Intersections: 'It’s the Matter of a Piece of Paper:' Between Legitimation and Legalisation of Marriage and Divorce in Bugis Society
Intersections: Gender and Sexuality in Asia and the Pacific
Issue 19, February 2009

'It’s the Matter of a Piece of Paper:'
Between Legitimation and Legalisation
of Marriage and Divorce in Bugis Society

Nurul Ilmi Idrus
  1. Illegal marriage (I. kawin liar)[1] and illegal divorce (cerai liar)—which are facilitated and implemented by an illegal officiant (imam liar)—are not new phenomena in South Sulawesi.[2] Their practice, despite illegality, have become an alternative to legitimate marriage and divorce. They are particularly practiced—in order to avoid legal requirements and procedures—by civil servants, by those who lack parental consent for marriage, by those who are unable to pay for the requested ‘spending money’ (B. dui’ ménré), by women who are neglected by their husbands, and by those who experience premarital pregnancy.
  2. This article examines illegal marriage and divorce among the Bugis[3] who represent more than 40 per cent of the native populace of the province of South Sulawesi. Since the majority of the Bugis profess Islam, their everyday life is inseparable from its beliefs and practice. Thus, in the paper, I analyse kawin liar and cerai liar in relation to state regulations, Islam and local practice and the significance of this practice on women (and children), as well as local attitudes towards it.[4] I focus on the discrepancy between the Marriage Law No.1/1974 and folk law in regard to kawin liar and cerai liar, and how religious judges handle such cases in the Religious Court (Pengadilan Agama).[5]
  3. The data presented in this article—which was based on my ethnographic fieldwork in South Sulawesi between December 1999 and January 2001 and some occasional visits between 2002 and 2005—was collected using in-depth interviews and observations with a number of case studies. During the former period, I stayed in the village of Maddenra (Kulo subdistrict) which is located in Sidrap (a Regency in South Sulawesi). Sidrap is one of the source areas of migrant workers to Malaysia and many women in Sidrap are left in uncertain situations by their husbands.
  4. The article begins with a discussion on kawin liar, what it is and how it is different from other kinds of illegal marriage, for example kawin sirih)—which is also commonly practiced in Indonesia—and how such marriage is socially legitimated. Then, it examines grounds for divorce, and finally, the article deals with cerai liar, isbath nikah (validation of marriage), and remarrying. I argue in this article that the procedure of official marriage cannot be blamed solely as the cause of kawin liar and cerai liar, especially because an individual who intends to marry and divorce may use alternative ways to pursue his/her desire. The roles of imam liar and social legitimation, however, also have a significant function in these illegal practices.

    Kawin liar
  5. Kawin liar, or illegal marriage, is not confined to South Sulawesi. It may happen all over Indonesia and the term used to describe the practice may vary from one place to another, such as kawin sirih, nikah sirri, and kawin bawah tangan,[6] which are popular throughout Indonesia. All carry the meaning of 'marriage based on religion' (nikah secara agama), but unregistered by the state. Kawin liar is not specific to people in rural areas since it is also practised in the city of Makassar—the capital city of South Sulawesi—and elsewhere throughout the province.[7]
  6. With or without their parents' consent, kawin sirih is increasingly practised among urban university students, particularly those who live in boarding houses during the period of their study,[8] and it is considered different from 'living together like water buffalo' (I. kumpul kebo') in which the union is non-marital.[9] Masyiatul Maula terms such marriage, nikah sirri and defines it as a 'secret marriage'; among people in Central Java such marriage is called nikah agama, a term that means 'marriage based on religion' or unofficial marriage. Even though nikah sirri follows the requirements of marriage according to Islam, thus it is legal according to marriage principles (fikhi pernikahan),[10] Maula argues that its secrecy contravenes the notion that a marriage must be publicly announced (A. walimah al'Ursy)[11] and is illegal because it is not registered by the state. Her argument concerning the importance of state registration is based on a verse in the Qur'an which states that 'Muslims must adhere to Allah, the Prophet, and political leadership or authority.'[12] Therefore, she argues that unofficial marriage (I. nikah sirri) should be eliminated.[13]
  7. Whilst kawin sirih is based on religion, except for marriage registration and/or public announcement required by the state, kawin liar is exceptionally flexible and may be unique in the archipelago. The uniqueness of kawin liar is not just related to the term, it also indicates that the marriage is 'wild' in the sense that even though it is considered as a 'marriage based on religion,' in practice it is not, because some of the religious and legal requirements are not fulfilled.
  8. While kawin sirih requires a representative (wali)[14] and witnesses (saksi), and is implemented by a legal imam, in South Sulawesi kawin liar is implemented by an imam liar with either a representative or witness, or neither of them, with or without public announcement (walimah) and registration. Therefore, kawin liar is illegal according to both the religion and the state, not just because it does not fulfil the marriage requirements based on Islamic law, but it also does not have legal status. Unquestionably, kawin sirih and kawin liar are other forms of cohabitation that are not legalised by the state.
  9. Muhammad Salim—a Bugis scholar—maintains that most Bugis who live in villages still practice their traditional customs (adat-istiadat), which they consider lofty and sacred.[15] In relation to marriage, even though the state has regulated marriage procedures, kawin liar is considered by many as an alternative way to get married. Even though kawin liar itself cannot be considered part of Bugis norms (pangngadereng),[16] community acceptance is possible if it has been publicised through a customary ritual.[17] Since kawin liar unions are not registered, the prevalence of this type of marriage is unknown. In fact, in everyday life kawin liar cannot be differentiated from legal marriage. My observations indicate, however, that the number of kawin liar partnerships is not comparable to the number of legal marriages. For example, I observed during my fieldwork that, of the weddings I attended, none were kawin liar though I interviewed two women who had married illegally in the village of Maddenra (Kulo subdistrict) where I stayed. When I revisited the village in January 2002, I heard that there was another case of kawin liar between a married man, Hasan, and a woman, Mega who had become pregnant to him outside of marriage.
  10. Hisako Nakamura states that 'Muslims must marry lawfully.'[18] In Kulo, however, as I have noted, kawin liar is not a new phenomenon. While the majority of people considered kawin liar to be illegal, others were ambivalent regarding its legitimation. When they talked about kawin liar, they said it was an illegitimate marriage (I. kawin tidak sah), but that there were ways to legitimate such marriage according to local custom—such as Qur'anic chanting.
  11. In a regular marriage, though akad nikah is regarded as the legalisation of marriage under state law, the wedding ceremony (B. pesta botting)[19] that follows the akad nikah is regarded as more significant for the legitimation of the marriage than the nikah itself.[20] This is similar to duduk bersanding, a term used generally in Indonesia to refer to the bride and groom sitting together on a throne during the wedding ritual.[21] The wedding ceremony for Bugis is the centre of the celebration, that is, a formal sitting of the newlyweds through which the status of wedding sponsors is affirmed.[22]
  12. In reference to the legalisation of marriage, Natzir Said points out that the normative value of custom, not only includes values of worldly accomplishment (I. nilai-nilai lahiriah), but also values of inner experience (nilai-nilai bathiniah), which are regarded as sacred.[23] The 1974 Marriage Law, in his view, takes account only of worldly values, that confirm that one has married legally according to state law.[24] From this point of view, Said perceives that while customary law contains social and spiritual values, the secular Marriage Law legalises marriage only according to the state.
  13. When I revisited my field site briefly in 2002, I interviewed a man, in a neighbouring village, who had been an illegal imam since 1980.[25] He had been a legal imam between 1971 and 1973 in a neighbouring subdistrict (Kecamatan Dua Pitué, Kabupaten Sidrap), but stopped this work because he opposed the government, although he did not explain in detail his precise objections. He assumed I had come to him to get married since I was accompanied by a man, my host. My first questions to him were to inquire how and why he had become an imam. He stated that he had become an imam liar based on social demand in relation to fornication (I. zinah). As he said: 'How can I neglect people engaging in sex outside marriage, while there is another way to marry them off?'[26]
  14. This interview confirmed to me the rumour surrounding his response towards inquiries regarding his illegal job. He showed no guilt, saying that he acted only in response to requests from a man and a woman to marry them. If he did not grant their 'request,' they would stay unmarried and in a state of fornication. Therefore, it was better to marry them off rather than to 'let' them engage in illicit sex. Otherwise, they would be committing a sin. When I asked who was responsible for such a marriage, he explained by showing examples of marriage certificates he had produced for both parties. On the right hand side of the certificate, it was stated that 'we [husband and wife] fully acknowledge any risk resulting from this marriage,' followed by their signatures and the photos of both parties. The signature of the imam liar was situated on the left hand side of the certificate as the person who had carried out the marriage.

