Nanda Yuniza Eviani

B011211236
Law Study
Faculty of Law

Resume about Constitutional Court Decision on Article 43 Law Number 1 of 1974

The Constitutional Court granted part of the application for judicial review of Law Number 1
of 1974 concerning Marriage against the 1945 Constitution of the Republic of Indonesia. The
Court stated that Article 43 paragraph (1) of Law Number 1 of 1974 concerning Marriage
regulates the civil relationship of children outside of marriage. contrary to the 1945
Constitution. Regulations regarding the position of children out of wedlock as regulated in the
provisions of Article 43 of Law Number 1 of 1974 are considered inadequate in providing legal
protection and tend to be discriminatory, the status of children out of wedlock or children born
outside of legal marriage only have a civil relationship with their mother. and his mother's
family without the responsibilities of his biological father.

The Constitutional Court's decision also reflects the principle of equality before the law as
referred to in Article 28D paragraph (1) which reads: "Everyone has the right to recognition,
guarantee, protection, and fair legal certainty as well as equal treatment before the law. ."
Scheltema, formulated his view on the elements and principles of the rule of law in a new way
which includes 5 (five) things, one of which is the principle of equality before the law, the
application of equality (Similia Similius or Equality before the Law) in a rule of law means
that The government may not privilege certain people or groups of people, or discriminate
against certain people or groups of people. This principle contains (a) the guarantee of equality
for all before the law and government, and (b) the availability of a mechanism to demand equal
treatment for all citizens. Thus, the law must provide fair legal protection and certainty for the
status of every child born and the rights that exist in him, including for children born outside
of legal marriages according to statutory regulations.

The Legal Consequences

The Constitutional Court's decision Number 46/PUU-VIII/2010 states that Article 43
paragraph (1) of Law Number 1 of 1974 concerning Marriage which reads "Children born
outside of marriage only have a civil relationship with their mother and their mother's family"
is contrary to the 1945 Constitution. and does not have binding legal force as long as it is
interpreted to eliminate civil relations with men which can be proven based on science and
technology and/or other evidence according to the law that turns out to have blood relations as
the father, so the verse must read, "Children born outside marriage has a civil relationship with
his mother and his mother's family as well as with a man as his father which can be proven
based on science and technology and/or other evidence according to law having blood relations,
including civil relations with his father's family.

If analyzed, the legal logic of this decision has consequences for the nasab/descendant
relationship of a child out of wedlock with his biological father; the existence of rights and
obligations between children out of wedlock and their biological fathers, both in the form of a
living, inheritance and so on. This of course applies if the evidence is first carried out through
science and technology such as: DNA tests and so on which state that it is true that the child
carried out of the marriage has a blood relationship with the man as the biological father.