Civil Relationship of Children Born without Marriage with Biological Father based on Constitutional Court Decision Number 46/PUU-VIII/2010

Abstract

The purpose of this study is to analyze the civil relationship between the children born without marriage with his biological father and the arrangement about the civil relationship between the children whose mothers did not have marriage. This study is a normative juridical which is the approach used in this is is the statute approach, the case approach, and the conceptual approach. The legal material comes from document studies. This study is analyzed qualitatively. The results of this study showed that the children born outside marriage initially have only a civil relationship with their mother and mother's family according to Article 43 of Law Number 1 of 1974 concerning Marriage on what is meant by a child outside of marriage but with the Constitutional Court Decision Number 46/PUU-VIII/ 2010, then a child born outside marriage can have a civil relationship with father and his father's family. The father and mother have rights and obligations to the born, even if the child is born outside of marriage. In this study, it can be concluded that children born without marriage have civil relations with their biological father as stipulated in Decision of the Constitutional Court Number 46 / PUU-VIII / 2010. The arrangement of civic relationships between children whose mothers are not married as in Law Number 1 of 1974 on Marriage, but by Decision of the Constitutional Court Number 46/PUU-VIII/2010, the child has a civil relationship with his mother and father.

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CC-BY-SA 4.0 License, Jurnal Notariil, ISSN 2540-797X, E-ISSN 2615-1545
Jurnal Notariil, Vol. 5, No. 1, November 2020, 58-64 P ISSN 2540 - 797X
Available Online at https://ejournal.warmadewa.ac.id/index.php/notariil E ISSN 2615 - 1545
https://doi.org/10.22225/jn.5.2.2585.58-64
Civil Relationship of Children Born Without Marriage with
Biological Father Based on Constitutional Court
Decision Number 46/PUU-VIII/2010
Cok Gede Mega Putra
Universitas Warmadewa, Denpasar, Bali
cokdemega@gmail.com
How to Cite:
Putra, C, G, M. (2020). Civil Relationship of Children Born without Marriage with Biological Father based on Constitutional
Court Decision Number 46/PUU-VIII/2010. Jurnal Notariil. 5 (2). 58-64. Doi:
https://doi.org/10.22225/jn.5.2.2585.58-64
Abstract
The purpose of this study is to analyze the civil relationship between the children born without
marriage with his biological father and the arrangement about the civil relationship between the
children whose mothers did not have marriage. This study is a normative juridical which is the
approach used in this is is the statute approach, the case approach, and the conceptual approach.
The legal material comes from document studies. This study is analyzed qualitatively. The results of
this study showed that the children born outside marriage initially have only a civil relationship with
their mother and mother's family according to Article 43 of Law Number 1 of 1974 concerning
Marriage on what is meant by a child outside of marriage but with the Constitutional Court Decision
Number 46/PUU-VIII/ 2010, then a child born outside marriage can have a civil relationship with
father and his father's family. The father and mother have rights and obligations to the born, even if
the child is born outside of marriage. In this study, it can be concluded that children born without
marriage have civil relations with their biological father as stipulated in Decision of the Constitutional
Court Number 46 / PUU-VIII / 2010. The arrangement of civic relationships between children whose
mothers are not married as in Law Number 1 of 1974 on Marriage, but by Decision of the
Constitutional Court Number 46/PUU-VIII/2010, the child has a civil relationship with his mother and
father.
Keywords: biological father; civil relationship; child without marriage
1. INTRODUCTION
Children born outside a legal marriage are
not legitimate children so that it brings
consequences in inheritance because
children born outside of marriage only
have a civil relationship with their mother
and mother's family, (Syahrani, 1989).
This is regulated in Article 43 paragraph
(1) of Law Number 1 of 1974 concerning
Marriage. In its development, Article
paragraph (1) of Law Number 1 of 1974
concerning Marriage is tested materially to
the Constitutional Court. The test was
submitted by Hj. Aisyah Mochtar alias
Machica Binti H. Mochtar Ibrahim
Muhammad and Iqbal Ramadhan bin
Moerdiono.
