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Edunity
Volume 2 Number 7, July 2023
p- ISSN 2963-3648- e-ISSN 2964-8653
Doi: https://doi.org/10.57096/edunity.v2i7.109
https://edunity.publikasikupublisher.com/index.php/Edunity/index
LEGAL PROTECTION OF INHERITANCE OF EXTRAMARITAL
CHILDREN IN THE CHINESE
Fatsya Gita Subagia
1*
, Benny Djaja
2
Tarumanagara University, Indonesia
Email: fatsya.2[email protected]c.id
1*
, [email protected]ntar.ac.id
2
ABSTRACT
Abstract: The purpose of this research is to examine and analyze further the forms of
inheritance protection for children born out of wedlock. The research method used is a
normative juridical method, focusing on legal regulations, books, and related literature. The
position of children born out of wedlock regarding inheritance issues certainly differs from
legitimate children. Children born out of wedlock must fulfill certain conditions to obtain their
inheritance rights, especially for children born out of wedlock within the Chinese community,
which has customary regulations and legal conditions regarding the protection of their
inheritance status. The research is conducted by studying the legal system related to legal
regulations on the position, and inheritance status, and by examining secondary sources such
as literature and expert opinions. The research analysis is conducted using a qualitative
method. Thus, it will explain the inheritance status for children born out of wedlock within the
Chinese community.
Keywords: Inheritance; Extramarital; Chinese
Introduction
Children are an investment in the future and hope for their parents in the future.
Children are also considered as resources that can improve the standard of living and
control the social status of parents. They inherit traits from their parents, both good and
bad, as well as high or low. Marriage is an important event in human life that has legal
consequences both for the relationship between married couples and with other parties
who have interests.
If a child is born from the marriage, a legal relationship will be formed between the child
and his parents. As a citizen, every child has the right to grow and develop according to
his nature as God's creation. Children have the right to education, care, and direction to
become adults. According to the Convention on the Rights of the Child, a child is any
individual aged 18 years or less, including Law Number 23 of 2002 concerning Child
Protection defines a child from the womb to better provide comprehensive protection to
the child (Citradewi et al., 2022).
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Indonesia has a rich cultural diversity. Although various rules exist, it is impossible to
separate the cultural diversity that exists. The same is true when it comes to inheritance
law. In Indonesia, no inheritance law applies nationally. In the arrangement of
inheritance according to the Civil Code (Burgerlijk Wetboek), there is a division of heirs
into four groups. This division aims to show who are the heirs who have priority based
on that order. Thus, the heirs of the second class will not inherit if there are still surviving
heirs of the first class. In Indonesia, there are customary inheritance law, Islamic
inheritance law, and civil inheritance law. Each inheritance law has different rules. In
the wealth of inheritance system in Indonesia, some elements must be fulfilled by the
inheritance system in force in this country (Candra et al., 2022).
Based on the various inheritance law systems above, it can be seen that the provisions
regarding inheritance law in Indonesia are pluralistic. In the field of civil law, legal
pluralism also occurs in addition to the consequences of diverse populations as well as
the result of the legal politics of the Dutch Colonial Government which enacted Article
131 Indische Staatsregeling IS before Article 75 Regarding Regulations RR, which in
essence is as follows
(Citradewi et al., 2022):
1. Civil and Commercial Law as well as Criminal Law along with Civil and Criminal
Procedure Law must be placed in the Code.
2. For Europeans, it is followed by the example of legislation in force in the Netherlands,
the principle of concordance.
3. For native Indonesians and Foreign Easterners Chinese, Arabs, etc., if it turns out that
the needs of their people so desire, the rules for Europeans may be declared applicable
to them, either completely or with changes, and also allowed to make a new
regulation together, for others must be heeded the rules applicable among them, and
deviations may be made if requested by public interest or necessity their society.
The enactment of inheritance law provisions in the Civil Code for citizens of Chinese
descent cannot be separated from the constitutional history of the Republic of Indonesia
before independence based on the provisions of article 131 IS jo. Staatsblad 1917 Number
129, then the Civil Code applies to:
1. Europeans and those equated with Europeans;
2. Chinese Foreign Easterners;
3. Other Foreign Easterners and Indonesians who submit themselves to European law.
The Chinese community is a population group to which according to Article 131 IS
applies to the Civil Code, but in implementation, not all provisions stipulated in the Civil
Code are included and sometimes even set aside, for example, provisions on inheritance
as stipulated in Book II of the Civil Code. Among the Chinese community itself lives a
tradition about inheritance. This inheritance law is dynamic following the development
of society. Factors that cause this development are factors in the form of progress in
education levels, environmental factors, and so on (Mariana & Djaja, 2023).
