IMPLIKASI PUTUSAN MAHKAMAH KONSTITUSI NOMOR 46/PUU-VIII/2010 TERHADAP KEDUDUKAN ANAK LUAR KAWIN

Abstract

Decision of the Constitutional Court Number 46/PUU-VIII/2010 is considered to have an influence
on the position of children outside of marriage as a follow-up to the non-issuance of the Government
Regulation which regulates the position of children outside marriage as mandated by Article 43 paragraph
(2) of Law Number 1 of 1974 Based on rational justice, the Constitutional Court then changed the sound of
Article 43 of Law Number 1 of 1974 to "Children born out of wedlock have a civil relationship with their
mother and mother's family and with men as fathers who can be proven based on science and technology
and/or other evidence according to law that has blood relations, including civil relations with his father".
This study aims to determine the implications of the Constitutional Court Decision Number 46/PUUVIII/
2010 for the position of out-of-wedlock children, and the difference with the position of out-of-wedlock
children prior to the Decision.
This research is a normative legal research, because it is based on library research that takes
excerpts from reading books, literature, or supporting books that have relation to the problem to be studied,
assisted with primary, secondary and tertiary data sources. This study uses qualitative data analysis and
produces descriptive data.
From the results of the study, it was concluded that, First, before the Constitutional Court Decision
Number 46/PUU-VIII/2010 out-of-wedlock children could have a civil relationship with their biological
father through child recognition (Articles 272-279 of Burgerlijk Wetboek) and child endorsement (Articles
280-289 of Burgerlijk Wetboek). Second, the Constitutional Court Decision Number 46/PUU-VIII/2010 only
applies to connecting civil relations of children outside marriage whose marriages of both parents are
hindered by the provisions of Article 2 paragraph (2) of Law No. 1 of 1974 concerning Marriage, while for
extramarital chidren whose biological parents have never been married, Constitutional Court ruling
Number 46/PUU-VIII/2010 is used as a last alternative as long as voluntary recognition and/or ratification
cannot be carried out in order to hold the biological father responsible for the child outside or marriage.
The author's suggestion is, First, that the Government immediately issues a Government Regulation
governing the position of out-of-wedlock children as mandated by Article 43 paragraph (2) of Law No. 1 of
1974 concerning Marriage. Secondly, so that Constitutional Court Decision Number 46 / PUU-VIII / 2010
is not to be misinterpreted so that it will legalize adultery.
Keywords: Constitutional Court Decision - Implications - Children Out of Wed