Distribution of Inheritance of a Muslim Foreigner in a Mixed Marriage

PERTANYAAN

My father who was a foreigner, recently passed away. My parents had an Islamic marriage in Indonesia. How is the distribution of the inheritance of my father who had assets abroad and in Indonesia? My mother is still alive and we are 3 siblings (not married, still in college and school).

INTISARI JAWABAN

The difference in nationality according to Islamic inheritance is not a factor that affects the distribution of inheritance. For Muslims, the provisions of Islamic inheritance law apply.

Regarding the administration of the management of inherited property abroad, the provisions of each country apply. For example, regarding the ownership status of immovable objects (land) in Indonesia, only Indonesian Citizens (Warga Negara Indonesia/ "WNI") are entitled to have property rights.

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Pembagian Warisan WNA Muslim dalam Perkawinan Campuran written by Dr. Nur Jihad, S.H., M.H. from PSHI Fakultas Hukum Universitas Islam Indonesia and published on Friday, 6 November 2020.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Characteristics of Islamic Law

Islamic law is a religious provision (norm) that applies to all Muslims in the world. The characteristics of Islamic law as a perfect treatise include dynamism and universality so that it can be applied anytime and anywhere according to the conditions of Muslims in particular and all humans in general.

One part of Islamic law is the provisions regarding inheritance. Differences in nationality in Islamic inheritance are not a factor that affects the distribution of inheritance.

For Muslims, the provisions of Islamic inheritance law apply. The obligation to settle the affairs of inheritance according to Islamic law is based on the teachings of Islam as the hadith of the Prophet Muhammad which states:[1]

Distribute the inheritance between the heirs according to the book of Allah (the Qur'an) (Riwayat Muslim and Abu Dawud).

Furthermore, the Religious Courts are tasked and authorized to examine, decide, and resolve cases at the first level of inheritance disputes between Muslims based on Islamic inheritance law.[2]

In practice, juridically formal and operational, the Instruction of the President Number 1 of 1991 on the Dissemination of the Compilation of Islamic Law and the Decree of the Minister of Religious Affairs Number 154 of 1991 on the Implementation of the Instruction of the President Number 1 of 1991 dated 10 June 1991 also apply.

Distribution of Inheritance According to Islamic Inheritance Law

Previously you did not mention the gender of the children's heirs. If the testator leaves a wife (widow) and 3 children who are all boys/males, then the wife's share (widow) is 1/8 and the rest (ashabah) is entitled to and divided among the 3 boys.[3]

Meanwhile, if the heirs consist of a wife (widow) and 3 children (male and female), then the wife's share (widow) is 1/8 and the rest is the right of sons and daughters with the provision that the son's share is twice the daughter's share.[4]

Another case is if the heirs consist of a wife (widow) and 3 daughters, then the wife's share (widow) is 1/8, while the 3 daughters' share is 2/3. Due to the rad,[5] then therefore the wife's share (widow) becomes 3/19, while 3 daughters 16/19.

The basis for the above division provisions is regulated in the Qur'an Surah An-Nisa verse 11:

Allah commands you regarding your children: the share of the male will be twice that of the female. If you leave only two or more females, their share is two-thirds of the estate. But if there is only one female, her share will be one-half. Each parent is entitled to one-sixth if you leave offspring. But if you are childless and your parents are the only heirs, then your mother will receive one-third. But if you leave siblings, then your mother will receive one-sixth after the fulfilment of bequests and debts. Be fair to your parents and children, as you do not fully know who is more beneficial to you. This is an obligation from Allah. Surely Allah is All-Knowing, All-Wise.

Moreover Qur'an Surah An-Nisa verse 12:

You will inherit half of what your wives leave if they are childless. But if they have children, then your share is one-fourth of the estate after the fulfilment of bequests and debts. And your wives will inherit one-fourth of what you leave if you are childless. But if you have children, then your wives will receive one-eighth of your estate after the fulfilment of bequests and debts. And if a man or a woman leaves neither parents nor children but only a brother or a sister from their mother’s side, they will each inherit one-sixth, but if they are more than one, they all will share one-third of the estate after the fulfilment of bequests and debts without harm to the heirs. This is a commandment from Allah. And Allah is All-Knowing, Most Forbearing.

While Article 176 Compilation of Islamic Law regulates:

If the daughter is only one, she gets half the share, if two or more of them together get two-thirds of the share, and if the daughter is together with the son, then the son's share is two to one with the daughter.

Then it is also important to know Article 180 Compilation of Islamic Law:

Widows get a quarter share if the testator does not leave children, and if the testator leaves children then the widow gets an eighth share.

Inheritance from a Mixed Marriage

You need to know that the marriage you are referring to is known as a mixed marriage which is referred to in Article 57 Law 1/1974 namely:

Mixed marriage, under this Law, is marriage between two persons which in Indonesia are subject to different laws, due to differences in citizenship and one of the parties is an Indonesian citizen.

Furthermore, to answer your question, regarding the administration of the management of inherited property abroad, the provisions of each country apply.

Specifically related to ownership of immovable objects (land) in each country also has its own provisions as a subject of property rights. For example, in Indonesia, only Indonesian Citizens (Warga Negara Indonesia/ "WNI") are entitled to have property rights.[6]

Regarding the issue of citizenship of the three children as in the case above, if they are not yet 18 years old, then their status is an Indonesian Citizen referring to Article 4 letter d Law 12/2006 which reads:

An Indonesian Citizen is a child who is born in lawful marriage from a father who is a foreign citizen and an Indonesian mother.

However, if the above provisions result in dual citizenship, then after the age of 18 years or married, the child concerned must declare choosing one of his/her citizenship.[7]

The declaration to choose citizenship is submitted no later than 3 years after the child turns 18 years old or is married.[8]

This is because Law 12/2006 basically does not recognize dual citizenship (bipatride) or statelessness (apatride). The dual citizenship given to children in Law 12/2006 is an exception.[9]

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Instruction of the President Number 1 of 1991 on the Dissemination of the Compilation of Islamic Law;
2. Law Number 5 of 1960 on Basic Agrarian Principles;
3. Law Number 1 of 1974 on Marriage as amended by Law Number 16 of 2019 on the Amendment to Law Number 1 of 1974 on Marriage;
4. Law Number 7 of 1989 on the Religious Judiciary as amended by Law Number 3 of 2006 on the Amendment to Law Number 7 of 1989 on the Religious Judiciary as secondly amended by Law Number 50 of 2009 on the Second Amendment to Law Number 7 of 1989 on the Religious Judiciary;
5. Law Number 12 of 2006 on Citizenship of the Republic of Indonesia.

Reference:

Fatchur Rahman. Ilmu Mawaris. Bandung: Al-Ma’arif, 1971.

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[1] Fatchur Rahman. Ilmu Mawaris. Bandung: Al-Ma’arif, 1971, p. 34.

[2] Article 49 Law Number 3 of 2006 on the Amendment to Law Number 7 of 1989 on the Religious Judiciary (“Law 3/2006”).

[3] Article 180 Compilation of Islamic Law.

[4] Article 176 Compilation of Islamic Law.

[5] Article 193 Compilation of Islamic Law.

[6] Article 21 section (1) Law Number 5 of 1960 on Basic Agrarian Principles.

[7] Article 6 section (1) Law Number 12 of 2006 on Citizenship of the Republic of Indonesia (“Law 12/2006”).

[8] Article 6 section (3) Law 12/2006.

[9] General Elucidation of Law 12/2006.