Sawaludin Fikri,
Heir Rights of Mixed Marriages According to Private International Law Perspectives
Sawaludin Fikri
Universitas Islam Negri Sultan Maulana Hasanuddin Banten, Indonesia e-mail: [email protected]
Abstract
In mixed marriages, several problems will arise, one of which is regarding the inheritance rights of children born from the marriage. The process of ownership or transfer of rights to land obtained by inheritance is most often a complicated problem among the community. Of course, if it is related to inheritance of land obtained from generation to generation. Even though according to law every human being is a bearer of rights without exception, this research is legal research, because this research was carried out based on legal rules which were studied in order to find solutions to the legal issues faced in this legal research. This is where the ability to identify legal issues, carry out legal reasoning, analyze the problems faced and then provide solutions to these legal issues is needed. The division of inheritance in marriage is also related to whether there can be a transfer of land rights from the right holder to another party due to a legal event, especially the death of the land right holder, where the transfer of land rights occurs due to inheritance, or due to legal actions carried out by the land right holder with other parties, especially in the form of sales, exchanges, subsidies, income sharing and auctions. What is meant by inheritance rights is the transfer of rights to land from a rights holder who has died. Upon death, the holder of land rights passes it on to his heirs. The loss of property inherited from land rights holders to heirs is not due to actions but rather transferred due to legal events. Regarding children, there are many regulations that apply. Family law focuses on the relationships and obligations between family members, while inheritance law regulates how a person's property and assets are inherited after death. Gifts and trusts are two important concepts that are often related to family law and inheritance law. If a mixed marriage takes place in Indonesia, a division of inheritance is carried out based on the BW and the laws in force in Indonesia. If the marriage takes place in another country, a plan for distribution of inheritance is carried out based on the laws and regulations in force in that country. At the time of marriage and divorce, the late Motiram still had the status of a foreign citizen, namely the son of the late Swita Motiram, but he was a foreign citizen, so the laws in force in Indonesia could not be applied to him.
Keywords: inheritance rights; mixed marriage Abstrak
perkawinan campuran akan timbul beberapa permasalahan, salah satunya mengenai hak mewaris anak yang lahir dari perkawinan tersebut. Proses pemilikan atau peralihan hak atas tanah yang diperoleh secara warisan paling sering menjadi masalah pelik di kalangan masyarakat. Tentu saja, jika dikaitkan dengan warisan atas tanah yang diperoleh secara turun-temurun. Meskipun menurut hukum setiap manusia adalah pembawa hak tanpa terkecuali. Penelitian ini adalah penelitian hukum, karena penelitian ini dilakukan berdasarkan aturan-aturan hukum yang ditelaah guna menemukan
Sawaludin Fikri, solusi dari permasalahan isu hukum yang dihadapi dalam penelitian hukum ini. Disinilah dibutuhkan kemampuan untuk mengidentifikasi masalah hukum, melakukan penalaran hukum, menganalisis masalah yang dihadapi dan kemudian memberikanpemecahan atas isu hukum tersebut., pembagian harta warisan dalam perkawinan juga berkaitan dengan dapatkah terjadi peralihan hak atas tanah dari pemegang hak kepada pihak lain karena peristiwa yang sah, khususnya kematian pemegang hak atas tanah, dimana peralihan hak atas tanah terjadi karena pewarisan, atau karena perbuatan hukum yang dilakukan oleh pemegang hak atas tanah dengan pihak lain, terutama berupa penjualan, pertukaran, subsidi, penyertaan pendapatan dan lelang. Yang dimaksud dengan hak waris adalah peralihan hak atas tanah dari pemegang hak yang telah meninggal dunia. Dengan meninggal dunianya Pemegang hak atas tanah mewariskannya kepada ahli warisnya. Hilangnya harta benda yang diwariskan dari pemegang hak atas tanah kepada ahli waris bukan karena perbuatan melainkan berpindah karena peristiwa hukum Terkait masalah anak, terdapat banyak peraturan yang berlaku.
Hukum keluarga berfokus pada hubungan dan kewajiban antara anggota keluarga, sedangkan hukum waris mengatur bagaimana harta dan aset seseorang diwariskan setelah meninggal dunia. Hibah dan perwalian adalah dua konsep penting yang sering kali terkait dengan hukum keluarga dan hukum waris. Jika perkawinan campuran dilangsungkan di Indonesia maka dilakukan pembagian waris berdasarkan BW dan undang-undang yang berlaku di Indonesia, jika perkawinan itu dilangsungkan di negara lain maka dilakukanlah rancangan pembagian waris berdasarkan hukum dan peraturan yang berlaku di negara tersebut. Pada saat menikah dan bercerai, almarhum Motiram masih mempunyai status warga negara asing yaitu anak dari Almarhumah Swita Motiram akan tetapi ia sebagai warga negara Asing, maka terhadapnya tidak bisa diberlakukan hukum yang berlaku di Indonesia.
