Requirements and Provisions of Polygamy for Foreign Citizens

PERTANYAAN

I am currently in a relationship with a foreign Muslim man. He is married but has been separated from his wife for five years without getting a divorce. They didn't divorce because it was a long and arduous process, and they wanted to protect their children's feelings. The wife has given her husband permission to remarry. What I want to ask is what are the conditions for polygamy with a foreign national?

INTISARI JAWABAN

Basically, Indonesian marriage law is based on monogamy. It is stipulated in the Marriage Law that in a marriage a man may only have one wife, and a woman may only have one husband.

However, are there exceptions to this provision? If polygamy is possible in Indonesia, what are the requirements for polygamy?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Syarat dan Ketentuan Poligami bagi WNA, written by Dian Dwi Jayanti, S.H., and was published on Thursday, 11 May 2023.

This article below is an update of the article entitled Provisions on Polygamy for Foreign Citizens, written by Yudha Khana Saragih, S.H. from Lembaga Bantuan Hukum Mawar Saron, and was first published on Wednesday, 6 November 2019.

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 and Legal Basis of Polygamy

Before answering your question, we should first understand what polygamy is. The word polygamy comes from the Greek word "polygamie", which means poly meaning many, and gamie meaning men. So, polygamy means a man who is married to more than one woman in one marriage.[1]

Based on your question, we assume that you wish to enter into a marriage with a foreign citizen male (in Bahasa Indonesia is called Warga Negara Asing/ "WNA") in the territory of Indonesia so that the marriage is subject to the laws and regulations applicable in Indonesia.

As stipulated in Article 1 Marriage Law, the definition of marriage is an emotional and physical bond between a man and a woman as husband and wife with the aim of establishing a happy and eternal family (household) based on the Belief in God Almighty.

According to this provision, Indonesian marriage law is based on monogamy.[2] This is also stipulated in Article 3 section (1) Marriage Law, as follow:

In principle, in a marriage a man can only have one wife. A woman can only have one husband.

However, the Marriage Law provides exceptions, as we can see in Article 3 section (2) Marriage Law which states that the court may authorize a husband to have more than one wife if desired by the parties concerned.

In the event that a husband intends to have more than one wife, then he is obliged to file a petition to the Court in the area where he lives.[3] Furthermore, the court shall only grant permission to a husband who intends to have more than one wife if:[4]

1. the wife is unable to carry out her obligations as a wife;
2. the wife has a disability or incurable disease;
3. the wife cannot bear children.

Moreover, based on your information, the foreign man is a Muslim, so the regulation of polygamy must also refer to Article 55 Compilation of Islamic Law as follows:

1. Having more than one wife at the same time is limited to four wives;
2. The main condition for having more than one wife is that the husband must be able to be fair to his wives and children;
3. If the main condition mentioned in paragraph (2) is impossible to fulfill, the husband is prohibited from having more than one wife.

Then, you mentioned that the wife of the foreign man had consented to her husband's polygamy. Thus, one of the conditions for polygamy in Article 5 section (1) Marriage Law has been fulfilled as follows:

In order to be able to file a petition to the Court, as referred to in Article 4 paragraph (1) of this Law, the following requirements must be fulfilled:

1. the consent of the wife/wives;
2. there is the certainty that the husband is able to guarantee the necessities of life for the wives and their children;
3. there is a guarantee that the husband will treat their wives and children fairly.

However, even if the husband has obtained the consent of his wife for polygamy, it must be noted that the husband who wants to have more than one wife must also obtain permission from the Religious Court.[5] If the marriage with the second, third, or fourth wife does not have permission from the Religious Court, the marriage has no legal force.[6]

Legal Provisions for Mixed Marriages

For information, your marriage as an Indonesian Citizen (in Bahasa Indonesia is called Warga Negara Indonesia/ "WNI") with your future husband who has foreign citizenship is categorized as a mixed marriage. Mixed marriages are regulated in Article 57 Marriage Law, which reads as follows:

Mixed marriage, under this Law, is marriage between two persons which in Indonesia are subject to different laws, due to differences in citizenship and one of the parties is an Indonesian citizen.

It should also be noted that a mixed marriage that is performed in Indonesia shall be conducted in accordance with Marriage Law,[7] and cannot be held until it is proven that the marriage requirements which are determined by the law applicable to the respective parties have been fulfilled.[8]

Matters relating to the procedures and requirements for conducting a mixed marriage can be found in the article entitled Do You Want to Marry an Expatriate? Check out the Legal Procedures and Consequences!

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

Legal Basis:

1. 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;
2. Instruction of the President Number 1 of 1991 on Compilation of Islamic Law.

Reference:

1. Beggy Tamara and Isti Fauziah Rusmayani. Tindak Pidana yang Menyebabkan Perceraian. Jurnal Supremasi Hukum, Vol. 15, No. 2, 2019;
2. Reza Fitra Ardhian (et.al). Poligami dalam Hukum Islam dan Hukum Positif Indonesia serta Urgensi Pemberian Izin Poligami di Pengadilan Agama. Privat Law, Vol. 3, No. 2, 2015.

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[1] Reza Fitra Ardhian (et.al). Poligami dalam Hukum Islam dan Hukum Positif Indonesia serta Urgensi Pemberian Izin Poligami di Pengadilan Agama. Privat Law, Vol. 3, No. 2, 2015, p. 100.

[2] Beggy Tamara and Isti Fauziah Rusmayani. Tindak Pidana yang Menyebabkan Perceraian. Jurnal Supremasi Hukum, Vol. 15, No. 2, 2019, p. 76.

[3] Article 4 section (1) Law Number 1 of 1974 on Marriage (“Marriage Law”).

[4] Article 4 section (2) Marriage Law.

[5] Article 56 section (1) Instruction of the President Number 1 of 1991 on Compilation of Islamic Law (“Compilation of Islamic Law”).

[6] Article 56 section (2) Compilation of Islamic Law.

[7] Article 59 section (2) Marriage Law.

[8] Article 60 section (1) Marriage Law.