In the Decision of the Constitutional
Court Number 46/PUU-VIII/2010 stated in
the Decision as follows:
▪ Article 43 paragraph (1) of Law
Number 1 of 1974 on Marriage

Civil Relationship of Children Born without Marriage with Biological Father based on Constitutional Court
Decision Number 46/PUU-VIII/2010. Jurnal Notariil. 5 (2) 2020. 59
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(Republic of Indonesia State Gazette
of 1974 Number 1, the addition of
the Republic of Indonesia State
Gazette Number 3019) which states,
"Children born out of wedlock only
have a relationship of civil with her
mother and his mother's family",
contrary to the 1945 Constitution of
the Republic of Indonesia as long as
it means to eliminate proven civil
relations with man which can be
proven based on science and
technology and/or other evidence
according to the law turns out to
have blood relations as his father;
▪ Article 43 paragraph (1) of Law
Number 1 of 1974 on Marriage
(Republic of Indonesia State Gazette
of 1974 Number 1, the addition of
the Republic of Indonesia State
Gazette Number 3019) which states,
"Children born out of wedlock only
have a relationship of civil with her
mother and his mother's family",
does not have binding legal force as
long as it means to eliminate civil
relations with man which can be
proven based on science and
technology and/or other evidence
according to the law turns out to
have blood relations as his father so
that the verse must be read,
"Children born out of wedlock only
have a relationship of civil with her
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 the law to have blood
relations, including civil relations
with his father's family";
The formation of a very interesting
new norm in the Decision of the
Constitutional Court is the recognition of
children born out of wedlock. The decision
states that a child outside of marriage 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 the law to have
blood relations, including the relationship
of civil with his father's family. Through
this Decision, the Constitutional Court
once again proved itself as a judicial
institution that 'dared to oppose the flow',
out of the grip of cultural and religious
traditions, progressive and revolutionary
towards substantive justice based on 1945
Constitution of the Republic of Indonesia,
(Erlina, 2012).
If it is based on the position case
submitted in the Constitutional Court
Decision, it can be seen that the
recognition of civil relations with biological
fathers with biological children is against
children born to fathers and mothers who
have entered into a marriage but are not
recorded. This decision can be interpreted
that the civil relationship between the
child and his biological father can only be
recognized if between his parents have
entered into a religious marriage without
disability in the Civil Registry Office (for
Non-Muslims) or the Office of Religious
Affairs (for Muslims). On the other hand,
Law Number 1 of 1974 concerning
Marriage only recognizes the term
legitimate children and children born out
of wedlock. Based on these provisions, the
definition of children outside of marriage
also includes children born to fathers and
mothers who have never entered into a
marriage. The ambiguity of
the norm regarding the phrase "child
outside marriage" that causes the multiple
interpretations is also recognized by I
Nyoman Sujana. In his book it says:
The sentence born out of marriage
actually contains a double meaning, in
one side, it can be interpreted that a
child born without a legal marriage
from his parents, so that his child is
often called the child of adultery
which is certainly an out of marriage
child; and also, on the other hand, it
can be interpreted that the child is
born from a marriage that has been
carried out according to religious law
as the formulation of the provisions of
Article 2 paragraph (1) of the
Marriage Law, but the marriage is not
recorded as referred to in the

Civil Relationship of Children Born without Marriage with Biological Father based on Constitutional Court
Decision Number 46/PUU-VIII/2010. Jurnal Notariil. 5 (2) 2020. 60
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formulation of the provisions of Article
2 paragraph 2 Marriage Law, so that
children according to state law are
extramarital children, because their
marriages have never been
registered, (Sujana, 2015).
The ambiguity of norms regarding the
definition of children outside of marriage
raises legal uncertainty about the child's
civil status. Which is the determination of
civil relations between parents and
children is a child's legal rights. Legal
rights are defined as interests protected
by law, or desires recognized by the law,
doubtful by the fact that there would
be no legal rights before the existence of
law. As long as a right is not guaranteed
by the rule of law, it is not yet a legal
right. Then this means that the law
precedes or coincides with rights,
(Asshiddiqie & Safaat, 2012). Therefore, it
is very interesting to compile a study
entitled "Civil Relationship of Children
Born without Marriage with Biological
Father Based on Constitutional Court
Decision Number 46 / PUU-VIII/ 2010".
