The Existence of Same-Sex Marriage in the Perspective of Human Right and Legal in Indonesia

I Made Suwitra

doi:10.11648/j.ash.20190502.12

Abstract

Marriage Problems in Indonesia before The issuance of Act No. 1 of 1974 concerning Marriage as a State law was regulated in the customary law of each customary law community. Regarding the terms and validity of the marriage submitted to their respective religious law. Therefore, whether such marriage is permitted or not is determined by the laws of each religion. After the issuance of Act No. 1 of 1974, same-sex marriage has not been regulated, but their existence as citizens is not differentiated from other citizens, such as the right to life, the right to work, the right to use the right on politic, the right on education, the right on economy. Therefore the research problem that needs to be studied is how the marriage is seen from the perspective of Human Rights and from the perspective of State Law? The research method used is in the form of normative legal research and empirical legal research with statute approaches, analytical approaches, case approaches, and legal anthropology approaches. Data is then analyzed using hermeneutic and qualitative techniques. Marriage in customary law and state law can only be done between men and women in Balinese customary law are known as purusa and predana, with the main goal of continuing a generation which according to Balinese customary law is called suputra. Marriage is having the aspect of religious, sociological, and juridical. While the tendency shows, same-sex marriage is done by falsifying documents of self-identity so that it is against the state law and customary law which include religious laws. Therefore, those who are only interested in the same sex must make gender choices as part of human rights when they are married to a single status as a male and the other party has the status of a woman who can be legally represented by various documents, as well as sociologically reflected as husband and wife and can be accepted in the community where they are resided.

Highlights

One of the most fundamental rights of human is the right to marry
In the view of religious law, the institution of marriage is a means for its people to purify and validate the biological relationship between a man and a woman as husband and wife
In Indonesia, prior to the establishment of Act No 1 of 1974 on Marriage, marriage problems from the Indonesian people become matters of customary law and religious law of the people concerned. This condition is very relevant to the theory of Reciptio in Complexu by Van den Berg which states, that as long as has not been proven otherwise, the indigenous law is to follow his religion, if embraced religion must follow the religious laws faithfully

Summary

Introduction

The institution of marriage is a legalization for the humanity of different sex to conduct a relationship like husband and wife with the aim of obtaining offspring. In the view of religious law, the institution of marriage is a means for its people to purify and validate the biological relationship between a man and a woman as husband and wife. In Indonesia, prior to the establishment of Act No 1 of 1974 on Marriage, marriage problems from the Indonesian people become matters of customary law and religious law of the people concerned. This condition is very relevant to the theory of Reciptio in Complexu by Van den Berg which states, that as long as has not been proven otherwise, the indigenous law is to follow his religion, if embraced religion must follow the religious laws faithfully. The customary law of society is the reception or acceptance of the whole religious law of the people concerned [1]

Methods

Discussion

Conclusion