Volume 8 Nomor 1 Tahun 2025
JURNAL HUKUM
STAATRECHTS
(FAKULTAS HUKUM Universitas 17 Agustus 1945 Jakart.
Legal Disparities in Unregistered Polygamous Marriages from the Perspective of Justice and Child Welfare: A Philosophical Examination Didi Jubaidi1.
Khoirunnisa Khoirunnisa2 Universitas 17 Agustus 1945 Jakarta didijubaidi@gmail.
Abstrak Perkawinan poligami yang tidak dicatatkan .
oligami sir.
seringkali menimbulkan permasalahan hukum yang kompleks, terutama terkait perlindungan dan hak-hak anak.
Ketidakharmonisan antara norma hukum positif dan realitas sosial menimbulkan kesenjangan hukum yang berakibat pada ketidakpastian status hukum anak yang lahir dari perkawinan Situasi ini mengarah pada pertanyaan hukum utama: Bagaimana perumusan norma hukum dapat diarahkan untuk menjamin perlindungan hak-hak anak dalam konteks perkawinan poligami yang tidak tercatat? Penelitian ini bertujuan untuk menganalisis kesenjangan hukum tersebut melalui pendekatan filosofis, dengan menekankan pada prinsip-prinsip keadilan dan kesejahteraan anak.
Dengan menggunakan metode kualitatif melalui tinjauan literatur, penelitian ini merefleksikan nilai-nilai keadilan substantif yang seharusnya mendasari perumusan dan implementasi hukum.
Temuan penelitian menunjukkan bahwa kerangka hukum yang ada belum sepenuhnya menjamin perlindungan hak-hak anak dalam konteks poligami yang tidak tercatat.
Oleh karena itu, diperlukan perumusan ulang norma hukum yang lebih responsif terhadap realitas sosial dan selaras dengan prinsip-prinsip keadilan dan kesejahteraan sebagai landasan filosofis hukum.
Kata kunci: Poligami Siri.
Kesenjangan Hukum.
Keadilan.
Kesejahteraan Anak.
Pendekatan Filosofis.
Abstract Unregistered polygamous marriages .
oligami sir.
often give rise to complex legal issues, particularly regarding the protection and rights of children.
The disharmony between positive legal norms and social realities creates legal disparities that result in uncertainty over the legal status of children born from such marriages.
This situation leads to a central legal inquiry: How can the formulation of legal norms be directed to ensure the protection of childrenAos rights in the context of unregistered polygamous marriages? This study aims to analyze these legal gaps through a philosophical approach, emphasizing the principles of justice and child welfare.
Using a qualitative method through literature review, this paper reflects on the values of substantive justice that should underpin legal formulation and implementation.
The findings indicate that the existing legal framework does not fully guarantee the protection of children's rights in the context of unregistered Therefore, a reformulation of legal norms is necessary one that is more responsive to social realities and aligned with justice and welfare principles as the philosophical foundation of Keywords: Unregistered Polygamy.
Legal Disparities.
Justice.
Child Welfare.
Philosophical Approach.
Introduction Marriage in Indonesia is not only a religious and cultural institution but also a legal one, governed by both Islamic teachings and state law.
According to Law No.
1 of 1974 on Marriage, every marriage must be registered to obtain legal recognition and protection.
However, the practice of poligami siriAiunregistered polygamous marriagesAiremains These informal unions are often conducted in secrecy, bypassing legal mechanisms, and result in a range of legal and social complications, particularly for the children born of such marriages.
Unregistered polygamy generally arises from a desire to avoid state regulations that require permission from the first wife and approval from the Religious Court before a man may take another wife legally.
This bypassing of legal requirements creates a duality between religious validity and legal validity.
While such marriages may be considered religiously legitimate, they lack legal standing, rendering the wife and especially the children vulnerable to legal exclusion.
The consequences for children are especially concerning.
Without legal recognition of the marriage, children may face significant barriers in accessing civil rights such as birth certificates, inheritance, health insurance, and legal identity.
In many cases, they are classified as children born out of wedlock, which carries profound legal and social These barriers hinder the stateAos obligation to protect childrenAos rights as outlined in Law No.
35 of 2014 on Child Protection and the Convention on the Rights of the Child, which Indonesia has ratified.
Previous studies have extensively examined the legal, psychological, and sociological impacts of unregistered polygamy.
For instance, focused on the normative legal consequences for children born in such marriages, noting the state's inability to offer 1 Mutarofik Mutarofik et al.
AuImplications of Unregistered Polygamous Marriages for ChildrenAos Rights in Indonesia,Ay TAQNIN: Jurnal Syariah Dan Hukum 6, no.
: 185-196.
https://doi.
org/10.
30596/taqnin.
