Marital Property

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Talk about marriage, will always talk about property. Because marriage can not be separated by marital property.

Marital property , in Indonesian Law is known as harta kekayaan dalam perkawinan (syirkah). It is all wealths that got by husband and wife during marriage, together or personally.

Marriage Law number 1 year 1974 and Compilation of Islamic Law divide marital property in:

• Harta Bawaan (brought property, original property): property that was taken in marriage. It ussually under each side. Example, before marriage a wife bought a car, so the car is included in her harta bawaan. Harta bawaan has some differential terms in some region. Like in Java, it it called gono-gawan. In West Java, barang bawa. In Bali, babaktan.
• Harta Perolehan (acquisition property): property that got by husband or wife personally after marriage. It ‘s got by special way, like inheritance, or gift that required not includen in communal property.
• Harta Bersama or harta pencaharian (communal property): property that got the couple during marriage, included benefit, profit of brought property and acqusition property. It is under control husband and wife, together. Example, X has had rice-field, after married the rice-field give some profit. The profit is used to buy a house. So the house is included communal property, although it is benefit of rice-field as brought property. In Java, harta bersama is called gono gini.

The diversification of marital property is very important. It’s connected to inheritance and divorce case. If one of the couple died, example wife, by diversification can be stipulated which goods can be shared. Which wealth can be inherited by husband, by children and other family. Included which property that must be return to clan (remember, Indonesians always obey Adat Law too).

So in divorce case. By classification, esier to stipulate which husband’s property, which the wife’s property. Included which property that must be shared into 2.

Marriage Prevention by Registerer Official of Nikah

Sometimes there is a violence of marriage law but no one prevent the marriage. Can the marriage be performed? Registerer official of Nikah (Pegawai Pencatat Nikah) is forbidden to perform or help to perform a marriage if he know existance ot violence of rules, although no request of marriage prevention.

The rules that may be collided are:

• Minimun limitation of age of bride and/or bride-groom
• there is marriage obstacle between bride and bride-groom
• connected to polygamy requirements
• stipulation about the couple that divorced, then want to marry again after one side married with someone else and divorced
• connected to manner of implementation of marriage that ruled by other law.

If Registerer Official of Nikah opines that on a marriage there is something forbidden by Marriage Law Number 1 year 1974, he will refuse to perform the marriage. Then the Registerer Official of Nikah gives written explanation about rejection and the reason.

Concerning the rejection, the sides can make a complain. They have right to request a decision to Court by delivering explanation letter of rejection of marriage. Court is Religious Court in legal area where Registerer Official of Nikah exist.

Religious Court will investigate the case by short procedure and will give decision.

The kind of decision are:

• strongger the rejection of Registerer Official of Nikah
• command perform the marriage.

What happen with the Court’s decision if the obstacles are lost? The decision will powerless if obstacles that result in rejection is gone. And the couple that want to marry can repeat information about their purpose to marry.

Prevention of Marriage

Prevention of marriage is done to avoid a marriage that forbidden by Islamic Law and State Law. It can be done if bride and/or bride-groom si not fulfil requirement of marriage according to law.

Difference of social status, ethnic, wealth can not be reasons to prevent a marriage. Only difference of religion (ikhtilaafu al dien) can be reason of prevention of marriage.

Prevention can not be done by everyone. Only certain person can do it. They are:

• All family in upward and downward straight line (including father)
• brother and sister
• wali nikah (marriage guardian)
• wali (guardian)
• husband /wife of bride/bride-groom
• pointed employee to watch marriage.

How to prevent a marriage?

Prevention of marriage must be forwarded to Religious Court (Pengadilan Agama) in legal area where the marriage will be performed. Someone that prevent the marriage, must tell Registerer Official of Nikah (pegawai Pencatat Nikah) about the prevention. Then the Registerer Official of Nikah tell bride and bride groom about request of marriage prevention.

Revocation of Marriage Prevention

The marriage can not be performed as long as the prevention has not revoked. Marriage prevention can be revoked by revoke request of prevention in Religious Court. It also can be revoked by decision of Religious Court.

Can A Father Prevent Marriage of His Daughter?

Q: Some years ago I and my husband divorced. Then I raised our daughter by myself. Now our daughter is adult and she will marry. I think it’s not important to tell my ex-husband about plan of our daughter marriage, because he has not cared about our daughter. He has not given living cost to her daughter. Can my daughter marry by wali hakim? And can my ex-husband prevent the marriage?

