Fakhrurrazi, Fakhrurrazi (2025) Perbedaan Perspektif Hakim Pengadilan Agama tentang Status Anak Luar Kawin Pasca Putusan Mahkamah Konstitusi Nomor 46/PUU-VIII/2010. Masters thesis, Universitas Islam Riau.

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Abstract

The Constitutional Court Decision Number 46/PUU-VIII/2010 constitutes a judicial review of Article 43 paragraph (1) of Law Number 1 of 1974 concerning Marriage. In this decision, the Constitutional Court declared: “A child born outside of marriage has a civil relationship with their mother and the mother’s family, as well as with a man proven by science and technology and/or other legal evidence to have a biological relationship, including a civil relationship with the father's family”. According to the Constitutional Court, it is neither appropriate nor just for the law to stipulate that a child born as a result of sexual relations outside of marriage should only have a legal relationship with the mother, thereby absolving the man responsible for the pregnancy from his responsibilities as a father. Following this decision, various responses emerged— both supportive and opposing—even among legal practitioners, particularly judges at the Religious Court. The purpose of this study is to explore the differing perspectives of judges at the Religious Court regarding the legal status of children born out of wedlock after the issuance of Constitutional Court Decision No. 46/PUU-VIII/2010, and to examine the implications of these differing perspectives on judicial considerations in case decisions. This research employs a normative legal method with a descriptive-analytical approach. The methodological framework includes two approaches: library research and interviews. The results of the study indicate both similarities and differences in opinion among the judges of the Religious Court. Judges generally agree that a child born out of wedlock due to an unregistered (sirri) marriage is considered legitimate, provided the marriage can be proven in court. However, opinions diverge regarding children born as a result of adultery. Judges who support the Constitutional Court’s decision argue that such children can be considered legitimate based on their biological connection to both parents and are entitled to financial support and civil rights, except for three aspects: lineage (nasab), guardianship, and inheritance rights. On the other hand, judges who oppose the decision assert that children born from adultery have civil relations only with their mother and her family. Moreover, the Constitutional Court’s ruling significantly affects judicial considerations in cases concerning the origins of children born out of wedlock, whether resulting from unregistered marriages or adultery.

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