Inheritance Rights of Illegitimate Children, Here are the Legal Provisions

PERTANYAAN

Are illegitimate children entitled to inheritance from their parents? What are the rules for the inheritance rights of children out of wedlock in Indonesia?

INTISARI JAWABAN

In principle, an illegitimate child is a child born as a result of a relationship between a man and a woman, while one or both of them are still bound in another marriage.

So, are illegitimate children entitled to inheritance from their biological parents?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Hak Waris Anak Zina, Begini Ketentuan Hukumnya, written by Renata Christha Auli, S.H. and was published on Tuesday, 22 August 2023.

This article is an update of the article entitled Inheritance Rights of Illegitimate Children written by Lezetia Tobing, S.H., M.Kn. and was first published on Tuesday, 1 April 2014.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Definition of an Illegitimate Child

Before answering your question, we should first understand what is meant by an illegitimate child. According to Irma Devita Purnamasari in her book Kiat-Kiat Cerdas, Mudah, dan Bijak Memahami Masalah Hukum Waris (p. 115), an illegitimate child is a child born as a result of a relationship between a man and a woman, while one or both of them are still bound in another marriage.

Then, according to Amir Syarifuddin in his book entitled Hukum Kewarisan Islam (p. 148), illegitimate children are children born from an act of adultery, namely sexual intercourse between a man and a woman who is not bound in a legal marriage even though he was born in a legal marriage, with the man who committed adultery or another man.

Then, in the Book of Ahkamul-Mawaris fi al-Fiqhi al-Islami, it is stated that an illegitimate child is a child born not from a legal marriage relationship or in other words the fruit of an illicit relationship between a man and a woman.[1]

Meanwhile, based on Article 283 Indonesian Civil Code, children born due to adultery or blood defilement (incest), may not be recognized without prejudice to the provisions of Article 273 Indonesian Civil Code regarding children of blood desecration.

However, in the Compilation of Islamic Law there is no term illegitimate child, but "children born out of wedlock", namely children born without a marriage bond or as a result of an illegitimate relationship.[2]

For information, the definition of an illegitimate child is different from an out-of-wedlock child. Summarized from the Definition of Legal Children and Out-of-Wedlock Children, out-of-wedlock children can be categorized as legal children as long as they are recognized by their parents. Article 272 Indonesian Civil Code stipulates that:

Children out of wedlock, except those born of adultery or desecration of blood, are legalized by the subsequent marriage of their father and mother, if before entering into marriage they have legally recognized the child, or if the recognition occurs in their own marriage certificate.

From the above article, we can conclude that an out-of-wedlock child according to the regulation of the Indonesian Civil Code is a child born without the marriage bond of the two parents. In this case, neither parent is bound by marriage to another person. Meanwhile, an illegitimate child is a child born as a result of a relationship between a man and a woman, while one or both of them are still bound in another legal marriage.

Guarantee for the Support of Illegitimate Children in the Indonesian Civil Code

In the context of inheritance rights, the Indonesian Civil Code provides 3 classifications of children, namely:[3]

1. Legitimate child, which is a child born in a marriage;
2. Children born out of wedlock, but recognized by the father and/or mother. In this case between the child and the person who recognizes it a family relationship arises. This kinship is only binding on the person who recognizes the child, and if the father and mother marry, then it becomes a legal child; and
3. Children born out of wedlock, but not recognized by the father or mother. This child according to the law does not have a father and mother, because it is an out-of-wedlock child who is not recognized, so it does not have a family, so there are also no provisions regarding the law of inheritance.

Based on the provisions in the Indonesian Civil Code, illegitimate children do not receive inheritance from their parents. However, illegitimate children still get the necessary support from their parents, as stipulated in Article 867 Indonesian Civil Code as follows:

The foregoing provisions do not apply to children born of adultery or desecration of blood. The law only provides the necessary support to them.

As for Article 869 Indonesian Civil Code, it is stipulated that if the father or mother while alive has provided the necessary support for children born from adultery or blood desecration, then the child has no further rights in claiming inheritance from the father or mother.

Inheritance Rights of Children Born Out of Wedlock According to Compilation of Islamic Law

As explained, in Compilation of Islamic Law the term known is "children born out of wedlock" which according to Article 100 Compilation of Islamic Law only has a nasab relationship with the mother and her family (nasab relationship means descent based on lawful blood relationship).

The same thing is also reaffirmed in Article 186 Compilation of Islamic Law, namely:

Children born out of wedlock only have a relationship of inheritance with their mother and family from their mother's side.