Thus, based on the background of the
study above, the purposes of this study is
to analyze the civil relationship between
the children born without marriage with
his biological father and the arrangement
about the civil relationship between the
children whose mothers did not have
marriage.
2. METHOD
This study is a normative juridical study
that examines the norms obscurity in
Constitutional Court Decision associated
with Article 42 of Law No. 1 of 1974
concerning what is meant by a child
outside of marriage also includes children
born without a marriage. The approach
used in this study is the statute approach,
the case approach, and the conceptual
approach. The legal material of this study
comes from document studies. The
analysis of this study is done qualitatively.
3. RESULTS AND DISCUSSION
Civil Relationship of Children Born
Without Marriage with their
Biological Father
The civil status of a child is legally
determined by the presence or absence of
marriage and the marital conditions of
both parents. Clarity of civil
relationship will provide a sense of justice
and protection for children. Children are a
symbol of the continuing descendants of a
family. Descendant (
afstamming
) is a
blood relationship between children and
their parents. The law regulates legitimate
children and illegitimate children (
wettige
en onwettige kinderen
). This illegitimate
child was also named a child out of
wedlock (
natuurlijkc kinderen
) or
translated "children of nature", (Kie,
2000). Provisions regarding legitimate
children are regulated in the Civil Code
and Law Number 1 of 1974 concerning
Marriage. Article 42 of Law Number 1 of
1974 concerning Marriage states that
"Legitimate children are children born in
or as a result of a legal marriage." In the
provisions of the Civil Code, the law
governs the legal position of children,
namely in Articles 250-271a of the Civil
Code.
The existence of children born
without a marriage bond between their
parents is very likely to occur in social life
in society. This condition is caused due to
various reasons, namely:
a. Children born are children from
rape.
b. Father and mother are minors.
c. One parent or both parents of the
child have entered into a
marriage with the other.
d. Father and mother have a love
relationship but do not want or
cannot get married.
In Article 43 paragraph (1) of Law
Number 1 of 1974 concerning Marriage
expressly states that children born outside
of marriage only have a civil relationship
with their mother and mother's family. In
the development of law in Indonesia, the
provisions in Article 43 paragraph (1) of
Law Number 1 of 1974 concerning

Civil Relationship of Children Born without Marriage with Biological Father based on Constitutional Court
Decision Number 46/PUU-VIII/2010. Jurnal Notariil. 5 (2) 2020. 61
CC-BY-SA 4.0 License, Jurnal Notariil, ISSN 2540-797X, E-ISSN 2615-1545
Marriage are considered to have harmed
aspects of child protection and legal
certainty of the child's identity. This
development was responded by a legal
breakthrough through the Constitutional
Court Decision Number 46/PUU-
VIII/2010. The Constitutional Court is a
high state institution in the Indonesian
constitutional system which is the holder
of judicial power together with the
Supreme Court, (Mahkamah Konstitusi,
2012). In carrying out this task, the
Constitutional Court made a legal
breakthrough through the examination of
law against the 1945 Constitution of the
Republic of Indonesia.
The application for judicial review is
done by Hj. Aisyah Mochtar alias Machica
Binti H. Mochtar Ibrahim and Muhammad
Iqbal Ramadhan bin Moerdiono who acted
as petitioners. The Petitioner is a group of
people who suffer a loss of constitutional
rights and there is a causal relationship
(
causal verband
) between the intended
loss and the enactment of the Law
petitioned for review so that the Petitioner
meets the
legal standing
requirements to
submit a quo petition.