2 Ismail Shaiful Bahari et al.
AuPsychological Impact of Polygamous Marriage on Women and Children: A Systematic Review and Meta-Analysis,Ay BMC Pregnancy and Childbirth 21, no.
: 1Ae10, https://doi.
org/10.
1186/s12884-021-04301-7.
them protection.
3 Similarly, research detailed the psychosocial effects on women and children, including neglect, psychological stress, and educational disadvantages.
However, these studies primarily explore normative and empirical dimensions, such as legal disharmony and administrative barriers.
There remains a notable lack of in-depth philosophical inquiry into the concepts of justice and child welfare within the context of poligami siri.
Existing literature seldom examines how foundational legal-philosophical principlesAisuch as justice, moral responsibility, and the ethical foundations of lawmakingAican be applied to ensure the protection of childrenAos rights in such contexts.
This research aims to fill that gap by offering a philosophical analysis that highlights these core values while also informing future legal and policy reform.
The urgency of this inquiry stems from the gap between das sein .
hat i.
and das sollen .
hat ought to b.
, particularly in the context of legal dualism between religious and civil In practice, poligami siri persists without legal safeguards for the children involved, reflecting a situation where religious legitimacy does not translate into legal recognition.
Ideally, however, legal norms should reflect the ethical imperative to protect all children equally, regardless of their parents' marital status.
This discrepancy between the actual condition and the normative expectation reflects a fundamental legal and moral problem that this study seeks to address.
This study is thus positioned within the philosophical and legal discourse on child protection and justice, contributing to a more integrative framework of lawmaking that bridges normative ideals and practical realities.
The notion of maslahah plays a pivotal role in Islamic law and is particularly relevant in this context.
Al-Ghazali and other classical scholars define maslahah as the preservation of five fundamental objectives: religion, life, intellect, lineage, and property.
5 Protecting the rights of children, especially those born in legally ambiguous situations, is central to maintaining lineage .
and human dignity.
When the state fails to register polygamous marriages, it inadvertently denies children their right to nasab, thereby undermining this essential principle.
Additionally, the concept of justice (Aoad.
in Islam demands equitable treatment for all individuals, particularly those who are vulnerable.
The legal invisibility of children born from unregistered marriages conflicts with this ideal.
Therefore, a re-examination of how laws are structured and enforced is necessary to ensure that legal norms do not contradict the ethical and theological imperatives of Islamic justice.
3 Mutarofik et al.
AuImplications of Unregistered Polygamous Marriages for ChildrenAos Rights in Indonesia.
Ay 4 Shaiful Bahari et al.
AuPsychological Impact of Polygamous Marriage on Women and Children: A Systematic Review and Meta-Analysis.
Ay 5 Imam Mohammad Al Ghazali.
Al Mustasfa Min Ilm Al Usul: On Legal Theory of Muslim Jurispudence (South Carolina: CreateSpace Independent Publishing, 2.
This paper further argues that legal reforms must be pursued not only to align with religious values but also to fulfill constitutional mandates.
Article 28B .
of the 1945 Constitution guarantees every child the right to survival, growth, and protection from violence and discrimination.
Any law or policy that allows children to be disenfranchised due to the marital choices of their parents is in direct violation of this constitutional Moreover, the current dualism in the legal systemAibetween religious and civil lawAi creates ambiguities that exacerbate the vulnerability of children.
While religious authorities may recognize poligami siri, the civil legal system does not, leading to inconsistencies in legal protection.
This conflict illustrates the need for a more integrative approach that harmonizes religious principles with human rights norms, ensuring that legal recognition of marriage prioritizes the welfare of all affected parties, especially In sum, the present study contributes to the ongoing discourse by offering a philosophical-legal evaluation of poligami siri and its implications for child welfare.
Unlike earlier research, which tends to focus on empirical outcomes or statutory analysis, this article draws upon Islamic legal theory to argue that protecting childrenAos rights must be a primary legal and ethical obligation.
By doing so, it seeks to offer a more holistic framework for evaluating the justice of unregistered polygamy in Indonesia.
Literature Review Unregistered polygamous marriages, known in Indonesia as poligami siri, raise complex legal and social issuesAiparticularly concerning the protection of childrenAos rights.
Scholars have highlighted the discord between Islamic law and state law as a key factor contributing to legal disparities that negatively affect child welfare in such marriages.
Aminah and Muala .
, in their study on the harmony between Islamic law and Indonesia's Marriage Law No.
1 of 1974, found that many polygamous marriages occur without official registration.
7 As a result, wives and children are left without adequate legal protection.
The authors argue that this legal vacuum often leads to social injustice, especially for children leads to social injustice, especially for children who lack legal identity, inheritance rights, and financial support.
The study emphasizes the urgent need for legal reforms and stronger law enforcement to bridge the gap between religious practices and state regulations.
They also propose policy integration that respects religious beliefs while securing children's rights under the law.
