Ghali Fairuzy Windiansyah

1406640291
Annisa Lintang J.
1406640266
KKI 2014
Adat Inheritance Law
TOPIC 4 - Preliminaries to Marriage

In Adat communities, in relation to the social status and also the

obligation of an individual (to the community), a male must marry a woman
in order to maintain their clans existence and also to expand their families,
which marriage is the mother of the kinship groups, lineage, family ties, and
also the community, because without marriage then we have no lineage, and
thus there would be no extended families and community.
In this paper, we are going to discuss about the preliminaries before
marriage, which is the event to prepare the marriage, because preliminaries
to the marriage will definitely affects which type of marriage the couple will
perform through.
There are several events happening before a male want to execute
marriage with a woman (We specify male, because in Adat communities, the
custom or the norms of marriage is where the male reaches the female, not
female reaches the male).
At first the first event happening before the marriage is the proposal,
where it is where the male invites the female and usually attended by both
extended families, the male then offers a betel. Even if the proposal is

accepted, this would not bring directly to the execution of the marriage,
because the next step after this is the bethrothal.
The bethrotal is usually marked with feast where both of the female
and the male extended families attend it, where in this step, the Chief of the
village is usually told about the engagement (engagement must be told to
the chief of the village because chief of the village is the legal functionaries,
which they want the marriage act to be legal). After the chief of the village
have been told, then it means the couple has been ensured their legal
protection with the help of the chief of the village.
Both of the act of proposal and bethrothal are merely an action,
where those actions do not create any relation between the male party and
female party.
The next step is the engangement process, this process is where the
creation of relation starts, in this step the male will discuss on the bride price
he must give to the female (the bride price is the symbol of the worthiness of
the female, as in fact the female is usually taken out of her clan and will join
the clan of the males), If the bride price has been settled between the
female parties and the male parties, then the next step is the marriage
where the bride price must be paid in full.
But, if the bride price that has been offered by the male parties is not
agreed by the female parties, or if the female parties ask for more bride price
and the male parties disagreed, then this will lead to 2 possible scenarios
which are the marriage by elopement or the marriage by abduction,
Regarding the marriage by elopement, we have known that the
bride price Is disagreed in the agreement, but then the male who wants to
marry can approach the female by saying if she wants to marry the male or
not, if she says yes to marry him, then the elopement process is done.
Thus then the male will carry the female (with the consent of the female to
run away secretly), by both running away secretly without the (usually)
females parent consent.

Regarding the marriage by abduction, we have known that the

bride price is disagreed in the agreement, but then the male who wants to
marry can approach the female by saying if she wants to marry the male or
not, if she says no to marry him, then the abduction process is being
done. Thus then, the male will carry the female forcefully carry the female
against her will, if the male successfully brings the female to the region of
the males clan, then he will succeed in marrying her, but if he does not
successfully bring the female to his region, then the females family will have
the right to kill him.

Comparing to Islamic Law

Islamic law only expresses their preliminaries before marriage in the
form of requirements, where without the requirements being fulfilled, thus
the marriage can not be executed. The prerequisites of marriage in Islamic
law is contained in Qs 4: 24.

An-nisa verse 24 states:

And [also prohibited to you are all] married women except those your right
hands possess. [This is] the decree of Allah upon you. And lawful to you are
[all others] beyond these, [provided] that you seek them [in marriage] with
[gifts from] your property, desiring chastity, not unlawful sexual intercourse.
So for whatever you enjoy [of marriage] from them, give them their due
compensation as an obligation. And there is no blame upon you for what you
mutually agree to beyond the obligation. Indeed, Allah is ever Knowing and
Wise.
Which we may summarize to:

The marriage contract is concluded between the guardian (wali) of the

bride and the bridegroom.

Mahr needs to be given, where the Bride price is clearly and stated to
be prohibited.

Another requisite of marriage is chastity. No fornicator has the right to

marry a chaste partner except if the two purify themselves of this sin by
sincere repentance.

Marriage is permitted for a man with a chaste woman either Muslim or

from

the People

of

the

Book (Arabic

Ahl

al

Kitab, Jews, Sabians and Christians) but not to polytheists (or "idolaters":
Yusufali translation or "idolatresses": Pickthal translation). For women,
marriage to Jews, Sabians and Christians and to polytheists (Idolatry) (or
"idolaters": Yusufali translation or "disbelievers": Pickthall translation) is
prohibited; they are only allowed to marry Muslims. There is no express
prohibition in the Qur'an or elsewhere about a Muslim woman marrying a
kitabi (People of the Book). However, the vast majority of Muslim jurists
argued that since express permission was given to men, by implication
women must be prohibited from doing the same. The movement of
Islamic jurists and imams that do not agree on this interpretation is
growing.

