Legal Certainty of Decision Number 719/Pdt.G/2021/PA.Pbun Concerning the Nullification of Marriage According to Islamic Syari’at

The Religious Court, in decision No. 719/Pdt.G/2021/PA.Pbun cancelled the marriage due to identity forgery after considering various legal aspects. The purpose of this research is to find out what judges consider when they make decisions on cases. This research uses descriptive analysis methodology and a normative juridical approach, which means examining and studying laws and regulations relating to the current issue. The research also uses a qualitative juridical data analysis method to analyse data with concepts or theories without formulas. In accordance with Articles 23 and 24 of Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 concerning Marriage, as well as Article 71 paragraphs (b) and (c) of Book I of the Compilation of Islamic Law, the judge has sufficient grounds to decide that the marriage can be cancelled due to factually and materially incorrect identity.

Introduction

Marriage is a union between a man and a woman, both externally and internally, as lifelong partners in a family to establish a stable and enduring household, following the guidance of God (Sholeh, 2008). Sayid Sabiq describes:

“In Islamic law, the bond between a man and a chaste woman is termed mitsaqan ghalidzan (i.e., firm covenant) (Sabiq, 1991). Marriage is an event in the form of a binding agreement between the male and female parties, so there are several regulations governing marriage in the agreement.

From the point of view of the Arabic dictionary, the term “al-nikah, which has the meaning of al-wathi, al-Dammu wal jam’u, or an al-wath’ wa al-’aqd, which has the meaning of intercourse, gathering, and contract,” refers to marriage. (Al-Zuhaily, 1989).

As to Marriage Law No. 1 of 1974, marriage is defined as a physical and psychological connection between a man and a woman who becomes husband and wife to establish a joyful and enduring family unit (home) founded on the authority of God.

“Marriage is considered legitimate when it adheres to the regulations and principles of one’s religious faith.” Every marriage is documented following the relevant legal and regulatory provisions”, said (Ramulyo, 2004).

Furthermore, According to Article 2 of the Compilation of Islamic Law (KHI), marriage in accordance with Islamic law is a robust contract or mitsaqan Ghalidzan that entails obedience to the instructions of Allah SWT. Fulfilling this contract is considered a form of worship to Allah SWT (Zainuddinet al., 2022).

Meanwhile, Article 3 KHI has clarified the purpose of the implementation of a marriage, which states that: “Marriage aims to create a household life that is sakinah, mawaddah, and warrahmah.” (Aulia, 2017)

To realise this, a marriage must have a strong awareness of responsibility for its partner, which applies forever. As the purpose of marriage is to build a safe, peaceful and prosperous household, both a husband and wife need to understand and help each other because it aims to foster a sense of caring for their spouses and help each other achieve happiness both spiritually and materially (Press, 2015).

The implementation of marriage must be recorded in accordance with applicable laws and regulations. It must be carried out as well as other important circumstances of a person’s life, such as births. These deaths are always included in formal recording documentation and written and immortalised in official deeds documented for the marriage procession. An incident in the marriage of a woman who is still a wife (who still has a husband) to carry out a second marriage by marrying another man, then falsifies her identity. Her marriage can be cancelled. Arrangements for the cancellation of marriage are regulated in Articles 22 to 28 of the Marriage Law (Harahap, 2022). As mentioned in Article 24 of Law Number 1 Year 1974 concerning Marriage states:

“Any individual who remains legally obligated to one of the parties due to marriage and can seek the annulment of the marriage based on its existence, without affecting the regulations stated in Article 3(2) and Article 4 of this Law.”

Moreover, in Article 72 paragraph (2), KHI also continues its explanation: “If a spouse has been deceived or provided false information about their partner at the time of marriage, they have the right to file a petition for annulment of the marriage.” (Aulia, 2017).

From this description, it can be concluded that the above can be concluded that the cancellation of marriage is caused by fraud or falsification of identity in the legal requirements of a marriage that violates the law (Rizkiet al., 2021). The act of falsifying the identity of a wife and then claiming to be a dead widow in order to fulfil all the requirements for carrying out a marriage using a false identity is done in letters and authentic deeds in the form of the identity of the perpetrator. In falsifying the wife’s identity, the Village Head assists the wife, who makes a husband’s death certificate to the Population and Civil Registry Office. Whereas in Article 64, KHI stated: “The official appointed to supervise marriages is obliged to prevent a marriage if the pillars and conditions are not fulfilled.” (Aulia, 2017)

Falsification of identity must be anticipated by the recording officer in charge of supervising the marriage, who can act more assertively in examining all matters relating to the procedure for implementing the marriage, including the identity of the prospective bride and groom. In Article 68 KHI, the contents are: “The marriage registrar is not allowed to perform a marriage or assist the parties in performing a marriage if he knows that there is an offence in the implementation of the marriage. This has also been contained in the provisions of Article 7 paragraph (1), Article 8, Article 9, Article 10 KHI. In married life, both the male and female parties are allowed to apply for “cancellation of marriage (fasakh nikah).”

Cancellation of marriage is one of the ways in which a marriage can be legally ended according to the law. Cancellation of marriage can be carried out if the conditions of marriage are not fulfilled. According to Article 22 of Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 concerning Marriage, namely: “A marriage may be annulled if the parties do not fulfil the conditions for entering into a marriage. The above article explains that any party who has entered into a marriage can be legally cancelled if the parties do not fulfil the conditions for entering into a marriage.”