Kata Kunci: hak waris; perkawinan campuran A. Introduction
Today, many of our people are married to foreign nationals. In Indonesia, marriage between an Indonesian citizen and a foreign national is referred to as a mixed marriage. If the marriage is between two citizens. The Indonesian state of different religions, is not included in mixed marriages, but interfaith marriages. 1As referred to in Article 57 of Law Number 1 of 1974 concerning Marriage (hereinafter written Marriage Law), what is meant by mixed marriage in this law is a marriage between two people who in Indonesia are subject to different laws, due to differences in nationality and one of the parties is a foreign national and one of the parties is an Indonesian citizen. Mixed marriages can be performed in Indonesia and can also be carried out outside Indonesia (abroad). If performed in Indonesia, mixed marriage is carried out according to the Marriage Law, and the conditions for carrying out mixed marriage must be met, the conditions of marriage applicable according to the laws of each party (Article 60 paragraph (1) of the Marriage Law).2 Marriage performed outside Indonesia between two Indonesian citizens or an Indonesian citizen with a foreign national is valid if it is carried out
1 Irma Devita Purnamasari, Kiat Kiat Cerdas, Mudah dan Bijak Memahami Masalah Hukum Waris, Mizan Pustaka, Bandung, 2014, h. 156.
2 Abdul Kadir Muhammad, Hukum Perdata Indonesia, Citra Aditya Bakti, Bandung, 2014, h. 114
Sawaludin Fikri,
according to the applicable law in the country where the marriage took place and for Indonesian citizens does not violate the provisions of the Marriage Law.3 Mixed marriages are performed according to the laws of each religion. For those who are Muslim, according to Islamic law, that is, by marriage contract and for those who are not Muslim, that is, it is done according to the law of their religion. The execution of the marriage is carried out in the presence of the registrar. This procedure according to the Marriage Law if a mixed marriage is performed in that other State party, the provisions on the procedure according to the law of the State concerned apply.
From mixed marriages, several problems will arise, one of which is regarding the right to inherit children born from the marriage. The process of ownership or transfer of rights to inherited acquired land is most often a thorny issue among communities. Of course, if it is associated with inheritance of land acquired for generations.4 Although according to the law every human being is a bearer of rights without exception, there are restrictions. What limits the ability to be entitled in this case is citizenship, only Indonesian citizens can have property rights (Article 21 paragraph (1) of the UUPA)5. From mixed marriages, if problems arise in the legal relationship that have been entered by foreign elements, special tools are needed to solve the cases in it. As already available as one of the components of national law, namely Indonesian Private International Law (HPI Indonesia). The three basic provisions in HPI, namely:
1. A person's status and authority must be assessed according to his or her national laws.
So an Indonesian citizen, wherever he is, remains bound by his own laws concerning status and authority (lex patriae). This provision is analogous to foreigners, so foreigners also have to judge their status and authority according to their own laws.
2. Regarding fixed objects must be judged according to the law of the country or place where they are located (lex rei sitae).
3. The form of legal action is judged according to the law in which it was committed (locus regit actum).
If there is a problem, the pointing provisions will determine which law will be used.
Because each pointing provision contains a sense that includes the material that is the object.
To find which designation provisions, it is necessary to know the facts, and the legal relationships. That the inheritance of things remains governed by the law in force from where they are located (lex rei sitae)6. Article 17 of the Algemene Bepalingen van Wetgeving (AB)
3 Hilman Hadikusuma, Hukum Perkaswinan Indonesia Menurut Perundangan, Hukum Adat, Hukum Agama, Mandar Maju, Bandung, 1990, h. 20.
4 Irma Devita Purnamasari, Tips for Smart, Easy and Wise Tips for Understanding Inheritance Law Issues, Mizan Pustaka, Bandung, 2014, p. 173.