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Heritage law in Indonesia from the past until now is still diverse in form, each
population group is subject to the legal rules that apply to it by the provisions of Article
131 IS Indische Staatsregeling The population group consists of Europeans and those
equated with them, the Chinese and Non-Chinese Foreign Easterners, and the Bumi
Putera group. In the Chinese community, the Civil Code BW was enforced.
There are various problems, one of which is in the Bandung High Court Decision
Number 264 / Pdt / 2018 / PT Bdg, in that case explaining that on June 3, 1969, Mr. Joe
Kok Tjong recognized Tan Kong Lay as his illegitimate son, where Tan Kong Lay was
born on March 30, 1961, who was the son of a woman named the late Tan Kwie Nio. In
the facts of the trial, there is not a single document and evidence that explains that Joe
Kok Tjong and Tan Kwie Nio had entered into marriage either by belief or by the
provisions of Law No. 32 of 1954 concerning the Stipulation of the Enactment of Law of
the Republic of Indonesia dated November 21, 1946 Number 22 of 1946 concerning
Marriage Registration, Talaq and Reference in All Areas Outside Java and Madura, of
course, at that time Law Number 1 of 1974 was not yet in effect, and although it is stated
that Tan Kong Lay's birth certificate only explains that Tan Kwie Nio is his biological
mother, it was not shown at the time of proof. The judge in the judgment made a
judgment that Tan Kong Lay's children and wife were the legal heirs of the deceased,
but there was no consideration and the ruling stated unequivocally whether Tan Kong
Lay was the heir of Tan Kwie Nio (hereinafter TKN) or Joe Kok Tjong (hereinafter JKT).
Therefore, based on this, there is an adjustment in the dynamics of inheritance for the
Chinese community regarding the inheritance of illegitimate children, which is still an
interesting dynamic of legal issues to be discussed. So, take the title “Legal Protection
of Inheritance of Extramarital Children in the Chinese.”
Research Method
The research method used in research is normative juridical. Whereas the
normative juridical itself focuses more on library materials as sources such as
books, laws, and regulations related to this research (Muhammad, 2004). This
research approach is carried out by looking at laws and regulations, especially
those related to marriage. This research refers to the Civil Code, Law Number 1 of
1974 concerning Marriage and Regulation of the Minister of Agrarian State/ Head
of the National Land Agency Number 16 of 2021 concerning the Third Amendment
to the Implementation Provisions of Government Regulation Number 24 of 1997
concerning Land Registration.
The analysis method used is the qualitative analysis method. Where this research
refers to rules, principles, and legal theories to obtain further views that will
eventually be analyzed for research. The form of this research is descriptive-
analytical, which is research that emphasizes secondary data which includes legal
norms and regulations relating to the position of inheritance of extramarital
children in the Chinese group according to applicable legal provisions in Indonesia
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Result And Discussion
A form of protection against inheritance status for extramarital children in the
Chinese
Regulations regarding legal protection for extramarital children are contained in Law
No. 1 of 1974 concerning Marriage and Article 43 of the Civil Code regulating legal
protection for extramarital children in Indonesia. However, within the Chinese
community, there are still differences in legal recognition and protection for
extramarital children. Such extramarital children have the right to receive alimony or
the right to provide as extramarital children, including children born of adultery and
discordant children. This is explained in Article 867 B.W. However, there are
restrictions on the juridical relationship between an adulterous child and a discordant
child and his biological father because the law prohibits the parent and child from
giving legal recognition (Hartanto, 2015)
According to Chinese customary tradition, extramarital children are not officially
recognized and have no direct rights to inheritance. However, extramarital children
still have the right to receive inheritance from their biological parents through other
legal channels. During the trial, the judge found the facts that in deed No. 1 dated June
3, 1969, concerning the adoption of children, TKL was recognized as an extramarital
child born to a woman named TKN. However, evidence showing whether the
biological parents of TKL are bound by a legal marriage or religious marriage does
not exist, so the status of TKL as a legally recognized extramarital child becomes
unclear by Article 272 of the Civil Code (Suparman, 2022). Extramarital children
cannot become heirs without recognition as referred to in Article 280 of the Civil Code.