Usually, the forgery is contained in letters and authentic deeds in the form of the perpetrator’s identity, but the law rarely catches it and is difficult to prove. This happens because of several factors, namely the lack of evidence, well-planned actions, witnesses not knowing the actions carried out by the perpetrator and the desire to commit polygamy where the perpetrator does not want to tell the first wife. Marriage cancellation can only be done with a court decision. With a court decision cancelling a marriage, the marriage that has occurred is considered to have never existed. Although the marriage is considered to have never existed, it does not necessarily eliminate the legal consequences of the marriage that was once carried out. The court decision is the final stage of the decision, whether the marriage is annulled or still validated, of course, through consideration of the benefits carried out by the judge. For this reason, a good judge’s decision will undoubtedly fulfil 3 (three) aspects at once in a balanced manner, namely “providing legal certainty, a sense of justice and benefits for the parties and society” (Arto, 2009, p. 36). Court decisions on the cancellation of invalid marriages can have legal consequences for both husband or wife and their respective families as if they had never entered into a marriage.

Concerning court decisions on marriage annulment, the author examines the case in Decision Number 719/Pdt.G/2021/PA.Pbun. The case described the cancellation of marriage due to falsification of identity. During the marriage of the respondent and her husband, there had never been a divorce, and she was still bound by marriage. The wife (respondent) claimed to be a widow; her husband had died, no divorce had occurred, and her husband was still alive and in good health. The Village Head and the Civil Registry Population Office assisted in the production of the death certificate. The evidence is known after one year of marriage, proven by Marriage Certificate Number 203/19/VI/2010, Dated 06 June 2010 and 2019. Isti entered a second marriage with evidence of Marriage Certificate number 0662/155/VIII/2019 dated 28 August 2019. Explaining that the wife (defendant) still has a registered marriage at the local KUA, the husband (plaintiff) filed a lawsuit for marriage cancellation in the Religious Court. Therefore, how is the legal certainty of the judge’s consideration in deciding the case of marriage cancellation due to false identity based on Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 concerning Marriage and the Compilation of Islamic Law, and how is the legal enforcement of marriage cancellation filed with the Religious Court in case number 719/Pdt.G/2021/PA.Pbun.

Another previous research is Khoirul Anam’s research, which states that: “The legal implications arising from the cancellation of marriage are: For both of them, the legal implications are that the marriage of husband and wife which is cancelled will result in both of them returning to their original state or between the two of them as if they had never entered into a marriage, then automatically the husband and wife relationship is broken, and the marriage that has been cancelled does not get a divorce certificate, only gets a letter of decision that the marriage is cancelled, against the defendant I, namely the legal status of the defendant I become a legal virgin and against the defendant II, in addition to the marriage being cancelled, the defendant II can be threatened with imprisonment.” (Anam, 2019, p. 23)

Novitasariet al. (2021) contended that Article 22 of Law No. 1 of 1974 stipulates the invalidation of a marriage if the required procedures were not followed at the marriage ceremony, which was evident at the time of the marriage. According to research conducted by Kurniawanet al. (2020), the legal consequences of marriage cancellation by husband and wife at the Makassar Religious Court are that the marriage becomes invalid, and the two parties whose marriages are cancelled return to their original state because the marriage is considered never to have occurred. According to the Judge of the Makassar Class 1A Religious Court, polygamous marriages due to identity forgery violate administrative requirements, namely prospective husbands who claim to be virgins but are still in a legal marriage with their first wife.

This research distinguishes itself from prior studies by focusing on the establishment of legal certainty about the annulment of marriages in both civil legislation and Islamic sharia. Additionally, it aims to examine the implementation of law enforcement in the judicial system based on marriage legislation and Islamic sharia.

Research Methods

The study specification entails descriptive research, namely of the normative juridical type. The utilisation of normative juridical methodologies aims to scrutinise the issues pertaining to legal certainty and the enforcement of marriage annulment in legislation and Islamic law. The research involved a literature review aimed at gathering secondary data, which included primary, secondary, and tertiary legal documents. The data collecting method employed involves scrutinising library items or acquiring secondary data through documentation studies. Data analysis employs a qualitative approach.

Results and Discussion

As a state of law, the running of state life is determined by regulations. This also applies to marriage. Although marriage is a private act, the rules are regulated thoroughly so that it can be said that a marriage will be considered valid if it fulfils the requirements of the law, religion, and beliefs adopted by the person concerned. By being regulated by law, the position of religion and belief remains in the highest position. Everything related to marriage will always be associated with religion and belief (Lestari & Adiyatma, 2020).

The examination of marriage cancellation due to false identification involves the application of various theories, including the theory of legal certainty, the theory of justice, the theory of law enforcement, and the theory of marital law. Notohamidjojo defines the purpose of the law as the safeguarding of human rights and responsibilities within society, as well as the protection of various social institutions encompassing political, social, economic, and cultural domains. This is done with the aim of establishing justice, achieving equilibrium, fostering peace, and promoting the overall well-being of the community (bonum commune) (Notohamidjojo, 2004).

