Mahmud Kusuma, S.H., M.H.
(Certified Attorneys at Law)
Previously, the Hukumindo.com platform has talk about "No Name and No Game Case: A Hilarious But True Court Cases You Won’t Believe", read also "The Role of Law in Sharia Economic Development", and on this occasion we will discuss about The Law of Contract Marriages That Often Occurs in the 'Puncak Area' of Bogor and Cianjur. This article is entirely taken from: www.pa-cianjur.go.id., entitled: "Tinjauan Yuridis Kawin Kontrak Dan Akibat Hukumnya or Juridical Overview of Marriage Contracts and Its Legal Consequences", link as reference below.
Term and History of Contract Marriage
The natural beauty in the 'Puncak area' (Jabal), both in the Bogor Regency and Cianjur Regency, is very popular among domestic and foreign tourists, especially from the Middle East. Generally, they make the Puncak area a favorite destination for tourism. The presence of these tourists, on the one hand, has a positive impact, namely to stimulate the economy of the people in the region. But on the other hand, the social phenomenon that people complain about is the widespread practice of contract marriage.
Contract marriage, in Arabic is known as mut'ah marriage. Mut'ah marriage is a compound word consisting of two words, namely marriage and mut'ah. Marriage in language is a contract and watha'. In this term, marriage is defined as a contract. The word marriage is then juxtaposed with the word mut'ah.
From a historical point of view, contract marriage is a legacy of the traditions of pre-Islamic society. This tradition is intended to protect women in their tribal environment. During the Islamic period, the history of the emergence of mut'ah marriage was motivated by several factors, among others, because in the early days of the spread of Islam, there were very few legal provisions. Besides that, it is also because of the factor of facing the enemies of Islam who continuously even have to go to war. So that the Muslims at that time had to be willing to be away from their wives who were left behind in the war which could take up to tens of days. In that condition they could not afford and did not have time to go home to his wife. In this condition, it is indeed permissible to have a contract marriage, because it is truly in a state of war emergency. Meanwhile, at this time, it is not relevant at all because there is no reason whatsoever that can legitimize the marriage contract or muaqqat.
Contract Marriages In Practice at 'Puncak Area'
In practice that often occurs in the 'Puncak area' in particular, the process of implementing a contract marriage itself is not complicated, if it is certain that a contract marriage is going to be carried out, the man (usually from a Middle Eastern country) must come to the residence of the woman's family and make sure who is the woman's family. Apart from that, all women who do contract marriages usually fake their family identities or tell other people to pretend to be their family. After that, accompanied by the person who introduced the woman, there was a contract marriage.
The implementation is not through an application, they directly carry it out at the women's residence with a witness guardian and a "rough" head. Usually the rulers, witnesses and guardians are just pretending, but the Arabs don't care about this. Although there is no application process, the dowry is usually a cash amount.
There are no other conditions for a contract marriage to take place, there is no written agreement but verbally through the agreement of both parties regarding the period of marriage. There is no wedding reception in the implementation of a contract marriage. After completing the marriage contract, the woman is then taken to the villa where the man stays for a certain time.
From these common practices, it can be concluded that mut'ah marriages or contract marriages have the following characteristics:
- Ijab qabul using the words marriage or with the word mut'ah;
- Without a guardian;
- Without witnesses;
- There are time-limited provisions;
- There is no inheritance between husband and wife;
- No divorce;
The Law of Contract Marriages According To Islamic Teaching
A marriage that is carried out without a guardian and witness is void, because the guardian and witness are included in the pillars of marriage. A marriage ends when there is a divorce, death and court decision. This is different from a contract marriage which ends when the agreed time limit has expired, and without talaq. This is clearly contrary to the teachings of Islam.
Based on the description above, it is clear that contract marriage or mut'ah marriage is strictly prohibited and contrary to Islamic teachings. Marriage that does not meet the pillars and conditions in Islam is void or invalid. So the law is 'haram' or vanity, because it does not heed the goals and principles of a very sacred marriage, namely marriage for ever and not for a while.
The Law of Contract Marriages According To Indonesia Law
The practice of contract marriage when viewed from the Marriage Law is clearly very contrary to Article 2 which contains the legal requirements of a marriage:
- Marriage is legal if it is carried out according to the laws of each religion and belief.
- Each marriage is recorded according to the applicable laws and regulations.
If a marriage is based on an agreement regarding the period of the marriage or what is commonly referred to as a contract marriage, it is not legally permitted and indeed cannot be justified, because it is based on the fact that Indonesia is a state of law, so it must adhere to formalities. Therefore, as long as the contract marriage is not regulated by law, in this case the Marriage Law, Ministerial Regulation and other regulations, it can be said that there is no marriage.
According to several studies, contract marriage is considered a form of 'disguised prostitution' because the conditions and pillars of marriage are not fulfilled, both according to religious law and statutory regulations. The practice of contract marriage is basically not in line with the principles of marriage law in Indonesia. Contract marriage is a marriage practice that is contrary to the concept of marriage contained in Law Number 1 of 1974 concerning Marriage. For foreign nationals who want to marry Indonesian women, the authors suggest that they are legally married according to Indonesian law. Read our previous article titled: "How To Married Indonesian Women Legally?". And if you have any issue with this topic, contact us, feel free in 24 hours, we will be glad to help you.
*) For further information please contact:
Mahmud Kusuma Advocate
Tokopedia Care Tower, 17th Floor, Unit 2&5,
Outer West Ring Road, 101, Rawa Buaya,
Cengkareng Subdistrict, West Jakarta,
Jakarta - Indonesia.
1. "Tinjauan Yuridis Kawin Kontrak Dan Akibat Hukumnya", www.pa-cianjur.go.id., Diakses pada tanggal 22 Desember 2021, https://www.pa-cianjur.go.id/artikel/882-tinjauan-yuridis-kawin-kontrak-dan-akibat-hukumnya.html