SETTLEMENT OF RELIGIOUS DIFFERENT MARRIAGE IN INDONESIA

The validity of the marriage regulated in Article 2 of Law Number 1 of 1974 concerning Marriage (hereinafter abbreviated as UUP) redaction ally states that: "

(1). Marriage is legal, if it is done according to the law of each religion and belief.

(2). Each marriage is recorded according to the applicable laws and regulations. "

From this provision it can be seen that the legal requirements for a marriage if done according to the law of each religion and belief. While paragraph (2) is an administrative obligation and not a legal requirement for marriage. Diversity in holding a marriage is certainly unavoidable in Indonesia, which consists of various religious teachings recognized by the government. With different processes and procedures, it can be said that the objective of the full unification of the UUP is a failure because the unification achieved is only limited to that all Indonesian people who wish to have a marriage are subject to the UUP, but the substance cannot be uniformed. Paragraph (2) of Article 2 also applies to the implementing regulations, namely Government Regulation No. 9/1975 regulating the diversity of marriage registrations which for Indonesian citizens who are Muslim are registered with the marriage registrar, while those other than Muslims are registered at the civil registry office. On the other hand, the government wants certainty related to the registration of marriages where only one religion is recorded in the marriage certificate / marriage so that marriages of different religions have until now become polemic in the community.

The UUP does not regulate the ability of interfaith marriages so this has led to various interpretations. The fact is that when a marriage is carried out with two religions, it can logically cause the first marriage to be canceled or vice versa because it has not been canceled so that the marriage according to the second / last religion becomes invalid. Interfaith marriages are then addressed by implementing them overseas, where interfaith marriages are permitted, then registered in Indonesia. The validity of interfaith marriages outside this country is then interpreted as valid because there are elements of international law that state that they are legal. However, the validity of a marriage is that if it is done according to the law of each religion and its beliefs, it does not depend on the recording of the marriage certificate that is carried out abroad, on the other hand also if the certificate of interfaith marriage is recorded can cause legal uncertainty related to what religious law is applied in the marriage.

Before analyzing Article 2 of the UUP, it is necessary to first review Article 1 of the UUP because it is also related to religion. Article 1 of the UUP states that "Marriage is a spiritual bond between a man and a woman as husband and wife with the aim of forming a happy family (household) and eternal based on the Almighty God. "The bond can be interpreted by agreement / engagement between a man and a woman to bind themselves physically and spiritually in a family / household. The Civil Code (hereinafter referred to as the Civil Code) regulates the engagement in Article 1313 as "an act in which one or more persons commit themselves to one or more persons". Further developments related to this agreement are equated with agreements with legal requirements stipulated in article 1320 and its legal power is regulated in 1338 Civil Code.

Regarding when a will agreement occurs, known several theories about will agreements:

a.    Will theory (wilstheorie), which determines whether an agreement has occurred is the will of the parties. According to this theory the agreement is binding if the two wills have met each other.

b.    The theory of delivery (verzentdtheorie) teaches that an agreement is formed when an answer is sent by the party to whom it has been offered.

c.    Knowledge theory (vernemingstheorie) teaches that agreement has been formed when the offerer knows that the offer has been agreed by the other party.

d.    The theory of belief (vertrouwenstheorie) teaches that agreement occurs when the statement of the will is objectively reliable. (Mariam Darus Badrulzaman, 1994, Aneka Hukum Bisnis, Alumni, Bandung, p.24).

Will theory emphasizes what is desired, this theory is subjective. Will theory tries to explain if there is a controversy between what is desired and what is stated in the contract / agreement, then what is applied is what is desired, while what is stated is considered not valid. Instead, statement theory is objective. According to the theory of this statement, if there is a controversy between what is desired and what is stated, then what is stated is valid. Because people want that what is stated can be held as strong written evidence. Whereas the theory of trust teaches that an agreement is considered to occur when there is an objectively reliable statement that if it is related to Article 2 of the UUP, then recording is a very important thing because it is located as strong evidence (authentic) legally of marriage.

Every agreement wants binding power, in line with this there is the phrase "pacta convent quae neque contra leges neque dalo malo inita sunt omnimodo observanda sunt which means: an agreement that is not made illegally and does not originate from fraud must be fully followed". This expression was then abbreviated as pacta sunt servanda, which began to be known in the continental European legal system since Roman times, then written in the Civil Code in France (code Napoleon) and written in almost all countries in the world that adheres to the Continental European system. Pacta sunt servanda is an ethical imperative value in an agreement, which in the legal system of the Anglo-Saxon is known as the sanctity of contract. Literally pacta sunt servanda means that the contract / agreement is binding. (Munir Fuady, 2013, Teori-Teori Besar Dalam Hukum (Grand Theory), Kencana Prenadamedia Group, Jakarta, p. 209-210). The agreement is said to be sacred because there are promises that must be kept by the parties, which in every religion also teaches the fulfillment of these promises. Faithful to the promise is known as satya semaya in the teachings of Hinduism.

Satya Semaya is a part of the five Satya teachings derived from the book of Yoga Sutra created by Maharsi Patanjali. Satya can be interpreted as faithful to truth, honesty, while semaya is interpreted as a promise, so satya semaya is a teaching that requires humans to always be faithful to their promises based on honesty and truth. (Anonim, 2016, “Pengertian Panca Satya”, http://hindu-alukta.blog-spot.co.id/2016/05/-pengertian-panca-satya-dan-bagian.html). Each promise is always accompanied by fulfillment (achievement) as a result / consequence of the promise. Honesty, loyalty to promises aims to gain trust between the parties. Related to marriage, if carried out with honesty, loyalty, of course, the fulfillment of obligations will run well. Loyalty to this promise can be analogous to good faith because in it there is a responsibility to always be honest and faithful to carry out marriage.

The sacredness of the treaty in classical Roman law is complemented by sanctions against violators including religious sanctions which are determined by their respective religions. In the Middle Ages, the engagement was stronger because of religious factors that upheld the agreement so it had to be obeyed as a sanctity of contract. In the age of enlightenment (Renaissance) put the position of primacy of compliance to carry out the agreement, it was believed profusely that human life must hold to the principles of abiding by the agreement. These principles are: Religion, Morality and Law. Although Machiavelli, Thomas Hobbes, Spinoza, and Jellineck argued otherwise, that the king could violate the agreement he made with the people to maintain his position, but this was corrected in his development by the many updates of the abrogation theories or the disobedience of the agreement could only occur when there was a difference between the implementation was made with the beginning of the contract (the theory of boiled clausula sic stntibus) (Munir Fuady, op.cit., p. 211-216).

So strong is the binding force of the agreement that when it is analogous to a marriage that is a binding agreement between a man and a woman, then religious differences are not a good reason to question the certainty of which religious law is used in marriage registration. The fact is the parties here have agreed to carry out marriage, so that any religion that is agreed (one or both) to be recorded is also an agreement of both parties, so that the spiritual bond to form a family is not interpreted as religious law must be one too, but it should be addressed with wise as their agreement to form a family with different religious laws. Related to legal certainty, future revisions of the UUP should regulate the permissibility of interfaith marriages because each religion must teach goodness to its ontological aspects, it's just different from the epistemological aspects and the axiology is equally beneficial to form wise human beings.