Widanarti.
Riyanto, and Yunanto .
explore legal pluralism in Indonesia, where religious, customary, and national legal systems often overlap and conflict.
They argue 6 Ni Putu Rai Yuliartini.
AuLegal Protection of Women and Children in the Perspective of Human Rights,Ay 2021, https://doi.
org/10.
4108/eai.
9-9-2021.
7 Aminah Aminah and Asyharul Muala.
AuAnalysis of Polygamy Law in Indonesia: Harmony between Islamic Law and State Law,Ay Indonesian Journal of Islamic Law 6, no.
: 1Ae17, https://doi.
org/10.
35719/ijil.
that unregistered marriages, although religiously valid, fail to provide legal certainty under national lawAiparticularly regarding the civil rights of children.
8 Their study references a pivotal Constitutional Court decision that recognizes a legal relationship between children born out of wedlock and their biological fathers, provided there is scientific or legal evidence.
This legal shift marks a step toward recognizing the rights of children from unregistered marriages.
The authors call for progressive legal reconstruction to better reflect social realities and to provide stronger child protection Shaiful Bahar et all.
, .
focus on the legal validity of unregistered marriages from an Islamic legal perspective and their impact on childrenAos rights, using a case study fromon childrenAos rights, using a case study from the Singaraja Religious Court.
9 Although such marriages are religiously valid, the lack of official documentation means that the marriage is not recognized by the state, which undermines childrenAos rights to legal identity, inheritance, and support.
The authors advocate for increased public awareness regarding the legal consequences of poligami siri, as well as governmental initiatives to encourage marriage registration and policy reform that better protects the rights of children born into such unions.
The literature underscores significant legal disparities caused by unregistered polygamous marriages .
oligami sir.
in Indonesia, particularly their impact on children, who are often excluded from legal protections.
These studies emphasize the need to harmonize religious and state legal systems through reforms grounded in justice and child welfare.
While previous research has largely focused on normative and empirical aspectsAisuch as legal disharmony, marital validity, and child protection frameworksAi it has rarely explored the philosophical foundations of justice and morality in this context.
This research addresses that gap by offering a philosophical analysis of core legal values, including justice, moral responsibility, and ethical lawmaking, to better safeguard childrenAos rights and inform responsive policy reform.
Theoretical Framework This study draws upon a multidisciplinary theoretical foundation to analyze the legal disparities and consequences of unregistered polygamous marriages .
oligami sir.
in Indonesia, with a specific focus on children's welfare.
The framework incorporates normative legal theory.
Islamic legal philosophy, child rights under international law, and critical legal perspectives.
8 Herni Widanarti.
Benny Riyanto, and Yunanto Yunanto.
AuPolitical Reconstruction of Law towards the Rights of Non-Marital Child through the State Recognition of Unregistered Marriage in Indonesia,Ay The First International Conference on Islamic Development Studies, 2019, https://doi.
org/10.
4108/eai.
9 Shaiful Bahari et al.
AuPsychological Impact of Polygamous Marriage on Women and Children: A Systematic Review and Meta-Analysis.
Ay Justice Theory The concept of justice, particularly John RawlsAo Theory of Justice, underpins this studyAos normative inquiry.
Rawls .
emphasizes justice as fairness, wherein all individuals are entitled to basic rights regardless of circumstances beyond their Applying this theory, children born from unregistered marriages should not be deprived of legal recognition and protection due to their parents' marital status.
Justice, in this context, requires laws to ensure equitable access to identity, inheritance, and legal status for all children.
Maqasid al-Shariah and Maslahah (Public Interes.
Islamic legal theory, especially the maqasid al-shariah .
igher objectives of Islamic la.
, offers a foundational lens to examine the moral imperative behind protecting childrenAos rights.
Classical scholars such as Al-Ghazali and Al-Shatibi outline the protection of lineage .
ifz al-nas.
as a core objective.
11 From this perspective, the welfare .
of children born from poligami siri must be a priority.
These children are entitled to legitimacy and protection, not just under religious norms, but as a moral duty aligned with Islamic jurisprudence.
12 Legal systems should therefore reflect these values by safeguarding the rights of children, even when their parents bypass civil registration.
Critical Legal Theory Critical legal studies (CLS) challenge the neutrality of law, positing that legal systems often reflect societal power structures that marginalize vulnerable groups.
argued by Unger .
, laws may appear impartial but frequently sustain systemic In the case of unregistered marriages, children are often treated as Auless legal,Ay facing discrimination in access to civil documentation and social services.
CLS helps unpack how formalistic interpretations of law exclude children born in informal unions, calling for more inclusive legal reforms.
ChildrenAos Rights under International Law The study is further grounded in the Convention on the Rights of the Child (CRC), ratified by Indonesia in 1990.
