Petitioner Dian Leonaro Benny delivering the subject matter at the preliminary hearing of the material judicial review of laws on the minimum marriage age, Wednesday (9/13/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The different minimum marriage age in Article 7 paragraphs (2) and (3) in Law No. 16 of 2019 on the Amendment to Law No. 1 of 1974 on Marriage and Article 1 paragraph (1) of Law No. 34 of 2014 on the Amendment to Law No. 23 of 2002 on Child Protection (UUPA) has been challenged to the Constitutional Court (MK) by individual citizen Dian Leonaro Benny in case No. 99/PUU-XXI/2023. The preliminary hearing for the case took place on Wednesday, September 13, 2023 in one of the Court’s panel courtrooms, with Constitutional Justices Enny Nurbaningsih, Wahiduddin Adams, and Suhartoyo presiding.

The Petitioner argues that Article 7 paragraphs (2) and (3) of the Marriage Law and Article 1 paragraph (1) of the Child Protection Law have harmed his constitutional rights. Article 7 paragraph (2) of the Marriage Law reads, “In the event of a deviation from the age requirement as referred to in paragraph (1), the parents of the male party and/or the parents of the female pay can request a dispensation from the court on the grounds that it is very urgent accompanied by sufficient supporting evidence.” Article 7 paragraph (3) of the Marriage Law reads, “The granting of dispensation by the Court as referred to in paragraph (2) must listen to the opinions of the prospective bride and groom to be married.” Article 1 paragraph (1) of the Child Protection Law reads, “A child is someone who has not reached the age of 18 (eighteen), including fetus in womb.”

The Petitioner, who attended the hearing on site, said that the change to the minimum marriage age for men and women—currently the same—and dispensation for underage children are explained in the Constitutional Court Decision No. 22/PUU-XV/2017. So, juridically, men and women can only marry when they reach the age of 19 unless they obtain a dispensation from a court, which must have strong reasons. However, he added, in that decision, the Constitutional Court did not define the meaning of adulthood, which the Child Protection Law set at the age of 18.

He further argued that the decision has led to the increase of requests for marriage dispensation from the religious court. He revealed that until November 13, 2019, the Religious Court of Semarang City recorded 85 of such requests; while the Religious Court of Purwakarta recorded 92 of such requests in 2019. There is no specific definition of such dispensations in the Marriage Law. It is only regulated in Article 1 point 5 of the Regulation of the Supreme Court No. 5 of 2019 on the Guidelines for Adjudicating Marriage Dispensation, which reads, “Dispensation of marriage shall be the granting of permission to marry by the court to a prospective husband/wife who is not yet 19 (nineteen) years old to enter into marriage.”

“The clause ‘on the grounds that it is very urgent accompanied by sufficient supporting evidence’ can lead to constitutional impairment which has not been concretely explained in the elucidation to the article in question. Therefore, [I] believe that if this [provision] remains in effect, there will be impairment because underage marriage is legalized, when the Child Protection Law has regulated this and this constitute a criminal offense,” the Petitioner explained.

The Petitioner believes the obscurity of the norm has led to increasing requests of marriage dispensation in Indonesia. The majority of such requests is filed to the Religious Court due to out-of-wedlock pregnancy due to premarital sex among underage children, followed by economic factor or poverty, in which parents marry their children to older men in the hopes it would lessen the family’s burden. He asserted that in order to avoid such legal ambiguity and for the sake of legislative harmony, the articles relating to the age of legal adulthood and the minimum marriage age must be harmonized and set to be either 18 or 19 years. Therefore, in the petitum, the Petitioner requests that the Court annul the a quo articles and declare them unconstitutional.

Justices’ Advice

In response, Constitutional Justice Wahiduddin Adams said it is important that the Petitioner explains his constitutional impairment and the proof for it. He advised against elaborating it based on assumption.

“If there is no proof for the assumption, attach the proof of the Petitioner’s impairment. In the petition, there is assumption; even if the impairment is potential, please affirm it with proof,” he said.

Meanwhile, Constitutional Justice Suhartoyo cautioned the Petitioner on mentioning dispensation in the norm. “What is the constitutional right of the Petitioner, who is not the parent of a prospective bride/groom who is not yet 19? Although the constitutional impairment could be potential, in Islam there is wali nasab or guardian, what about in Christianity? How to elaborate this when there is no confirmation of the Petitioner’s position? At least, some of the criteria for the connection between the Petitioner’s constitutional rights and the enforcement of the norms should be met,” he said.

“If [you] are worried for any member of your family or relative who enters into underage marriage, the Marriage Law prescribes the need for guidance by the family, community, and next of kin. The legal standing needs revision. Hopefully the assumed loss in the petition will convince [the Court],” she said.

At the end of the hearing, Justice Enny informed the Petitioner that he had 14 workdays to revise the petition and submit it no later than Tuesday, September 16, 2023 at 09:00 WIB to the Registrar’s Office, who would notify them of the next hearing schedule.

Author       : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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