5 Djaja S. Meiliala, Hukum Perdata Dalam Perspektif BW, Nuansa Aulia, Bandung 2013, h. 21.
6 Djasadin Saragih, Dasar Dasar Hukum Perdata Internasional, Alumni, Bandung, 1974, h. 10.
Sawaludin Fikri,
states that, regarding fixed (immovable) objects, the laws of the country in which they are located apply. The provisions of this article are a civil law rule that concerns land as a permanent object and is located in one of the Indonesian territories, so that the law used is the regulation of Indonesian agrarian law.7
B. Literature Review C. Method
This research is legal research, because this research is carried out based on legal rules that are reviewed in order to find solutions to the problems of legal issues faced in this legal research. This is where it takes the ability to identify legal problems, do legal reasoning, analyze the problems faced and then provide solutions to these legal issues.
D. Result and Discussion
1. Legal Position of Children Born of Mixed Marriages in Indonesia
Regarding children's problems, there are many regulations that apply. Which regulates about children, and on the other hand, the existence of a child is inseparable and certainly a blessing for parents. which regulates the ordinances and regulations for conducting marriage between a man and a woman. Family law and inheritance law are two very important and influential branches of law in the legal system of a country. Family law focuses on relationships and obligations between family members, while inheritance law governs how a person's property and assets are inherited after death. Both family law and inheritance law have rules and procedures that must be followed to ensure fairness and protection for all parties involved. Due to its sensitive and personal nature, family law and inheritance law cover many aspects of daily life and govern a variety of different situations.
This legal discipline is also constantly evolving and adapting to social changes and values that develop in society. Grants and trusts are two important concepts that are often related to family law and inheritance law.
A grant refers to the giving of property or property to a person during his or her lifetime, while a trust involves the appointment of a person as guardian or legal person in charge for a person who is unable to look after themselves, such as children or the sick or elderly. Although family law and inheritance law are distinguished in their scope, they have the same goal, which is to maintain relationships and fairness in the family and regulate the distribution of inheritance fairly and in accordance with the wishes of the deceased individual.
7 Djasadin Saragih, Dasar Dasar Hukum Perdata Internasional, Alumni, Bandung, 1974, h. 50-52.
Sawaludin Fikri,
In one article: The issue of child status is one of the problems that often arise in mixed marriages. "We are also experiencing challenges, namely" This material relates to the nationality of the child. There are also several other things in the Marriage Law. The Principle of the Position of Children in the Law entitled "Administrative Errors and Crimes" contains provisions regarding violations and administrative sanctions that can be given to violators.
Article 42 explains that violations committed can be in the form of actions that violate established legal and regulatory norms. Article 43 then explains that administrative sanctions that can be given to violators include various actions such as warnings, reprimands, license suspensions, termination of activities, and license revocation. Meanwhile, Article 44 explains that administrative sanctions can be given after an examination and opinion of the appointed team. This administrative sanction aims to improve the behavior of violators and prevent repeated violations in the future. Among other things, to determine:
1. A legal child is a child born in or as a result of a legal marriage (Article 42).
2. A child born outside of marriage has only a relationship with his mother and his mother's family (Article 43 verse (1)).
3. A husband can deny the legitimacy of a child born to his wife, if he can prove that his wife has committed adultery and that the child is the result of adultery. (Article 44 paragraph (1)).
4. The court gives a decision on whether or not the child is legal at the request of the interested party. (Article 44 paragraph (2).
Starting from this regulation, the Marriage Law does not regulate children resulting from marriages between Indonesians and foreign nations because Article 42 only regulates the position of children. Thus, it can be concluded that the Marriage Law only regulates the position of children between Indonesian citizens. Meanwhile, if the marriage is of different nationality, the problem of the position of children or the status of children can indeed cause problems8. The first Citizenship Law as an implementation of Article 26 of the Constitution of the Republic of Indonesia of 1945 (hereinafter written the 1945 Constitution) was Law Number 3 of 1946 (concerning Citizens and Citizens), which has been amended through Law Number 6 jo Law Number 8 of 1947 and Law Number 11 of 1948. This law adheres to the principle of ius soli, that is, the principle of birthplace. Then this law was replaced by Law Number 62 of 1958, which was repealed and declared invalid by Law Number 12 of 2006, namely the Citizenship Law of the Republic of Indonesia (hereinafter written the Citizenship Law) which came into force on August 1, 2006.9
8 Nawawi dan Widyaiswara Madya, Perkawinan Campuran (Problematika Dan Solusinya), Balai Diklat Keagamaan Palembang, h. 11.
