This month, the Australia Indonesia Partnership for Justice 2 (AIPJ2) published data on child marriage in Indonesia in collaboration with a number of Indonesian government agencies. On the face of it, this may look like another set of numbers. However the fact it was published at all is quite a feat. The report places in the public domain data that has been known by the individual government agencies but not commonly discussed between them – and certainly not available to civil society and academia in Indonesia.
Several numbers revealed in the publication are particularly important.
First, Muslim marriage registrations in Indonesia over the last 20 years have remained static at around two million a year, despite the population increasing by more than 30 per cent for the period. This indicates that there is a significant and rising number of unregistered marriages.
Second, a substantial proportion of these unregistered marriages involves children and adolescents. According to Statistics Indonesia survey data, 400,000 children and adolescents under the age of 19 years are married each year in Indonesia and 87.5 per cent of these are girls. Married girls are unlikely to finish 12 years of education and so underage marriage in Indonesia is disproportionately affecting girls’ ability to complete their schooling.
The overwhelming proportion of marriage dispensation cases for children to marry under the legal age are granted by judges – some 95 per cent.
The data in the report also shows a rising number of cases filed where parents seek court dispensation for their children to marry under the legal age. These cases have increased considerably since the revision of the Marriage Law in 2019 to almost 65,000 in 2021. However, with 400,000 children and adolescents being married each year in Indonesia, this means that at least 330,000 child and adolescent marriages every year cannot be registered by the Office of Religious Affairs or civil registry as their parents have not brought these cases to the courts to obtain the dispensation required by law.
The overwhelming proportion of marriage dispensation cases for children to marry under the legal age are granted by judges – some 95 per cent. The research also shows that girls from poorer backgrounds are more likely to be married under the age of 19 years and these households will face difficulties paying court fees. The Indonesian courts do not currently know how many of the 65,000 marriage dispensation cases filed in 2020 were granted a court fee waiver. We do know that across all case types in the Religious Courts, only three per cent had the fee waived, suggesting that only the relatively well-off are bringing marriage dispensation cases to court for their children.
A decade ago, AIPJ2 connected the dots between a lack of access to the courts and the socio-economic impact of parents not having a marriage certificate. Children of these parents are consequently far less likely to have a birth certificate, leading to an intergenerational cycle of non-registration of marriages and births and of not formally existing in society.
In February 2020, the Indonesian Government launched its National Strategy on the Prevention of Child Marriage with five key strategies addressing the myriad factors at play contributing to the marriage of children and adolescents in Indonesia today.
The National Strategy’s holistic approach is important, but new data suggests two additional reforms carry the potential for greater change.
The first would be to remove the court fee in all marriage dispensation cases. Poorer households are unlikely to know how to navigate the bureaucracy to seek a court fee waiver. As these poorer households are already eligible for a waiver of the court fee, the loss of government revenue would be marginal compared with the policy gain of removing the cost barrier for hundreds of thousands of parents who are currently not bringing these marriage dispensation cases to court. Doing away with fees in such cases also reduces the stigma of poorer households having to provide evidence of financial hardship.
This year, each of the 412 Religious Courts of Indonesia will have an independent legal advisory service that provides legal advice to hundreds of thousands of clients.
The second proposed reform would look to improve outcomes in the marriage dispensation cases by linking independent children’s lawyers to the young people at the centre of the marriage dispensation cases. This would ideally occur in concert with social workers working at the local level to document the best interests of young people. The lawyers would present a report to the judge hearing the case based on interactions with the child, parents, teachers and any social or health workers engaged with the child. This would better enable the judge to make an informed decision on whether the proposed marriage is in the best interests of the child separately to the arguments brought by the parents as the primary party.
This year, each of the 412 Religious Courts of Indonesia will have an independent legal advisory service that provides legal advice to hundreds of thousands of clients – a policy initiated 12 years ago by the Chief Justice of Indonesia following discussions with Australian courts and legal aid providers in 2010. In this time, clients in 1.5 million family law cases have benefited from these legal advisory services funded by the government of Indonesia. That significant number is a reminder of the benefit to people’s lives that can flow from a better understanding of the challenges.
Change happens and we can sometimes forget what prompted the collaborations, ideas and actions that ultimately deliver better services funded by the State for decades to come. It remains to be seen if Indonesia can unlock the social policy opportunities arising from the pandemic to deliver better access to courts in marriage dispensation cases and better outcomes in court for children and adolescents that, in turn, will contribute to long-term health and wellbeing opportunities for millions of Indonesians into the future.
The views expressed are those of the author and do not represent the view of the Australian Government or AIPJ2. The author is indebted to colleagues in the AIPJ2 Access to Justice for Women and Girls team: Herni Sri Nurbayanti, Lia Marpaung, Wahyu Widiana and Leisha Lister.
