About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

49 J.L. Pol'y & Globalization 1 (2016)

handle is hein.journals/jawpglob49 and id is 1 raw text is: Journal of Law, Policy and Globalization wwwite org ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) liSlE Vol.49, 2016 The Child Adoption in the Inheritance System of the Sentani Indigenous Community Onesimus Sahuleka Faculty of Law, University of Cenderawasih, Papua Abstract Adoption of child is the act of taking another's child into one's own family in such a way, so that between the person who adopted the child and the adopted child arises a family relationship as between a parent and their biological child. Adoption according to customary law is valid if it is done for the sake of child's welfare and in the best interests of the child. The adoption according to Sentani customary law is limited among families/relatives and is not registered as required by the Law Number 23 Year 2002 in which the adoption in the Sentani customary law is done based on local customs and laws in force. Keywords: Adoption of child, inheritance, Sentani Indigenous Community. 1. Introduction The existence of society is inseparable and human freedom to form families through legal marriages as defined in Article 28 B of the Constitution of the Republic of Indonesia Year 1945 and also in Article 10 the Law Number 39 Year 1999 on Human Rights. Those regulation state that every valid marriage does not only lead to legal consequences to the status of the human beings but also to the status of its assets and wealth. Therefore, every child born not only acquires the right to have their status recognized but also to the recognition of their rights to the wealth of their parents. The Law Number 1 Year 1974 on Marriage states that the purpose of marriage is to form a family/household that is happy and everlasting based on God and in the explanation it is also stated to obtain offspring. According to Article 1 (1) the Law Number 1 Year 1974 on Marriage states that marriage is a physcal and mental bond between a man and a woman as husband and wife with the intention to form a happy and everlasting family and household. It is also said that a marriage is valid if it is done according to the law of each religion and belief. Furthermore, every marriage is registered according to the legislation in force. The Sentani Indeginous Community is a community inhabiting the area in the 5 districts in the Regency of Jayapura. Those five districts are the districts of Waibu, East Sentani, Central Sentani, West Sentani and Ebunfouw. These five districts have the same customary laws commonly known as the Sentani Customary Law. Therefore, the Sentani Customary Law applies for the Sentani Indigenous Community in the Regency of Jayapura. It also recognizes a customary law body called the legal institution of adoption. The Sentani Indigenous Community embraces a patrilineal descent community which means that the line of descent is drawn and the father's/male's line carries the consequence that the men are the successors. If in a family in the Sentani Indigenous Community does not have any children or have children but they do not have any sons which means they only have daughters, the only solution is through adoption. In the Law Number 1 Year 1974 on Marriage as well as its implementing regulations only mention legitimate and illegitimate children. In Article 42 of the Marriage Law, it is mentioned that legitimate children are children born in or as a result of a legal marriage. Furthermore in Article 43, it is said that children born outside of a marriage only has a civil relationship witht their mother and their mother's family. Children like this are commonly referred to as illegitimate children. Indonesian family law as stipulated in the Marriage Law does not clearly set out the status of adopted child whether they are legitimate children or not. However, the provisions of Article 12 dari the Law Number 4 Year 1979 on Child Welfare states that the adoption according to the local customary law is done by giving priority to the welfare of the child, while the adoption is done outside of the local customary law that is done based on legislation. Furthermore, in article 39 of the Law Number 23 Year 2002 on Child Protection states that the adoption is only done for the best interests of the child and done based on local customs and the legislation in force. When both rules are examined then, the adoption under the customary law is valid if it is for the child's welfare and for the best interest of the child. As previously described that the adoption according to Sentany customary law is limited to family/relatives and is not registered as required by the Law Number 23 Year 2002 which mentioned that the adoption is based on local custom and the legislation in force. According to these provisions, the adoption must be registered to ensure legal certainty in the future. It should be recognized that efforts to provide legal protection for the inheritance rights of the adopted are still far from expected. In Indonesia at this time, those provisions regarding inheritance law are still pluralist. As indicated by Mochtar Kusumaatmadja, those rules on inheritance in Indoneisa is something of a sensitive

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most