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Asian Journal of Engineering, Social and Health

Volume 3, No. 12 December 2024

Volume 3, No. 12 December 2024 - (2729-2740)

ABSTRACT

Recognition of an unmarried child is a legal act that establishes a civil relationship between the biological

father and the child, with significant legal consequences. Courts frequently receive applications from

fathers seeking to recognize an unmarried child as legitimate, both in situations where the parents have

been married and where no marriage has occurred. This study aims to analyze the regulation and

recording of the recognition of extra-marital children born without marriage between their parents,

legal principles and consistency in judicial decision-making. The implications of this research underscore

the importance of comprehensive legal frameworks and judicial prudence in addressing cases of child

recognition, contributing to more equitable legal practices and the protection of the rights of all parties

involved.

Keywords: Extra-marital Children, Child Recognition, and Recording.

INTRODUCTION

child is a child born in or born as a result of the legal marriage of the two parents.

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of both parents, but can also be referred to those born as a result of the legal marriage of the

parents, that is, the parents have entered into a legal marriage but later divorced. Before the

divorce, it is known that the mother was pregnant, so the child born later is still considered a

children (Collin & Talbot, 2023). Children outside of marriage or children outside of marriage are

also known as natural children or natuurlijk hind. The Marriage Law does not provide an

understanding of what is meant by extra-marital children, so that if interpreted a contrario, extra-

marital children are children born outside of legal marriage as illegitimate children.

woman to become pregnant, so the child does not have a perfect position in the eyes of the law

like a legal child (Maulidina & Damayanti, 2023). Extra-marital children can be recognized or not

recognized by the father or by the mother. Extra-marital children are classified as:

a. Extra-marital children in the narrow sense are extra-marital children in the broad sense except

for adultery and discordant children;

Agency or BKKBN, there are findings that there are 50,000 (fifty thousand) children married early

and the majority are due to pregnancy outside of marriage (Wahil, 2023). Another thing was also

presented by the Ministry of Women's Empowerment and Child Protection, 84% (eighty-four

percent) of early marriage cases that occurred, such as in Yogyakarta and in Central Java, were

due to pregnancy outside of marriage (PR, 2023). The birth of a child outside of marriage will

certainly raise new issues such as the family relationship between the child and his biological

father, his legal position in society, and the civil rights he has as a child.

children outside marriage causes differences in the civil relationship between the child and his

father and mother. According to the Civil Code, the civil relationship between children born

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recognize the child, the legal relationship between them is born. So it can be seen that the

importance of the civil relationship born due to parental recognition is because it has an impact

on the legal position of the child.

regarding the rights and obligations between them. The birth of a child certainly gives birth to

the rights and obligations of the parents towards the child (Isradjuningtias, 2015). According to

the Marriage Law, parents are obliged to maintain and educate children properly until they marry

or are able to stand on their own, whether they are still together or are no longer bound by

marriage. Not only the rights and obligations of parents towards children, children also have

rights and obligations towards their parents such as respect and obedience to parents, as well as

maintaining parents according to their abilities.

43 of the Marriage Law, children born outside the marriage of their parents only have a civil

(hereinafter referred to as the Population Administration Law), Presidential Regulation Number

96 of 2018 concerning Requirements and Procedures for Population Registration and Civil

Registration (hereinafter referred to as PERPRES Number 96 of 2018), and Constitutional Court

Decision Number 46/PUU-VIII/2010.

the father of the child, provided that there is consent from the child's mother. In addition,

according to Constitutional Court Decision Number 46/PUU-VIII/2010, recognition of extra-

marital children to establish a civil relationship with their biological father is carried out if it can

be proven by science or technology (Ramadhita & Farahi, 2016). According to the Population

Administration Law, registered child recognition is carried out by parents who have entered into

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couples who have never performed a marriage, both religiously and state lawful, and the

recognition is granted by the Judge in Court, namely as happened in the Determination of the

Malang District Court Number 551/PDT.P/2022/PN.Mlg. In this decision, the Applicant filed a

and recording of the recognition of extra-marital children born without marriage between their

parents, referencing the Civil Code, Population Administration Law, and Constitutional Court

Decision Number 46/PUU-VIII/2010. So that the benefit of this research is to analyze how the

regulations governing the recognition of extra-marital children and the recording process,

especially in the case of children born without marriage between their parents. This research

provides theoretical benefits in the form of contributions to the civil law literature related to the

rights and obligations of unmarried children, as well as practical benefits in the form of guidance

for stakeholders, including judges, notaries, and families, in understanding the mechanisms and

legal implications of the recognition of unmarried children.

legal symptoms through analysis, also with an in-depth examination of existing legal facts and

solving existing problems. The research method that will be used in writing this research is a form

of legal research with a doctrinal approach. Doctrinal research is research that focuses on rules,

principles, norms, as well as interpretive guidelines and values, which begins by identifying a legal

source that is studied, then interpreted, and analyzed. In this case, it will identify legal sources

such as the Civil Code, Constitutional Court Decision Number 46/PUU-VIII/2010, PERPRES

Number 96/2018 and the Population Administration Law which regulates interfaith marriages.

generally used in research conducted doctrinally. Secondary data according to Soerjono Soekanto

are primary legal materials such as laws and jurisprudence, secondary legal materials such as

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Legislation

recognized by both the father and the mother. When an extra-marital child is born, he basically

does not have a civil relationship with his parents. Thus, there must be a legal action that must

be carried out by the parents of the child to create a civil relationship between them. Improving

the status of extra-marital children can be done in various ways, namely through child recognition

and child attestation (Marwa, 2023).

the father or mother who recognizes the child is his child can create a civil relationship between

them. The civil relationship of a child born out of wedlock with the father and his father's family

recognized by his father, then he has a civil relationship with his father and vice versa. However,

over time, there was a renewal of this arrangement, namely in the Marriage Law, it was stated

that an unmarried child only had a civil relationship with his mother and mother. Directly, he has

a civil relationship with his mother without the need to be preceded by recognition.