Meanwhile, Mochtar Kusumaatmadja, in relation to legal certainty, stated as follows: “Legal certainty is sought in the interactions between people in an orderly society to achieve order. However, it is a necessary condition for an organisation of life that transcends current boundaries. That is why legal institutions exist, such as marriage, property and contracts. Without the certainty of law and order of society incarnated by it, man cannot develop his God-given talents and abilities optimally in the society in which he lives.” (Kusumaatmadja, 2002)

That something that is made must have a mind or purpose, said Radbruch and Erwin (2011), in the theory of legal certainty. Therefore, law is created to create values that humans desire. The main objectives are justice for balance, stability for decision, and satisfaction for welfare. Legal experts argue that legal certainty is usually in the form of written rules made by authorised bodies. One of the principles of good governance is legal certainty; citizens will get legal protection if there is legal certainty. Legal certainty also requires the existence of general regulations or rules that apply broadly, which results in equal legal responsibility to achieve legal certainty to ensure order and justice for all Indonesian people. This is done to create a safe and peaceful atmosphere in society and ensure that it is strictly applied (Soekanto, 2003). Justice is everything that relates to attitudes and behaviour in human relations. Justice requires that everyone treat each other according to their rights and obligations, without discrimination or favouritism, but everyone is treated according to their rights. Equal treatment and obligations (Fernando, 2007). Justice is one of the objectives of the law. The purpose of law is not only justice but also legal certainty and expediency. Aristotle stated, “The word justice contains more than one meaning. Justice may mean the requirements of the law; moderation is propriety.” Here, it is pointed out that if one takes more than one’s rightful share, then one considers such behaviour unjust. Whoever ignores the law is also unjust because everything that has a legal basis can be considered just (Darmadiharjo & Shidarta, 2000). Thomas Aquinas divides justice into two categories, namely “justice in general (justitia generalis) and Justice in particular” (Prabowoet al., 2020).

General justice is justice according to the will of the law that must be fulfilled in the public interest. Furthermore, special justice is justice based on equality or proportionality (Darmadiharjo & Shidarta, 2000). Rawls’ theory itself can be said to depart from thoughts such as those of Jeremy Bentham, J.S. Mill, and Hume. Rawls argues that there needs to be a balance between private interests and shared interests. Furthermore, according to Rawls, the law is “perceived as a referee who takes sides and does not sympathise with others, but rather the law must be a claimant for people” (Rawls, 1993, p. 45).

Justice is not Nozick’s primary concern. Robert Nozaick argues more about the limitation of the state’s role, stating that the minimal and only minimal states are the only ones that can be justified. Justice arises because distributive justice, as imagined by Rawls, is often seen as a rationalisation for a more than minimal state in his attempt to show distributive justice. If there is a right, there is an obligation, so rights and obligations can occur if an event is required, which is connected by law as an effect. This is also the opinion of Soedjono Dirdjosisworo that rights and obligations arise when there is a legal event. Legal events are all events or occurrences that can cause legal consequences between parties with legal relationships.

Law enforcement is to realise the ideas of justice, legal certainty, and social welfare (Rahardjo, 1987). For the law to function as an orderly society, it is necessary to have laws in the sense of rules or regulations as well as guarantees for implementing these legal regulations. In other words, in law practice, all Indonesian people are guaranteed good and fair law enforcement, without discrimination based on race, ethnicity, or social status, and without discrimination based on gender. Moeljatno said: “Enforcement is part of the overall law in force in a country, which consists of elements and rules, namely (a) stipulates that no action may be taken accompanied by threats or sanctions to impose certain penalties on anyone who violates the prohibition, (b) determines the circumstances in which people who violate this prohibition can be threatened or punished, and (c) determines how the criminal law will be enforced if someone is suspected of violating the prohibition.” (Moeljatno, 2002, p. 1).

Marriage is a legally binding action that is governed by legal regulations. This pertains to implementing the principle of legality and ensuring that a marriage holds legal validity, specifically through issuing a registered marriage certificate. If a man and a woman’s connection is established through a legally recognised marriage, it might be regarded as the bond of a husband and wife. A marriage is considered lawful when it satisfies the legal requirements, including internal and exterior circumstances.

Article 1 of Law Number 1 Year 1974 defines marriage as a union between a man and a woman, both physically and spiritually, to establish a joyful and enduring family by placing trust in the omnipotent God. The interpretation of Law Number 1 Year 1974 can be summarised as follows:

The primary objective of marriage is to establish a content and enduring family unit.

The legality of a marriage is contingent upon the regulations set forth by each respective religious and ideological doctrine.

The principle of monogamy is upheld.

Prospective spouses must possess physical and mental maturity.

Divorce is intentionally made challenging; and 6) The rights and status of both husband and wife are to be treated equally (Rafiq, 2000).

Law No. 1/1974 represents the legal framework of the Indonesian state, as mentioned in Article 1 paragraph (3) of the 1945 Constitution (UUD 1945), and is founded on the principle of monotheism, as stated in Article 29 of the 1945 Constitution (UUD 1945) paragraph 1. Thus, within Indonesian society, it is expected that Muslims adhere to Sharia law, Christians adhere to Christian law, and Hindus adhere to Hindu law. The enforcement of sharia law necessitates the intervention of governmental authority. Hence, the legal foundation established in Law Number 1 Year 1974 is exclusively Article 29 of the 1945 Constitution. Consequently, all regulations within the norm must be taken into account and must not conflict with the provisions of Article 29 of the 1945 Constitution. This implies that all provisions, including marriage, must align with Article 29 of the 1945 Constitution, which is an unconditional prerequisite. For Muslims, their legal framework is governed by the KHI, which encompasses a range of legal sources and legislation about marriage, religious community matters, and inheritance. According to KHI, the status of KHI within positive law is inherently linked to the jurisdiction of religious courts in reviewing, adjudicating, and resolving Muslim cases. Consequently, judges commonly recognise that the Muslim population comprises diverse religious communities, encompassing multiple schools of thought and sects (Iyan, 2017), so the positive law used by the author is Law No. 1 of 1974 and KHI.

