How to Legalize Mixed Marriage in Islam

PERTANYAAN

Good afternoon, I am married in Indonesia by religion to a foreigner from Thailand. The foreigner has converted to Islam. There are documents that show he is a Muslim convert and our religious marriage certificate. The wedding was celebrated in a big way (many witnesses and evidence). Now we want to register our marriage, how do we do that? What are the requirements? We have been married for 2 years. Please advise. Thank you.

INTISARI JAWABAN

There are at least two ways to legalize a mixed marriage conducted in Islam. First, by applying to the religious court for isbat nikah. Second, by going to the local Religious Affairs Office (Kantor Urusan Agama/“KUA”) to apply for registration of the will to marry. So, what are the requirements that must be completed?

Please take a look at the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Cara Mengesahkan Perkawinan Campuran Secara Agama Islam, written by Dian Dwi Jayanti, S.H. and published on Tuesday, 31 October 2023.

This article is an updated article with the same title, first written by Arah Madani, S.H. and first published on Monday, 8 December 2014.

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.

Before answering your question, please note that in the event of a mixed marriage between an Indonesian Citizen (Warga Negara Indonesia/"WNI") and a foreigner (Warga Negara Asing/"WNA"), it is bound by Indonesian laws and regulations because this marriage took place in Indonesia.

According to Article 57 Marriage Law, 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, Article 2 Marriage Law stipulates that:

1. A marriage is legitimate, if it is carried out according to the law of each religion and belief;
2. Every marriage shall be registered in accordance with the prevailing laws and regulations.

In response to your question, as your marriage was conducted according to the Islamic religion, the registration of the marriage is carried out by a registrar.[1] This is also regulated in Article 5 Compilation of Islamic Law, that in order to ensure the orderliness of marriage for the Islamic people, every marriage must be registered. The marriage registration is carried out by a marriage registration officer.

In our opinion, there are 2 options for legal resolution that you can do to register the marriage, namely:

1. Isbat Nikah at the Religious Affairs Office

As the marriage was religiously solemnized or, in other words, not conducted before a marriage registration officer of the Religious Affairs Office (Kantor Urusan Agama/"KUA"), you only obtained a certificate of marriage, but not a copy of the marriage certificate ("marriage book") from the Religious Affairs Office.

Thus, the legal measure that can be taken is to apply for isbat nikah at the local religious court. This is regulated in Article 7 section (2) Compilation of Islamic Law that in the event that a marriage cannot be proven by a marriage certificate, an isbat nikah can be submitted to a religious court. (Isbat nikah is the validation of a marriage that has been held according to Islamic law, but not recorded by the Religious Affairs Office)

It is further explained that the isbat nikah that can be submitted to the religious court is limited to matters relating to:[2]

1. the existence of a marriage in the context of a divorce settlement;
2. the disappearance of the marriage certificate;
3. there is doubt about the validity or invalidity of one of the requirements of marriage;
4. a marriage that occurred before the enactment of the Marriage Law;
5. marriages conducted by those who do not have a marriage impediment according to the Marriage Law.

Those entitled to apply for isbat nikah are the husband or wife, their children, marriage guardians, and parties with an interest in the marriage.[3]

2. Come to the Religious Affairs Office

As the marriage takes place in Indonesia, you can apply for registration of your intention to marry by going to the sub-district of the Religious Affairs Office where the marriage ceremony will take place.[4]

Registration of the intention or will to marry is done in writing by completing an application form and attaching:[5]

1. marriage introduction letter from the village/ urban village where the prospective bride and groom live;
2. photocopy of birth certificate or birth certificate issued by the local village/urban village;
3. photocopy of identity card/recording certificate of electronic identity card for those who are 17 years old or have already been married;
4. photocopy of family card;
5. a marriage recommendation letter from the local sub-district Religious Affairs Office for prospective brides and grooms who are getting married outside the sub-district where they live;
6. consent of both prospective brides and grooms;
7. written permission of parents or guardians for prospective brides and grooms who have not reached the age of 21 years;
8. permission from a guardian who maintains or cares for or a relative who is related by blood or a guardian, in the event that both parents or guardians as referred to in letter g have passed away or are unable to express their will;
9. permission from the court, in the absence of parents, guardians, and conservators;
10. dispensation from the court for prospective husbands who have not reached the age in accordance with the provisions of the Marriage Law;
11. a letter of permission from the superior or unit if the prospective bride is a member of the Indonesian National Army or the Indonesian National Police;
12. a stipulation of polygamy permit from a religious court for a husband who wants to have more than one wife;
13. a certificate of divorce or an extract from the talak (a form of divorce under Islamic law) registration book or divorce registration book for those whose divorce occurred before the enactment of the Religious Courts Law; and
14. death certificate or death certificate of husband or wife made by urban village head or village head or equivalent official for widows or widowers left behind by death.

Also read: Requirements for Marriage at the Religious Affairs Office

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This is our answer, hopefully, you find it useful.

Legal Basis:

1. Law Number 1 of 1974 on Marriage which was amended by Law Number 16 of 2019 on the Amendment to Law Number 1 of 1974 on Marriage;
2. Regulation of the Government Number 9 of 1975 on the Implementing Regulation to Law Number 1 of 1974 on Marriage;
3. Instruction of the President Number 1 of 1991 on the Dissemination of the Compilation of Islamic Law;
4. Regulation of the Minister of Religious Affairs Number 20 of 2019 on Marriage Registration.

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[1] Article 2 section (1) Regulation of the Government Number 9 of 1975 on the Implementing Regulation to Law Number 1 of 1974 on Marriage (“Government Regulation 9/1975”).

[2] Article 7 section (3) Instruction of the President Number 1 of 1991 on the Dissemination of the Compilation of Islamic Law (“Compilation of Islamic Law”).

[3] Article 7 section (4) Compilation of Islamic Law.

[4] Article 3 section (1) Regulation of the Minister of Religious Affairs Number 20 of 2019 on Marriage Registration (“Minister of Religious Affairs Regulation 20/2019”).

[5] Article 4 section (1) Minister of Religious Affairs Regulation 20/2019.