The recognition made by JKT's parents plays an important role in determining the
rights and obligations of inheritance owned by TKL. If the recognition of extramarital
children is by the provisions of Article 280 of the Civil Code, basically TKL has the
same rights as legal children (Pradipta et al., 2021).
The recognized extramarital child becomes an heir with the Right of Saissine, the Right
of Heredetatis Petition, and the Right to demand the division of inheritance. However,
upon further investigation, their similarities are limited to that because, in other
respects, their share is not the same as that of legitimate children. Extramarital
children are not under parental power, but rather under guardianship, so their rights
and share in inheritance are not as great furthermore recognition only creates a legal
relationship between the child and the admitting parent, not included in the family
that recognizes it. This recognition does not apply to extramarital children who cannot
be recognized because they do not meet the recognition requirements. An extramarital
child is a child born outside of a legal marriage and does not follow applicable legal
provisions, such as the Marriage Law (Agatha et al., 2021).
Article 272 of the Civil Code explains that any child born out of wedlock between a
woman and a man can be recognized and legalized, except for children who are the
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result of adultery or discordant children. A discordant child refers to a child born from
a relationship between a man and a woman who has a prohibition on marriage
between the two (for example, a relationship between close family members).
According to Article 43 Paragraph 1 of Law Number 1 of 1974 concerning Marriage, a
child born out of wedlock only has a civil law relationship with his mother. However,
after the Constitutional Court Decision Number: 46 / PUU-VIII / 2010 on February 13,
2012, in a request for judicial review of Article 43 Paragraph 1 of Law No. 1 of 1974,
the formulation of the article was changed. The status of an extramarital child not only
has a civil relationship with his mother but also with his father as long as it can be
proven based on scientific knowledge and technology and/or other evidence.
The position of extramarital children in law is factually lower than that of legitimate
children, meaning that the share of inheritance received by extramarital children is
less than that of legal children. In addition, legal children are under parental power
by Article 299 of the Civil Code, while legally recognized extramarital children are
under guardianship by Article 306 of the Civil Code. Without recognition, an
extramarital child has no chance to inherit. Article 272 of the Civil Code allows the
legalization of children originally born out of wedlock in several ways (Bowontari,
2019):
1. His parents married
2. Before they marry, they first have acknowledged their child, or the recognition is
made in the marriage certificate.
3. The existence of attestation letters. Attestation with attestation letters can be done
for two reasons, namely:
a. Where parents neglect to acknowledge their children before the marriage takes
place or when the marriage takes place (Article 274 of the Civil Code)
b. If there is a problem of intergenic relationships, for example, the mother belongs
to the Bumi Putera group or who can be likened to her, then there are important
reasons in the judgment of the Minister of Justice that are like hindering the
marriage of the parents.
Many factors hinder the implementation of testaments for extramarital children,
which are as follows (Fazlon et al., 2022):
1. The execution of the will cannot be carried out because the procedure for
distributing the will is not by applicable law and harms other heirs.
2. The status of the extramarital child is not recognized, thus causing any share in the
inheritance of the extramarital child (Ani & Chime, 2021).
3. There is unauthorized control of existing property, causing other heirs to be
harmed. This happened to the Supreme Court Decision Number. 186 PK/Pdt/2005.
From this description, it can be said that the restriction does not apply to extramarital
children who do not inherit together with group I. As for unrecognized extramarital
children, the existence of the Testament is very helpful in terms of the inheritance of
their father's property. If the extramarital child is never recognized, then the child is
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free to accept the testament of his natural father, because he is not restricted by Article
863 of the Civil Code who has the status of a third person, is not related by blood, and
accepts the will exposed to his ab-instant part (Susanto et al., 2021).