Marriage annulment is the declaration that a marriage is invalid or non-existent, a designated numerical identifier. According to Article 22 of Law Number 1 Year 1974, a marriage can be annulled if the parties fail to meet the requirements for marriage (Isnaeni, 2016). Law No. 1/1974 provides a comprehensive explanation of the requirements for marriage in articles 6 to 12. According to this provision, if a marriage fails to meet the requirements, it is not automatically declared unlawful. However, it is deemed invalid following Article 33 of Government Regulation Number 9 of 1975, which pertains to implementing the Marriage Law, specifically Number 1 Year 1974. The prohibition of cancelling a marriage outside of the court is due to its potential legal ramifications on the husband, wife, children, and their respective families. In Karachi, the marriage contract is considered valid once all the requirements for marriage have been met, which include both the prospective bride and groom being Muslim, and there are no hindrances to their marriage due to their relationship or religious disparities. Hence, the restriction on marriage among Indonesian Muslims based on religious disparities is stipulated in Article 2 paragraph (1) of Law Number 1 Year 1974, in conjunction with Article 8f, Article 40c, and Article 44 KHI. Under sharia law, marriage is considered a form of worship. As a result, Article 28E paragraph (1) of the 1945 Constitution includes provisions that safeguard the rights of Muslims to engage in marriage as an act of devotion (Pujianti, n.d.). According to Ali Afandi: “Based on Law Number 1 Year 1974, the validity of a marriage must fulfil two requirements: material and formal. Marriage is held to form an eternal marital bond. However, in reality of society, marriages can also be broken and caused by several things, for example, divorce, death and court decisions, as stated in Article 38 of Law Number 1 Year 1974 concerning marriage. The right to request marriage annulment is given only to some people. This person can take advantage of this right to cancel the marriage; otherwise, the marriage can continue and be valid.” (Afandi, 2002, p. 40)

According to Article 22 of Law Number 16 of 2019, a marriage can be cancelled if the parties do not fulfil the conditions determined to enter into marriage. As a result of not fulfilling the predetermined conditions, the marriage can be terminated or cancelled, and only a court decision can carry out the cancellation. One example of non-fulfilment of the conditions of marriage that can result in the marriage being cancelled is a deliberate mistake related to personal data, either on the part of the husband or wife when carrying out the marriage then the cancellation of the marriage can be submitted by the husband or wife. The mistake, for example, is against a husband or wife who is married, and their identity is different from what is known; it is often called identity forgery. In this identity forgery, there are several motives, for example, changing the status from having been married to never having been married, be it the status of a single girl or widower; it can also change the religion, which has the aim of making it easier to carry out. According to A. Mukti Arto:

“A marriage that has been annulled by the court according to Law Number 1 of 1974 concerning invalid marriages still has legal consequences, both for the husband or wife, children, and third parties at the time of the annulment statement. The cancellation of this marriage can be carried out only in the Religious Court where they both reside because to avoid the cancellation of marriage outside the instantiation of the Religious Court.” (Arto, 2009, p. 68)

A forthcoming wedding must comply with the legal and religious regulations of the individuals involved. Meanwhile, in many regions of Indonesia, marriage is permitted as long as it complies with cultural norms and regulations. A marriage is considered valid when it meets the requirements outlined in the legal framework of a particular country. In Indonesia, the requirements for marriage are outlined in Article 6 of Law Number 16 of 2019 on Conditions of Marriage. These requirements include:

1. Both parties must consent to the marriage.
2. If one of the parties is under 21, consent from both parents is required.
3. If one parent is deceased or unable to consent, the surviving parent or an authorised parent may consent on their behalf.
4. If both parents are deceased or incapacitated, consent must be sought from their legal guardian, custodian, or a close relative, provided that they are alive and in good health.
5. In the event of a divergence of views among the individuals mentioned in paragraphs (2), (3), and (4) of this Article, or if one or more individuals abstain from expressing an opinion, the court shall possess the necessary jurisdiction.
6. A license may be given to solemnise a marriage after considering the opinions of the individuals mentioned in paragraphs (2), (3), and (4) of this Article.

Section 6 states that the regulations outlined in paragraphs 1 to 5 of this article will be applicable unless the laws of each religion and the parties’ beliefs differ (Saraspati, n.d.).

“The termination of marriage in Indonesia is supported by a legal framework, namely Law Number 16 of 2019, encompassing Article 22 through Article 28. According to Article 28, paragraph (1), the annulment of a marriage commences once the Court’s ruling becomes legally binding and is effective retroactively from the day of the marriage. Riduan Syahrani asserts that marriage can be annulled if either both parties or one of the parties fails to meet the prerequisites for the continuation of the marriage.” (Riduanet al., 1986, p. 36)

Then, Article 22 of Law Number 1 Year 1974 states that a marriage can be cancelled, if the parties do not fulfil the conditions for entering into a marriage (Isnaeni, 2016). Related to marriage law, including the law of marriage cancellation based on unity, its diversity is still valid and relevant. This is confirmed by Titik Tri Wulan, who states that in Indonesia, the implementation of marriage is still in plurality. This means that in Indonesia, in practice, three kinds of marriage law systems still apply, namely:

1. Marriage Law, according to Western Civil Law (Burgerlijke Wetboek), applies to Indonesian citizens of foreign descent or Christians,
2. Marriage Law, according to Islamic Law, is intended for Indonesian citizens of descent or Indigenous Muslims,
3. Marriage Law, according to Customary Law, is intended for indigenous people who still adhere to Customary Law (Tri, 2013).