The Petitioner submits a material
review of Article 2 paragraph (2) and
Article 43 paragraph (1) of Law Number 1
of 1974 concerning Marriage because the
Petitioner is a party who directly
experiences and feels his constitutional
rights are impaired by the promulgation of
the Marriage Law, especially concerning
Article 2 paragraph (2) and Article 43
paragraph (1). This article turned out to
cause legal uncertainty which resulted in
losses for the Petitioner relating to the
marital status and legal status of their
children resulting from the marriage. This
legal norm is seen as unfair and
detrimental because the marriage of the
Petitioner is legal and in accordance with
the pillars of marriage in Islam.
The loss argued by the petitioner is a
psychological and financial loss due to the
coming into effect of Article 43 paragraph
(1). The losses referred to are as
follows: (Constitutional Court Number
46/PUU-VIII/2010).
a. Article 43 paragraph (1) of the
Marriage Law, causes an
uncertain legal relationship
between the child and his
father. This has violated the
constitutional rights of children to
know their origins. Also causes a
psychological burden on children
due to the absence of recognition
from their fathers for their
presence in the world. Of course,
this will cause anxiety, fear and
discomfort of children in the
community.
b. The petitioner objectively
suffered material or financial
losses, namely the Petitioner
must bear the costs for the life of
the Petitioner as well as to
finance in the context of child
care and maintenance. This is
because there are provisions in
the Marriage Law that cause the
absence of legal certainty over
the marriage of the petitioner and
the child resulting from the
marriage. As a result, the
Petitioner cannot claim the right
to the obligation of the husband
to provide physical and spiritual
support and the costs to care for
and maintenance for children.
The loss of constitutional rights
experienced by the petitioner becomes the
basis for the petitioner to submit an
examination of the provisions in Article 2
paragraph (2) and Article 43 paragraph
(1) of Law Number 1 of 1974 concerning
Marriage to the Constitutional Court. In
the judges’ consultative meeting by nine
Constitutional Justices, that is
Moh. Mahfud MD., as the Chairperson and
Member, Achmad Sodiki, Maria Farida
Indrati, Harjono, Ahmad Fadlil Sumadi,
Anwar Usman, Hamdan Zoelva, M. Akil
Mochtar, and Muhammad Alim, each as a
member was decided as
follows: (Constitutional Court Number
46/PUU-VIII/2010).
▪ Grant the petition of the
Petitioners in part;

Civil Relationship of Children Born without Marriage with Biological Father based on Constitutional Court
Decision Number 46/PUU-VIII/2010. Jurnal Notariil. 5 (2) 2020. 62
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▪ Article 43 Paragraph (1) of Law
Number 1 of 1974 concerning
Marriage (State Gazette of the
Republic of Indonesia of 1974
Number 1, the addition of the
State Gazette of the Republic of
Indonesia Number 3019) which
states, "Children born outside of
marriage only have a civil
relationship with their mother and
his mother's family ", contrary to
the 1945 Constitution of the
Republic of Indonesia as long as
it means to eliminate civil
relationship with a man which
can be proven based on science
and technology and/or other
evidence according to the law
turns out to have blood
relationship as his father;
▪ Article 43 Paragraph (1) of Law
Number 1 of 1974 concerning
Marriage (State Gazette of the
Republic of Indonesia of 1974
Number 1, the addition of the
State Gazette of the Republic of
Indonesia Number 3019) which
states, "Children born outside of
marriage only have a civil
relationship with their mother and
his mother's family", does not
have binding force as long as
interpreted as eliminating the civil
relationship with a man which
can be proven based on science
and technology and/or other
evidence according to the law
turns out to have blood
relationship as his father, so the
verse must be read," The child
who born out of wedlock have 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 the law to have a
blood relationship, including the
civil relationship with his father's
family";
▪ Refuse the petition of the
Petitioners for other than the
rest;
▪ Order to include this decision in
the Official Gazette of the
Republic of Indonesia as it
should;
The Decision of the Constitutional Court
Number 46/PUU-VIII/2010 has brought
enormous changes regarding the civil
status of children born out of wedlock. In
the decision stated, "Children born out of
wedlock have a relationship of civil 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 has
blood relationship, including the
relationship of civil with his father's
family." Which means, after the
Constitutional Court Decision Number
46/PUU-VIII/2010, children born outside
marriage can have a civil relationship with
biological fathers and biological fathers'
family as long as they can be proven
based on science and technology and/or
other evidence according to the law have
blood relationship, (Constitutional Court
Number 46/PUU-VIII/2010).
