Marriage, Gender and Islam in Indonesia

Women Negotiating Informal Marriage, Divorce and Desire

Maria Platt

• Publisher: Routledge
• Year: 2017
• Topic: Social Sciences
• eBook ISBN:
  9781351714860
• Subtopic: Ethnic Studies
• Index: Social Sciences

Marriage is central to Indonesia's social fabric and critical in defining socially legitimate relationships. This book offers a rich anthropological account of Muslim Indonesian women's experiences of courtship, love, marital discord and separation, polygamy, divorce and remarriage. By applying a new approach to theorising marital experiences as playing out across a dynamic marital continuum, it expands static and dichotomous understandings of marriage and divorce. It offers new insights on how local modalities of Islam shape gender relations and are actively negotiated by women in pursing their marital desires. The book draws upon ethnographic case studies from the eastern Indonesian island of Lombok where early marriage, divorce and remarriage, are common place for Muslim women. In this context up to 70 per cent of marriages are legitimated through Islamic ceremonies and remain unregistered with the state. While these unregistered marriages are legally valid within the communities in which they occur, such unions exclude women from accessing the marital rights theoretically enshrined in Indonesian marriage law. A key contribution of this book lies in its exploration of legal plurality in relation to Indonesian marriage, which involves investigating the salience of Islamic law, local customary law and state law, for women's varied marital trajectories.

1 Mapping marital ambiguity

Ada perbedaan [antara] hukum positif dan hukum yang hidup di masyarakat

There is a difference between positive (official) law and law which is lived in the community.

(Pak Hadi, Official at Office for Religious Affairs)

Marriage, registration and liminality of community-based law

In 2008 I attended Yati’s wedding to a young man called Atta who was in his early twenties. Yati’s mother was surprised by the match, as Atta had never visited their house for midang – a local Sasak courtship practice. Yati – who at that time was around 19 years old later revealed to me she had only ever met Atta in group situations or chatted via text message. After knowing each other for some time, one of their mutual friends invited Yati to go to her house late one afternoon. Unbeknown to Yati, Atta had made arrangements with this friend for her kawin-lari with him. Kawin-lari is a form of spontaneous elopement that marks a couple’s intention to marry (see following chapter). The woman involved is typically, but not always, complicit in the decision to undergo kawin-lari. Although, as I show in the following chapter, young women’s involvement is often complicated by cultural and gendered norms, which makes it difficult for them to withdraw from the elopement.

In Yati’s case, she had no prior knowledge of her impending elopement. Afterwards, she was taken to Atta’s house where she stayed for three days prior to the Islamic marriage ceremony. During this time her father visited her several times to ensure that Yati really did want to go through with the marriage. Yati assured her father that she did. Moreover, her soon-to-be parents-in-law told Yati that if she went home and did not go through with the marriage, then their son would be ashamed. Not long after they married Yati and Atta registered their marriage with the local Kantor Urusan Agama (KUA or Office for Religious Affairs), the state body that is responsible for registering all Muslim marriages, divorces (talak) and reconciliations (rujuk). Soon after their marriage, Yati became pregnant with their son.

The first time Yati was divorced she told me she was not even sure what had happened. After Yati and Atta fought, he ordered her to pack up her things and return to her parents’ home. Confused, she went to see the religious leader at the kindergarten where she worked and asked if that meant that her husband’s comments equated to the first talak¹ (pronouncement of divorce). The religious leader confirmed that it did, so she took all of her belongings and returned to her parents’ home. Shortly after they reconciled, but around the fasting month of Ramadan 2010, Atta pronounced divorce a second time. So Yati and her son Nabil returned home where she has been living with her parents ever since. As the iddah² period in which she and Atta could reconcile passed they were now considered irrevocably divorced. Due to local prescriptions surrounding polygamy Atta could marry again without obtaining a formal divorce. But as the marriage had been documented Yati needed to go through the religious courts in order to obtain proof of divorce before she could marry again. On a wage of around Rp.150,000 a month and with a child to care for, the Rp.700,000 fee to lodge a divorce claim seemed insurmountable. In addition, Atta did not provide Yati with child support, so she often relied upon her parents’ assistance to help with childcare and to meet the shortfall in her monthly expenses. There were also heightened levels of emotion about who should be responsible for the divorce if proceedings in the Religious Court were to go ahead. As Yati’s mother Una said when she weighed into the debate, ‘he [Atta] should be the one to pay’. But in the meantime Yati remains caught between community-based law, which sees her divorce as final, and official law which views Yati’s and Atta’s marriage as still intact.