Article 7 of the CRC guarantees a childAos right to be registered immediately after birth and to acquire a nationality.
Article 2 prohibits discrimination of any kind, including status of birth.
Legal systems that deny full rights to children from poligami siri indirectly contravene these international 10 j Rawls.
The Law Of Peoples With AuThe Idea Of Public Reason RevisitedAy (Cambridge.
Uk: HARVARD UNIVERSITY PRESS, 2.
11 Imam Mohammad Al Ghazali.
Al Mustasfa Min Ilm Al Usul: On Legal Theory of Muslim Jurispudence.
12 Mohammad Hashim Kamali.
ShariAoah Law: An Introduction (Oxford: Oneworld Publications, 2.
, http://books.
com/books?id=tyHaHZcRLWEC&pgis=1.
13 Roberto Mangabeira Unger.
The Critical Legal Studies Movement.
Harvard Law Review (Cambridge.
MA:
Harvard University Press, 1.
, https://doi.
org/10.
2307/1341032.
14 Thus, the harmonization of domestic legal norms with global child protection standards is essential.
Rechtsstaat and Constitutionalism As a Rechtsstaat or constitutional state.
Indonesia is expected to uphold the rule of law and ensure that all citizensAiespecially vulnerable groupsAireceive equal protection under the law.
However, the discrepancy between religiously valid but unregistered marriages and legal recognition indicates a tension within the legal This study highlights the need for integrating formal legal structures with moral-ethical imperatives to protect children's dignity and legal identity.
Methodology and Analytical Framework This research adopts a qualitative normative-legal approach .
uridis normati.
supported by a philosophical and critical interpretative analysis of legal texts, judicial practices, and Islamic legal principles.
The study also incorporates elements of legal hermeneutics to bridge the understanding between statutory law.
Islamic jurisprudence, and human rights instruments concerning children's legal protection in unregistered polygamous marriages.
Type of Research This study is doctrinal legal research that analyzes existing legal materialsAi statutes, case law, scholarly opinions, and international conventionsAithrough interpretative and philosophical analysis.
It does not employ empirical data collection but rather focuses on primary and secondary legal sources to develop a normative and conceptual understanding of the issue.
Sources of Legal Material Primary legal materials include:
Law No.
1 of 1974 on Marriage .
nd its amendment.
Law No.
35 of 2014 on Child Protection .
The 1945 Constitution of Indonesia, particularly Article 28B .
The Convention on the Rights of the Child (CRC) .
Jurisprudence from the Religious Court regarding unregistered marriages Secondary materials include academic books, peer-reviewed journal articles, fatwas from Islamic legal bodies, and reports from international institutions such as UNICEF and the Indonesian Child Protection Commission.
Analysis Technique Data is analyzed using a qualitative content analysis method.
This involves:
14 UNICEF.
AuImplementation Handbook for the Convention on the Rights of the Child.
3rd Ed.
,Ay New York:
United Nations ChildrenAos Fund, 2007, https://w.
Legal Interpretation: Applying grammatical, systematic, and teleological interpretation methods to assess the meaning and purpose of relevant statutes.
Philosophical Analysis: Interrogating how principles like maslahah, hifz al-nasl, and adl .
are operationalized in law, drawing on Islamic legal Critical Legal Analysis: Drawing from critical legal studies to examine how structural biases in the legal system affect children born into unregistered polygamous unions.
The researcher also employs comparative analysis, examining how other Muslimmajority countries .
Malaysia.
Morocc.
handle the registration of polygamous marriages and the legal status of children therein, to inform reform Philosophical-Legal Justification This methodology enables a multilevel critique of the law: from its textual formulation .
ex lat.
, its practical application in court judgments, to the philosophical legitimacy behind it .
ex ferend.
This helps explore whether the legal exclusion of children from poligami siri aligns with IndonesiaAos constitutional mandate and Islamic moral imperatives.
Validity and Credibility To ensure validity, triangulation is employed through:
Cross-referencing Validating doctrinal interpretations with classical Islamic legal sources and contemporary scholarly consensus.
Comparing legal reasoning across jurisdictions to assess the viability of proposed legal reforms.
Result & Discussion The legal disparities surrounding unregistered .
polygamous marriages in Indonesia present a complex intersection between statutory legal systems, religious norms, and human rights frameworks.
The current legal landscape demonstrates a formalistic bias, wherein the state recognizes only marriages registered under Law No.
1 of 1974.
Consequently, children born from unregistered polygamous marriages suffer from 15 Peter Mahmud Marzuki.
Penelitian Hukum, (Ed.
Revis.
, 12th ed.
(Jakarta: Kencana Prenada Media Group, 2.
16 Kamali.
ShariAoah Law: An Introduction.
17 Unger.
The Critical Legal Studies Movement.
indirect legal discrimination, particularly in regard to civil documentation, inheritance rights, and social status.
