Definition of Family Law, Principles, Sources, and Scope

Definition of Family Law – Law plays an important role in regulating state order. However, the existence of the law itself cannot be completely separated from the problems that overshadow the main function of the law itself.

Same in Indonesia, until now there are still many unresolved legal issues. Legal problems in Indonesia are not only related to law enforcement, but sometimes to the legal product itself. The fundamental purpose of law is to increase order, legal certainty and justice in society so that people, regardless of class, feel protected and protected by their rights.

In a family, of course, we want a harmonious relationship between family members and in ensuring the creation of family harmony, of course, it must be accompanied by good parenting patterns from parents and how they give rules but without limiting children’s space.

Family law is part of individual law, while family law is defined as a set of rules regarding kinship and kinship by marriage (marriage, parental care, guardianship, mercy, absence).

And in a family relationship, of course, it also involves the role of family law which tries to regulate a relationship between these families in order to get a guarantee of a good life from their family.

Because even though everyone wants family relationships to be harmonious and happy, in reality it is not uncommon for conflicts to occur between members of their own family, requiring the role of family law to resolve these conflicts.

For this reason, so that Readers understand more about the meaning of family law regulated according to civil law in Indonesia, in this discussion we have summarized various information related to family law that can be used as a source of knowledge for all of you Readers.

You can see further discussion regarding family law below!

Definition of Family Law

The term family law comes from the translation Familierecht (Dutch) or family law (English). Family law, as discovered by Ali Afandi, is defined as a set of provisions relating to kinship and marriage (marriage, parental responsibilities, guardianship, guardianship, absence).

According to Ali Afandi, there are two important things that are regulated by family law in relation to blood relations and marriage. Kinship is a relationship that exists between several people who have the same lineage. Meanwhile, kinship is a family bond resulting from marriage between a person and a blood relative with his wife (husband).

Tahir Mahmud defines family law as legal principles explained on the basis of religious observance, relating to matters that are often believed to have a religious dimension, according to family regulations, marriage, divorce, family relations, household responsibilities, inheritance, dowry, guardianship and etc.

The definition of Tahir Mahmud essentially considers two aspects, namely the legal principle and the legal scope. Although the scope of family law research includes family regulations, household responsibilities, inheritance, dowry, guardianship and others. If you are concerned, this definition is too broad because it includes inheritance, which is part of property law in  civil law.

This definition includes at least two important aspects, namely the rule of law and the content (coverage) of the law. The rule of law includes written family law and unwritten family law. Written family law is the legal basis derived from statutes, contracts and case law.

Unwritten Family Law is the principles of family law that arise, grow and develop in people’s lives. For example in the City of Mamari Sasak. Family law includes marriage, divorce, marital assets, lineage, guardianship and trusteeship. From the above understanding it can be concluded that family law is basically the entire legal system, both written and unwritten, which regulates legal relations arising from family ties, which include:

  • Marriage orders with all marital affairs
  • Divorce Provisions
  • Parental authority rules
  • Child positioning
  • Realization of Regulations (Guardians) and
  • Guardianship Rules (voogdij).

Western civil law contains the principle that family law with its various provisions is in essence closely related to public order. Thus, any action that violates these provisions is null and void.

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Definition of Family Law According to Experts

Another view on the importance of family law is as follows:

1. Van Apeldoorn

“Family law is the regulation of legal relations arising from family relations”.

2. CST Kansil

“Family law consists of a set of legal provisions resulting from the unity of family life”.

3. R. Subekti

“Family law is the law governing legal relations arising from family relations.”

4. Rahmat Usman

“Family law is a provision that regulates the relationship between individuals who are different in family ties”.

5. Djaja S. Meliala

“Family law is a general rule governing the legal relationship between blood relatives and families of marriage.”

6. Sudarsono

“Family law is the whole set of rules governing the legal relationship between blood relatives and relatives by marriage.”

If we look at the opinions of the experts above regarding the importance of family law, according to them there are two important things, namely blood relations and marriage.

The hereditary family ties are referred to as blood families, meaning relatives who have the same ancestor. Some of these blood relatives are drawn along the paternal line, known as matrilineal, and some along the maternal and paternal lines, known as parental or bilateral.

Family ties born from marriage are called cementa families, namely relatives born from marriage consisting of husband’s relatives and wife’s relatives. Conversely, family ties created through adat are called adat families, meaning they arise from conventional bonds, such as adopted siblings.

Principles in Family Law

Based on the analysis with reference to the Civil Code and Law Number 1 of 1974, the provisions on marriage contain several principles that apply in family law, namely as follows:

  • The principle of monogamy means that a man can only have one wife and vice versa. (Article 27 of the Civil Code and Article 3 of Law No. 1 of 1974).
  • The principle of the agreement, namely the principle according to which marriage or guardianship is valid if there is an agreement or agreement between the prospective husband and the prospective wife that determines marriage or family (Article 28 of the Civil Code and Article 1 of Law 6). 1974)
  • The principle of proportionality, the principle of balance between the rights and position of the wife and the rights and position of men in the life of the household and society. (Article 31 of Law Number 1 of 1974)
  • The principle of unanimity, the principle according to which husband and wife combine their assets (Article 119 of the Civil Code)

Sources of Family Law

Basically, sources of family law can be divided into two types, namely written sources of family law and unwritten sources of civil law. Unwritten sources of family law are legal norms that grow and develop and are adhered to by the majority of people or ethnic groups living in the territory of Indonesia. Meanwhile, sources of written family law come from various statutory regulations, jurisprudence and contracts (agreement).