Consideration in the Constitutional
Court Decision Number 46/PUU-VIII/ 2010
is a form of effort from the judicial
institution in providing child
protection. Basically, child protection is
carried out based on the following
principles: (Pedoman Perlindungan Anak,
2016).
a. Non-discriminatory. Respect and
guarantee the rights of every
child in the jurisdiction of
Indonesia without discrimination
in any form, regardless of race,
colour, sex, language, religion,
political views or other views,
national origin, ethnic or social
origin, wealth, disability, birth or
another status of the child or
from the child's parents or legal
guardians.
b. Placing children in the context of
their rights to survive and
develop. The state as much as

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Decision Number 46/PUU-VIII/2010. Jurnal Notariil. 5 (2) 2020. 63
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possible guarantees the survival
and development of children.
c. The best interests of the child. All
actions involving children carried
out by the government and
private institutions, the best
interests of the child are the main
considerations.
d. Enlarge opportunities for children
to participate to express their
opinions in all matters.
The recognition of the civil relationship
between a child and his biological father
and his biological father's family after the
Constitutional Court Decision No. 46/PUU-
VIII/2010 provides justice and legal
certainty of the rights of a child born
without sin. Every child must be treated
the same. The child does not need to bear
the mistakes of both parents. The
certainty of identity and other civil rights
for children will be good for the
development of the child, (Constitutional
Court Number 46/PUU-VIII/2010). The
children have the same rights without
discriminatory treatment. The child has
the right to the identity and recognition of
both parents. The Constitutional Court
through its decision also gave a legal
principle in the field of family law, namely
the principle of biological father's
responsibility towards children outside of
marriage, which certainly brought a
paradigm shift that required both
biological parents to be responsible for the
child (children) born out of wedlock,
(Usman, 2014).
Principles of Organizational
Relationship Regulation between
Children Whose Mother does not get
Marriage
When referring to the formulation of
Article 42 of Law Number 1 of 1974
concerning Marriage which states that
"Legitimate children are children born in
or as a result of legal marriage" and
Article 43 paragraph (1) of Law Number 1
of 1974 concerning Marriage which states
that a child born out of wedlock only has a
civil relationship with his mother and his
mother's family, "based on an authentic
and systematic interpretation of the
phrase "Child born out of wedlock has a
civil relationship with his mother and his
mother's family and with a man as his
father who can be proven based on
science and technology and/or other
evidence according to the law to have a
blood relationship, including the civil
relationship with his father's family"
should include all children outside of
marriage. This is in line with the thoughts
of Mahfud MD as the Chair of the
Constitutional Court which states:
The Constitutional Court's decision is
very important and revolutionary,
because since the Constitutional
Court's Decision Number 46/PUU-
VIII/2010 is made, all children born
outside of legal marriages, whether
from a secret marriage or infidelity,
have a civil relationship with his
father. In addition, this provision
also applies to a man who has a
relationship without marriage
ties. Consequently, the man must be
responsible for the child born".
This opinion is also supported by
Rachmadi Usman who stated: "Because
there is not a single sentence in the
consideration of the Constitutional Court
Decision Number 46/PUU-VIII/2010 which
affirms or at least can be interpreted only
applies to children born from secret
marriages, the rule of law concerning the
protection of children outside of marriage
in the decision also applies to all types of
children born out of wedlock", (Usman,
2014). The protection of children born
without a marriage between their parents
based on the Constitutional Court Decision
Number 46/PUU-VIII/2010 provides legal
certainty to the child's civil relationship
with biological father and biological
father's family.