    Figure 1. Certificate of an illegal marriage or kawin liar for a husband (English translation) Figure 2. Certificate of an illegal marriage or kawin liar for a husband in original language

    Figure 3. Certificate of an illegal marriage or kawin liar for a wife (English translation) Figure 4. Certificate of an illegal marriage or kawin liar for a wife in original language

    Figures 5 and 6. Certificate of a legal marriage for a husband (English translation)

    Figures 7 and 8. Certificate of a legal marriage or kawin liar for a husband in original language.

    Figures 9 and 10. Certificate of a legal marriage for a wife (English translation)

    Figures 11 and 12. Certificate of a legal marriage for a wife in original language

    The marriage certificate, indeed, is designed to protect the imam liar from prosecution and any complaints from the relatives of the couple and the state. As he said:

      It is true that I marry them, but they are the ones who get married, not me. I only 'help' them to avoid fornication. If the government considers this is wrong, arrest me if they can prove it is wrong.[27]

  15. His slogan, which is expressed in an Indonesian saying: 'Daring to do, daring to be responsible,' indicates that he is a responsible man and is contradicted by his disavowal of responsibility for the marriage. The illegal marriage certificate (I. surat nikah) states that he 'implements' the marriage, however, 'implementing' according to him means 'helping.' Helping, in his own words, is to 'prevent' the couples from fornicating. This seems to be his strategy when arguing with the police whenever he is arrested. He has been arrested twelve times since he became an imam liar. Indeed, he said he will stop acting as an imam liar if the government will provide a pension for him. This indicates, to some extent, that his financial considerations were more significant than his social responsibility to help couples avoid fornication, as he did not want his children to get married illegally.[28]
  16. The contract stage (akad nikah), of an illegal marriage is commonly performed without a subsequent wedding feast as a form of public announcement and only the man and a woman concerned and the imam liar are present. But, the imam liar confirmed that some 'couples' come with their wedding clothes, food, traditional cookies, camera and relatives, with or without 'spending money' (B. dui' menre'), which is part of the Bugis bridewealth. Such a marriage contract is regarded by the imam liar as a lively marriage. In many cases, however, the 'couples' come only to perform the marriage contract without any ritual. In any case, the couple has to pay the cost of the illegal marriage, which ranges between Rp.100.000 (about $US10 at current exchange rates) and Rp.500.000 (about $US50), depending on how much they can afford. I was told by village residents in Kulo that the standard cost is Rp.300.000 ($US30). The cost of kawin liar is not usually discussed openly by the couple and the imam liar except if the couple does not have enough money to pay the 'standard amount.' Kawin liar is far more expensive than the cost of a legal marriage which is Rp.150.000 or about $US15.
  17. For a widow or female divorcee who intends to get married through kawin liar, the imam liar insists on seeing a divorce certificate. This is not the case, however, for a widower or a divorced man. This distinction is related to the imam liar's belief that a man may marry up to five wives, (whether or not the groom has a letter of consent from his wife) which is even more than the number of polygynous unions allowed by Islamic law, as he considers five to be a 'sacred number.' If the first wife happens to claim her husband, the imam liar suggests he divorce her in order to stop her from claiming her marriage rights.
  18. Another factor which is usually required for a man and a woman to get married legally is attainment of the legal age of marriage. In kawin liar, the age of marriage, according to the imam liar, is eighteen for both a woman and a man. Proof of age is solely based on the individual's word; so, one does not necessarily have to prove age through the presentation of a birth certificate. The imam liar considers a girl who is married younger than 18 as having 'died in girlhood' or 'died in childhood,' which means that a girl is married when she is too young.
  19. My interviewee claimed that the marriages he performs are legitimate according to religion, even though they are illegal according to the state. In fact, in kawin liar some elements of essential principles (A. rukun) and prerequisites (syarat),[29] such as the presence of the representative (wali) of the bride and witnesses (saksi), are not necessarily fulfilled. The imam liar believes that the wali is simply a representative of the bride's family (wali nasab). If her family does not agree with the marriage, there is no point in having a representative. The imam liar may act as both 'imam' and 'wali hakim' of the bride.[30] In addition to this, witnesses are not necessary in kawin liar; people are reluctant to be witnesses to a kawin liar because they are afraid of future risk, especially in regard to elopement and polygyny. Thus, the 'validity' of kawin liar is not affirmed by the presence of wali or saksi.