According to H.F.A. Vollmar: “However, in the end, any person who wishes to apply for the annulment of a marriage can do so if the law states that it is possible to do so, and the annulment of a marriage is declared valid when there has been a decision from the District Court stating whether or not the application for annulment of the marriage has been granted. In the event that one ignores the provisions of the law on marriage and the continuation of the marriage, one can think of two kinds of legal consequences, namely nullity by operation of law or the possibility of a declaration of nullity by a judge at the request of the parties concerned.” (Vollmar, 2005, p. 60)

According to Article 71, paragraph (1) of the KHI, if a woman who is married is discovered to still be the wife of another man who is missing, certain legal consequences apply. The woman, who is married, is discovered to still be in the iddah period and has another husband. Moreover, according to Article 72 paragraph (2) of the KHI, a spouse has the right to file for the annulment of their marriage if it can be proven that there was deceit or false information regarding the other spouse at the time of marriage. This serves as the foundation and legal justification for annulling a marriage due to the act of forging one’s identity.

Article 27 paragraph (2) of Law Number 1 Year 1974 states: “A husband or wife may file a petition for annulment of marriage if at the time of marriage there is a misconception concerning the husband or wife.” Forgery is the deliberate act of altering or replicating something by deceit in order to make it appear identical to the original. Identity forging is a criminal offense as defined in the Criminal Code (KUHP), namely in Article 263, paragraphs (1) and (2), and further elaborated in Article 264, which addresses the forging of Letters. Article 263 stipulates the provisions related to identity forgery:

1. Any individual who intentionally fabricates or alters a document that could establish a legal entitlement, a duty, a debt discharge, or serve as proof of a particular matter, with the intention of using it themselves or causing others to use it as if its contents were genuine and unaltered, shall be subject to a maximum imprisonment of six years if such use could lead to financial harm. This individual shall be deemed guilty of the crime of document forgery (Sarirohet al., 2022).
2. Anyone who knowingly utilises a forged or falsified document as if it were authentic, with the intention to cause harm, will be subject to the same penalties.

Falsification of identity in marriage is an attempt to misuse or deviation by someone to falsify data in the form of status, signs, characteristics, and special circumstances of a person or identity, which is considered a criminal act in the form of lies to State Officials with the aim of getting married Then criminal sanctions in the event of identity falsification in Article 93 of Law Number 23 of 2006 concerning population administration which reads: “Every resident who intentionally falsifies letters and/or documents to the implementing agency in reporting Population Events and Important Events shall be punished with a maximum imprisonment of six years and/or a maximum fine of Rp.50,000,000.00 (fifty million rupiah).”

If the cancellation of marriage is still carried out, it will have an impact on the legal consequences that will be received, both the consequences of civil law, religious law, and customary law. The falsification of marital identity is related to the duties of the KUA staff. The examination of the files of the prospective bride and groom at the KUA is in accordance with the established procedures. This can be seen from the beginning of the examination by directly calling the prospective bride and groom concerned, as well as the marriage guardian, to the KUA to check the correctness of the data. At least between the KUA and the kelurahan, there is cooperation on identity issues to be more careful and pay more attention to prospective brides and grooms who have different domiciles. The activeness of KUA employees, in this case, the PPN, must be extra in investigating the data of prospective brides and grooms both in terms of name, guardian, residence, and status of the prospective bride and groom. Because with extra activeness, there will be fewer cases of identity forgery. And also, what has been done later can be accounted for the truth both institutionally and legally administratively.

The concept of marriage cancellation, which is regulated between Law No.1 of 1974 and the compilation of Islamic law, does not contradict but complements each other and has become qanun (regulations passed by the government), and the cancellation of marriage is sometimes null and void because it violates religious provisions regarding the prohibition of marriage and sometimes it can also be cancelled due to several administrative matters and must go through a court decision. Marriage cancellation is a court action in the form of a decision declaring the marriage performed invalid (no legal force or declared void) so that the marriage is considered to have never existed.

Legal Certainty of Marriage Cancellation According to Law Number 16 of 2019 Concerning Amendments to Law Number 1 of 1974

Regarding the annulment of marriage, according to Article 22 of Marriage Law Number 1 Year 1974: “If the parties do not fulfil the conditions of marriage, the marriage may be annulled.” Cancelled means nietig zonder kracht (no power), zonder waarde (worthless), and can Cancel means nietig verklaard, and absolute nietig means absolute cancellation. According to Nuruddin and Tarigan: “The term cancellable in this law can be interpreted as relatively nietig. Thus, a marriage can be cancelled if a marriage has previously occurred and then cancelled because there is a violation of certain rules.” (Nuruddin & Tarigan, 2004, p. 107)

The provision for the cancellation of marriages entered into in Islam is contained in Article 27 of the Regulation of the Minister of Religious Affairs of the Republic of Indonesia Number 3 of 1975, which states: “If a marriage has been solemnised, but it turns out that the marriage is prohibited under the Marriage Law or legal provisions, the religious court may cancel the marriage at the request of the parties concerned.”