This section explores the implications of such disparities through a critical and philosophical-legal lens, referencing theoretical frameworks previously discussed:
justice theory, maqasid al-shariah, critical legal studies, and child rights under international law.
Legal Formalism vs.
Substantive Justice Indonesia's Marriage Law, specifically Article 2 of Law No.
1 of 1974, mandates the registration of all marriages to attain legal recognition.
This requirement reflects a formalist legal framework that emphasizes adherence to procedural rules as a precondition for legal rights.
However, this approach becomes problematic when it encounters deeply rooted religious and cultural practicesAisuch as poligami siriAithat persist outside the boundaries of state law.
In these cases, marriages are conducted in accordance with religious norms but intentionally evade state registration to avoid bureaucratic or legal complications, such as obtaining the court's permission or consent from the first wife.
This legal dualism creates a systemic tension: the marriage is considered religiously valid .
but is legally invisible .
idak tercata.
As a result, children born within these unions find themselves in a precarious legal position.
Denied birth certificates, these children may face barriers to education, healthcare, civil documentation, and even inheritance.
The legal system, by privileging form over substance, imposes punitive consequences on children for a procedural failure committed by their parentsAia violation of justice both morally and constitutionally.
From a philosophical standpoint, this issue illustrates the conflict between legal formalism and substantive justice.
Legal formalism insists on strict compliance with codified law and procedures, often at the expense of social equity or moral consideration.
In contrast, substantive justice focuses on the fairness of outcomes and the ethical implications of legal decisions.
This latter approach aligns more closely with the concept of justice as fairness articulated by John Rawls.
According to Rawls .
, 18 every individual deserves equal access to basic liberties and fair opportunities, regardless of arbitrary factors such as the legal status of their parentsAo marriage.
By perpetuating a system where children's rights are contingent on marital paperwork, the state fails to fulfill its moral obligation to ensure fair equality of opportunity.
Ronald DworkinAos interpretivist legal theory further illuminates this issue.
Dworkin contends that law should be interpreted not merely as a set of rules but as a moral enterprise aimed at achieving justice in particular cases.
19 In his view, judges and lawmakers have a duty to interpret legal norms in a way that best fits and justifies the legal system as a whole.
Applying this to poligami siri, the law should be interpreted and 18 Rawls.
THE LAW OF PEOPLES with AuThe Idea of Public Reason Revisited.
Ay 19 Ronald Dworkin.
LawAos Empire.
The Journal of Politics (Cambridge.
MA: Harvard University Press, 1.
reformed in a way that upholds childrenAos dignity and rights, even if it means revisiting formalistic barriers.
From the standpoint of Islamic legal philosophy, the principles of maslahah .
ublic interes.
and Aoadl .
offer further ethical grounding.
Classical Islamic scholars such as Al-Ghazali argue that the lawAos ultimate objective is to preserve fundamental human interests: religion, life, intellect, lineage .
, and property.
20 The denial of legal identity to children undermines their nasab, a core objective in Islamic jurisprudence.
Moreover, the principle of Aoadl obligates equitable treatment for all, especially vulnerable groups such as children.
A legal system that withholds rights from children based on unregistered parental status stands in opposition to these Islamic ethical mandates.
Thus, a substantive approach to justice requires the law to recognize the lived realities of children born into poligami siri and provide legal remedies that are not strictly tied to procedural formalities.
This could include retrospective registration mechanisms, special family court procedures, or legislative amendments that prioritize the best interest of the Only through such integrative reforms can the law bridge the gap between das sein .
hat i.
and das sollen .
hat ought to b.
, fulfilling both constitutional promises and religious imperatives for justice and protection.
The Ethical Imperative of Maqasid al-Shariah Islamic jurisprudence, particularly the framework of maqasid al-shariah .
igher objectives of Islamic la.
, provides an ethical foundation that emphasizes the protection of essential human interests, including religion .
, life .
, intellect (Aoaq.
, property .
, and progeny .
Among these, the protection of progeny .
ifz al-nas.
is particularly crucial when discussing the rights and legal status of children born from unregistered polygamous marriages.
According to Al-ShatibiAos theory, the primary purpose of Islamic law is to promote welfare .
and prevent harm .
, ensuring that legal rules align with the overarching moral aims of the Sharia.
The principle of hifz al-nasl does not only pertain to biological lineage, but also includes the legal, social, and moral responsibilities attached to parenthood and child protection.
Failure to register a marriage might be religiously acceptable to some, but the consequent denial of children's legal identity and access to rights represents a form of harm that is clearly incompatible with Islamic ethical teachings.
In this sense, maqasid al-shariah requires the state to intervene and ensure that legal mechanisms are aligned with the moral imperative to protect children, regardless of the marital status of their parents.