A: In Islamic Law, a woman can not give herself in marriage. She always needs wali nikah (marriage guardian). Wali nikah consists of wali nasab and wali hakim (magistrate guardian). A woman can not marry by wali hakim as long as wali nasab is still exist and has no obstacle to be wali nikah. In the case above, the father as the principal wali is still exists, still alive. So the daughter can not marry by wali hakim.

According to Compilation of Islamic Law article 62 section 2, a blood father that never act his obligation as head of family is not drop his right as wali to prevent a marriage that will do by other wali. So it’s clear that a father can prevent marriage of his daughter.

It’s important to tell a father about plan of his daughter’s marriage. It’s his right to be wali nikah, although he never do his duties as a good father. And if he dislikes (adlal), the daughter just can marry by wali hakim after it’s decisioned by Religious Court. That’s the rule. It’s stipulation of State Law and Religious Law.

Development of Taklik Talak in Indonesia

Taklik Talak or Ta’liq al-talaq (Conditional Divorce) has been in Indonesia, particularly in Java island, since centuries ago. Since era of Islamic Mataram kingdom under Sultan Agung (1613-1646). That’s research of Hisako Nakamura. She is a Professor of Anthropology in the Faculty of International Studies at Bunkyo University.

Nakamura divided development of taklik talak into 3 period:

1. era of Mataram kingdom
2. era of Dutch colonial
3. era after independence of Indonesia in 1945.

Era of Mataram kingdom

Sultan Agung is the first king in Java that received the tittle of Sultan. During his rule, Islam penetrated deeper among the general population of Java.

In the era of Islamic Mataram kingdom, the pronouncement of taklik talak was formalizad simply, like this:

(The bridegroom is read out a promise by a religious official): “Listen Bridegroom. Do you accept the royal promise (janji dalem) of taklik? In the even you leave your wife so-and-so for seven months by land or for two years by sea, axcept if you are on military duty, and he even your wife does not want to be quietand bring the case to the religious court (rapak), then talak one will fall after the court investigation proves the case to be true.”

(The bridegroom answers): “Yes, I do.”

Era of Dutch Colonial

• The Dutch Colonial Government promoted the native custom and instruction including mention of ta’liq al-talaq was issued by Herman Willem Daendels, Governor General of the Netherland East Indies (1807) to native regent (bupati) of Java
• It was followed by decrees of the duties of the religious judge (penghulu) in Stb. (Staatsblad) 1835 No. 58, and on the formation of the Religious Court (Raad Agama) in Stb. 1882 No. 152
• Ta’liq al-talaq appeared as part of Ordonansi Pencatatan Perkawinan (Ordinance on Marriage Registration) in Stb. 1895 No. 198, in Stb 1929 No. 348, Stb. 1931 No. 348, and Stb. 1933 No. 98 for the Solo and Yogyakarta principallities.

Era After Independence of Indonesia

About marriage of muslim including taklik talak is regulated in Compilation of Islamic Law (Presidential Instruction No. 1/1991). Standart taklik talak is here.

Adoption in Adat Law (2)

In the last posting, I said that Indonesian has been familiar with adoption since centuries ago. There are some reasons why a couple or family taking one else’s child.

In Adat community, purposes of adoption are:

• to continue family lineage
• as a friend
• to fish for the foster parent can have the blood child.

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Some people believe that by adopt one else’s child they will get their own blood-child. How can? As a religious-traditional community, they believe in reward and sin. If someone make a kindness he/she will get reward from God. The form of reward can be the born of child. On the contrary, if someone make a mistake (criminal), she/he will get a sin. The sin can be difficulty to pregnant.

As a religious-traditional community, adoption in Indonesia results in probabilities:

• Private relationship between foster child and his/her blood parent and blood family is broken. Here, foster child is given status as blood child
• Foster child still has private relationship with his/her blood parent.

In Adat Law, adoption proceed doesn’t need written proof. It’s enough by certain actions, the child has been assumed as adopted child. These certain actions are:

• care for the child and give education until adult
• circumcite the child (if male)
• to give the adopted child (after adult) in marriage.

Adoption in Adat Law (1)

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Adoption is an action to take somebody else’s child into one’s family, making him/her legally one’s child. Adoption term is not strange in a community. Since thousands years ago, community of Indonesia has known adoption. It’s done by a couple or family that has no child.