Spoken consent of the woman is only required if she is not a virgin and
her wali is neither her father nor her paternal grandfather. But a virgin
may not be married off without her permission. If she is too shy to express
her opinion her silence will be considered as implicit agreement [Al
Bukhari:6455]. The wali, who can force a bride against her outspoken will
into marriage, is called wali mujbir, according to "The Encyclopaedia of
Islam". If the woman was forced into a marriage, without the above
mentioned conditions, according to the Hanafi school of Islamic law the

decision can be revoked, when the bride comes of age. Binti Khudham
says that when she became a widow her father solemnized her marriage.
She did not like the decision so she went to Muhammad, who gave her
permission to revoke her marriage. Hence, forced marriages are against
Islamic teachings if the woman is a virgin, and those forced into
marriages before they have come of age have the right to contest them
once they do.
Comparing to National Law (Law no. 1 / 1974 Regarding Marriage)
The requirements for marriage is regulated in Act No. 1 of 1974
on marriage, which i tis supported by Government Regulations No. 9
of 1975. Where the first article of Act No.1 of 1974, stated that the
definition of marriage is
an emotional and physical bond between a man and a woman
as husband and wife with the intention of forming a harmonious
family (househod) and eternal by God Almighty.
Which i tis clearly has a slight difference in the purpose of
marriage, because in adat law itself the goal of marriage is more to
expanding the famillies and also to strenghthen the bonds between
2 clans.
The Preliminaries before marriage is only clearly expressed by
requirements of marriage which are contained in Article 6-12 of the
Law no.1 year 1974:
Article 6
(1) Marriage shall be based upon the consent of both bride.
(2) To establish a marriage that has not attained the age of 21
(twenty-one) years must obtain permission from both parents.
(3) In the case of one of the parents has died or in a state unable
to express his will, the permit referred to in paragraph (2) of this
article pretty obtained from parents who are still alive or from a
parent who is able to express his will.

(4) In the event that both parents have died or in a state of not
being able to express their will, then permission is obtained from
the guardian, the person who maintains or family who have blood
relations in the direct lineage upwards as long as they are still alive
and able to express their will ,
(5) In the event that there is a difference of opinion among those
referred to in paragraph (2), (3) and (4) of this section, or one or
more of them did not express his opinion, the Court in the area of
law where live people will enter into marriage at the request of the
person can give consent after first hearing the people mentioned in
paragraph (2), (3) and (4) of this article.
(6) The provision of paragraph (1) to paragraph (5) of this section
apply throughout the law of each religion and belief from the
concerned do not specify otherwise.
Article 7
(1) Marriage is only allowed if the man has reached the age of 19
(nineteen) years and the woman has reached the age of 16
(sixteen) years.
(2) In case of deviation from paragraph (1) of this Article may
request a dispensation to courts or other officials appointed by both
parents the man or the woman.
(3) The provisions concerning the state of one or both parents
are in Article 6, paragraphs (3) and (4) of this Act, applies also in the
case of a request dispensation that paragraph (2) of this article,
without prejudice to that referred to in Article 6, paragraph (6).
Article 8
Prohibited marriage between two people:

a. blood relatives in a straight line downward or upward;

b. blood relatives in the lateral line is between brothers, between
a brother parents a nd between a brother of her grandmother;
c. related by marriage, namely in-law, stepson-in-law and mother
/ stepfather;
d. berhubungan susuan, yaitu orang tua susuan, anak susuan,
saudara susuan dan bibi/paman susuan; (i am sorry sir, it is hard
to translate)

e. dealing with the wife or a brother or nephew of the wife's aunt,

in the case of a husband and a wife of more than one;
f. have a relationship that is by religion or other applicable
regulations, it is forbidden to marry.
Article 9
A person who is still tied the knot with the other person can not
remarry, except in the case mentioned in Article 3 (2) and Article
4 of this Act.
Article 10
If a husband and wife who had divorced remarried each other
and divorced a second time, then they should not be held
between mating again, as long as the law of each religion and
belief from the concerned do not specify otherwise.

Article 11
(1) For a woman who broke up his marriage applicable waiting
period.

(2) The grace period waiting period of paragraph (1) shall be

regulated in a government regulation further.
Article 12
Procedures for the implementation of the marriage stipulated in
the legislation itself.
Regarding the marriage by elopement and abduction.
There is no differentiation regarding the two, and also it is not
stipulated in the Marriage Act. However, it is regulated in the
Indonesian Penal Code.
It is stated in article 332 paragraph (1):
Being guilty of abduction shall be punished:
1st,

by a maximum imprisonment of seven years, any person

who carries off a woman under age without the will of her parents or
guardians but with her consent, with intent to ensure himself of her
possession within or outside marriage;
2nd-ly, a maximum imprisonment of nine years, any person who
carries off a woman by tricks, force of threat of force, with intent to
ensure himself of her possession within or outside marriage.
Based on the article, there is a term abductions which holds the
meaning of running away underage female without the consent of
parents or guardian, despite her own wills, to take women who are
old enough in accordance to the sense of deception, violance or
physical threats. In accordance to article 332, even if the girl is
taken away on her consent, the one who takes her away will still be
penalizedbecause the girl is still underaged and is taken away
without the consent of her parents or guardian.