9 Djaja S. Meiliala, Hukum Perdata Dalam Perspektif BW, Nuansa Aulia, Bandung 2013, h. 37-38.
Sawaludin Fikri,
There are two categories of children who must choose citizenship status. The restriction is with the enactment of Law Number 12 of 2006 concerning Citizenship. First, children born before August 1, 2006 are those who have a decree of the Ministry of Law and Human Rights on citizenship. Second, children born after August 1, 2006 must have a statement letter In this context, an affidavit is an immigration letter affixed or affixed to a foreign passport stating that they are children of dual nationality The holder of the statement letter is entitled to facilities.10
If a child with dual nationality chooses to become a foreign citizen (WNA), his statement must be submitted to an Indonesian official or representative whose working area includes the child's residence. If the child holds an Indonesian passport, it must be revoked. Similarly, if the child has an affidavit, then the letter must be revoked by the officer receiving the election affidavit to become a foreign national. The officer then forwards it to the General Section of Immigration Management, after which the officer will update the data to the information system data to immigration .11
According to Dinna Sabriani in the Online Legal Clinic Q&A article, Law and Human Rights (Kemenkumham) simplifies the process of submitting a citizenship declaration for children with dual nationality. Children born to couples of different nationalities, one of whom is an Indonesian citizen, can have dual citizenship up to the age of (eighteen) years 18. No later than 3 (three) years after turning 18 (eighteen) years old or after marriage, the child must show his choice of citizenship, choose Indonesian citizenship or become a foreign citizen 12 In the marriage there is a marriage agreement. If there is a marriage agreement in a mixed marriage held in Indonesia, it can make it easier in the future to arrange everything related to the division of inheritance, especially those related to inheritance in the form of land or houses. For movable objects, the law of the holder of the object applies, but for immovable objects, the law of where the immovable object is located. The inheritance referred to here is the inheritance of land rights. In practice it is called land inheritance. Juridically, what is inherited is the right to the land, not the land. It is true that the purpose of inheritance of land rights is so that the heirs can control and use the land concerned. The acquisition of title to land can also occur due to inheritance from the owner to the heirs in accordance with Article 26 of the UUPA. Inheritance can occur due to statutory provisions or due to the will of the testator.13 Indonesia does not yet
10 Irma Devita Purnamasari, Kiat Kiat Cerdas, Mudah dan Bijak Memahami Masalah Hukum Waris, Mizan Pustaka, Bandung, 2014, h. 160.
11 Irma Devita Purnamasari, Kiat Kiat Cerdas, Mudah dan Bijak Memahami Masalah Hukum Waris, Mizan Pustaka, Bandung, 2014, h. 162.
12 Irma Devita Purnamasari, Kiat Kiat Cerdas, Mudah dan Bijak Memahami Masalah Hukum Waris, Mizan Pustaka, Bandung, 2014, h. 159.
13 Urip Santoso, Op. Cit., h. 397.
Sawaludin Fikri,
have a national legislation, so in its heritage the country still refers to customary law, Islamic law, and BW. Therefore, inheritance rights relating to mixed marriages are transferred to the couples involved, depending on the system to be used, or may also seek support from the court in the form of a decision.
2. Land rights for children in mixed marriages
If a mixed marriage takes place in Indonesia, then the division of inheritance is carried out based on BW and the laws in force in Indonesia, if the marriage is carried out in another country, a plan of inheritance distribution is carried out based on the laws and regulations in force in that country. In addition to relating to the law where marriage occurs, the division of inheritance in marriage is also related to can there be a transfer of land rights from the right holder to another party due to a legal event, especially the death of the land rights holder, where the transfer of land rights occurs due to inheritance, or because of legal deeds carried out by the holder of land rights with other parties, mainly in the form of sales, exchanges, subsidies, income participation and auctions. What is meant by inheritance rights is the transfer of land rights from the deceased rights holder. With his death, the holder of the land rights bequeaths it to his heirs. The loss of property inherited from the holder of land rights to heirs is not due to deeds but transfers due to legal events 14.
With the Constitutional Court Decision, Constitution Number 69/PUUXIII/2015 has relaxed the meaning of the marriage agreement. With the decision of the Constitutional Court, an agreement no longer means an agreement made before marriage (prenuptial contract) but can also be made after marriage. The second ruling of the law challenged in the Constitutional Court is considered discriminatory, because people in mixed marriages with foreigners cannot obtain property rights and building use rights. Article 29 paragraph 1 of the Marriage Law, before or during the marriage, both parties by mutual consent can submit a written agreement registered civilly or with a notary attestation, then the contents also apply to third parties as to how much involvement third parties have. With the Constitutional Court decision Number 69 / PUUXIII / 2015, mixed married couples should immediately make a marriage agreement, which in this case will make it easier for Indonesian citizen couples to own it, both land and buildings have freehold status so that land and buildings can be inherited to children born from mixed marriages, keeping in mind the provision that children choose to become Indonesian citizens.