    Grounds for kawin liar
  20. Kawin liar occurs for various reasons. The most common reason is to avoid following the legal procedures contained in the 1974 Marriage Law.[31] This is usually the case for a married man who wants to remarry without his wife's consent. In reference to PP No.10/1983, popularly known as PP 1031—another regulation related to marriage, divorce and sexual behaviour among civil servants—I often heard from male civil servants that this regulation is a state law to approve unofficial marriage. As they said: 'PP10 makes it difficult for a male civil servant to remarry,' while [in law] a polygynous marriage is approved as long as the former wife does not object.[32] There is a rumour regarding polygyny among civil servants in South Sulawesi that 'According to the governor, as long as a husband still supports his wife and children financially, it is not necessary for the wife to complain. If she does, the wife will be divorced without any financial support.'[33] Adulterous polygyny has become the marital culture of government officials.[34] Adultery is accepted as long as it is not publicly exposed. It is stated in the regulation that if the husband initiates the divorce, the wife is entitled to half of his salary.[35] If, however, a wife demands a divorce she will lose her right to financial support,[36] unless she has initiated the divorce because of her husband's polygyny.[37] In practice, the wife gets nil.
  21. In regard to legislation on polygyny, the imam liar suggested that PP 10 is a regulation to destroy the nation because it makes it difficult for a man to marry more than once. In other words, he agrees with polygynous marriage no matter how it is accomplished and whatever the reasons. Many of his clients were state officials. One of them was the head of police who was illegally married in 1990. At the time the imam liar was arrested because of a complaint by the policeman's wife and also by the representative of the bride and the members of the state-sponsored women's organisation of military wives, Dharma Wanita Bhayangkari. The imam liar was finally released after five days in jail because, he said, no one could prove that what he had done was wrong.
  22. Another motive for couples to marry illegally is lack of parental consent for their marriage. I interviewed a married couple that already had two children as a result of their kawin liar,[38] or what they preferred to call 'marriage by illegal procedure.' Despite the fact that they are happy, this marriage does not have legal status. Another case I was told about by the imam liar was the case of Tija and her boyfriend Hamid. Hamid abducted Tija because her parents did not consent to their marriage. She finally agreed to get married because she was under Hamid's threat. When the girl's parents came to the imam liar, complaining about the illegal marriage of their daughter, the imam defended himself by showing the statement in the marriage certificate that places all responsibility for the marriage on the couple themselves and told them to complain directly to the couple instead.
  23. Inability to pay the requested 'spending money'[39] is another reason for kawin liar. In this situation the young woman is often already pregnant when the couple comes to the imam liar for marriage. In such a case, there are two steps in the marriage. First, the couple is married by the imam liar for the sake of the unborn baby, or in his own terms, 'it is the baby who is married.' Soon after the baby is born, the couple are re-married in order to 'legitimate' their own marriage, or 'the parents the ones who are married.' In regard to this, there are two contrasting views in the community as to whether or not the marriage should be repeated. But in legal marriage, this has been resolved in the Kompilasi Hukum Islam (Compilation of Islamic Law) (KHI),[40] which states that the marriage of a pregnant woman does not have to be repeated after the baby is born.
  24. The acceptance of kawin liar, as an alternative to legal marriage, may also be based on the idea that marriage is a 'private business' that should fall outside state jurisdiction. Before the coming of Islam, marriage was considered legal if the families of both sides had given their consent, acknowledged by witnesses, but without any formal documentation. Such marriages were legalised through ritual ceremonies witnessed by the families of the bride and the groom and surrounding communities.[41] In the early seventies there was a debate between Muslim organisations and the state regarding the perceived secularisation of marriage and divorce that had ensued from giving civil courts extended jurisdiction.[42] In fact, the Marriage Law was one of the fundamental agendas demanded by Indonesian Women's Organisations in their first congress in 1928.[43] The right of the state to regulate marriage, established in the 1974 Marriage Law, has been accepted by the majority of people in Indonesia.
  25. Since the enactment of the Marriage Law in 1975, however, the implementation of marriage outside this regulation (e.g. kawin liar) has led to debate about whether or not this form of marriage is legitimate according to religion and/or legitimate according to custom but illegal according to the law. If a marriage is considered legitimate according to religion, in theory it should include principles (rukun) and prerequisites (syarat)[44]—as should marriage legitimated through custom and that recognised by the law, because, as noted previously, all three are interrelated. But many argue that whether or not such marriage is legal depends on an individual's beliefs. Thus, one may say that if the couple requires only the legitimacy of the marriage without legal status, kawin liar is sufficient.
  26. State Regulation (Peraturan Pemerintah)[45] insists that a marriage should be implemented in front of the PPN (Pegawai Pencatat Nikah or official marriage registrar) for Muslims, with two witnesses present.[46] Article 11 (1-3) states that a marriage is officially registered only if the, marriage certificate provided by the PPN, is signed by both the bride and the groom, both witnesses, and the bride's representative (A. wali).[47] These procedures indicate that marriage not only includes an act of law, but must also carry proof of legal status. M. Haryono, a young socio-religious observer, and R. Yudhie claim that the implementation of such marriages in the name of religious legitimacy, including illegal plural marriage (particularly polygyny among religious figures), unofficial marriage (kawin sirih) and contract marriage (kawin mut'ah), are 'crimes in the name of religion.'[48]