Indonesia is a country that consist of thousands islands with thousands ethnics. Every ethnic has its own law. That’s Adat Law. So Adat Law or Adat in a region may be different from the others. For example, Balinese Adat is different from Javanese Adat, including about adoption.

In Bali, adoption process must be done clearly (terang). It’ s done by religious ceremony, by announcement, and witnessed by public figure and religious figure, in order that status of child is clear. After ceremony, the adopted child become full member of foster family. So his/her private relationship with his/her blood parent and blood family is broken.

In South Sulawesi, foster child still has private relationship with her/his original parent (blood parent) and original family. So she/he can inherit from her/his blood parent. She/he has no right to inherit from foster parent. But foster child can get property/goods from foster parent by hibah (gift) or wasiah (testament). That’s Adat Law in South Sulawesi about adoption that influenced by Islamic values.

Adoption stipulation in Java is different from Bali and South Sulawesi. According to Javanese Adat Law, foster child still can inherit from his/her blood parent and foster parent too. Alhtough can inherit from foster parent but there is limitation over there. The foster child only can inherit from foster parent limitated on harta pencarian, no harta pusaka (heritage). Harta pencarian is property that get husband and wife as long as marriage. Harta pusaka is property from husband’s family or wife’s family. Harta pusaka is just for blood lineage.

So in Java, foster child called ngangsu 2 sumur, take water from 2 wells. Mean, foster child get 2 advantages, can inherit from his/her blood parent and foster parent too.

B. Ter Haar said that right to heir of foster child in Java that limitated only on harta pencarian, because in Java adoption is not family’s business, and implementation of adoption is not terang (clear). It’s done without ceremony, without witnessed by public figure and religious figure.

Can Marriage Contract be Revoked?

Q: A couple made a marriage contract. After some years, they wanna revoke the contract. Can marriage contract be revoked?

A: We must know the material of marriage contract first. If it’s about taklik talak, according to Compilation of Islamic Law in Indonesia, marriage contract can not be revoked. Whereas if the material of contract about good/property, so it can be revoked.

About revocation of contract of marriage, actually Compilation of Islamic Law in Indonesia regulates only about goods/property. It is regulated in article 50 section 2-5.

Contract of Marriage about goods can be revoked based on agreement of husband and wife. The parties obligate to register the revocation in office of Registerer Official of Nikah. And since registration, the revocation locks in husband and wife, but it does not lock in 3rd party immediately. Revocation just locks in 3rd party since date of registration is announced by husband and wife on a newspaper.

How if announcement not done by the couple is? If in 6 months announcement is not done by husband and wife, so registration of revocation is drop automatically and unlock in 3rd party.

Important. Revocation of contract may not cause disadvantage on contract with 3rd party before. So about debt of 3rd party, it must be responsiblilty of the spouses.

Adultery is not Adultery?...

This week public of Indonesia is shocked by blue videos on internet. It’s about sexual activity that probably done by 2 public figures, Mr. AP and Ms. LM. And now, public is reshocked by 2nd video on internet, that done by (probably) Mr. AP and Mrs. CT. I use word ‘probably’ because those haven’t be proved, although an ICT expert said that it’s 90% true.

If those video true, can Mr. AP, Ms. LM, and Mrs CT be indicted?

According to Criminal Law Code (Kitab Undang-undang Hukum Pidana/KUHP) article 284, adulterers can be prisoned maximum for 9 months. But, still according to this article, an action can be called adultery (perzinahan) if done by people that one of them or they all binded in wedlock. An unmarried man and a married woman, or an unmarried woman and a married man, or a married man and a married woman that they are not husband and wife. And indictment only can be done if there is complaint (pengaduan) from one that gets disadvantage because of the adultery.

On the video of Mr. AP and Ms. LM (if true they are), according to Criminal Law Code, their behavior is not adultery, because both Mr. AP and Ms. LM are not in wedlock with anyone. They are unmarried people. So they cannot be indicted with the article 284 (adulterous article).

It’s different from video of Mr. AP and Mrs. CT (if true they are). Because Mrs. CT is someone else’s wife (married woman), so can be said that she and Mr. AP commited adultery. They can be prisoned if Mrs. CT’s husband indict them. But…, on an interview, he looked not believe that his wife on the video. So, probably will not be indictment of adultery.