The recognition of the civil
relationship between a child and his
biological father after Constitutional Court
Decision Number 46/PUU-VIII/2010 does
not negate the legal relationship between
the child and his mother. A child born

Civil Relationship of Children Born without Marriage with Biological Father based on Constitutional Court
Decision Number 46/PUU-VIII/2010. Jurnal Notariil. 5 (2) 2020. 64
CC-BY-SA 4.0 License, Jurnal Notariil, ISSN 2540-797X, E-ISSN 2615-1545
outside of marriage has a relationship with
his mother and can have a civil
relationship with his biological father in
accordance with the principle of children
protection. The decision of the
Constitutional Court Number 46/PUU-
VIII/2010 builds a legal relationship
between the child and the mother and his
mother’s family and biological father and
biological father's family.
4. CONCLUSION
Based on the results and discussion of this
study above, therefore it can be
concluded that a) the children born
without marriage have a civil relationship
with their biological father based on
Constitutional Court Decision Number
46/PUU-VIII/2010. The decision states
that a child born out of wedlock has a civil
relationship with his mother and his
mother's family as well as a man as his
father, which can be proven based on
science and technology
and/or other legal evidence that has blood
relationship, including the civil relationship
with the family his father. The decision
implies that normatively there is no need
for recognition of children outside of
marriage in accordance with those stated
in the provisions of the previous Civil
Code. b) The principles of regulating the
civil relationship between children whose
mothers did not get marriage previously
are stipulated in Article 43 paragraph (1)
of Law Number 1 of 1974 concerning
Marriage which stated: "Children born out
of wedlock only have a civil relationship
with their mother and mother's
family." The decision of the Constitutional
Court Number 46/PUU-VIII/2010 which
provides an opportunity regarding the
establishment of a legal relationship
between a child and his biological father
does not negate the legal relationship
between the child and his mother.
REFERENCES
Asshiddiqie, J., & Safaat, M. A. (2012).
Teori
Hans Kelsen Tentang Hukum
. Jakarta:
Konstitusi Press.
Erlina. (2012). Access To Justice ‘Anak Di Luar
Perkawinan’ (Analisis Putusan Mahkamah
Konstitusi Nomor 46/PUU-VIII/ 2010
Tentang Pengujian Pencatatan
Perkawinan Dan Status Hukum Anak
Yang Dilahirkan Dari Perkawinan Yang
Tidak Tercatat Undang Undang Nomor 1
Tahun 1974 Te.
Jurnal Konstitusi
,
1
(1).
Kie, T. T. (2000).
Studi Notariat Serba Serbi
Praktek Notaris
. Jakarta: PT Ichtiar Van
Hoeve.
Mahkamah Konstitusi. (2012).
Majalah
Konstitusi
. Jakarta: Mahkamah
Konstitusi.
Pedoman Perlindungan Anak. (2016).
Direktorat Bina Kesejahteraan Anak,
Keluarga dan Lanjut Usia
. Jakarta:
Departemen Sosial.
Sujana, I. N. (2015).
Kedudukan hukum anak
Luar Kawin Dalam Perspektif Putusan
Mahkamah Konstitusi Nomor 46/PUU-
VIII/2010
. Yogyakarta: Aswaja
Pressindo.
Syahrani, R. (1989).
Seluk Beluk dan Asas-
Asas Hukum Perdata
. Bandung: Alumni.
Usman, R. (2014). Prinsip Tanggung Jawab
Orangtua Biologis terhadap Anak Di Luar
Perkawinan.
Jurnal Konstitusi
,
11
.
The 1945 Constitution of the Republic of
Indonesia
Code of Civil law
Law Number 1 of 1974 concerning Marriage.
LN 1974 No 1; TLN No. 3019 dated
January 2, 1974
Law Number 23 of 2002 concerning Children
Protection. LN of 2002 No. 109 and TLN
No. 4235 dated October 22, 2002
Law Number 35 of 2014 concerning
amendment to Law Number 23 Year
2002 concerning Children Protection. LN
Year 2014 Number 297; TLN No. 5606,
October 17, 2014
Constitutional Court Decision Number 46/PUU-
VIII/2010.