The Model Of Inheritance Rights Protection For Children Born Out of Wedlock Based on the Contitusional Court Decision no 46/PUU-VII/2010: An Analysis from the perspektiive of Islamic Law and Civil Law
Inayatilah Ridwanr1, Neneng Nurhasanah2, Lina Jamilah3,

1.Fakultas Hukum Universitas Islam Bandung,
Fakultas Tarbiyah Sekolah Tinggi Ilmu Tarbiyah
AT-TAQWA Ciparay Kab. Bandung, inayatilahridwan[at]gmail.com
2. Fakultas Hukum Universitas Islam Bandung, neneng[at]unisba.ac.id
3. Fakultas Hukum Universitas Islam Bandung, linajamilah[at]unisba.ac.id

Abstract

This research discusses the issue of inheritance rights for illegitimate children which is closely related to children^s rights as regulated in human rights. Based on Constitutional Court Decision Number 46/PUU-VIII/2010, Article 43 Paragraph (1) of Law Number 1 of 1974 concerning Marriage which states that children born outside of marriage only have a civil relationship with their mother and their mother^s family, is declared to be contrary to the 1945 Constitution of the Republic of Indonesia. The decision states that illegitimate children, including those born from unregistered marriages, have inheritance rights equal to legitimate children if the blood relationship can be proven through science and technology such as DNA testing or other evidence recognized by law. This problem becomes more complex when comparing the principles of Islamic law and the provisions contained in the Civil Code, both of which are the legal basis applicable in Indonesia. The research method uses a normative juridical approach with two approaches, namely the statute approach and the case approach. The research results show that illegitimate children have the right to maintenance, education, health care, guardianship, and inheritance from their biological father. This Constitutional Court ruling challenges traditional views in Islamic law in Indonesia and strengthens the protection of illegitimate children^s rights to a decent life and fair and equal inheritance rights. Therefore, this ruling provides an important foundation for improving the legal status of illegitimate children in Indonesia.

Keywords: Protection of children outside of marriage- inheritance rights of children outside of marriage, Islamic law, Civil law.

Topic: Law and Ethics in Terms of Islamic Perspective