That’s Indonesian Criminal Law that product of Dutch Colonial. They are lucky (once, if true they are), because in Indonesia (except in province of Nangroe Aceh Darussalam) Islamic Criminal Law is not in forced. So they are avoided from 100 lashings or stoning to dead. Because, according to Islamic law, sex without marry or free-sex is adultery (zina). And Adat Law is too. And public is too….

Marriage Contract

Marriage Contract is right of everybody. It is permitted by Indonesian Law as far as not break limits of law, religion, moral and general discipline. In Indonesian Law it is called Perjanjian Perkawinan. It is regulated in Private Law Code (Burgelijk Wetboek), Marriage Law Number 1/1974, and Compilation Of Islamic Law in Indonesia.
And for muslim is inforced Compilation of Islamic Law in Indonesia jo. Marriage Law Number 1/1974.

Marriage Contract can done at time or before or after akad nikah performed. It must be written and must be validated by Registerer Official of Nikah. The contract locks the parties and 3rd party since date of marriage performed in front of Registerer Official of Nikah.

The kind of contract can be made by bride and bride-groom are: taklik talak, and other contract that not contravene with Islamic Law, such about legal community of goods, prevention domestic violence, contract connected polygamy.

The matters regulated in contract of marriage concerning legal community of goods are: mixing of personal property, separation of communal property, and stipulation of authority each party to mortgage personal property and communal property.

Mixing of personal property
Contract of mixing of personal property can include all properties. It can include brought property each party in marriage, and also property that got by each side in marriage. In the contract, can also be stipulated that mixing of personal property limitated on personal property that brought when marriage performed. So personal property got as long as marriage can not be entered in the mixing, so on the contrary.

Separation of communal property
If the parties make contract of separation of communal property, so the contract may not reduce or lose husband’s obligation to fulfil household necessaries. The mean, although property of husband and wife separated, the husband remains a leader of family that must give living cost for his wife and his children, that obligates to all their necessaries.

Marriage Contract and Polygamy
In connection with polygamy, contract of marriage is important. It is connected with husband’s fairness for his wifes. When marry with 2nd wife, 3rd wife, or 4rd wife, the bride-groom can make a contract about domicile, time of turn, and cost of household for bride. Once again, it is important. Very important! Because fair for someone sometimes is not fair for another one.

As long as marriage, can contract of marriage be changed? As long as marriage, the contract can not be changed except the parties have agreed, and the effect of the change must not cause loss for 3rd party.

Married by Accident

Someone sometimes makes a mistake. Makes a sin. Big sin. As done by Ayik and Soni (the both are not true name). They are love couple. They were blind because of love so could not think over. And the next event….it is easy to guess. Yes, Ayik was pregnant and they had not married.

Although pregnancy of Ayik had brought shame on the big family, but Ayik’s parent and Soni’s parent agreed to give their children in marriage. However their parents would not shamier anymore if the love child born out of wedlock.

The marriage done Ayik and Soni is called married by accident (MBA), marriage done because the women pregnant out of wedlock.

Ayik and Soni are fortune live in Indonesia. If they live in Islamic country that subject to Islamic Law, they would be punished stoning or lashing 100 times because of zina (adultery). (Look Quran Surah AnNisa section 6-9). Unfortunately there is no stoning or lashing punishment in Indonesia.

Indonesia law even regulate about MBA. MBA in law term of Indonesia is called Kawin Hamil. According to article 53 Compilation of Islamic Law, a woman who pregnant without husband can married with the man whom made her pregnant. The marriage can do without waiting the baby born first. After the baby born, re-marriage is not necessary.

Of course, existance of the regulation is not meant to correct sex without married. Not at all! Adultery, however, is wrong, big wrong! Big sin! Adat Law or our society has its way to punish adulterers. Sometimes the punishment is heavier, painier, shamier than State’s punishment.

Moreover existance of kawin hamil regulation, I think, to protect the women and children. You know somethings bad often happen to women, from deceit to rape.

The Importance of Marriage Contract

At least that is content of my brain when I came in a NGO in Yogyakarta. The NGO made a discussion program about abuse of women.

At the program, presented a research result about abuse of new diffable women in Bantul regency, province of Special District of Yogyakarta. Yes, there are abuses of new diffable women. Diffable women! They are victim of Jogja earthquake years ago. They get abuse, even from closest one, husband. Sometimes, the abuse, physically, economically, psychologically, sexually, even mixing abuses. Really a domestic violence!