The late Swita Motiram had previously married abroad (Hong Kong) to a foreign national named Rattan Ladharam on December 10, 1979 and divorced on May 11, 1990. At the time of marriage and divorce, the deceased Motiram still had the status of a foreign citizen,
14 Urip Santoso, Op. Cit., h. 398
Sawaludin Fikri,
namely the son of the late Swita Motiram but he as a foreign citizen, so the applicable law in Indonesia could not be applied. With the issuance of the deed of inheritance Number W7. AH..
06..10-36/VII/2010 dated July 19, 2010 on inheritance rights over the estate of the late Swita Motiram without mentioning Sunesh Rattan Ladharam, as the sole heir, the late Swita Motiram, Kamlesh Motiram Kalwani and Johny Motiram felt very aggrieved because they could not get any more from the estate of the late Swita Motiram. Sunesh Rattan Ladharam is a foreign national, therefore has no right to acquire property ownership in Indonesia as stipulated in paragraph 1 of Article 21 of the UUPA which reads: "Only Indonesian citizens can have property rights." However, as the biological son of his mother Swita Motiram, Sunesh Rattan Ladharam has the right to inherit from his mother, for example his mother's movable property, but he cannot have land ownership in Indonesia because he is a citizen of a foreign country.
Because Sunesh Rattan Ladharam is a foreign national and not an Indonesian citizen, he cannot apply the inheritance law applicable in Indonesia to him.
Based on the foregoing, the reasons and based on the Law Kamlesh Motiram Kalwani and Johny Motiram filed a lawsuit in this case against the Certificate of Inheritance Tax No: W7.
A .06 10-36/VII/2010 dated July 19, 2010 is declared invalid, because the late Swita Motiram was an Indonesian citizen, resided in Indonesia and had property / inheritance in Indonesia, then as part of the distribution of inheritance property. The property was carried out based on the provisions of Indonesian law. Inheritance law in particular is based on the Burgerlijk Wetboek. Article 21(3) of the Law, provides that foreigners, after the entry into force of this law in the year, acquire property rights through testamentary inheritance or incorporation of property acquired through marriage, must relinquish such rights within one year, the year from the date of the acquisition of such rights. Based on the rule, it means that Sunesh Rattan Ladharam as a foreign national can inherit without a will if within 1 (one) year he has to waive his rights. Waiver can be done by selling acquired property rights to a third party. But in this case, because the late Swita Motiram never registered the marriage and divorce was granted in Hong Kong and a child was born, Sunesh Rattan Ladharam is not entitled to inheritance based on the deceased Swita Motiram in Indonesia.
E. Conclusion
Regarding children's problems, there are many regulations that apply. Family law focuses on relationships and obligations between family members, while inheritance law governs how a person's property and assets are inherited after death. Grants and trusts are two important concepts that are often related to family law and inheritance law. If a mixed marriage takes place in Indonesia, then the division of inheritance is carried out based on BW and the laws in force in Indonesia, if the marriage is carried out in another country, a plan of inheritance
Sawaludin Fikri,
distribution is carried out based on the laws and regulations in force in that country. At the time of marriage and divorce, the deceased Motiram still had the status of a foreign citizen, namely the son of the late Swita Motiram but he as a foreign citizen, so the applicable law in Indonesia could not be applied.
References
Purnamasari Irma Devita, 2014, Kiat Kiat Cerdas, Mudah dan Bijak Memahami Masalah Hukum Waris, Mizan Pustaka, Bandung.
Muhammad Abdul Kadir, 2014, Hukum Perdata Indonesia, Citra Aditya Bakti, Bandung.
Hadikusuma Hilman,1990, Hukum Perkaswinan Indonesia Menurut Perundangan, Hukum Adat, Hukum Agama, Mandar Maju, Bandung.
Meiliala. Djaja S, 2013, Hukum Perdata Dalam Perspektif BW, Nuansa Aulia, Bandung.
Saragih Djasadin, 1974, Dasar Dasar Hukum Perdata Internasional, Alumni, Bandung.
Madya Widyaiswara dan Nawawi, Perkawinan Campuran (Problematika Dan Solusinya), Balai Diklat Keagamaan Palembang.
