STATUS OF CHILDREN OUTSIDE THE MARINE IN THE PERSPECTIVE OF LEGAL PLURALISM

The birth of a child in a marriage is a reflection in a complete main family. The problem is that not all children with good fortune are born in a family atmosphere of a  main, a child outside marriage. As a result of the birth of such children have an impact or implications on the position of the child in the family and inheritance.

In assessing the position of out-of-wed children in Balinese society, based on customary rules that apply in Bali, out-of-wed children have no legal relationship with their biological fathers. The same thing was revealed by Darmayana in Witanto, where according to him a child born from a relationship outside of marriage only has an inheritance relationship with his mother and his mother's family (D.Y. Witanto; 2012: 102). The Marriage Law regulates the position of children in Chapter IX. Article 43 Paragraph 1 is regulated as follows: Children born outside of marriage only have a civil relationship with their mother and mother's family. So the child outside of marriage only has a legal relationship with the mother and her mother's family.

Regarding out-of-marriage children, the Constitutional Court issued a decree set forth in the Constitutional Court Decision Number: 46 / PUU-VIII / 2010 in essence as follows: that if the mother can prove by doing DNA tests on the child then the child has a civil relationship with men the man who caused the child to be born. The Constitutional Court's ruling is still a debate among the judges. The reason is because of the desecration of religious beliefs in Indonesia and there is no religion that justifies a child born outside of marriage to have a civil relationship with his biological father. Nevertheless, the decision of the Constitutional Court is final and constitutes law.

So the legal position of an outside marriage child can be assessed from customary law and also from the judge's decision in this case the Constitutional Court judge. In such conditions there is a disharmony between customary law and judge made law. Out-of-wedlock children in Balinese customary law do not have a legal relationship with their biological father so that rights and obligations do not arise as children are legitimate. Because he has no legal relationship with his father and family, the consequence is not to be an heir to his biological father while based on the decision of a judge of an unmarried child having a relationship with his biological father as long as his mother can prove it by DNA testing.