A woman with wheel chair said, that her husband left her for another woman. He left her without living cost for her and their children. And she has no job after she has paralyzed because of earthquake. Sometimes her husband come home, but he never give her some money even he take her money while hit her. Ohh….

I think a woman can prevent herself from situation like this, with make a marriage contract about no abuse or no domestic violence. An agreement about the consequence if abuse happen. At least, a woman will get good bargaining in difficult situation.

Islamic Family Law in Indonesia

Based on law science, private law is divided into: Personal Law (Personenrecht, Hukum Perorangan/Badan Pribadi), Family Law, Property Law, and Inheritance Law.

Family law is part of private law that rules about connection of blood relation and marriage relation, and its consequence. Blood relation (blood family connection) is family string among some people who have same ancestor. Whereas family connection because of marriage (marriage relation) is family string as consequence of marriage, between someone and blood family of husband/wife.

The most of Indonesian Family Law is regulated in Law number 1/1974 about Marriage (Marriage Law). Actually, stipulations of the Marriage Law adopt Islamic Law. It can be understood remember the most of Indonesians is muslim. And further, more specific family law for muslim (Islamic Family Law/Islamic Marriage Law) is regulated in Compilation of Islamic Law.

Draft of Religious Justice Law: Nikah Siri is Crime?

At least that is debating recently. It is about criminal stipulation in Draft of Religious Justice Law (Rancangan Undang-undang Peradilan Agama), article 143. It states that everyone consciously perform marriage not in front of Register Official of Nikah will punished fine maximum Rp. 6000,000.- or imprisoned maximum 6 months.

It means someone commit nikah siri (unregistered marriage) can fined Rp. 6000,000.- or imprisoned 6 months.

Of course criminal stipulation in the Draft receive cordial welcome from activists and people who care about women and children. All this time, nikah siri is assumed as chink entering domestic violence. Besides, no legal protection to wife of nikah siri and her children.

On the other hand, some other people refuse the criminal stipulation. The punishment threat is unreasonable stipulation. Because nikah siri is valid according to Sharia. Nikah is ibadat. Religious order. It is really not fit to crime someone because of commiting religious order. Mereover, it is Indonesia, a country with the biggest population of muslim in the world. And nikah siri does not always have tragic end.

It is quite wrong. One side, Government/State only want to give legal protection to all citizens with registered marriage. But in other side, State can not prohibit people to do religious order. So what the solution?

Until now, it still analysed by Government, Ulama, and other sides. Hopefully, there will be good solution, before Draft of Religious Justice Law field Marriage enter National Legislation Program in Parliament in 2010.

Nikah Siri (Unregistered Marriage)

Nikah Siri is marriage performed just according to Islamic Law (Sharia), without registered according to stipulation of Marriage Law in Indonesia. It is usually done secretly, so just known by certain people. Even it is enough if only presented by the couple, wali nikah (marriage guardian), witness, and some close families. Because of secret, so no celebration, no party.

There are some reasons why someone commit nikah siri. From financial reason until adultery reason. From polygamy reason until job reason.

For the poor, they choose to commit nikah siri because of no choice. Marriage frankly (according to State Law) means party, and party is so expensive. And they have no money. So save method to marry is nikah siri.

Sometimes the young commit nikah siri because they are still student and have not worked. Also because to prevent from adulterous behavior. As in Jogjakarta. As a student city, there are boys and girls, studying in some universities. They come from all region of Indonesia, even from other countries. And most of them are muslim. As wanderer, young, of course there are so many temptation. So to protect and prevent from adultery (zina), they commit nikah siri. And after graduate, some of them continue their marriage by registration, and the others choose to separate (divorce).

Sometimes nikah siri is also done because the bride-groom has had wife before. So for 2nd marriage, he commit nikah siri. Mereover if he is a civil servant who prohibited to commit polygamy. If broken the rule, he will get punishment.

Except those above, there are some jobs that require marital status single for employee for certain period.

Because of no registration, nikah siri has negative effects. It is about children resulted from nikah siri. Although nikah siri is valid according to Sharia, but no marriage according to State Law. Because no registration means no document of marriage. It is same with no proof of marriage. It is influenced to legal status of children. According to State Law, they are born out of wedlock. Illegitimate children. Consequently, they just have legal connection with their mother, not their father.

Other effect is if divorce happen. Wife can not sue to livelihood (mut’ah) if she divorced by her husband. She also can not inherite from her husband if her husband is dead, and her children can not too.