    Cerai liar, isbath nikah, remarrying
  27. Logically, if there is illegal marriage (kawin liar), there must also be illegal divorce (cerai liar). Cerai liar, literally 'wild divorce,' is a specific term used to describe an illegal divorce, whether or not the divorce is granted from a legal marriage. There are two common reasons why people come to the imam liar for an illegal divorce (cerai liar). First, the wife is neglected by her husband. Second, the husband wants to take another wife. Most people asking for this kind of divorce were women whose marriages were also illegal (liar). There were, however, some cases in which women from legal marriages came to the imam liar for a divorce in order to avoid the legal procedures of the Religious Court. A woman from kawin liar has no legal status to request a divorce through the Religious Court unless her marriage is first validated through a process termed, in Arabic, isbath nikah. Isbath nikah is the validation of a marriage requested in the Pengadilan Agama and which is required in the following cases: to finalise the process of divorce; when the marriage certificate is missing; when there is doubt about the validity of the marriage; for marriages implemented prior to the enactment of the Marriage Law of 1974; and for marriages implemented outside of the Marriage Law of 1974.[49] This reflects women's vulnerability in regard to kawin liar.
  28. To get an illegal divorce (cerai liar), both parties do not necessarily have to be present at the proceedings. When a divorce is initiated by the wife, the woman should tell the imam liar that she has been neglected physically (I. lahir, which literally means 'birth' but here refers to economic needs) and spiritually (bathin, a term that means 'inner self,' but is usually used to refer to sexual needs) by her husband for over one hundred days. This 100-day period is similar to the 'waiting period' (A. iddah) of a divorcee from a legal marriage. Whether or not this is true, the wife is not obliged to provide a witness. The imam liar considers that a divorce (A. talak) is automatically granted after this period which means that if a husband has been neglecting his wife for one hundred days the imam liar assumes the husband also wants a divorce. The imam liar believes, in the name of religion, that it is a husband who has the right to divorce his wife and not the reverse, no matter what the circumstances.
  29. A divorce initiated by the husband is even easier. He needs only to provide a letter of consent from his wife—whether or not the signature is really his wife's. In either case, the initiator should pay the standard cost for cerai liar, that is, Rp.1.000.000 (about $US100 at current exchange rates), consisting of Rp.500.000 (about $US50) for the cost of cerai liar and another Rp.500.000 which is considered to be a fine for the divorce, received by the imam liar. This is designed to caution the initiator—whether the husband or the wife—to think carefully before getting a divorce

    Figure 13. Certificate of an illegal divorce or cerai liar for a husband (English translation) Figure 14. Certificate of an illegal divorce or cerai liar for a husband in original language

    Figure 15. Certificate of an illegal divorce or cerai liar for a wife (English translation) Figure 16. Certificate of an illegal divorce or cerai liar for a wife in original language

    Figure 17. Certificate of legal divorce (in English translation) Figure 18. Certificate of legal divorce in original language