Consequently, a marriage has the potential to be deemed null and void and can be officially invalidated by a court of law. Law Number 1 Year 1974 on Marriage lacks clarity regarding the nullity of a marriage. However, Article 71 of the KHI provides detailed explanations of the circumstances under which a marriage is considered null and void. These circumstances include:

1. The husband that is engaging in polygamy without obtaining permission from the Religious Court.
2. The discovery that the woman he married is already the wife of another man.
3. The situation where a married woman still maintains an emotional attachment to another husband.
4. Marriages that violate the age limit for marriage as specified in Article 7 of Law Number 1 Year 1974.
5. Marriages that occur without a guardian or with an invalid guardian.

Marriage has a very good meaning and purpose and forms a happy and eternal household based on God Almighty, as referred to in Article 1 of Law Number 1 of 1974. Carrying it out requires honesty, affection, mutual understanding, and sincerity from the heart between the two parties in their marriage. Domestic life does not always run smoothly, calmly, and happily. Sometimes, there are misunderstandings, even difficult situations in terms of material and sadness in the household or others. Article 27 paragraph (1) of Law Number 1 Year 1974 concerning Marriage regarding the cancellation of marriage under unlawful threats, related to the form and nature of threats in the cancellation of marriage, is a violation of law.

In marriage, we should not hurt or deceive each other for the sake of personal interests because if there are such characteristics in a family, then the husband and wife cannot live together. If they continue to live together with this personality, there will be many disputes, and there will not even be words of peace and happiness at home. The legal basis used by the Pangkalan Bun Religious Court in deciding this case is Article 2, Article 3 Paragraph 1, Article 9, Article 22, and Article 23 Paragraph A of Law Number 1 of 1974. Article 40(a) of the Compilation of Islamic Law, then the applicant’s claim can be granted. The cancellation occurred since the marriage, based on Article 27(2) and Article 28(1) of Law Number 1 Year 1974, took effect from that time. Article 72(2) and Article 74(2) of Presidential Instruction Number 1 of 1991 concerning KHI. As in Marriage Cancellation Case Number 719/Pdt.G/2019/PA.Pbun, in this case, the defendant, my father, filed a lawsuit at the Pangkalan Bun Religious Court because the defendant, my wife, falsified her identity to enter into her marriage. In addition, in the second marriage, the defendant did not fulfil the conditions for marriage within the scope of marriage, but the marital relationship still existed, as is the case in “Law Number 1 of 1974 concerning Marriage” and the “Compilation of Islam” Law No. 1/1974 on Marriage and “the Compilation of Islam.” The marital relationship is as set out in Government Regulation No. 10/1983 on Marriage Certificates, and therefore, the marriage can be declared void. Based on this case, the following legal facts are drawn:

1. Around October 2021, the plaintiff (Sokur bin Setu), the father of the first respondent (Sutikno bin Sokur), found out and received information that the second respondent (Yuli Setiani binti Mustain) was the legal wife of a man named Purnomo Bin Somo (deceased), this is in accordance with “Marriage Certificate Excerpt No. 203/19/VI/2010 issued by the Office of Religious Affairs (KUA) of Kecamatan Ploso, Kabupaten Jombang, East Province” and even the marriage between the second respondent and Purnomo Bin Somo (deceased) was the same: 203/19/VI/2010 issued by the Office of Religious Affairs (KUA) of Ploso Sub-District, Jombang District, East Java Province” and the marriage between the second respondent and Purnomo Bin Somo (deceased) had not yet been dissolved.
2. The plaintiff, as the biological father of the first respondent in this case, felt that he had been deceived by the actions of the second respondent who, when he wanted to enter into a marriage with the first respondent, claimed to be a “Widowed Divorcee” and had also attached a requirement for marriage in the form of a “Death Certificate on behalf of”. To date, the husband of the second respondent, Purnomo Bin Somo (deceased), is still alive and in good health without any deficiencies, and Purnomo Bin Somo (deceased) currently resides in Rejoagung Village, Ploso Sub-District, Jombang District, East Java Province.
3. As a result of the actions taken by the first respondent and the second respondent who entered into a marriage on Wednesday 28 August 2019 AD or coinciding with the 26th Djulhijah 1440 Hijiriyah in front of the Marriage Registrar of the Office of Religious Affairs (KUA) of South Arut Sub-District, West Kotawaringin Regency, Central Kalimantan Province as per the “Marriage Certificate Excerpt No. 0682/135/VIII/2019,” which falsified and manipulated documents/certificates as administrative requirements in order to enter into a marriage/marriage at the Office of Religious Affairs (KUA) of South Arut Sub-District, West Kotawaringin Regency, Central Kalimantan Province: 0682/135/VIII/2019”, which has falsified and manipulated documents/certificates as an administrative requirement in order to be able to carry out a marriage/marriage at the Office of Religious Affairs (KUA) of South Arut District (In Casu Turut Respondent) is an act that absolutely cannot be justified in Islamic religion and state law so that it is proven that Respondent I and Respondent II in this case have violated the provisions that have been regulated.