An extramarital child has inheritance rights if he is recognized as legitimate before his
parents marry someone else. However, even if the child is recognized as a legitimate
extramarital child it is different from the status of a legitimate child because it does
not confer the same inheritance rights as children born by legal marriage. In addition,
in the case of recognized extramarital children, such recognition shall not prejudice
the rights of the wife or other children of the marriage (Masitoh, 2019). Thus, even if
it is recognized as legitimate, it cannot harm. This means that the inheritance obtained
does not exist or is zero. Article 285 of the Civil Code explains that: "A recognition
given by one of the spouses during marriage for the benefit of a child out of wedlock,
conceived before marriage with another person of the wife or husband, cannot bring
harm, neither to the husband or wife nor to the children born of that marriage
(Ro’fatul, 2019)."
In addition, the statement also mentions that even if a will is made, the recognized
extramarital child will not be able to receive a share of the inheritance. This refers to
Article 285 of the Civil Code which states that extramarital children recognized before
marriage do not have inheritance rights. In this case, it can be concluded that
extramarital children recognized before marriage do not get inheritance rights
because they are hit by Article 285 of the Civil Code that the recognition of children
cannot bring harm either to the husband or wife or to the children born from the
marriage unless there is a residual property that can be distributed. This can be a
consideration for parents who have extramarital children to pay attention to the
interests of all family members in terms of the division of inheritance (Aini, 2020).
Changes related to the inheritance rights of extramarital children are regulated in Law
Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 concerning
Marriage. The amendment is stated in Article 49 Paragraph 1 which states that a child
born outside of legal marriage or the result of a marriage that is declared void or
invalid has a civil relationship with his mother and biological father and his biological
father's family, if legally recognized or proven according to applicable law. In the
context of inheritance rights, this change extends the right of an extramarital child to
inherit property from his biological father and his biological father's family, if it has
been legally recognized or proven.
Based on the explanation outlined in this amendment, the recognition of extramarital
children must be by the provisions of Article 281 of the Civil Code and cannot
contradict Article 285 of the Civil Code which states that the recognition of children
cannot bring harm to the husband or wife or children born from the marriage.
TKL is an extramarital child that is recognized as valid if JKT and TKN fulfill the form
of confession and bring evidence explaining that JKT and TKN after giving birth TKL
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states, they are married with the condition that one or both of them are not bound by
marriage or do not have a marriage ban (Plaintiff must also bring a Marriage
Certificate, Birth Certificate or Civil Registration Residence Statement) that supports
the recognition of the child. If proof of recognition as a legal extramarital child is
fulfilled by 281 of the Civil Code, TKL is protected by its inheritance by Articles 862
to 863 of the Civil Code, namely:
Article 862 of the Civil Code: "If the deceased leaves behind children out of wedlock
who have been validly recognized according to law, his estate shall be divided in the
manner prescribed in the following articles."
Article 863 of the Civil Code: "If the deceased leaves legal offspring according to law
or husband or wife, then the children out of wedlock inherit 1/3 and the share they
would have received, had they been lawful children; they inherit half and the estate,
if the deceased leaves no descendants, husband or wife, but leaves blood relatives in
an upward line, or brothers and sisters or their descendants, and three-quarters if only
blood relatives remain alive to a greater degree.
If the statutory heirs are related to the deceased in unequal degrees, then the nearest
one in the first line determines the amount of the share to be given to the child out of
wedlock, even to those in the other line."
In the conditions as described, TKL is said to be an extramarital child who cannot be
recognized if it turns out that his biological parents if or both of them have married
someone else, then in that condition TKL and its heirs do not have inheritance rights
from JKT and TKN. An extramarital child is recognized as legitimate whose
inheritance is only recognized before his father or mother marries another party.
Conclusion
The form of protection of extramarital children depends on how the recognition of their
biological parents, related to the status of children who are not recognized and cannot
be recognized is something that must be ensured. Extramarital children cannot be equal
regarding inheritance like legitimate children born in marriage, extramarital children
can obtain their inheritance rights if recognized as valid according to the provisions of
the Law and get 1/3 of the share received if they are considered legitimate children. If
the right of inheritance for an adopted child depends on the adoption certificate of the
child which results in the termination of civil relations with his biological parents and
the emergence of a civil relationship with his adoptive parents, this will have an impact
on his inheritance status if the deed of inheritance follows the provisions of the Law, has
been reported/recorded in the civil registry and the child's birth certificate contains the
status of the adopted child of his adoptive parents.
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