Al-Shatibi emphasized that maslahah is not merely a theoretical construct, but a dynamic principle that must be applied contextually, particularly in response to evolving social In the context of Indonesia, where unregistered polygamous marriages remain common due to sociocultural and economic factors, the harm faced by children from such 20 Imam Mohammad Al Ghazali.
Al Mustasfa Min Ilm Al Usul: On Legal Theory of Muslim Jurispudence.
21 Herdiansyah Herdiansyah.
AuAl Muwafaqat Karya Masterpiece Imam Asy-Syatibi,Ay Das Solen 3, no.
, https://ejournal.
id/index.
php/das-sollen/article/view/1334.
unions demands an ethical and legal response.
Their exclusion from civil registration systems, education, health care, and inheritance law constitutes a violation of maslahah and undermines the objective of justice (Aoad.
in Islamic law.
Furthermore, the concept of rahmah .
is central to Islamic ethics and is inseparable from the implementation of just laws.
The Prophet MuhammadAos teachings consistently emphasized the importance of protecting the vulnerable, particularly orphans and children, as part of fulfilling the ethical objectives of Islamic governance.
When the legal system fails to recognize children born in poligami siri, it not only contradicts the principle of rahmah, but also violates the Quranic mandate to act justly and compassionately towards the weak and marginalized.
Therefore, harmonization between statutory law and Islamic legal-ethical principles is not just a legal necessity but a moral obligation.
The Indonesian legal system must reform its registration and family law mechanisms to reflect the ethical demands of maqasid alshariah, particularly the principles of adl, rahmah, and maslahah.
This would ensure that childrenAos rights are not conditional upon the marital decisions of their parents but are protected as part of the stateAos commitment to justice and public welfare.
Legal recognition of children born from unregistered marriages should thus be seen not as a concession to irregular unions, but as a fulfillment of the ethical imperative within both Islamic jurisprudence and constitutional law.
This approach would bridge the normative divide between das sein and das sollen and embody a legal philosophy that genuinely centers the welfare of the most vulnerable.
Structural Discrimination in Law: A Critical Legal Studies Perspective Critical Legal Studies (CLS) emerged as a movement that critiques the idea of law as a neutral, objective, and apolitical institution.
Scholars such as Roberto Unger .
argue that legal structures are deeply embedded within the prevailing social, political, and economic hierarchies.
From a CLS perspective, law often functions not as a tool of justice, but as a mechanism that preserves the status quo and reproduces inequality.
24 In the Indonesian context, this critique becomes particularly relevant in examining the consequences of formal marriage registration laws on marginalized groups, especially women and children in unregistered polygamous marriages.
IndonesiaAos legal insistence on marriage registration as a prerequisite for legal recognitionAioutlined in Law No.
1 of 1974 on MarriageAicreates structural barriers that disproportionately affect individuals in non-conforming marital arrangements.
These include poligami siri, which although religiously valid, remain unrecognized by state For women in such unions, especially those from lower socio-economic backgrounds, the lack of registration strips them of legal standing in matters such as inheritance, spousal support, and property claims.
The legal systemAos failure to account 22 Kamali.
ShariAoah Law: An Introduction.
23 The Holy QurAoan.
Surah An-Nisa .
, n.
24 Unger.
The Critical Legal Studies Movement.
for the socio-cultural and gendered realities that lead to unregistered marriages reflects what CLS calls structural discriminationAilegal frameworks that appear neutral but result in unequal outcomes due to underlying power relations.
This structural discrimination extends to children born from poligami siri.
As legal recognition of paternity is typically tied to formal marriage, children from unregistered unions are often considered anak luar kawin .
hildren born out of wedloc.
This classification affects their civil rights, including the right to a birth certificate bearing their fatherAos name, which in turn impacts their access to education, health services, and In this sense, the law functions not as a protector but as a gatekeeper that privileges legally compliant families while excluding others from full citizenship.
While there have been efforts to mitigate these impacts, such as the Constitutional CourtAos decision in Putusan MK No.
46/PUU-Vi/2010,25 which allows for the establishment of legal paternity based on biological evidence rather than marital status, implementation has been inconsistent.
The burden of proof is often placed on the mother or child, and decisions can vary significantly across jurisdictions.
This judicial discretion, coupled with bureaucratic hurdles and social stigma, further entrenches inequality.
CLS critiques would suggest that these inconsistencies are not aberrations but rather manifestations of a legal system designed to preserve dominant norms and marginalize deviations.
Furthermore, the lack of institutional responsiveness to these gaps reveals a broader issue: the disconnect between legal formalism and substantive justice.
The rigidity of the marriage registration framework ignores the lived experiences of many Indonesians who, due to cultural, religious, or economic factors, cannot easily comply with formal legal requirements.
A CLS-informed approach advocates for reforms that center on social justice rather than mere procedural conformity.