In the implementation of the marriage, there was an error in self-falsification; namely, the data submitted by Defendant II was full of falsifications, such as the status of Defendant II with Purnomo bin Somo, who in reality was still alive and in good health without any deficiencies, and was still the legal husband of Defendant II In the implementation of the marriage there was an error. The Plaintiff’s claim is valid for the annulment of the marriage, as stated in Article 27 paragraph (2) and Article 28 paragraph (1) of Law Number 1 Year 1974 jo. According to Article 72 paragraph (2) and Article 74 paragraph (2) of Presidential Instruction Number 1 of 1991 regarding the Compilation of Islamic Law, the plaintiff’s request to invalidate the marriage should be approved. According to Article 28, paragraph (1) of Law Number 1 Year 1974, the nullity of a marriage starts once the Court’s ruling becomes legally binding and is effective from the day of the marriage. According to Article 72, paragraph (2) of the Compilation of Islamic Law. If either spouse has been deceived or misled about the other spouse’s identity or characteristics at the time of the marriage, they have the right to file a petition for annulment of the marriage. According to Article 74, paragraph (2) of the Compilation of Islamic Law, the annulment of a marriage begins once the ruling of the Religious Court becomes legally binding and is effective from the moment the marriage takes place.

In a marriage annulment case based on legal facts, it was proven that the second respondent had committed fraud, namely, his marital status. The fraud in question is deliberate deception regarding the status of one of the parties. In this case, respondent II had committed fraud intentionally, namely claiming to be a widow with a death certificate attached to the marriage certificate, when in fact, she was still a legal wife and had not been divorced, and Respondent II also cooperated with the Village Head and the Population and Civil Registry Office to make a certificate of her husband’s death. However, in this case, the author did not only look at the legal facts that occurred, because in the trial process, the author also looked at the aspects of procedural law, especially from the plaintiff’s lawsuit, because the requirements and procedures for the granting of a lawsuit depending on the fulfilment of the requirements and procedures of a lawsuit, both formal and substantive requirements as stipulated in Article 147 paragraph 1 RBg juncto Supreme Court Circular Letter Number 01 of 1971 dated 23 January 1971 junctis Supreme Court Circular Letter Number 6 of 1994 dated 14 October 1994. Therefore, the author tries to analyse the judge’s consideration of the case. In this case, the judge had properly summoned the plaintiff and the defendant, as stipulated in Article 145 paragraphs (1) and (2), and Article 150 R.Bg. Jo. Article 26 of Government Regulation No. 9 of 1975. Upon the summons, the plaintiff appeared in court accompanied by his legal representative, while the first and second defendants were never present, did not appoint a representative or attorney, and did not inform the reason for their absence even though they had been officially and properly summoned. According to the panel of judges, the absence of Defendant I and Defendant II had no legal reason in accordance with the provisions of Article 149 paragraph (1) R.Bg., Jo. Circular Letter of the Supreme Court of the Republic of Indonesia Number 9 of 1964 dated 13 April 1964 concerning decisions verstek, the examination of the case a quo can be continued, and a decision can be made in the absence of the defendant. The judge’s consideration is juridically correct because it has a strong legal basis, so it is appropriate if the decision can be made without the presence of the defendant.

During the trial, the Panel of Judges made an optimal effort to reconcile by providing advice and peace counsel to the Plaintiff, but this effort was not achieved. Thus, the attitude of the panel of judges was in accordance with Article 65 and Article 82 of Law Number 50 of 2009 concerning the second amendment to Law Number 7 of 1989 concerning Religious Courts as well as Article 31 paragraph (2) of Government Regulation Number 9 of 1975. Furthermore, in his legal consideration on the basis of the absence of the defendant, as well as the failure to achieve peace efforts, then based on the provisions of Article 6 paragraph (1) of Supreme Court Regulation Number 1 of 2016, mediation efforts cannot be implemented. The judge’s consideration is very appropriate, considering that the mediation requirements cannot be fulfilled, so it is appropriate if mediation cannot be carried out.

The panel of judges also gave legal considerations on the subject matter of the case, namely on the reasons for the cancellation of the marriage proposed by the plaintiff. In this case, the plaintiff filed a lawsuit for the cancellation of the marriage between the first defendant and the second defendant on the grounds that the second defendant and Purnomo bin Somo were still legally married and were assisted by the village head and the Population and Civil Registry Office by making a death certificate. The panel of judges was of the opinion that the element of one party of the husband and wife whose marriage was to be annulled and still being in a marriage with another party had been fulfilled in the case of a quo. In addition, according to the panel of judges, the evidence had fulfilled the formal requirements of letter evidence and was qualified as an authentic deed whose evidentiary value was perfect and binding. Therefore, it must be declared proven that the plaintiff was the biological father of the first respondent so that the applicant had the correct legal position as a party in this case (persona standi in judicio). The panel of judges considered that the evidence was not directly related to the case a quo, so the evidence should be excluded. The legal decision considered by the judge was correct to annul the marriage because it did not fulfil the validity of the marriage.

Law Enforcement Against Cancellation of Second Marriage Because the Wife Falsified Her Identity According to the Compilation of Islamic Law (KHI)

Law enforcement is a rule that must be implemented in social life. As for some legal experts who have stated it through several theories, among others:

According to Jimly Asshiddiqie: “Law enforcement refers to the systematic actions used to enforce and uphold legal norms in order to regulate behaviour in areas such as traffic and legal relationships within society and the state. Law enforcement can also be understood in terms of its focus on upholding and enforcing the law. In this instance, the definition encompasses both a comprehensive and limited interpretation. Law enforcement, in a wide context, encompasses the principles of justice that exist within society. However, in a strict sense, law enforcement specifically pertains to the implementation of official and documented regulations.” (Asshiddiqie, 2018).