That’s why nikah siri is always be controversy. Because of no legal certainty. No legal protection from State to women and children.

Free Will to Marriage

According to definition of marriage on Compilation of Islamic Law in Indonesia, marriage is a covenant, a contract. Existance of agreement of the couple results in it as a contract.

In Private Law, agreement is requirement of validity of contract. The mean of agreement is free will. There must be free will from bride and bride-groom.

What is free will?Free will is happen if :
* There is no coercion (dwang) that breaking the law,or
* There is no error/misunderstanding about identity (error in persone/dwaling in persone); concerning in marriage is about identitiy of bride/bride-groom.

If agreement is got without free will, it can said there is defective will (cacat kehendak/wilsgebrek). And if there is no free will in performing marriage, thus the marriage is voidable. Husband or wife can ask annulment in court.

How if husband/wife not use their right to ask annulment and still living together as husband and wife is?According to aricle 27 Marriage Law number 1 year 1974 (Undang-Undang No 1/1974 tentang Perkawinan/UUP), if coercion has stopped, misunderstanding is realized, but on 6 months after it still living together as husband and wife, and they do not use their right to ask annulment, consequently the right is drop.

If Mahar is Lost or Defect or Reduce....

"My husband gave me a ring with pearl as mahar when we married. After delivered, I and my family saw it. Unfortunately, the pearl had dropped. Maybe it dropped under way to my house. But I didn't care about it because I love him.... Actually I want to know if the same case happen, can the bride complain?" Rani asked.

Well, sometimes what we plan can not do perfectly. So do delivery of mahar. Perhaps everything looks perfect but before delivered mahar losts. Or also happen, mahar defect or reduced before delivered, because it is too fragile for instance.

In Indonesia, about those all are regulated in Compilation of Islamic Law (Kompilasi Hukum Islam,KHI) article 36-38.
If mahar (marriage gold) is lost before handed in, it can changed by :
· The same another good in form and kind
· Another good with same value
· Money that same with cost of the lost mahar.

And if there is difference of opinion about kind and value of certained mahar, so that it solved in Religious Court.

What about mahar defect or reduce is?If delivered mahar conceives defect or reduced but bride is willing accept it unconditionally, so giving mahar is assumed cash. On the contrary, if wife refuse to accept mahar because defect so husband must change it with undamaged mahar. And as long as the change has not given, mahar assumed still has not paid.

Wali Nikah (Marriage Guardian)

In Indonesian Islamic law, a woman can not give herself in marriage. She can marry if only there is someone given her in marriage. Someone is Wali Nikah (Marriage Guardian).

Requirements to be wali nikah must: muslim, akil and baligh, has right to be wali nikah, no obstacle to be wali nikah.

Wali nikah is divided into wali nasab and wali hakim.

Wali Nasab

Wali nasab is wali that has blood connection with the bride. Wali nasab is divided into 4 groups in sequence of position. A group is more formered than the others according to closeness of relative with the bride. Those groups are :
1. Group of relative in upward stright line, i.e. : blood father, grandfather (father of father), etc.
2. Group of relative : blood brother or brother (from one father) or descent of them
3. Group of relative uncle, i.e. : father’s blood-brother (uncle), father’s brother one-father, and their descent
4. Grandfather’s blood-brother, grandfather’s brother (from one father), and their descent.

If in one group there are some people have right to be wali, so that the most rightful to be wali nikah is someone closer relative to bride. Example, if there are blood father and grandfather, so that wali nikah is blood father.
If in one group there are some people in same relative degree so that the most rightful is blood relative than one-father relative. Blood brother is more rightful than brother one-father.
If in one group there are some people with same relative degree i.e. similar blood relative degree or similar one-father relative degree so that they all have equal right to be wali nikah. In this case, especially to older person that fulfilled requirements as wali nikah.
If wali nikah that rightful, his sequence is not fulfilled as wali nikah, or because he is dumb, deaf or udzur so that right moves to the other according to next degree.

What about a women have no wali nasab is?

There is wali hakim for her.

Wali Hakim (Magistrate Guardian)

Wali Hakim is wali nikah that pointed by Minister of Religious Affairs or by official pointed the Minister, that given right and authority to act as wali nikah. (Kompilasi Hukum Islam/compilation of Islamic Law)

When is wali hakim can act as wali nikah?Wali hakim can act as wali nikah just if there is no wali nasab, or it is impossible to presence wali nasab, or wali nasab’s address is unknown, or wali nasab is gaib or adlal or dislike. In case wali nasab adlal or dislike, wali hakim just can act as wali nikah after there is decision from Religious Court. (Compilation of Islamic Law article 23).