The sources of written family law referred to in Indonesia include:

  • Civil Law (Burgerlijk Wetboek);
  • Mixed Marriage Law (Mogelijk op de Gemengde Huwelijk), Stb. 1898-158;
  • Javanese, Minahasa and Ambon Christian Indonesian Marriage Order (Huwelijke Ordonnantie Christen Indonesiers), Stb. 1933-74;
  • Law Number 32 of 1954 concerning Registration of Marriage, Divorce and Pillars (Muslims according to Religion);
  • Marriage Law No. 1 of 1974;
  • Government Decree No. 9 of 1975 Regulations for the Implementation of the 1974 Marriage Law;
  • There is already Government Decree Number 10 of 1983 Government Decree Number 45 of 1990 concerning Marriage and Divorce Certificates for Civil Servants; And
  • Presidential Regulation Number 1 of 1991 concerning the Compilation of Indonesian Islamic Law which applies to Muslims.

Scope of Family Law

1. Parental Authority

Legitimate children are subject to their parents until they come of age or until they marry, provided that both parents are married. The authority of the parents thus begins with the birth of the child or [in the case of a child born in a legal marriage].

Therefore, parental power is the power exercised by fathers and mothers while they are married to their immature children. That is the content of Article 299. According to Article 300, the responsibility of parents is usually carried out by the father.

2. Trusteeship

Children under 18 years of age or unmarried who are not dependent on their parents are subject to guardianship. The guardian applies to the person and property of the child concerned (Article 30 of the Marriage Law).

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Guardianship refers to the personal control and management of the assets of a minor when the child is not in a state of parental authority, ie. a child whose parents divorce or when one or all of them dies is under guardianship. For children out of wedlock, because there is no parental authority, the child is always under guardianship.

3. Empowerment

The Civil Code (BW) has a provision called “curatele”, which of course only applies to subjects in the Civil Code (BW). Adults but stupid people with brain disorders or dark eyes should be checked even though they sometimes like to talk. Even adults can be watched for vanity.

Every blood family has the right to apply for blood family protection according to their circumstances: stupid, brain sick or dark eyes. But because of his arrogance, only his relatives could ask for help.

As a result of protecting someone, all legal actions that are carried out after that are null and void. The defense attorney is appointed by the court, while the “supervisory defense attorney” is a real estate agent.

Forgiveness ends when the cause that caused it is gone. The release procedure is the same as for a request for suspension. Release from pardon must also be announced in the State Gazette.

4. Adoption

Adoption is the adoption of a child by someone with the intention of making the child his own. In the BW law, this is not possible, because BW views marriage as living together, not offspring. Because the adoption of children among the Chinese is a general legal action, the issue of adoption has its own regulation, namely Stbld. 1917-129 Chapter II.

Important things to note are as follows:

The adoption of children can be done jointly by the couple (Article 2). If adopted by a widow, she is not allowed to have sons (Article 5(1)). An unmarried widow can adopt. If she has no male offspring from her deceased husband (Article 5(3)).

5. Status is Lost

Absence of a person is a situation when a person leaves his residence and his whereabouts are not known. In such a situation, the following conditions apply:

  • Temporary measures

Article 413. If the representative has not received power of attorney to represent or protect his interests and there are urgent reasons for this, the court shall, at the request of the person concerned, appoint a probate court to represent him or look after the interests of the absent person.

  • Statement of alleged death of the person.

If someone has been absent for a long time, it must be considered whether he left a power of attorney or not. If he does not leave the prosecutor, the provisions of Section 467 apply, according to which, if the situation has lasted for 5 years, he is summoned at the request of the person concerned with the approval of the court. If the person does not appear, then the trial is repeated up to 3 times with an interval of 3 months.

Article 468: If he is not present at the final summons, the court can declare the person dead after they left their home or last safety.

If there is a power of attorney, according to article 470, the period of absence must be exactly 10 years so that the court can determine the alleged death of the person.

The result of this declaration is that the heirs can claim their rights, but it is ensured that the assets will be managed properly.

Conclusion

This is a brief discussion of the definition of family law. The discussion this time does not only discuss the definition of family law, but also discusses further the principles of applicable law, the sources of applicable law, and the scope of family law itself which Readers can look at carefully.

Understanding the meaning of family law gives us additional knowledge about the various legal products contained in the legal provisions in Indonesia which have regulated various possible appropriate legal actions to be taken in any legal situation.

In this case, family law exists to guarantee the eligibility of a person’s life in his family if problems are found related to a person’s relationship with his family.

This is a review of the meaning of family law.