  30. An example of a case of cerai liar and kawin liar in Kulo is Rahmatiah, a 28-year-old woman with three children who had become a '"divorcee" who was not divorced' (B. janda tenri telle')[50] for almost three years after leaving her husband in Malaysia in order to see her sick mother and deliver her baby in Kulo. Her husband remarried in Malaysia without Rahmatiah's consent only months after she left Malaysia.
  31. During the period of my initial fieldwork in Kulo in 2000, Rahmatiah denied having a relationship with a married man named Rahman. When I revisited the village early in 2002, however, Rahmatiah was pregnant as a result of this non-marital relationship. I wondered how she was coping with her 'uncertain status' (I: status tergantung)[51] as she was still not legally divorced from her first husband. The Qur'an states that a husband should not keep his wife in a state of uncertainty and without financial support in order to make her suffer in a manner similar to torture.[52] In addition, the father of her unborn child was still married to someone else. She told me: 'My husband got married without my consent and without divorcing me, so why couldn't I?' This comment indicates her disappointment and anger at her husband's infidelity.
  32. While Sundanese[53] culture encourages remarriage soon after divorce because it testifies to a woman's attractiveness to men,[54] the Bugis culture is quite different. A widow or a divorcee is expected to remain unmarried for some time: for the widow this is to indicate her loyalty to her late husband; and for a divorcee, this is aimed to show her honour as a divorcee. There were a number of cases in the Religious Court in Sidrap in which a woman had finally filed for a divorce when there was another man who intended to marry her.
  33. As for a man, if a married woman wants to marry another man, a certificate of divorce was required by the Religious Court. In such cases, kawin liar may become an alternative method to avoid the obstacle of the lack of an official divorce that could prevent the legal procedures connected to the prospective marriage. In fact—in Rahmatiah's case—she was kawin liar right after cerai liar was granted by the imam liar. Therefore, a 'waiting period' (A. iddah) was not required as it would have been for a legal marriage, even though her first marriage was legal.
  34. In line with this, most cases of marriage validation (isbath nikah) filed in the Pengadilan Agama were the result of kawin liar.[55] In Kulo, for instance, a number of women, like Rahmatiah, had uncertain status. This is not to say that women are reluctant to get divorced, but that they were not able to pay for the divorce costs in the formal court system because of their poverty.[56] In Rahmatiah's case, both her divorce from her first husband and her second marriage were illegal and both were paid for by Rahmat, her second husband. Therefore, her first husband had no claim rights for the marriage because of its illegality.
  35. The judges in the Religious Court maintained that there was a significant connection between harvest time (April-May and October-November) and the number of cases filed in the court, because at that time, many people file for divorce because they have to money to do so. This trend was somewhat evident in the Religious Court in Sidrap for the period of my fieldwork.
  36. Fortunately, Rahmatiah did not have any difficulty related to the custody of her children. If women need help with divorce or child custody, the Religious Court is the sole institution able to deal with these matters. Legal Aid Services, such as Lembaga Bantuan Hukum untuk Pemberdayaan Perempuan (Legal Service for Indonesian Women Empowerment)(LBH-P2I) and Lembaga Bantuan Hukum-Assosiasi Perempuan Indonesia untuk Keadilan (Legal Service-Indonesian Women Association for Justice)(LBH-APIK), are accessible only in the capital city of Makassar with one office in Bone,[57] named Lembaga Pemberdayaan Perempuan (LPP). However, in a bilateral society like that of the Bugis in which the notion of the right of a father toward children is not strong, the custody of children is often in the hands of their mother. This contrasts with a patrilineal society like Bali in which there is a strong notion of paternal right and the children belonging to their father.[58]
  37. In Rahmatiah's case, it was not only that her second marriage was illegal, but also that this marriage was without the consent of either of her parents with whom she and her children from her first husband still lived, or from Rahmat's first wife, Haji Asma. Unfortunately, I was not able to talk to Haji Asma, but I was told that she had said: 'As long as he still financially supports us, I don't really care.' People said Haji Asma was not angry because her husband had paid for her pilgrimage to Mecca (hajj), a personal achievement which also enhanced her social status and which could be seen as recompense for her husband's polygynous marriage. This suggests that economic considerations are often more significant than personal attachment. In fact, Rahmat always spent the night in Haji Asma's house, while he visited Rahmatiah once in a while during the day, which indicates that he belonged to Haji Asma's house rather than to Rahmatiah's. Most importantly, as Haji Asma's children were grown enough to be independent, she wanted to enjoy her life with her new status, as a hajj. I was told not only by Rahmatiah, but also by the neighbours that she was given rice (Indonesian staple food) from Haji Asma once in a while. This indicates that Haji Asma, who lives in a moderate style, cares about Rahmatia and her children's (from her first husband) lives—an unusual attitude to adopt toward a co-wife.
  38. There are two reasons why Rahmatiah and Rahmat did not get married legally. First, Rahmat did not have any legitimate reason to take another wife. The Marriage Law states that a husband may marry more than one wife only if his wife cannot perform her duty as a wife, is physically handicapped or suffers from an incurable disease, and has no children.[59] Second, Rahmatiah was not divorced. Regardless of her financial difficulties, she was already pregnant and needed to be married immediately, while the process of a legal divorce would take a long time, especially because her first husband was in Malaysia. It is forbidden to propose to a woman who has not been divorced by her husband, let alone to marry her.[60] By resorting to kawin liar, however, all these requirements can be neglected, which makes it easier for a woman, like Rahmatiah, to remarry.
  39. Another exceptional case in Kulo was that of Nadirah (23 years), a village girl of a lower class family. Revisiting her in the village in 2002 was a surprise, since she had had another baby resulting from a second non-marital pregnancy. In the beginning, I did not think that her first marriage with her supposed father-in-law was illegal since she told me that she had a marriage certificate, and was divorced immediately afterwards (B. kawing pura).[61] This practice occurs to provide a social father for a baby. In fact, Nadirah's first and second marriages to different men were both problematic and illegal. This is in violation of the 1974 Marriage Law, Chapter I:1, which states that marriage is aimed to create a happy and everlasting family life. Hence, kawing pura is regarded as illegal and never happens through legal procedures in the court; rather, kawing pura is, in many cases, a solution to kawin liar.
  40. While I was waiting for Nadira to return from the wet rice fields, I talked to her grandmother who was babysitting both of Nadirah's sons. Nadirah's grandmother commented on Nadirah's marriage before I even asked her a question, by saying: 'All this has happened due to her fate because we don't think that they will ever be legally united since that man is still with his former wife.' Hence, Nadirah's second marriage was understood as her 'fate.' For Nadirah, however, the fact that her husband had not divorced his former wife was irrelevant. Nadirah was happy to be a wife and a mother of two children from the same father, instead of being a single mother, regardless of whether or not financial support was given. Since Nadirah's marriage was illegal, the first wife could not make a claim against her husband's polygyny through the Religious Court. In fact, a legal marriage can be cancelled if a husband practises polygyny without permission from the Religious Court.[62]
  41. Nadirah's grandmother's comment indicates the older woman's anxiety in regard to community gossip about her grand-daughter's problematic marriage, on the one hand, and the acceptance of her status on the other. What had happened with Nadirah was a case of siri' (shame) conduct.[63] However, I observed in a number of cases of siri' during my fieldwork that the response of the community towards lower class siri' was different from that associated with the middle class. Siri' for the middle class got more social attention and pressure from the community than it did for the lower class.
  42. Although kawin liar is regarded as illegal marriage, there is a way to make it socially acceptable through a customary ceremony, such as a 'small party' with a number of people invited to publicise that the couple have been married. On this account, the social legitimation of kawin liar is a matter of public announcement. In such a ceremony, it is usually women who prepare food in the kitchen, while men are the guests and perform a chant recounting the Prophet Muhammad's life (B. mabbarazanji). In Islamic legal weddings, the ceremony is related to the concept of the wedding feast that is associated with public announcement (A. walimah). Rahmat Sudirman argues that the walimah is not just a public announcement to show approval of the marriage, but also a ceremony to thank God and to express the happiness of the families of both the husband and wife.[64]
  43. In both Rahmatiah and Nadirah's cases, their marriages were legitimated through this ritual. However, their marriages did not have legal status according to the 1974 Marriage Law because these marriages were not conducted by an official marriage registrar.[65] But legal status is not important for ordinary people like Rahmatiah and Nadirah. What is more important for them is that they have a 'piece of paper' which indicates that they are married, whether or not it is a legal marriage certificate. As Nadirah said:

      I do not want to worry about whether or not this marriage is legal. The most important thing is that I have a marriage certificate that indicates that I am married, I am his wife and he is my husband.[66]

  44. Women who recognise their kawin liar tend not to report their case to the court. Nevertheless, this is not the case for women who have been deceived in their kawin liar. Nati, a woman I met in the Religious Court in Sidrap while I was waiting to observe the court hearing, is an example of a 'victim' of kawin liar. Despite her husband having divorced his first wife before marrying Nati, she was married to Hamid illegally. When Nati got pregnant, her 'husband' left her without any explanation and 'returned' to his former wife because, in fact, he had never divorced her. In such a case, the procedure of legal divorce is even more complicated because one is not solely dealing with the divorce, but also with the validation of marriage (A. isbath nikah).
  45. To obtain an acknowledgment from the court, Nati's marriage had first to be validated in terms of Islamic Law. Then, when a marriage certificate was issued, divorce could be processed. Nati was not aware of her illegal marriage status. As she stated:

      I did not know that my marriage was illegal, not until I went to the Religious Court to file for divorce and was told that I was not registered. I was really shocked to discover that my marriage was not registered because I had my 'marriage certificate,' I did not know that this certificate was issued illegally. If I had known that my marriage was illegal, I would not have come to the Religious Court. I felt that I had been deceived by my 'husband.'[67]

  46. This statement reflects Nati as being ignorant of the law. The marriage certificate she had was an illegal one, issued by an imam liar. Nati did not know the difference between legal and illegal marriage. Telling Nati that her marriage was illegal (kawin liar) is similar to questioning Hamid's divorce status, whether or not he truly divorced his first wife. After experiencing this illegal marriage, she realised that her marriage was a 'game marriage,' created by her husband to deny responsibility for his 'wife' and his unborn child. Nati's case was an unusual one because she had been deceived by her husband even though she was not pregnant when he married her.
  47. I observed both in the village and in the court hearings that women are not always the victims of kawin liar because it is also a situation in which women can exercise agency, as demonstrated in Rahmatiah's story above. In many cases, women are reluctant to report to the Pengadilan Agama, and so leave themselves vulnerable. They continue to practice kawin liar when remarriage is an alternative, particularly because of poverty. Getting married is a way to ensure financial support from a husband, as it is assumed that once she marries, the husband is financially responsible for his wife's support.

