by Dharma Na Gara

Hukum Perdata-Civil LawFebruary 12, 20231 comment 1 Like

Capability to Act in Front of the Law

Capability to Act in Front of the Law

People who are not capable of acting before the law

Although according to current law, everyone without exception can have their rights, but under the law, not everyone can be allowed to act alone in exercising their rights. There are several groups of people who by the law have been declared incompetent or incompetent to act alone in carrying out legal actions, thus they must be represented or assisted by other person. According to Article 1330 of the Indonesia Civil Code, those who have been declared incompetent by law to carry out legal actions themselves are:

• Minors;
• People who are placed under guardianship (curatele);
• The woman in marriage (married woman) has been revoked.

Ad.1 Minors (immature people)

Minors can only exercise their rights and obligations through the intermediary of others, or are prohibited from doing so. The ability to act under the law for persons who are not yet mature is regulated in the following provisions:

• According to article 330 of the Indonesia Civil Code, a person is said to be immature if he has not reached the age of 21 years and has not been married before. If he is married, then he is considered an adult and he will not be a minor anymore, even though the marriage is terminated before he reaches the age of 21 years.
• To enter into marriage:
  • According to Article 29 of the Indonesia Civil Code, a man must be 18 years old and a woman must be 15 years old.
  • According to Article 7 paragraph (1) of Indonesian Law Number 1 year 1974 regarding Marriage, for a man must be 19 years old and for a woman 16 years old and after the enactment of Indonesian Law Number 16 year 2019 regarding Amendments to Indonesian Law Number 1 year 1974 regarding Marriage, marriage is only permitted if a man and a woman have reached the age of 19 (nineteen) years old.
  • In the law of inheritance, a person who has not reached the age of 18 years cannot make a will (Article 897 of the Indonesia Civil Code).
  • According to Article 198 of Indonesia Law Number 7 Year 2017 regarding the , to be able to vote in general elections must be 17 years old or more or has marriaged or was marriaged.

Ad. 2 People who are placed under guardianship (curatele)

According to Article 433 of the Indonesia Civil Code, a person who is placed under custody/guardianship is a person who is dull-witted, has memory problems and is an extravagant person. Regarding this matter, it is regulated in the following provisions:

• A person who because of his intellectual imperfection is placed under guardianship, has bound himself in a marriage, could be asked to annul the marriage (Article 88 paragraph 1 of the Indonesia Civil Code).
• To be able to make or revoke a will, a person must have his mind (Article 895 of the Indonesia Civil Code).
• Those who are placed under guardianship are considered incompetent to make an agreement (Article 1330 of the Indonesia Civil Code).

Ad. 3 The Position of Woman in Law

Especially for a woman who is declared incompetent in legal actions in terms of:

• To make an agreement, require assistance or permission from the husband (Article 108 of the Indonesia Civil Code).
• To appear before a judge must be with the help of the husband (Article 110 of the Indonesia Civil Code).

For now, the provisions of Article 108 of the Indonesia Civil Code had been revoked by Circular Letter of the Supreme Court Number 3 year 1963 dated 4 August 1963. This is also reaffirmed in Article 31 of Indonesia Law Number 1 year 1974 regarding Marriage, where the rights and position of the wife is balanced with the rights and position of the husband in domestic life and social life also in society; and each party has the rights to take legal action. Furthermore, according to Article 36 paragraph (2) of Indonesia Law Number 1 year 1974 regarding the property of inheritance of each husband and wife have the full right to take legal actions regarding their property of inheritance.

However, in certain cases, even though a wife who is considered capable of carrying out legal actions by Indonesia Law number 1 year 1974, in carrying out actions against marriage joint property/assets she must be act with the consent of the husband, unless there is a marriage agreement in which there’re strict and clear separation agreement on marriage assets.

For more informations, please consult with us.

Source:

Prof. Subekti, S.H., 2003, Pokok-pokok Hukum Perdata cetakan XXXIV, PT. Intermasa, Jakarta.

Prof. R. Subekti, S.H., and R. Tjitrosudibio, 2007, Kitab Undang-undang Hukum Perdata/Burgerlijk Wetboek, Pradnya Paramita, Jakarta.

P.N.H. Simanjutak, S.H., 2015, Hukum Perdata Indonesia, Prenadamedia Group, Jakarta.