In case that wali nasab adlal or reluctand, Wali Hakim just cant act as wali nikah after there is decision from Religious Court.

Married without Presence of Blood Father

Someday and someplace in Jogja, most guests could not hold their teardrop when Fika (not her true name), in front of Petugas Kantor Urusan Agama (Employee of Religious Affair Office) whom act as Petugas Pencatat Nikah (Registerer Official of Nikah), directly stated that she could not really persence her blood father and she did not really know where is he live.

“What can I do anymore? I never can phone him. The number he gave is not registered, may be expired,” Fika said 2 weeks ago before married. “I sended him some letters but always return. I don’t know where is he.”

Fika just can wipe away her teardrop. She almost never feel what is father’s afection. Her father went to work since Fika still 5 months. Fika just met him twice after she adult. And she has no one else as wali nasab.

Fika story above just an example how importance of father. Blood father. A daughter always need her father. Especially when she will marry. Because a woman can not give herself in marriage. She needs wali nikah. And the main wali nikah (marriage guardian) is the blood father, even if he never do his duties as a father or a leader a family.

In case that blood-father’s whereabout is unknown, wali hakim as such can not act as wali nikah. The bride must really, really search out her father first. And if she really can not find her father and no wali nasab else, she must make a statement about it, then wali hakim can do as wali nikah. It is important. Because the blood father that never done his duties as leader of family, is not lost his right as wali to prevent a marriage that will do by wali nikah else(Compilation of Islamic Law article 62 section 2).

Polygamy (Having More than One Wife at the Same Time)

Actually I have planned to write about polygamy later, not in the close time. But I change my mind because existence of polygamy club, Global Ikhwan, recently has got public attention including me.

Polygamy in Islam has existed since thousands years ago. Prophet Ibrahim and Prophet Muhammad are polygamist. In Indonesia, polygamy has existed at kingdoms period centuries ago, since Islam had not yet entered in Indonesia. Having more than one wife was common for kings, high officials and the riches. But present day, there are certain rules to have more than one wife.

Polygamy in Indonesia is regulated in Marriage Law number 1/1974 (Undang-Undang Perkawinan No. 1/1974) article 3-5, Compilation of Islamic Law (Kompilasi Hukum Islam) chapter IX, and Government Regulation number 9/1975 (Peraturan Pemerintah No. 9/1975) chapter VIII.

Main requirement to polygamy is fairness. A poligamist must fair to all his wives and children. The problem is how many people can fair like Rasululloh, or at least get near Rasululloh? Even Ali bin Abi Thalib, cousin and son-in-law of Rasululloh, just had one wife, Fatimah. Ali did not marry again because he did not sure can fair to his wives.

A polygamist is restricted having only until 4 wives. Yes, Alloh in Quran prohibits a man has more than 4 wives.

To commit polygamy, a husband must get Court permission, so that he must ask application to Religious Court. And to ask application, must fulfil requirements:

1. Existence agreement of wife/wives

Agreement can given in written or oral form. But although ther is written agreement, it must more resoluted with oral form on Religious Court.
What about the wife is crazy or the wife has gone and her adress is unknown? Someone crazy can not give agreement, because everything she said can not responsible. So that if wife/wives is/are impossible giving agreement and can not be a side on contract, or no news from wife/wives at least 2 years or because other reason that necessary getting Judge attention, the agreement is not necessary.

2. Existence sureness that husband can guarantee life necessaries of his wives and their children
It can proved by letterof explanation of income; or letter of explanation of income tax; or the other can accepted Court.

Religious Court just will give polygamy permission based on certain reasons. The reasons are:

1. Wife can not do her duty as wife
2. Wife in physical defect or taken ill that irrecoverable
3. Wife can not bear children.

What about polygamy without Religious court permission is?
Marriage with 2nd wife, or 3rd wife or 4rd wife without Religious Court permission, it is mean marriage performed siri (Adat/Islam). Registerer Official of Nikah is prohibited to do his duty concerning polygamy without Religious Court permission. So that the marriage not have power of law. It means 2nd, 3rd, 4th wife and their children have no law protection if something bad happen. It concerning in legal community of goods, inheritance and parental authority.