Then, quoted from the article MUI Fatwa Also Protects Children of Adultery, based on the fatwa made on March 10, 2012, there are at least 6 points of legal provisions issued by the Indonesian Council of Ulema Fatwa Commission (Komisi Fatwa Majelis Ulama Indonesia or Komisi Fatwa MUI) led by Prof. Hasanuddin AF, namely:

1. The illegitimate child does not have a relationship of nasab, marriage guardian, inheritance, and alimony with the man who caused his birth;
2. The illegitimate child only has a relationship of nasab, inheritance, and support with his mother and his mother's family;
3. The illegitimate child does not bear the sin of adultery committed by the man who caused his birth;
4. Adulterers are subject to hadd punishment (a type of punishment whose form and extent have been regulated in the Qur'an), in the interests of protecting legitimate descendants (hifzh al-nasl);
5. The government is authorized to impose ta'zir punishment (type and punishment given by the authorities) on the adulterous man who caused the birth of a child by obliging him to:
   1. provide for the needs of the child;
   2. give the child his property after his death through a mandatory will;
6. The punishment as referred to in number 5 aims to protect the child, not to legalize the nasab relationship between the child and the man who caused his birth.

In this fatwa (fatwa means religious order issued by a Muslim leader), the Indonesian Council of Ulema does state that the illegitimate child is not entitled to be the heir of his biological father, but the biological father must still be 'responsible' for his child, with a punishment for the biological father to fulfill the needs of his child. The father can also be punished by giving some property (through a mandatory will) when he is deceased.

Inheritance Rights of Children Born Out of Wedlock in the Marriage Law

So, what are the rules for the inheritance rights of children born out of wedlock in Indonesia? Basically, if you refer to the provisions in the Marriage Law and its amendments, there is no distinction between illegitimate children and out-of-wedlock children. What is regulated in Article 43 section (1) Marriage Law is that children born out of wedlock only have a civil relationship with their mother and their mother's family.

However, the Constitutional Court Decision 46/PUU-VIII/2010 on the review of Article 43 section (1) Marriage Law regulates the recognition of the civil relationship between an out-of-wedlock child and his father, as follows:

A child born out of wedlock has a civil relationship with his mother and his mother's family and with the man as his father who can be proven based on science and technology and/or other evidence according to the law to have a blood relationship, including a civil relationship with his father's family.

Looking at the decision, it means that children born out of wedlock (the decision does not distinguish between illegitimate children and children out of wedlock, as in the Indonesian Civil Code) can have a civil relationship with their father if it can be proven based on science and technology.

If it can be proven that the person is the father, the child can inherit from the biological father. However, keep in mind the provisions in Article 285 Indonesian Civil Code, that if there is recognition from the biological father so that a legal relationship arises between the father and his out-of-wedlock child, the recognition of the out-of-wedlock child must not harm the wife and biological children in terms of inheritance.

Also read: Suspicious that Your Child Looks Like Your Wife's Ex-Boyfriend, Can You Sue?

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Indonesian Civil Code;
2. Law Number 1 of 1974 on Marriage as amended by Law Number 16 of 2019 on the Amendment to Law Number 1 of 1974 on Marriage;
3. Presidential Instruction Number 1 of 1991 on the Dissemination of the Compilation of Islamic Laws;

Court Decision:

Decision of the Constitutional Court Number 46/PUU-VII-2010.

Reference:

1. Amir Syarifuddin. Hukum Kewarisan Islam. Jakarta: Kencana, 2004;
2. Imam Supriyadi. Komparasi anak Zina dan Anak Angkat Menurut BW dan Hukum Islam. The Indonesian Journal of Islamic Law and Civil Law, Vol. 1, No. 1, 2020;
3. Irma Devita Purnamasari. Kiat-Kiat Cerdas, Mudah, dan Bijak Memahami Masalah Hukum Waris. Bandung: Kaifa, 2014;
4. Muhammad Roully Parsaulian Lubis. Kedudukan Hukum Anak Luar Kawin Menurut Undang-Undang Perkawinan No. 1 Tahun 1974 Pasca Lahirnya Putusan MK RI No. 46/PUU-VII/2010 Terhadap Ibu Kandung dan Ayah Biologis. Premise Law Journal, Vol. 10, 2016.

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[1] Imam Supriyadi. Komparasi anak Zina dan Anak Angkat Menurut BW dan Hukum Islam. The Indonesian Journal of Islamic Law and Civil Law, Vol. 1, No. 1, 2020, p. 18.

[2] Elucidation to Article 149-185 Presidential Instruction Number 1 of 1991 on the Dissemination of the Compilation of Islamic Laws.

[3] Muhammad Roully Parsaulian Lubis. Kedudukan Hukum Anak Luar Kawin Menurut Undang-Undang Perkawinan No. 1 Tahun 1974 Pasca Lahirnya Putusan MK RI No. 46/PUU-VII/2010 Terhadap Ibu Kandung dan Ayah Biologis. Premise Law Journal, Vol. 10, 2016, p. 5.