  48. While kawin siri and other kinds of illegal marriages are legitimated according to religion (Islam), and therefore have religious status; kawin liar is not, it is illegitimate according to religion and illegal according to the state. Thye illegality of kawin liar is not just because it is not registered by the state, but it is also because it does not follow the procedures and requirements of the religion (e.g. age of marriage, representative, witness etc.). Thus, kawin liar completely lacks the status of either legitimation or legalisation.
  49. Despite the fact that kawin siri follows the requirement of marriage according to Islamic Law, in many cases this kind of marriage is secret or is not openly announced, though it may be socially known. In spite of its illegality (by both religion and state), as long as kawin liar has been ritualised through a small gathering and/or qur'anic chanting to avoid gossip, it is socially legitimated. Hence, these kinds of illegal marriages have different degrees of social legitimation.
  50. Kawin liar is conducted not just to avoid legal and local requirements as well as procedures for marriage, but also when an individual male wants to take another wife especially in the following circumstances: civil servant prohibitions; lack of parental consent; inability to pay for spending money (bride wealth); and premarital pregnancy. There is a way, however, to legalise illegal marriage and illegal divorce, that is through isbath nikah, which is usually undertaken for the sake of remarriage. As for kawin liar, cerai liar is conducted when an individual ignores the procedures and requirements of legal divorce (e.g. waiting period, witnesses, etc.), when a wife is neglected by her husband, and when the husband wants to take another wife.
  51. Though some cases show that illegal marriage and divorce are without women's consent—especially for those who are ignorant of the law—other cases indicate that kawin liar and cerai liar are both based on consent. Women are not always victims of this kind of marriage since they can also exercise agency. However, these illegal practices can also serve as strategies for men who want to avoid financial responsibility to their wives and children since their illegality mean that women have no legal rights to claim. Thus, on one hand, the mother has the right to custody of the children. On the other hand, she lacks financial support, from her illegal husband, for the children born from the illegal marriage.
  52. Ultimately, the need for marital status is strong, whether or not the marriage or divorce is legal, as indicated by the need for a piece of paper that states whether a couple is married or divorced. The 'certificate' ensures that the couple is not in a state of fornication. So, as women commonly said, 'It's the matter of a piece of paper.'


    [1] In the text, terms in languages other than English are rendered in italics. Each is followed by an indication of its language and then by an English gloss of its meaning, or vice versa. Most of these words are Bugis (B), or Indonesian (I), and some are Arabic (A). Where many terms from one language, usually Bugis, are used in quick succession, only the first is identified.

    [2] Sulawesi is the name given to the orchid-shaped island of Indonesia that lies to the east of Kalimantan and to the west of the Moluccas. South Sulawesi refers to the south-western peninsula.

    [3] The native populace in South Sulawesi is made up of four ethnic groups: Bugis, Makassar, Toraja, and Mandar.

    [4] When discussing Muslim marriage in Indonesia, one should consider at least four state regulations: Undang-UndangPerkawinan No.1/1974 (the Marriage Law) and Peraturan Pemerintah No.9/1975 (the State Regulation No.9/1975); Instruksi Presiden No.1/1991 (the Presidential Instruction No.1/1991) in relation to Kompilasi Hukum Islam (Compilation of Islamic Law), together with Peraturan Pemerintah No.10/1983 (PP10) which is appended to regulate the marriage, divorce and sexual behaviour of civil servants.

    [5] The Religious Court is the Islamic Court in Indonesia which handles cases of family law.

    [6] Instead of mentioning the whole term and to avoid long repetition, I will only use the term of kawin sirih for the rest of the article, as this is the most commonly used term in Indonesia.

    [7] For example, the head office of the Department of Religion—Tsabit Najamuddin—expressed his concern about the practice of kawin liar in Polmas, one of the regencies in South Sulawesi. Among 186 cases of divorce in Polmas between 1998 and 1999, 5 per cent resulted from illegal marriages (kawin liar). See Fajar, Kawin Liar' Masih Sering Terjadi (Illegal Marriage Continuously Happens), 1 March 2000.

    [8] Iwu D. Utomo, 'Sexual attitudes and behaviour of middle-class young people in Jakarta,' PhD thesis, Canberra: the Australian National University, 1997, p. 175.

    [9] See, for example, D. Chapon, Divorce and Fertility: A Study in Rural Java, Population Institute Report series, No. 40, Yogyakarta, University of Gadjah Mada, 1976, p. 10; Terence H. Hull, and Valerie J. Hull, 'Changing marriage behaviour in Java: the role of timing of consummation,' in Southeast Asian Journal of Social Science, vol. 15 (1987):104–19, p. 108.

    [10] See Fikhi (A.) which is the codification of principles of conduct drawn by religious scholars from the Qur'an, Hadith (Traditions), analogy of those two sources, and consensus by Legalists. See Howard M. Federspiel, A Dictionary of Indonesian Islam, Southeast Asia Series, No. 94, Ohio: Athens, 1995. Thus, Fikhi/Nikah is the codification of the principles of conduct related to marriage, known in Indonesia as Fikhi Pernikahan.

    [11] See, for example, Syaikh Kamil M. 'Uwaidah, Fiqih Wanita (Women's Fiqh), trans. M. Abdul Ghoffar, Jakarta: E.M. Pustaka Al-Kautsar, 1998. pp. 406–07; Rahmat Sudirman, Konstruksi Seksualitas dalam Wacana Sosial (The Construction of Sexuality in Islamic Discourse: the Transformation of Interpretation on Sexuality), Yogyakarta: Penerbit Media Pressindo, 1999, pp. 113–14.

    [12] Qur'an, An-Nisa':59.

    [13] Masyiatul Maula, Menolak Mut'ah-Sirri, Memberdayakan Perempuan: Kajian Badal Nyai dan Kyai se Jawa Tengah dan Daerah Istimewa Yogyakarta (Refusing Mut'ah-Sirri, Empowering Women: Study of Badal Nyai and Kyai in West Java and Yogyakarta), Yogyakarta: The Ford Foundation and Rifka Annisa, 2002, pp. 1–2.