According to Article 280 of the Civil Code, an unmarried child does not have a civil relationship

with the father or mother and this civil relationship only arises after recognition (Putri et al., n.d.).

Recognition by the father of the unmarried child can only be carried out if the mother agrees. So

that if a confession is made by the father of an unmarried child and the mother refuses, the

confession cannot be accepted.

certificate, the marriage certificate of both parents, an authentic deed, or a deed made by the

civil registry. Apart from voluntarily, recognition can also be done by force, namely by filing a

lawsuit against one of the parents in order to finally get recognition from the father or mother.28

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Although it can be done by force, namely through a lawsuit, in terms of investigating who the

father of the child is, it is prohibited, unless the investigation aims to find out about who the

mother of the child is.

unequal rights received by the child. Whereas basically none of the children asked to be born

outside of a legal marriage, so their right to get the same position should be given and protected

by the state. In addition, Article 28D of the 1945 Constitution also states that everyone has the

right to recognition, guarantees, protection, and fair legal certainty and equal treatment before

the law so that the position of children outside of marriage must be protected, as well as treated

the same as children who are born legally.

sperm cell owned by a man and an egg or ovum owned by a woman and it is unfair to the child if

the law regulates that children born outside of marriage only have a civil relationship with their

mother. Whereas of course there is a role or contribution from the child's biological father that

or other evidence. One of the efforts in terms of giving birth to an illegitimate child's civil

evidence that is valid according to law. With the birth of this decision, it can also be a legal effort

made by the mother of the child to obtain recognition from the child's biological father through

there is the same blood type between the child and his father and can be used in terms of

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evidence such as children of unknown origin, switched children, or children whose fathers are

not recognized.

population documents as official documents issued by institutions, namely the Implementing

for public services and development. According to Article 1 Point 16 of the Population

Administration Law, population administration activities are carried out by civil registration

officials, namely recording an important event experienced by a person.

Administration Law, is included in important events that are recorded as civil records by the

officer authorized to do so. According to the Population Administration Law, child recognition is

recognition by the father of his child born outside of marriage where the marriage is valid

according to religious law (Nurhayati, 2019). Not only that, the recognition must also be

approved by the mother of the child born outside of marriage. So it can be said that child

recognition can occur if there has been a marriage of the parents that has been valid according

Population Administration Law explicitly states that recognition only applies to those who have

married religiously but not yet by state law, and outside of that, the provisions of child

recognition do not apply. When child recognition has been carried out, the civil registration

officer records this important event in the recognition deed register and then issues a quotation

of the child's recognition deed.

Presidential Regulation No. 96/2018 regulates, among others, the recording of important events

of residents in Indonesia, whether they are Indonesian citizens or foreigners. One of the services

in civil registration is child recognition. According to Article 49 of PERPRES Number 96/2018, if

child recognition is to be recorded, it must fulfill the following requirements:

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b. A certificate indicating the existence of a marriage from a religious leader or belief in God

Almighty

d. Family card of father or mother

Analysis of the Determination of the District Court of Malang Number:

551/PDT.P/2022/PN.MLG

District Court Determination Number 551/PDT.P/2022/PN.MLG. In this case, the Applicant was a

man residing in Malang City, formerly in a relationship with a woman whose name was changed

(hereinafter referred to as "the woman"). The Applicant requested the Judge to recognize a

daughter (hereinafter referred to as "daughter") born on 3 April 2021. In his application, the

Applicant stated that he was the biological father of the girl and she was his biological mother.

Through this petition, the Applicant submits his desire to recognize the girl as his biological child.

The Applicant's reason for wanting to recognize the girl as his child was to establish a civil

and stated that she had agreed to the applicant's confession. The second witness also stated that

he agreed to the recognition of the child by the applicant. In the Determination of the District

Court of Malang Number 551/PDT.P/2022/PN MLG, the Judge of the District Court of Malang

decided to grant the entire petition of the Petitioner which basically stipulated the recognition

of the child by the petitioner against the girl and ordered the Petitioner to report the recognition

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decision, the legal basis used for the judge's consideration in granting the petition for child

recognition by the applicant was inaccurate.

Administration Law. In this case, there is an error where the Explanation of Article 49 of the

outside of a legal marriage with the consent of the child's biological mother, so that child

recognition is carried out voluntarily and without coercion by a man who is the father of his child,

in this case his biological child born outside of a legal marriage with the consent of the child's

biological mother.

father who recognizes his child born outside of marriage, but the marriage has been valid

according to religious law, while the Elucidation of Article 49 of the Population Administration

Law quoted by the Judge is incorrect because it omits a fairly important phrase, namely that the

marriage has been valid according to religious law. In this case, what the judge did was

inappropriate because he made legal considerations on the wrong regulations and the wrong

legal basis for his consideration, as well as the application of the rules in this decision.

as a further regulation of the Population Administration Law states clearly in Article 49 that child

recognition must meet the requirements, one of which is a statement letter of recognition from

the biological father that has been approved by the child's biological mother, as well as a

certificate of marriage from religious leaders or penghayat kepercayaan. Furthermore, Article 51

stipulates that a court decision is required for the recording of child recognition for those born

outside of marriage. Therefore, Article 51 of PERPRES Number 96/2018 has a connection with

Article 49 Paragraph (2) of the Population Administration Law, namely that after the

requirements for child recognition are fulfilled in the event that the parents of the child who want