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

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