Pak Hadi’s words that began this chapter highlight a deep divide that exists between the official state-based Marriage Law and what he refers to as ‘lived’ law or what I refer to as community-based law. As we can see from Yati’s story above, the form of community-based law that prevails in her village saw Yati turned out from her marital home at the behest of her husband after he pronounced talak. This chapter is interested in these two systems of law and how they impact the lives of Sasak women. These two approaches to marriage are not mutually exclusive, as a religious marriage based on the notion of community-based law occurs regardless of whether a marriage is eventually registered or not. However, given the predominance of community-based law in the form of localised Islam and adat, Sasak marriages often go unregistered. Without a culture of documentary evidence of marriage, couples instead tend to rely heavily upon public witness of their union in order for it to be solemnised in the eyes of the community.

This chapter seeks to complicate the idea of marriage registration, highlighting its advantages and drawbacks for women, including Yati, who remain caught between two prevailing legal systems. Through a close examination of marriage registration in a context such as Lombok, where a preference for community-based law exists, I highlight the overall implications registration has for women’s marital agency. Even those who ostensibly have ready access to marital rights, as they are part of a registered union, face significant barriers to legal process. Women’s legal rights are made all the more complex when a couple’s marriage remains undocumented by the state. While a couple can obtain a retroactive marriage certificate, known as an isbath nikah, much like a divorce, they need to go to the religious courts and pay a substantial fee to do so.

Below I explore the state-based Marriage Law implemented in 1974, its history and the debates that surrounded its formation. Through this examination I demonstrate how the Marriage Law itself became subsumed in debates about Indonesian and Muslim identity. Consequently the law represents a national project of modernity, through which the government sought to cast itself as a modern progressive nation catering for women’s rights. Therefore, the Marriage Law itself, which largely aimed to reduce the incidence of child marriage, unfettered talak and men’s access to legalised polygamy as well as providing women with access to divorce, in one sense was interested in crafting women as a certain kind of autonomous legal subject. Although as O’Shaughnessy (2009, p. 33) contends, ‘the Marriage Law deliberately employ[s] contradictory provisions’ which rather than creating legal equality actually works to promote women as ‘legally subordinate to men’.

I argue that the state’s vision of marriage has failed to capture the mutability of Sasak marriage. Consequently, this has had implications for Sasak women’s legal subjectivities, which are often not circumscribed by the legal rights embedded in the Marriage Law due to the non-registration of these unions. This raises a range of questions about Sasak women’s legal subjectivities. How does women’s strong adherence to local community-based law stack up for both those who register and do not register their marriage? Which forms of authority prevail? And how does this legal ambiguity speak more broadly to the concept of the marital continuum?

Officiating marriage and issues of documentation and registration

For many Sasak, the most important element of marriage is the public and communal witness of their union via a wedding procession known as a nyongkolan, discussed in detail later in this chapter. The notion of public and communal witness of marriage has historical resonance in Southeast Asia (Andaya 2006). This is not so surprising if we consider that the documentation of marriage, like all forms of public records, is a relatively modern concept, which Scott (1998) argues states used as a key technology in order to make their populations ‘legible’ or knowable. This is especially the case in many parts of Asia where the need to document births, deaths and marriages was largely brought about due to the influence of colonial administrations (Loos 2008; Stoler 2010). European colonialism brought with it new ideologies and ideas of personhood, including in the realm of marriage. Along with their need to document, colonial states’ marital ideology constituted part of their ‘civilising’ agenda and thus formed a key project of colonialism. As Loos (2008, p. 27) points out: ‘European imperial states deployed monogamous marriage alongside other weapons of empire as a justification for intervention into Southeast Asian societies.’

While Loos refers to Southeast Asia as a whole, Indonesia was of course no exception. Under Dutch rule, there were a number of regulations that sought to manage intimate relations. For the most part, these legal interventions sought to regulate mixed marriages between Europeans and those deemed ‘other’.³ The focus on regulating marriage mainly had its basis in the demographic reality of the colony. When the Dutch East Indies Company (VOC) imported a large number of single Dutch men to help exploit the rich resources of the region, a gender imbalance emerged. As a result the VOC permitted its low-level employees to wed with Asian slave women it had imported into the settlements (Taylor 2009). Early marriages between VOC employees and Asian women, required at various points, women’s conversion to Christianity as well as a working knowledge of Dutch. Later in the colonial period, the categories that underpinned a desirable ‘mixed’ marriage shifted so that by the mid-1800s race became an integral category in an attempt to ensure non-European marriage partners and any subsequent children became fully assimilated under European law (Loos 2008). Thus from the early colonial period, marriage and its regulation reflected an attempt to create a certain type of female subject – one that was malleable and receptive to the interests of the state’s notions of the nation and the family.