The validity of a marriage conducted before its annulment is intricately linked to the status or identity following the annulment. Judge Rosyid determined that the marriage was illegal due to the cancellation resulting from a breach of both material (Islamic) and formal (positive law) regulations, which were founded on deceit. Following the annulment of their marriage, the husband and wife’s status reverts back to what it was before they got married. This applies regardless of whether the marriage was consummated or not or whether it is considered null and void or eligible for annulment.

In accordance with the KHI, the nullity of marriage is classified and explained in Article 71, paragraphs (b) and (c), as well as Article 72, paragraph (2). Specifically, if it is discovered that a married woman is also the wife of another man who is missing, the marriage is considered null and void. The woman is currently in the 'iddah period as a result of her previous marriage.

Article 72 paragraph (2) KHI states that: “A husband or wife may file a petition for annulment of marriage if at the time of marriage there is fraud or misrepresentation concerning the husband or wife.”

Then, the cancellation of marriage can only be in the Religious Court. This is in line with the provisions of Article 74 KHI, which explains that:

1. A petition for annulment of marriage may be filed with the Religious Court having jurisdiction over the place of residence of the husband or wife or the place where the marriage took place.
2. The nullity of marriage begins after the decision of the Religious Court has permanent legal force and takes effect from the time the marriage takes place.

This is the basis and legal basis for the cancellation of marriage on the grounds of identity forgery. This is because, in the case of cancellation, the parties neglected that the marriage violated the rules of Islamic material and formal law. The status of the husband or wife after the cancellation of the marriage is unchanged and still the same as before the marriage. Cancellation of marriage is an act of court decision that states that the marriage bond that has been carried out is invalid, and the result is that the marriage is considered never to have existed. According to Soedaryo Soimin:

“Annulling a marriage refers to a marriage that takes place without meeting the legal conditions. An annulment of a marriage refers to a legal ruling by a court stating that the marriage is void, hence establishing that the marriage never legally existed.” (Soimin, 1986, p. 2)

The mistake, for example, of a husband or wife who is married and whose identity is different from what is known is often called identity forgery. In this identity forgery, there are several motives, for example, changing the status from having been married to having never been married, be it the status of a single girl or widow. It can also change the religion, which has the aim of making it easier to carry out. It is explained in KHI Article 74 paragraph (2) that the cancellation of marriage begins after the decision of the Religious Court has permanent legal force and takes effect from the time of the marriage. This is because the act of marriage cancellation is based on considerations of formal law enforcement factors. In relation to the woman who is married, it turns out that she is still in ‘iddah from another husband. This is also the case with people who are mistaken about their husband or wife. The legal status is the same as a person who is mistaken. It has no legal effect. Unless there are other indications as stipulated in Article 72 paragraph (3): “If the threat has ceased, or the wrongdoer realises his condition and within a period of 6 (six) months after that is still living as husband and wife, and cannot exercise his right to file a petition for annulment, then his right is waived.”

The legal reasoning used by the Panel of Judges in deciding case Number 719/Pdt.G/2021/PA.Pbun, according to the author, is correct in cancelling the Respondents’ marriage because even though the legal facts show that there was fraud committed by the wife (defendant II) in the process of filing a lawsuit, the defendant did not meet the requirements of the lawsuit, the lawsuit was vague and there was no conformity between the posita and the petitum, so the lawsuit for marriage cancellation was not accepted. A cancelled marriage of a husband and wife will result in both of them returning to their original state or between them as if they had never entered into a marriage. Regarding the legal consequences of marriage cancellation, with a court decision cancelling a marriage, the marriage that has occurred is considered never to have existed. As stated in Article 28, paragraph (1) of the Marriage Law, the cancellation of a marriage is calculated from the time the marriage takes place.

Conclusions

Based on the aforementioned description, one can infer with certainty regarding legal matters. According to the collective judgment of the panel of judges, defendants 1 and 2 had no justifiable excuse for their absence. The judge’s decision was legally sound as it was firmly grounded in the law. If the defendant was absent, the mediation conditions would not be met, thereby preventing the possibility of reaching a verdict. Consequently, the jury would also be involved if mediation could not take place. The case also involved pertinent legal concerns regarding the subject matter and the plaintiff’s grounds for seeking the annulment of the marriage. The reason for this was that Defendant II and Purnomo Ben Somo were still legally married and received assistance from the Village Head and the Population and Civil Registry Office in obtaining the death certificate. The panel of judges determined that the original case satisfied the criteria of one party desiring to nullify the marriage while the other party remained in a marital union. Furthermore, the Panel of Judges concluded that the evidence met the necessary criteria to be considered as written evidence, constituted a genuine act, and possessed comprehensive and legally binding evidentiary value. Consequently, it is appropriate to declare that the plaintiff is the biological father of the child. The defendant claimed that the plaintiff possessed the necessary legal standing (persona standi in judicio) to be a party in the lawsuit. The panel of colleagues determined that this evidence was not immediately pertinent to the case and should be omitted. The Batal Nikah Action Party subsequently lodged the lawsuit with the Religious Court under Decision No. 719/Pdt.G/2021/PA.Pbun. The panel of judges rejected the defendants’ claims due to formal flaws in the case. Additionally, since the defendant was absent, no resolution could be reached between the plaintiff and the defendant. Despite the plaintiff’s claim being supported by Article 22 of Law Number 1 of the 1974 Marriage Law, which allows for the cancellation of marriage if personal data is intentionally misused, peace could not be achieved. Regardless of whether it is the husband or the woman, either party can initiate a request for marital dissolution after they are married.