Implications of the Verdict of Constitutional Court Number 46/PUU-VIII/2010 on the Hereditary Right of Illegitimate Children Born of Mixed Couple in Islamic Law Perspective

Abstract

The differences in regulation of the position of heir illegitimate (outside marriage) child that born from mixed couples has led to legal issues, particularly the rules of law which should be chosen for the interested party (illegitimate child) when he had to use his rights as citizen and legal resident.

According to the Civil Code, illegitimate children born of mixed couples, just have a legal relationship with her mother and her mother’s family, unless recognized by the biological father. It means that children born outside the marriage of mixed couples that are recognized by the biological father have hereditary rights from both father and mother. However, illegitimate children’s inheritance right that is recognized by the father or mother is not the same as legitimate children.

According to Law No. 1/1974 which essentially adopted the Islamic law, says that outside marriage children can not be recognized and separated by a father (natural father). The children only have a legal relationship with their mother but the children still have a mother who gave birth to them, with the understanding that between the children and the mother have legal relationship as well as legitimate children who have a father. The nature of Islamic law says that that children outside marriage are illegitimate children. Although their parents have made the recognition or endorsement but because of the children were born outside of their parent’s marriage, but still the society views that the children were illegitimate.

Based Constitutional Court Decision No. 46/PUU-VIII/2010 dated February 12, 2012, that "the child's relationship with a man as the father is not solely because of the marriage bond, but can also be based on evidence of the blood relationship between children and the men as the father". This provision implicates the heritage status of the child. This means that the illegitimate children born of mixed couples still have inheritance rights from the biological father as the existence can be proven through a series of proving both technologically and legally.

Keywords: illegitimate child, mixed couple, inheritance rights

JEL Classification: A13, K11, K12