Legal Basis of Polygamy in Indonesia and Its Procedures

PERTANYAAN

What is the legal basis for polygamy in Indonesia? What are the requirements for legitimate polygamy? What if the first wife does not agree to her husband remarrying?

INTISARI JAWABAN

What is polygamy? Polygamy is a marriage system that allows a person to have more than one wife or husband.

The legal basis for polygamy can be found in the Marriage Law and Compilation of Islamic Law. Basically, if the first wife does not approve of the husband remarrying, then the husband cannot conduct polygamy, considering that the wife's consent is a condition that must be met if the husband wants to have more than one wife. However, in the event that an application for polygamy permission is submitted to the Religious Court based on valid reasons according to the law, the Religious Court may grant permission after examining and hearing the testimony of the wife concerned.

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

ULASAN LENGKAP

This article is an English translation of Dasar Hukum Poligami di Indonesia dan Prosedurnya, written by Erizka Permatasari, S.H. and published on Wednesday, 1 November 2023.

This article is the second update of the article entitled Legitimate Polygamy Procedure, which was written by Letezia Tobing, S.H., M.Kn. and first published on Monday, 18 March 2013, and first updated on 28 April 2021.

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.

Monogamy Principle in Marriage Law

The legal basis of marriage, including the legal basis of polygamy in Indonesia, is regulated in the Marriage Law. Furthermore, according to the Marriage Law, a marriage is an emotional and physical bond between a man and a woman as husband and wife with the aim of establishing a happy and eternal family (household) based on Belief in God Almighty.[1] So, basically, Indonesian marriage law is based on monogamy.

This principle of monogamy is reaffirmed in Article 3 section (1) of the Marriage Law and its elucidation which reads:

In principle, in a marriage, a man can only have one wife and a woman can only have one husband (monogamy principle).

However, the Marriage Law provides exceptions that allow a husband to conduct polygamy.[2]

Legal Basis of Polygamy in Indonesia

What is polygamy? According to the Official Dictionary of the Indonesian Language, the meaning of polygamy a.k.a. poligami is a marriage system that allows a person to have more than one wife or husband.

Answering the legal basis for polygamy in Indonesia, the provisions of Article 3 section (2) Marriage Law clearly stipulate that:

The court may authorize a husband to have more than one wife if desired by the parties concerned.

Especially for those who are Muslims, the legal basis for polygamy is also regulated in Article 56 section (1) Compilation of Islamic Law which explains:

Husbands who wish to have more than one wife must obtain permission from the Religious Court.

Referring to the legal basis of polygamy mentioned above, it can be concluded that basically the law of polygamy in Indonesia can be carried out, as long as the polygamy is carried out in accordance with the applicable polygamy law in Indonesia and fulfills a number of polygamy requirements.

Polygamy Requirements

In order to be able to conduct polygamy legally in Indonesia, the polygamy must fulfill the following requirements of polygamy:[3]

1. The husband must file a petition with the court in the area where he resides, provided:

1. There is consent from the wife/wives,[4] with the note that this consent is not required if:[5]

1. it is impossible for his wife/wives to be asked for their approval and cannot become a party to the agreement,
2. if there are no news from his wife for at least 2 years,
3. or for other reasons which require an assessment from the Court Judge

 

2. There is certainty that the husband will be able to provide for his wives and children;
3. There is a guarantee that the husband will be fair to the wives and children.

 

2. The court shall only grant permission to a husband who intends to have more than one wife if:[6]

1. the wife is unable to carry out her obligations as a wife;
2. the wife has a disability or incurable disease;
3. the wife cannot bear children

Such permission is granted by the court if it is of the opinion that there are sufficient reasons for the applicant (husband) to have more than one wife.

Legal Basis for Polygamy in Islam

Furthermore, regarding the requirements for polygamy at the Religious Affairs Office or the requirements for polygamy for those who are Muslims, broadly speaking, the law of polygamy according to Islamic law is not much different from the Marriage Law. However, in the Compilation of Islamic Law, there are other polygamy requirements that must be considered, namely:

1. Husbands are limited to four wives at the same time.[7]
2. The husband must be able to be fair to his wives and their children. If this is not possible, the husband is prohibited from having more than one wife.[8]
3. The husband must obtain the wife's consent and there is certainty that the husband is able to guarantee the living needs of the wives and their children.[9] This consent can be given in writing or verbally.[10]
4. Must obtain permission from the Religious Court.[11] If the marriage is conducted without the permission of the Religious Court, the marriage is not legally valid.[12] If the wife is unwilling to give consent, and the application for permission is submitted on the basis of legitimate reasons according to law, the Religious Court may determine to grant permission after examining and hearing the wife concerned in the Religious Court trial. Upon this decision, the wife/husband may file an appeal or cassation.[13] The legitimate reasons referred to are if the wife is unable to fulfill her obligations, has a disability or illness that cannot be cured, or is unable to bear children.[14]

Thus, to answer your question, basically if the first wife does not approve of the husband to remarry, then the husband cannot conduct polygamy, considering that the wife's consent is a condition that must be met if the husband wants to have more than one wife.

However, in the event that an application for polygamy permission is submitted to the Religious Court based on valid reasons according to the law, the Religious Court may grant permission after examining and hearing the testimony of the wife concerned.

As additional information, regarding the requirement of being able to be fair, basically the Qur'an in Surah An Nisa' verse 129, which is one of the sources of Islamic law, has confirmed that the husband will not be able to be fair, as follows:

And you will never be able to be equal (in feeling) between wives, even if you should strive (to do so). So do not incline completely (toward one) and leave another hanging.

Against this provision, Quraish Shihab in Kaidah Tafsir (p. 88) explains that the use of the letter nafy in the verse implies that it will not be at all until whenever.

Then, Rahmi in Poligami: Penafsiran Surat An Nisa’ Ayat 3 explains that the Qur'an does allow polygamy if the husband is able to realize justice between the wives, namely material justice. However, material justice between wives is a very difficult requirement to fulfill because the existence of human actions is inseparable from the condition of the heart/feelings. At the same time, his heart/feelings have a tendency to be unjust (p. 124).

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. Instruction of the President Number 1 of 1991 on the Dissemination of the Compilation of Islamic Law.

Reference:

1. Quraish Shihab. Kaidah Tafsir. Jakarta: Lentera Hati, 2013;
2. Rahmi. Poligami: Penafsiran Surat An Nisa’ Ayat 3, Kafa’ah: Jurnal Ilmiah Kajian Gender, Vol. V, No.1, 2015;
3. Official Dictionary of the Indonesian Language, poligami, accessed on the 1^st November 2023, at 17.00 Western Indonesian Time (zone).

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[1] Article 1 Law Number 1 of 1974 on Marriage (“Marriage Law”).

[2] Article 3 section (2) Marriage Law.

[3] Article 4 section (1) Marriage Law.

[4] Article 5 section (1) letter a Marriage Law.

[5] Article 5 section (2) Marriage Law.

[6] Article 4 section (2) Marriage Law

[7] Article 55 section (1) Instruction of the President Number 1 of 1991 on the Dissemination of the Compilation of Islamic Law (“Compilation of Islamic Law”).

[8] Article 55 section (2) and (3) Compilation of Islamic Law.

[9] Article 58 section (1) Compilation of Islamic Law.

[10] Article 58 section (2) Compilation of Islamic Law.

[11] Article 56 section (1) Compilation of Islamic Law.

[12] Article 56 section (3) Compilation of Islamic Law.

[13] Article 59 Compilation of Islamic Law.

[14] Article 57 Compilation of Islamic Law.