    [14] Wali is a term that refers to the nearest male relatives in the bride's or groom's paternal line.

    [15] Muhammad Salim, Peranan Lontarak Sebagai Sumber Pangngaderreng (The Role of Lontarak as a Source of Customs), Sarjana Thesis, Ujung Pandang: Universitas Veteran Republik Indonesia, 1978, p. 36.

    [16] Mattulada, Sejarah, Masyarakat and Kebudayaan Sulawesi Selatan (History, Society and Culture of South Sulawesi), Ujung Pandang: Hasanuddin University Press, 1998, pp. 85–89; Mattulada, Latoa: Satu Lukisan Analitis terhadap Antropologi Politik Orang Bugis (Latoa: A Descriptive Analysis of Bugis Political Anthropology). Ujung Pandang: Hasanuddin University Press, first edition, 1985; second edition, 1995, pp. 54–55; Mattulada, 'Kebudayaan Bugis Makassar' (The Culture of Bugis-Makasarese), in Manusia dan Kebudayaan di Indonesia, ed. Koentjaraningrat, Jakarta: Penerbit Djambatan, 1971, pp. 264–83, pp. 275–277defines pangngadereng as a holistic norm, including how people act among themselves and the relationships between people and institutions which result in community dynamics. Pangngadereng consists of ade' (B. ethical norms), bicara (justice system), rapang (guidelines for the conduct of kinship and political relationships), wari (classified and ordered society) and sara' (Islamic law).

    [17] B. Ter Haar, Adat Law in Indonesia, translated from the Dutch and edited with an Introduction by E. Adamson Hoebel and A. Arthur Schiller, New York: Institute of Pacific Relations, 1948. Together with Hoebel and Schiller, Ter Haar discusses government policy and dualism in the law (between state and adat law) in the late nineteenth century when there was an attempt to develop an intermediate law. It was not successful. See Hoebel & Schiller, 'Introduction,' in Adat Law in Indonesia, B. Ter Haar, New York, Institute of Pacific Relations, 1948, pp. 1–43.

    [18] Hisako Nakamura, 'A study of dissolution of marriage among Javanese Muslims,' M.A. thesis, Canberra: the Australian National University, 1981, p. 41.

    [19] See, for example, Millar's discussion on Bugis marriage. Susan B. Millar, Bugis Weddings: Ritual of Social Location in Modern Indonesia, Monograph Series, No. 29, Center for South and Southeast Asian Studies, Berkeley: University of California, 1989, p. 81.

    [20] Kathryn M. Robinson, 'Gender, Islam and culture in Indonesia,' in Love, Sex and Power: Women in Southeast Asia, ed. Susan Blackburn Clayton: Monash Asia Institute, 2001, pp. 17–30, p. 21.

    [21] For a discussion on Soroakan marriage, see Kathryn M. Robinson, Stepchildren: The Political Economy of Development in an Indonesian Mining Town, Albany: State University of New York Press, 1986, p. 235.

    [22] See Millar, Bugis Weddings, for the display of social location in Bugis weddings.

    [23] Natzir Said, Siri' sebagai Suatu Nilai Dasar atau Pedoman Bertingkah Laku (Norma-Norma) dalam Tertib Sosial di Sulsel (Siri' as a Basic Value or Orientation of Behaviour (Norms) in Social Order in South Sulawesi), Ujung Pandang: Pusat Penelitian Pembangunan Pedesaan dan Kawasan, Lembaga Penelitian Unhas, 1984.

    [24] Said, Siri' sebagai Suatu Nilai Dasar atau Pedoman Bertingkah Laku (Norma-Norma) dalam Tertib Sosial di Sulsel, p. 27.

    [25] Desa Mario, Kecamatan Kulo, Kabupaten Sidrap, South Sulawesi.

    [26] During the interview, he accepted imam liar as the term for his illegal status. Interview with Ummareng, 4 August 2002, Desa Mario, Kecamatan Kulo, South Sulawesi.

    [27] Interview with Ummareng, 4 August 2002, Desa Mario, Kecamatan Kulo, South Sulawesi.

    [28] Interview with Ummareng, 4 August 2002, Desa Mario, Kecamatan Kulo, South Sulawesi.

    [29] The essential principles (A. rukun) consist of the presence of the bride, the groom, the representative (wali), two male witnesses (saksi), and the granting of consent by the bride's family during the wedding ceremony (ijab-kabul). In addition to the essential principles (rukun) of marriage, there are eight prerequisites (syarat) for the bride and groom. The syarat, or prerequisites, for the bride are that she must be a Muslim woman, heterosexual, unmarried, and not in a period of waiting (iddah); she has given her consent to her wali; the groom is not her muhrim, a term that indicates a degree of consanguinity between a man and a woman that renders marriage impossible, but gives them the right of association; she has never been cursed (li'an) by the prospective groom; and she is not undertaking a pilgrimage. The prerequisites (syarat), for the groom are: he has to be a Muslim and a heterosexual; he cannot already have four wives at the same time nor have a wife who is forbidden to be the co-wife of the prospective bride; he is not the muhrim of the bride and is not being forced to marry the bride; he knows that his wife is not forbidden to marry him; and he is not undertaking pilgrimage. In regard to the syarat for the wali of the bride and for the saksi: they should be a mature, just, and Muslim; physically and psychologically healthy; and understand the aim of the consent granted by the bride's family (ijab-kabul). For the wali, he should not be the representative of anyone else at the same time.

    [30] Wali (A.) consists of wali nasab, as explained above, and wali hakim who acts as a wali on behalf of the father or male relatives of the bride if the wali nasab cannot be present.

    [31] The Marriage Law 1974, Chapter I, 5:1a, states that a man who wants to remarry has to have his former wife's consent.

    [32] PP 10 (Peraturan Pemerintah No. 10/1983) is concerned with the registration of marriage, permission for marriage and divorce, salary splitting arrangements following a divorce, and the extramarital sexual relationships of civil servants.

    [33] The statement was made in 2000 when Zainal Basri Palaguna was governor of South Sulawesi.

    [34] Julia I. Suryakusuma, 1996. 'The State and sexuality in New Order Indonesia,' in Fantasizing the Feminine in Indonesia, ed. Laurie J. Sears, Durham and London: Duke University Press, 1996, pp. 92–119, p. 108.

    [35] PP 10/1983, Article 8:1.

    [36] PP 10/1983, Article 8:4.