Marriage, law reform and the pre-independence women’s movement

Prior to the Indonesian state’s assertion of independence in 1945, early feminists attempted to reshape Muslim women’s legal subjectivities by providing them with a clear set of rights in marriage. Many early nationalists who had been western educated, promoted a form of marriage that was akin to western marital ideals, emphasising equality in marriage and monogamy, although many were also critical of western sexual mores which resulted in local women’s concubinage and prostitution (Locher-Scholten 2000, p. 191). Subsequently, women’s groups across the archipelago called for law reform to address a number of legal inequalities experienced by Muslim women, including arbitrary divorce at the hands of their husbands, as well as men’s right to practise polygamy.

Early feminist movements wanted to not only protect women against unfettered divorce, but also provide women with the authority to initiate divorce on their own terms (Robinson 2009; Wieringa 2002). Central to these claims was the idea that the civil registration of marriage, as well as other marital rights granted to women, would lead to more harmonious marriages (Vreede-de Stuers 1960). Many of these claims were put forward at the 1928 Women’s Congress, a landmark meeting which distinguished the beginning of the women’s movement in Indonesia. Marriage and associated issues of law reform were bound up in the political agenda of the day. This era marked what was to be the twilight of Dutch colonial rule. Consequently for many at the Women’s Congress, marriage law reform and gender equality were linked to the bourgeoning nationalist agenda and calls for independence from Dutch colonial rule (Robinson 2009). Feminists’ calls for marriage law reform also highlighted a chasm that was to later widen between secular and religious interests in marriage. Many women’s groups saw the civil sphere, namely (an independent Indonesian) government, as the appropriate realm through which to regulate marriage. Up until this point, religion and adat had been the main mechanisms through which marriage was regulated. Thus, these calls for secularisation created a rift, as some Islamic women’s organisations continued to view religion as the natural authority for all aspects of personal law, including marriage and divorce (Robinson 2009).

Prior to independence, for the most part inter-Asian unions, including those of the local Muslims who formed the majority population, remained largely invisible to the colonial administrators. As the ruling elite, the Dutch were more preoccupied with regulating marriage only insomuch as it defined who could be included or excluded from the elite class (Loos 2008). After initial attempts to place parameters around Muslim marriage in certain jurisdictions, 1937 saw the Dutch make perhaps their most significant foray into marriage law reform. The proposed law attempted to oblige Muslims to register their marriages, to promote monogamous unions and to put an end to men’s ability to unilaterally enact divorce (Mujiburrahman 2006). Therefore, this attempt at law reform, constituted a ‘project of modernity’ in that it both aimed to civilise Indonesian female elites (at whom the law was primarily aimed), as well as protect European women who had married local men under Muslim law (Locher-Scholten 2000, p. 188).

Islamic groups argued vigorously against the 1937 bill on the basis that it constituted government control over religious matters (Locher-Scholten 2000). Even many women’s groups, whose interests were ostensibly represented by the bill, opposed it. Occurring at a time when nationalist ferment was rising, resulting in an increasingly anti-colonialist sentiment, many secular nationalists saw the bill as a further attempt by the Dutch to control the local population (Robinson 2009). Needless to say, the bill failed to pass and marriages remained largely regulated by Islam and adat-based precepts.

Marriage, law reform and women’s legal subjectivities in the post-independence era

The Comaroffs (2006, p. 22) make the point that modern nation-states are ‘erected on a scaffolding of legalities’. As the nation-state of Indonesia came into being, the Marriage Law was an important part of this scaffolding. For the newly formed Indonesia, the Marriage Law was decidedly political in that it was seen as a means of unifying a disparate and ethnically and religiously diverse population spread out across a chain of literally thousands of islands (Butt 2008). This did not mean that a marriage law was quick to come into existence. Far from it – the Marriage Law and its political, cultural and most importantly religious inflections were debated for the first few decades of Indonesia’s independence, although in the meantime, existing marriage laws largely retained their colonial legacy.

In the Sukarno era (1950–1967), the notion of a national Marriage Law was deeply political as women’s legal subjectivities were a burning issue for an ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of illustrations
• Series editor’s foreword
• Acknowledgements
• List of abbreviations
• Introduction: marriage as a dynamic institution
• 1 Mapping marital ambiguity
• 2 Kawin-lari and spontaneous marriage
• 3 Extramarital relationships
• 4 Divorce and its discontents
• 5 Conclusion
• Glossary
• Index