The efforts to realize a just and equal family law is a very long movement which had to be done by many people, as long as the existence of the women’s rights movement in this country. Indonesian Family Law (read: Law No.1 Year 1974 on Marriage) which had been implemented so far cannot be separated by the socio-political situation, and the values which are developed in the society. In the policy of Family Law, for Muslim citizens, the Islamic Law on Marriage and Religious Court was implemented to maintain the judicial process regarding to problems which occur in the marriage relation.
The Law on Marriage actually was aimed to protect the rights and responsibilities of the family members from the injustice practices and other destructive matters. However, substantially the concept of the Law on Marriage which put women’s position as the ‘wife’ which is defined as the manager of the household, and men as the head of the family in fact established certain gender role and the stereotype of women and men. For example, women’s place is in the domestic space and men’s is in the public. In addition, the article 3 of this law still gives a chance for the husband to do polygamy. The stipulation on polygamy shows clearly the subordinate position of women towards men.
Polygamy is a serious problem which is able to create serious emotional and financial consequences for women and her children. Therefore, based on the General Recommendation of the CEDAW Committee of the United Nation No.21 on the equality in the marriage and family relation and the article 16 of the CEDAW Convention those kinds of marriage should be prevented and prohibited.
The impact of the permission of the polygamy regulated in the Law on Marriage is reflected in the data of Bimas Islam (Islamic Community Counselors) that polygamy is the largest contributor to the high number of divorces. The (first) wife usually decides to divorce rather then becomes the ‘older’ wife. While the data from the National Commission on Anti Violence against Women in 2009 shows that the prominent violence against women cases is domestic violence. And 96 percent of the domestic violence cases is violence against wives both physically and sexually. The average ages of the victims is among the young ranging from 13-18 years old, the age of children; while the characteristic of the perpetrators ranging from 25-40 years old. The age formula mentioned in the Law on Marriage, which is 16 years old, apparently has contributed the number of domestic violence and violence against children.
The Law No. 23 Year 2002 on the Child Protection defined children are everyone whose age below 18 years old. The children marriage basically is a form of exploitation against children rights which is supposed to be able to live, to grow, to develop and to participate optimally and free from discrimination.
In responding the negative impact on the early marriage or children marriage and the high number of polygamy cases, the Department of Religious Affairs initiated a Draft of Law on the Legal Materials of Religious Court on Marriage Section to give the sanction to the perpetrators. But, it will not end the problem while Law Number 1 Year 1974 has not been amended yet. Necessarily, the Law on Marriage is a single or a unity law which can be implemented for all religions and beliefs in this republic without any discrimination.
The spirit of constitution in the article 27 said that men and women have the same access and control in the economic, social, politics area and have equal position in front of the law. But the ambivalent attitude of the government in establishing the substance of the Law No.1 year 1974 contributes to establish many forms of discrimination against women.
We should consider that the divorce cases, domestic violence, early age or child marriage, come from the substance and the implementation of the discriminative Law on Marriage. Therefore, the amendment of the Law No,1 year 1974 on Marriage is a must!