MINUTES

Ghali (group 9)
To what extend does marriage in Adat communities can reflects social
status?
Because marriage in adat communities are reflecting social status, it is
obvious that marriage with the rich person and poor, can make a balancing
their status.
Dita (group 5)
What do you think about that, does the adat law purpose regarding marriage
contrary to the Islamic law and national law?
Yes it is contrary because in civil and national, persons will is needed but in
adat law, its more of the family and relative decision to marriage, it later
depends in the kinship system, if unilateral is exogamous marriage, they
need to married outside the village.
Zaslyn
The preliminary of marriage is has to register in religious court and civil, why
in that civil law adat law is not considered? Why adat law is not recognized to
be the requirements of marriage?
Based on civil law, in the marriage, everything that related to marriage is
related to BW, the stipulation means that when the law came out, other
regulation from the previous regulation can still be valid if it is not existed in
law no. 1/1974, the example is hence it is still applicable, so except from
registering the marriage, the law is very silent about preliminaries marriage.
Rizky Rahmadita (group 3)
By your presentation, I can see that there are many cases of
abduction/elopmemnt, and it can be solved by musyawarah, in the national
law, are there are any legal consequences?
Yes there is, its not regulated in civil law, but in the penal code, in art 332
par 1 regarding abduction, in that art, even if the girl agrees, the
man will still be punished for a max of 7 years, if the man uses force

and the woman doesnt agree, the man may be punished for a max
of 9 years.
Gianna
Marriage about a woman, the marriage purpose itself is to extended the
family, but why there is also objective to linking between relatives? If the
couple they want to become refugee, are they still considered in still in the
familys clan or outsider?
The relative dont always disapprove to the elopement itself, so there are
marriage by elopement that is approved by relatives, however it normally
occurs in matrilineal system, but we think if it happens in patrilineal, then the
girl is considered as part of the mans clan.
Ryan
About marriage by proposal, so in marriage by proposal according to adat
law, there is engagement, can u distinguish the engagement in adat law,
Islamic law, and Christianity?
Engagement in adat law is allowed; Islamic law there is no regulation in
prohibiting the engagement. Christian law is based on BW, no such thing as
promise to marriage (not binding), engagement is only considered in adat
law, and however it does not exist in BW and Islamic law.
Alex (group 8)
Marriage by abduction, reason why marriage by abduction is considered valid
by adat law, because in the todays world there is prohibition regarding
abduction
It is not considered as valid, because in some marriage, because when there
is wife to get it in your own village, u are still considered as abductor, and
the man can be killed because he is an abductor. But if u are stepping your
own village, u are considered as not an abductor.
Pak Bonos answer: but it is actually valid, in some areas, such act is
considered a valour. If you abduct a girl and you are still in the girls village,
then you can be killed, but if you manage to bring the girl to your village, you
will be considered a hero especially if the girls is from a wealthy clan.

Vania
How is about the regulation regarding marriage of the different religion,
because in western law it is prohibited, is there any regulation in adat law?
We are not sure, but in Islamic law, it is prohibited, but in adat law because
there is no written rule, so it is based on each adat communitys regulation.
So if you want to be legally married, you cant be from different religions,
because it is regulated.
Pak Bonos wisdom: because marriage is a very important social/legal
institution, then the preliminaries to marriage in adat law is more important
to the marriage itself, however it is nonexistent in Islamic law, BW, and law 1
1974. In adat law, it starts with the proposal, but it is not like a proposal we
may generally imagine, but it involves both families as a whole, and it results
as in betrothal, and in the proposal, the bride price is agreed on. The bride
price doesnt have to be monetary but it must have a magical value in order
to balance the cosmic imbalance which is result by the girl who moves to the
mans clan.
If after proposal and betrothal they cant agree on bride price, or if the bride
price is not agreed upon, but the bride agrees, then they can elope, but in a
situation in which the bride disagrees to marry, then there is abduction. And
in abduction, your family can help you abduct the woman, and if you
succeed, then you clan will acknowledge your marriage.
Preliminaries in marriage involves our clans with the opposing clan in order
to ensure that the marriage goes smoothly, and that if something happens,
then our clan will back us up.