This includes recognizing unregistered marriages for the purpose of protecting vulnerable parties and ensuring that legal outcomes reflect the realities of those most affected.
Child Rights Under the CRC and National Law Indonesia, as a state party to the Convention on the Rights of the Child (CRC) since its ratification through Presidential Decree No.
36 of 1990, has committed itself to ensuring the protection of all childrenAos rights, regardless of their origin or the legal status of their parentsAo marriage.
Article 2 of the CRC explicitly prohibits discrimination of any kind, including that based on the status of birth, while Article 7 affirms the childAos right to a name and nationality from birth.
These international obligations require the state to provide equal access to civil documentation, legal identity, and social services for all Despite this, in practice, children born from poligami siri often face bureaucratic and legal obstacles in acquiring basic civil documents, particularly birth certificates.
This is largely 25 Mahkamah Konstitusi Republik Indonesia.
AuPutusan Mahkamah Konstitusi Nomor 46/PUU-Vi/2010 Tentang Pengujian Undang-Undang Nomor 1 Tahun 1974 Tentang Perkawinan Terhadap Undang-Undang Dasar Negara Republik Indonesia Tahun 1945Ay (Jakara, 2.
, https://w.
due to Law No.
23 of 2006 on Population Administration, as amended by Law No.
24 of 2013,26 which mandates that the registration of a child's paternity must be based on a legally recognized marriage.
If such marriage is unregistered, as in the case of poligami siri, the child is considered born out of wedlock, and the process of civil documentationAi particularly for naming the fatherAirequires a court ruling.
The Constitutional CourtAos decision in Putusan MK No.
46/PUU-Vi/2010 was a significant legal development that attempted to correct this injustice by allowing for judicial recognition of paternal relationships even outside of marriage.
However, the implementation of this ruling remains limited and inconsistent, with local civil registration offices often interpreting the provisions variably.
Additionally, the cost and complexity of accessing court procedures present a significant barrier for families with limited resources, reinforcing structural inequality.
These barriers create a form of de facto discrimination that is incompatible with the CRC and the constitutional mandate in Article 28B .
of the 1945 Constitution of Indonesia,27 which guarantees every child the right to survival, growth, and protection from violence and discrimination.
Without effective administrative reform and clearer legal pathways to ensure the civil identity of all children.
Indonesia risks violating both its domestic constitutional guarantees and its international human rights obligations.
Comparative Insights and Reform Imperatives Comparative analysis with other Muslim-majority countries such as Malaysia and Morocco demonstrates that a more integrated and adaptive legal framework can ensure better protection of childrenAos rights in the context of unregistered marriages.
These countries have developed institutional mechanisms that not only acknowledge the social reality of such marriages but also secure the civil and legal rights of children born within In Malaysia, the tauliah nikah .
arriage validatio.
process is handled through the Syariah courts, allowing for the retroactive recognition of marriages that were not registered at the outset.
This mechanism is relatively accessible and does not impose excessive burdens on families seeking legal recognition for their children.
Even if the original marriage failed to meet administrative requirements, the Syariah courts have the authority to grant formal validation, thereby ensuring that the childAos rights to identity, inheritance, and legal protection are upheld 28.
Morocco, through its 2004 reform of the Moudawana (Family Cod.
, adopted a childcentered approach that guarantees equal rights for all children, regardless of the marital 26 Republik Indonesia.
Undang-Undang Nomor 5 Tahun 2013 Tentang Administrasi Kependudukan.
Kementerian Hukum Dan Hak Asasi Manusia (Jakarta, 2.
, id/esscamp/aturan/APARATUR_SIPIL_NEGARA_(ASN).
pdf\n.
27 Pemerintah Indonesia.
Undang-Undang Dasar Negara Republik Indonesia Tahun 1945.
Sekretariat Jenderal MPR RI (Jakarta, 2.
, https://w.
id/img/sosialisasi/file/1610334013_file_mpr.
28 Arifki Budia Warman et al.
AuReforming Marriage Registration Policies in Malaysia and Indonesia,Ay Bestuur 11, no.
: 61Ae74, https://doi.
org/10.
20961/bestuur.
status of their parents.
The Moroccan system prioritizes the childAos best interests and provides various pathways to legal recognition, including community testimony, judicial discretion, or DNA evidence.
Drawing from these comparative models.
Indonesia could adopt progressive legal reforms to reduce structural discrimination and enhance child protection.
Policy recommendations include:30 Simplifying judicial procedures for establishing paternal linkage .
enetapan asal-usul ana.
through non-litigious, administrative processes.
Expanding mobile legal aid services to reach marginalized and rural populations.
Introducing automatic child recognition provisions based on DNA testing, notarial affidavits, or credible religious or community testimony.
