Family Law

When Polygamy is an Option in the Marriage

In the one morning, a young lady came to make a consultation about law matters, let we say her name is Rini.  Rini complained to us that she get an inequitable treatment from her husband.  She is neither a victim of domestic violence, nor getting talak (in Islamic law, talak refers to the statement from husband to impose divorces, see the salutation of Law No. 1 of Year 1979 concerning Islamic Court).  When we were talking in depth to her, we found that Rini had already inflicted with the husband who got the polygamy marriage.  Indeed, her husband has already had another wife beside her.  Absolutely, it such makes herself disappointed because Rini never gave the permit from her husband to have another marriage as it obliges in the existence laws.

This article shall not discuss about the controversy of polygamy matters.  In this article, we only discuss the venue of polygamy in the basis of existence law in Indonesia.  Common people may agree with polygamy.  The others may be scorning it.  Every stand point is fine.  Nevertheless, when we said such opinion in the side of Indonesian Law, every argument shall have the legal basis based on an Indonesian Legal system, specifically in marriage law.  How strong debate is occurred, the outcome will be in vain, due to the ultimate reference for the polygamy is in The Law itself.

 

The law No 1 of Year 1974 concerning Marriage (“UU No. 1/1974”) professes the principle for limitative monogamy.  Such rationale is according to marriage law stated that court may grant permission for man to have more than one wife if desired by respective parties (id.art.3 [2]).  This provision makes the possibility for aspiring husband to implement polygamy with the court’s permission.  Why is this provision applied? The main reason is in connection to a number of religions in this country followed by Indonesian which part of those forbid for polygamy practices and the others justify for it.  Specifically, Muslim may allow permission from the Islamic Court.  To grant permission, court must fulfill the certain requirements accompanied with the logical reasons based on the prevailing law.  It is ruled in compilation of Islamic Law (abbreviated KHI in this article] especially in article 56 [2] KHI.    

In the event that polygamy-married with more than one wife has occurred, the maximum wife allowed by KHI is four.  The main requirement is the husband must treat parenting equitably to his wives as well as his children.  Besides that, the court (can be District Court or Islamic Court depends on the belief of parties) may grant permission to the husband to have more than one wife.  If such requirement is infringed, the second married shall be null and void.  The court may grant permission with the following reason:

·         Wife is unable to serve her husband;

·         Wife is inflicted with physical defect or incurable disease;

·         Wife is barren

   

Any other reasons aforementioned, The Marriage Law requisite certain requirement to submit the petition to the court, among other:

·         There is a consensus from wife/wives

·         There is a certainty that her husband able to guarantee life-needs wife/wives and their children as well;

According to the Law, the wife’s consensus may not be utterly required in specific conditions.  When wife/wives was not a party in the mutual agreement between the spousal, or no information concerning the existence of his wife at the latest two years or any other causes considered by The Judge, such consensus may not allowed be granted. Wife who grant permission her husband conducts polygamy may give it in writing or in verbal with confirming previously before the hearing in the court. 

This condition is occurred when his wife in abroad worked as Women Foreign Labor for certain years.  Moreover, within such time no information about her existence.  If the consent in verbal, it will disclose before the court from the spousal.  Afterward, summons for the parties undertake according to the procedure stipulated in the civil procedure act, particularly article 390 HIR (concerning Indonesia Civil Procedural Code) and the related provisions.

Polygamy for a wife: shall it be allowed?

We observe that polygamy is commonly conducted by husband instead of conducting by wife-known as polyandry.  In Indonesia, people tend to more immune with polygamy rather than polyandry. Consequently, such practice is rare to be existed.  If any, that case only depends on the specific behavior.  Besides, Islam forbids polyandry stated in Al-Quran [An Nisa : 24]    

The religious aims to forbid polyandry is to preserve the purity of heredity thus it has never mixed-up.  Such forbid assures the legal certainty for the children’ status before the law.  The child was inside the womb of a woman, shall be deemed as already born, also if the interests of such child so required (Id. Civil Code art. 2).  It can be understandable, the child shall get the law‘s protection through legal certainty even though he/she was inside the womb.

     

Government Regulation Number 10 of Year 1983 Concerning Marriage Permit and Marriage Dissolution for Civil Servants (PP No. 10/1983) as am’d by Government Regulation Number 45 of Year 1990 concerning Amendment Government Regulation Number 10 of Year 1983 stated that permission to conduct polygamy will be granted by the competence civil servant; if one from three of cumulative requirement is fulfilled as arranges [Id. Art. 10(2)].  Such requirements as follow:

1.    There is  guarantee that husband will give parenting equitably to wife and their children

2.    There is a certainty that husband will be guarantee the needs wives and children;

3.    There is written consensual from wife;

Superior who grant such permit for civil servant obliges to attach some consideration.  In the line with that, he/she indeed pass the permit to get married with more than wife through their superior incrementally at the latest 3 months counted from the date the details of petitioning have been registered.  The evidence to prove whether husband has capability to fulfill the daily need for his wives and children shall evince:

·         The letter regarding the husband’ salary signed by a treasurer where he works;         

·         The income tax’s letter

·         The miscellaneous letter accepted before the court 

In the essence, PP No. 10/1983 arranges that civil servant may grant permit to get polygamy if he/she obviously:

·         Not contrary to the doctrine of religion believed by civil servant itself;

·         Fulfill alternative requirements and the entire of cumulative requirements;

·         Not contrary to the prevailing regulation;

·         Not contrary to the common sense;

·         Not possible to disturb the job desk for civil servant through the Letter of Assertion from his/her supervisor directly as inferior as or at the same level of civil servant grade IV

Court who will grant permit to civil servant submitting the petition for getting the polygamy shall consider the related laws with reveal it explicitly in its verdict.  Court may refer to UU No. 1/1974, PP No. 9/1975, PP No. 10/1983 and KHI with observing the ground and requirements to get polygamy.

In many cases above, we can conclude that if husband has a plan to get polygamy, he shall reconsider further whether such requirements regulated in the laws have been fulfilled or not.  Finally, the mislead step is able to elicit the legal impact differently.  You have to deeply evaluate before take further actions.