al-Qur’an to be recorded.5

However, in Indonesia the Muslim marriage law has received assurances from the

Indonesian government, with the marriage law No. 2 of 1946 and has been declared for the

whole of Indonesian people by Law No. 35 of 1954 states: "Whoever does a marriage that is

not according to the Law can be prosecuted; even though it is legal according to Islamic

Law, because the Law regulates strict legal protection so that Islamic Law is truly enforced

". Regarding the registration of marriage even in the Law it has been regulated as explained

in Article 2 paragraph (1) and (2) of Law Number 1 of 1974 concerning Marriage that:

a. Marriage is legal if carried out according to each religion and its beliefs.

b. Each marriage is recorded in accordance with the legislation in force.6

The arrangement of a marriage registration is to make the marriage event was

becoming clear to the concerned, for other people and for society. Furthermore, the benefits

of a recorded marriage are if there is a problem in the middle of the household ark, the wife

and child can claim their rights to the husband / father.

Furthermore, the impact it had on children from the consequences of rejecting the

ithbat marriage application of his parents, which results in the illegality of the marriage of

the two parents according to state law, which has a negative impact on the status of children

born, in the eyes of children born outside of marriage or unregistered marriages, besides

5
Surah Al Baqaroh (2) :282
6
Himpunan Peraturan Perundang-undangan Dalam Lingkungan Peradilan Agama, Article 2 Paragraph (1)
dan (2) Law Number. 1 of 1974 about marriage. Mahkamah Agung RI. P. 100-101
 4

being considered illegitimate children, also only have a civil relationship with the mother or

the mother's family.7 There is no civil relationship with his father. The invalidity of

unregistered marriage according to state law has a negative impact on the status of children

born in the eyes of the law.8 The status of children that born illegitimate child is considered

as a consequence, the children only have a civil relationship with the mother and the mother's

family. It means, the child does not have a civil relationship with his father (Article 42 and

Article 43 of the Marriage Law) and reinforced with KHI in Article 100 which states that

children that born illegitimate child has only nasab with his mother and his mother's family.

This is of course detrimental to the child because of the explanation of Article 100 of the

KHI it has no civil relations with his biological father. In his birth certificate, his status is

considered as an illegitimate child, so only the name of the mother who gave birth was

included. It is determination in the form of status as an illegitimate child and the father’s

name is not listed which will have a very deep social and psychological impact on the child

and his mother.

In Articles 42 and 43 on Marriage Law stipulates that a legitimate child is a child born

in a legal marriage, while child born from an illegitimate marriage only has legal relationship

with her mother. Because according to Islamic law, the unregistered marriage was legal. The

problems will arise are related to administrative problems regarding the child's birth

certificate.9 The unclear status of the child under the law, resulting in the relationship

between father and child is not strong. So it could have, one time his father denies that the

7
Direktorat Jenderal Badan Peradilan Agama, Himpunan Peraturan Perundang-undangan Di Lingkungan
Peradilan Agama,Pasal 42 dan 43 UU Nomor. 1 Tahun 1974 Tentang Perkawina, Jakarta: Mahkamah Agung RI,
2014, hal.110
8
Lbh Apik Jakarta,Dampak Perkawinan Bawah Tangan bagi Perempuan ,http://www.lbh apik.or.id/fact51-
bwh%20tangan.htm. diakses pada tanggal 30 Januari 2019, pada pukul 03:39

9
Abd Shomad, Hukum Islam (Penormaan Prinsip Syariah dalam Hukum Islam) , Jakarta, Kencana, 2010, P.
296
 5

child was his son, and obviously detrimental to the child when the child is not able to claim

his rights as a child to his father as right in life costs of education, income and inheritance

from his father.

However, the results of the Constitutional Court decision Number 46/PUU-VII/2010,

which states that " child born from an illegitimate marriage has legal relationship with her

mother and her mother's family as well as with men as a father who can be proved by science

and technology and / or other evidence according to the law have blood relations, including

civil relations with his father's family. "