Such reforms would not only strengthen child rights protections but also reflect IndonesiaAos commitment to eradicating structural inequality embedded in its population administration system.
These recommendations are also consistent with Islamic legal objectives .
aqasid al-sharia.
, particularly hifz al-nasl .
rotection of lineag.
and maslahah .
ublic interes.
By integrating best practices from other jurisdictions.
Indonesia can work toward a more just, inclusive, and socially responsive legal system that honors both its constitutional mandates and its Islamic ethical foundations.
Reconstructing Legal Norms Toward Child-Centered Justice Addressing the legal disparities associated with poligami siri requires a fundamental reconstruction of the legal paradigmAifrom a focus on marriage-centered legitimacy to a framework rooted in child-centered justice.
In the current legal structure, a childAos civil status, access to identity documents, and right to inheritance are often contingent upon the formal legal recognition of their parents' marriage.
This approach fails to uphold the principles of substantive justice and disproportionately penalizes children for circumstances entirely beyond their control.
A child-centered legal approach aligns with the philosophical underpinnings of both Rawlsian liberalism and Islamic legal theory.
From RawlsAo perspective, justice demands that institutions be arranged so that they benefit the least advantaged members of society (Rawls, 1.
Children born into unregistered polygamous marriages are undeniably among the most legally disadvantaged, often facing exclusion from critical rights and Shifting the legal focus toward their welfare reflects the principle of justice as Similarly.
Islamic jurisprudence upholds maslahah .
ublic interes.
, rahmah .
, and hifz al-nasl .
rotection of progen.
as core objectives of the maqasid 29 Muhammad Ihsanul Arif and Adib Al Farisi.
AuPERBANDINGAN PEMBAHARUAN HUKUM KELUARGA ISLAM NEGARA PENGANUT MAZHAB SYAFI`I (MALAYSIA DAN YAMAN),Ay Al-Ahwal Al-Syakhsiyyah: Jurnal Hukum Keluarga Dan Peradilan Islam 4, no.
: 123Ae32, https://doi.
org/10.
15575/as.
30 Syofiaty Lubis et al.
AuOptimizing the Roles of Posbakum and Islamic Organizations in Medan City for Child Victims of School Violence,Ay Jurnal Ilmiah Al-SyirAoah 22, no.
: 113Ae24, https://doi.
org/10.
30984/jis.
al-shariah, underscoring the moral imperative to secure the welfare and dignity of every child, regardless of their birth status.
The ethical obligation to treat all children equitably is rooted in the Qur'anic injunction to uphold justice and protect the vulnerable.
From a constitutional standpoint.
Article 28B .
of the 1945 Constitution of the Republic of Indonesia affirms that Auevery child shall have the right to live, to grow and develop, and to be protected from violence and discrimination (Undang-Undang Dasar Negara Republik Indonesia Tahun 1945.
Pasal 28B ayat .
32Ay In line with this.
Law No.
35 of 2014 on Child Protection emphasizes that the best interests of the child must be a primary consideration in all matters concerning children.
Legal practices that condition a childAos rights on their parents' compliance with marriage registration procedures contradict these legal.
Therefore, the state must reposition itself not merely as a gatekeeper of marriage validity, but as a proactive guardian of childrenAos fundamental rights.
This includes implementing inclusive registration procedures, recognizing paternity through accessible legal means, and reforming inheritance laws to reflect a childAos needs and humanity, rather than the formality of their parentsAo union.
Only through such a reorientation can the legal system fully embrace justice that centers on the child.
Conclusion The legal status of children born from unregistered polygamous marriages in Indonesia reflects a broader institutional failure to harmonize statutory, religious, and human rights While the formal legal system prioritizes registration as the basis for rights recognition, this model inadvertently marginalizes children who are innocent bystanders in their parentsAo marital decisions.
From a justice theory perspective, this constitutes a breach of fairness.
From an Islamic legal standpoint, it violates the moral imperatives of maslahah and adl.
Internationally, it contravenes IndonesiaAos obligations under the CRC.
To achieve substantive justice, the state must adopt a child-centered legal paradigm, where legal recognition and protection are granted based on the childAos inherent rights rather than the legality of the parental union.
Only through such integrative reforms can Indonesia fulfill its commitment as a constitutional state and uphold the moral vision embedded in both its religious and secular laws.
31 QurAoan.
Surah An-Nisa .
32 Pemerintah Indonesia.
Undang-Undang Dasar Negara Republik Indonesia Tahun 1945.
33 RI Kemensesneg.
Undang - Undang Nomor 35 Tahun 2014 Tentang Perubahan Atas Undang Ae Undang Nomor 23 Tahun 2002 Tentang Perlindungan Anak.
UU Perlindungan Anak (Jakarta, 2.
, https://peraturan.
id/Home/Details/38723/uu-no-35-tahun-2014.
References