Legal Pluralism and Challenges for Family Law Governance
Time & LocationSession 4
Wed 15:30–17:00 Room 1.103
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- Child Marriage: Threat to Legal Pluralism Due to Contestation of Legal Sources in an Undemocratic Political Structure Mustafsirah Marcoes Rumah Kita Bersama
The most difficult thing in prevention of child marriage is the acceptance of marriages that are performed by religious figures from outside the official institutions provided by the state such as the Religious Affairs Offices (KUA) or Religious Courts. The acceptance of such marriages shows that legal pluralism, which was originally intended as a recognition of the diverse sources of law in Indonesia, especially in family law, can in fact become a problem that requires solutions from outside the legal sector. This is because the impact of such practices is the institutional non-recognition of marriages that are performed without being recorded at the formal institutions but are still considered valid by religion. The state’s refusal to recognize these religious marriages on the one hand, and the acceptance of such marriages by the community on the other, is in reality detrimental to those involved in such marriages, especially the women and the children born from such marriages.
This paper will demonstrate how the arguments that justify the occurrence of child marriage should be refuted by state institutions by putting forward arguments that also have a religious basis. Through its experience in advocacy over the past five years, Rumah KitaB proposes religious arguments as one form of advocacy to non-state institutions, which can be used by decision makers to reject child marriage. At the same time, Rumah KitaB shows that legal pluralism can only be applied by first putting relations between males and females (gender relations) on an equal basis as universal values that have long been contained in these various sources of law. Without this, legal pluralism will endanger justice seekers, particularly if one source of law is part of a dominant political entity or if the public space where the contestation of sources of law occurs is becoming increasingly conservative. This is because in such a situation, the political tide tends to favor the dominant primordial group. Legal pluralism has as its prerequisites that status in society is, in social terms, not merely normative terms, truly equal and egalitarian, and that truly democratic political structures develop.
- Dilemma of Civil Servants: Reconstruction of Norms of Divorce and the Obligation to Distribute Salary to Wives Imam Koeswahyono Brawijaya University
Muhammad Dahlan Brawijaya University
This research, which takes a case study in East Java, Indonesia as its subject, has the aim of studying, analyzing, and finding a solution to the vulnerability dilemma of civil servants who have divorced, for whom Law Number 5 of Year 2014 applies, mandating them to share part of their salary to their ex-wives according to Article 41 Letter c of Law No. 1 of Year 1974 on Marriages. Another aim is to use the theory of legal pluralism, theory of justice, and theory of legal interpretation, along with philosophical analysis, to resolve the vulnerability dilemma of civil servants that is caused by divorce with their ex-wives. Article 8 of Government Regulation No. 10 of Year 1983 iuncto Government Regulation No. 45 of Year 1990 establishes the mandatory regulation for divorced male spouses who are civil servants or government officials to distribute their salary to their ex-wives until they marry again. Meanwhile, according to Islamic law, the obligation of the ex-husband to the ex-wife who had been initially repudiated (talak raj’i, the first or second), which allows the husband to reconcile with the wife during the iddah period, is to furnish mut’ah, nafkah, maskan, and kiswah during the period, and to pay off the partially or completely owed dowry if qobla al dukhul (there had not been intercourse), except if the ex-wife had been thrice repudiated (talak ba’in or nusyuz) and is not in pregnancy. This research utilizes a socio-legal approach, specifically an interdisciplinary approach, which combines legal science and legal anthropology as well as legal pluralism in particular. The research was conducted by conducting a series of in-depth interviews with judges of courts of religion and married couples who work as government officials and have divorced, in the province of East Java. This research has resulted in several interesting findings. There were several variants on how the salary of a male government official is distributed to his ex-wife, whether continuously over several years or given in full upfront after a divorce. A third option is implementing a model of compromise, wherein the payment is paid in installments according to the ability of the ex-husband who holds the position of a civil servant, which may differ in rank and monthly salary. It becomes inevitable to reconstruct the regulating norms of Article 8 of Government Regulation No. 10 of Year 1983 iuncto Government Regulation No. 45 of Year 1990 because the philosophical and substantial aspects of the regulation does not reflect balanced justice and legal protection between the ex-husband and ex-wife.
- Early Marriage: Constraint Consent Between State and Muslim Law in Indonesia Mies Grijns Leiden Law School
With the enactment of the 1974 Marriage Law No. 1, Indonesia had at last a codified and unified Marriage Law. Three articles are relevant for consent:
(a) Registration. Art. 2 stipulates that a marriage is legal, if contracted according to the laws of the respective religions and beliefs of the parties concerned. Every marriage shall be registered according to the regulations in force.
(c) Consent requirements. Art. 6 requires that marriage shall be based on consent of the future spouses. A person who has not yet reached the age of 21 years shall obtain the consent of both parents.
(d) Minimum age of marriage. Art. 7 sets the minimum age at 19 for the man and 16 for the woman. Exceptions may be granted by the Court at the request of the parents.
Article 2 shows that legal plurality is embedded in the Marriage Law: first comes the religious ceremony. Muslim marriage contract is a deal between the groom and the male guardian of the girl. Consent of the girl is only asked afterwards, at the marriage registration, including the consent of her parents if she is still under 21. When marrying younger than 16 a girl is depending on both the consent of her guardian and of her parents who should request for age dispensation at the Court.
In contrast to this, the Indonesian Penal Code article 287 sets the age of consent to participation in sexual activity as 15 years old. Given that in Muslim law a sexual relation before marriage is a serious sin, consent to sex asks for marriage.
So, what are current practices of early marriage? Does a girl actually have any say in getting married? Is her consent relevant? What to do if she does not consent to the marriage? How to govern this?
- Inheritance Law Pluralism and Inheritance Justice: A Gender Perspective of Law Sulistyowati Irianto Universitas Indonesia
This paper aims to explain the existing inheritance laws and its interrelations within through a lens of legal pluralism. Disputes of inheritance as handled in civil courts of law provides the window with which to picture the contesting, negotiating, and balancing act between adat law, religious law, State law, and (international) gender justice discourse. This research investigates how gender justice in inheritance, is defined through court decisions, and to what extent adat laws of inheritance are kept alive; or conversely, rejected or sublimed in a “new” form. This paper also helps outline women’s perceptions on gender justice in inheritance in their daily practices, and leading to the conclusion that adat law is ever-changing, with new adat emerging over time.
All over the world non-state mechanisms exist in the realm of family law, reflecting the existing religious and cultural diversity. Proponents of narrow state regulation argue that non-state mechanisms can be a welcome addition to state governance of family law. Others oppose a prominent role for customary and religious mechanisms as they fear that those will challenge statutory rights of individual members - especially rights on equality. This debate is especially manifest in Muslim majority countries, as state regulation and interpretations of Muslim family law are prone to challenging views.
Even in a situation of exclusive state regulation of family law, customary and religious mechanisms may continue to operate, which may result in practices of unregistered marriages and out-of-court divorces. Government institutions may show leniency towards such practices and recognize its full or particular legal consequences: for instance, when an underage marriage is registered, or when in case of an unregistered religious marriage, the court puts an obligation upon a father to pay child support. The consequences of such leniency can be paradoxical: it grants rights to individual women and their children, but at the same time it maintains a normative system which challenges basic statutory family law provisions aimed at protecting women and children in general.
Participants in this panel will address the challenges that legal pluralism pose for family law governance; the ways in which government institutions, communities, minorities, and / or individuals deal with those challenges; and the consequences this has for family law governance and individual rights of citizens. The panel aims at increasing our knowledge about how in family law matters normative systems interact and how this interlegality affects family law governance.