    [37] PP 10/1983, Article 8:5.

    [38] This is also a motivation for elopement among other ethnic groups, such as Sasak and Balinese. See, for example, Linda R. Bennett, 'Dialectic of desire and danger: maidenhood, sexuality and modernity in Mataram, Eastern Indonesia,' PhD thesis, Brisbane: University of Queensland, 2002, chapter 5.

    [39] See Millar, Bugis Weddings, pp. 69–71) for a discussion on customary principles of Bugis weddings. I was told by the head of the Religious Court at Sidrap that the standard spending money for commoners is Rp.7.000.000 ($US700, at current exchange rates).

    [40] KHI which stands for Kompilasi Hukum Islam (Compilation of Islamic Law) is based on the Presidential Instruction No. 1/1991. It is a compilation of various perspectives and is used as a guide or precedent for judges in the implementation of Islamic Law in the Religious Court. It contains a series of regulations which explain local norms of social interaction and normative dimensions of functional interpretations of Islam. KHI, Kompilasi Hukum Islam di Indonesia, Direktorat Pembinaan Badan Peradilan Agama, Direktorat Jenderal Pembinaan Kelembagaan Agama Islam, Departemen Agama Republik Indonesia, 1999/2000, Chapter VIII, 53:3.

    [41] Said, Siri' sebagai Suatu Nilai Dasar atau Pedoman Bertingkah Laku (Norma-Norma) dalam Tertib Sosial di Sulsel, p. 27.

    [42] John R. Bowen, 'Contextual Interpretation and Legal Pluralism in Indonesian Islamic Jurisprudence,' unpublished manuscript, n.d. Susan Blackburn and Sharon Bessell, 'Marriageable age: political debates on early marriage in twentieth-century Indonesia,' in Indonesia, vol. 63 (April 1997):107–42.

    [43] Robinson, 'Gender, Islam and culture in Indonesia,' p. 28.

    [44] See Endnote 4.

    [45] The implementation of the Marriage Law was regulated under PP (Peraturan Pemerintah or State Regulation), No. 9/1975.

    [46] Peraturan Pemerintah, Article 10:3.

    [47] Peraturan Pemerintah, Article 11:1-3.

    [48] M. Yudhi R. Haryono, 'Religion Crime,' in Gamma, vol. 8, no. 14 (November 2000):93.

    [49] KHI, Chapter II, 7:3.

    [50] De facto, janda tenri telle' automatically becomes the household head, whether or not she lives with her children or lives with her parents as a joint family in which de jure her father becomes head of the household. See Jones' analysis of the demographic aspects of de jure and de facto of female-headed households. Gavin W. Jones, 'The changing Indonesian household,' in Women in Indonesia: Gender, Equity and Development, ed. Kathryn Robinson and Sharon Bessell, Indonesian Assessment Series, Singapore: Institute of Southeast Asian Studies, 2002, pp. 219–34, pp. 220–24.

    [51] Status tergantung is the term I use to describe the status of a woman who has been living separately from her husband without emotional and financial support, but has not yet divorced.

    [52] Qur'an, Al-Baqarah: 231.

    [53] Sundanese is the ethnic group of Western Java, Indonesia.

    [54] Yasmine Al-Hadar, Perkawinan and Perceraian di Indonesia: Sebuah Studi antar Kebudayaan (Marriage and Divorce in Indonesia: An Intercultural Study), Jakarta: Lembaga Demografi - Fakultas Ekonomi, Universitas Indonesia. 1977, p. 72; Lida C.L. Zuidberg & Anidal Hasyir, 'Family, Marriage and Fertility in Serpong,' in Family Planning in Rural West Java, ed. Zuidberg, Leiden: Institute of Cultural and Social Studies & Jakarta: Djambatan, 1978, pp. 73—104, p. 88.

    [55] For instance, there were 17 cases of isbath nikah in 2000 and 10 cases in 2001 (data provided by the Religious Court in Sidrap). Although this data does not represent the whole number of kawin liar in Sidrap because it is possible that other cases are not reported, it indicates that kawin liar continually occurs.

    [56] The cost of a legal divorce case varies between Rp.270.000,- and Rp.450.000,- (US$27 and US$45 at current exchange rates). Costs vary based on the distance of residence. For instance, if the residence is situated around the Religious Court, the cost will be Rp.270.000,- if in a different subdistrict Rp.350.000,- etc. Interview with an official in the Religious Court, Sidrap, 31 July 2002). Thus, cerai liar is more expensive than legal divorce.

    [57] Bone is one of the regencies in South Sulawesi to the southeast of Sidrap.

    [58] Kathryn Robinson, 'Indonesia women: from order baru to reformasi,' in Women in Asia: Tradition, Modernity and Globalisation, ed. Louise Edwards and Mina Roces, Women in Asia Publication Series, Sydney: Allen and Unwin, 2000, pp. 139–69, pp. 143–44.

    [59] The Marriage Law, Chapter I, 4:2.

    [60] The Marriage Law, Chapter III, 12:2.

    [61] Kawing pura—which consists of two words: kawing - marriage and pura – ending—is the local term that is used to describe a divorce right after marriage.

    [62] KHI, Chapter XI:71a.

    [63] Siri', which may be defined as 'shame' or 'honour,' is central to the Bugis world view, and is regarded as the soul and the spirit of each individual in the society. Errington notes that 'siri' is unique to South Sulawesi,' but various cognate terms are found throughout Southeast Asia. She defines siri' as 'dignity, honour or shame.' She draws parallels with malu (Indonesian), isin (Javanese), lek (Balinese), and hiya (Tagalog). Similarly, Errington points out that 'a person who has siri' is sensitive to, hence vulnerable to, other people.' Shelly Errington, Meaning and Power in a Southeast Asian Realm, Princeton: Princeton University Press, 1989, p. 145.

    [64] Sudirman , Konstruksi Seksualitas dalam Wacana Sosial, p. 113.

    [65] KHI, Chapter II:62.

    [66] Nadirah, 25 years in 2002, 'married,' two children, graduated from high school, wedding decorator, interviewed on 13 January 2002, Desa Maddenra, Kecamatan Kulo, Sidrap, South Sulawesi.

    [66] Nati, 25 years, 'married,' housewife, first pregnancy, graduated from junior high school, interviewed on 10 May 2000, in the waiting room of the Religious Court Sidrap, South Sulawesi.

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