Volume 3 Number 9 September 2024 E-ISSN: 2963-2900 | P-ISSN: 2964-9048 https://jmi.rivierapublishing.id/index.php/rp
Sekolah Tinggi
Ilmu Hukum dan Politik Pelopor Bangsa
Email: [email protected]
Abstract
This study explores how Article 45 of Law No.
1 of 1974 concerning Marriage is applied to fulfill children's rights after
divorce. The main focus of this study is to understand how the principle of
legal certainty, which is the legal basis in Indonesia, is implemented in
divorce cases, especially related to the fulfillment of children's rights. This
study uses a normative juridical method with a legislative approach and
secondary data analysis. The results of this study show that although Article
45 of the 1974 UUP explicitly regulated the obligations of parents to fulfill
the rights of children after divorce, in practice, there are still various
obstacles. These obstacles include a lack of legal understanding and awareness
from the parties, as well as gaps in the application of the law that cause
children's rights to not be fully fulfilled. This study recommends improving
regulations and increasing supervision in implementing existing policies. Thus,
it is hoped that children's rights in divorce cases can be better protected, in
line with the principle of legal certainty guaranteed by law.
Keywords:
Children's Rights After Divorce, Legal
Certainty
INTRODUCTION
Divorce is a social
phenomenon that cannot be avoided in the life of modern society (Kitanović, 2015). When divorce occurs, not only the husband
and wife are affected, but the children who are the result of the Marriage also
experience significant consequences (Roza et al., 2024). Children are often the victims who suffer
the most in these situations because they are caught between their parents'
conflicts (Sullivan et al., 2024). Therefore, the law needs to protect the
rights of children after divorce, ensuring that they continue to get their
basic rights even if their parents are no longer together.
In Indonesia's legal context, Article 45 of Law No. 1 of
1974 concerning Marriage regulates parents' obligation to maintain and educate
their children. This article confirms that the responsibility remains valid
even after a divorce. However, implementing this rule often encounters various
obstacles that hinder fulfilling children's rights (Quennerstedt &
Quennerstedt, 2014).
This research is motivated by concern about the fate of
children whose rights are not fulfilled properly after divorce (Djawas et al., 2023). In addition, it is important to analyze the
extent to which the principle of legal certainty on which the law is based has
been applied in reality (Acar & Sudrajat,
n.d.). The study aims to identify problems arising in
implementing Article 45 and provide recommendations that can improve the
effectiveness of protecting children's rights (Adi, 2023).
Problem Formulation
This research focuses on two main questions. First, how
is Article 45 of Law No. 1 of 1974 concerning Marriage applied in the
fulfillment of children's rights after divorce? Second, has the principle of
legal certainty been effectively implemented in this context? These two
questions are important to answer how the law can protect children whose
parents are divorced.
Research Objectives
The main purpose of this study is to analyze the
application of Article 45 in the context of fulfilling children's rights after
divorce (Rohman Uni et al., 2020). It also aims to assess whether the
principle of legal certainty guaranteed by law has been effectively implemented
in divorce cases (Shcherbanyuk et al.,
2023). The results of this research are expected to provide
deeper insights into existing problems and become the basis for future legal
policy improvements (Dwivedi et al., 2021).
Research Benefits
This research has several important benefits, both
theoretically and practically (McShane & B�ckenholt,
2017). Theoretically, this research is expected to enrich the
study of family law, especially protecting children's rights after divorce.
Meanwhile, practically, the results of this research can be a reference for
legal practitioners, policymakers, and other related parties to improve the
law's implementation so that children's rights can be better protected.
RESEARCH METHODS
This research uses a normative juridical approach, which
is an approach that focuses on the analysis of laws and regulations relevant to
the issue being studied. This method was chosen because it is by the purpose of
the research, which is to examine the extent to which existing legal provisions
have been applied in practice. The data used in this study is secondary data
consisting of literature, laws and regulations, and related court decisions.
RESULTS
AND DISCUSSION
1. Challenges
in the Implementation of Article 45 of Law No. 1 of 1974
Implementing Article 45 of Law No. 1 of 1974 faces
serious challenges in protecting children's rights after divorce. One of the
main challenges is the lack of legal understanding among divorced parents. Many
parents are unaware that their obligations to their children do not end in
divorce. This is often due to a lack of legal education or a superficial
understanding of the rights and obligations governed by law. As a result,
children fall victim to this ignorance, where their needs for treatment, education,
and financial support are not met.
In addition to the lack of legal understanding, another
problem is the existence of varying interpretations among judges regarding the
application of Article 45. Although the law has established clear provisions,
the application of these provisions may vary depending on the subjective views
of the judge handling the case. This can create legal uncertainty, where the
parties involved in a divorce case are not clear about their rights and
obligations.
In addition, challenges in law enforcement are also a
significant obstacle. The court may have established custody and child support
in its decision, but there are often difficulties in enforcing the decision.
Some parents who do not obtain custody may refuse to pay child support, while
parents who do obtain custody may face difficulties in ensuring that their
ex-spouse complies with the court's decision. This non-compliance reflects
weaknesses in the law enforcement system, where sanctions for parties not complying
with court decisions are often not strict enough to ensure compliance.
2. Social
and Psychological Impact on Children After Divorce
Divorce not only affects the relationship between husband
and wife but also has a huge impact on the children involved. Children from
divorced families often experience a variety of social and psychological
problems that can affect their development in the long run. One of the main
impacts of divorce is emotional instability, where children may feel lost,
confused, and stressed due to sudden changes in their family structure.
In addition, divorce can also affect a child's academic
achievement. Children who are involved in parental divorce often experience
decreased motivation and concentration in school, which can lead to a decline
in their academic performance. This may be due to a lack of emotional support
at home or the presence of psychological pressure that interferes with their
focus on studying.
Furthermore, divorce can affect a child's social
relationships. Changes in family dynamics may cause children to feel isolated
from their peers, and they may also face social stigma as a result of their
parents' divorce. This can lead to difficulties in building healthy social
relationships and affect their ability to interact with others in the future.
In addition to the social and psychological impacts,
divorce often causes economic problems for children. When parents divorce, the
family's financial resources are usually divided, which can lead to a decrease
in the children's living standards. In some cases, the child support set by the
court is not enough to meet the child's basic needs, which can affect their
overall quality of life.
3. Analysis
of Weaknesses in the Legal and Supervisory System
Weaknesses in the legal system related to the application
of Article 45 are not only limited to a lack of understanding of the law and
weak enforcement. There are also problems in the legal structure itself that
need to be fixed. For example, existing laws may not fully respond to
children's needs in divorce situations, especially in the ever-changing modern
context.
One of the main drawbacks is the lack of effective
monitoring mechanisms to ensure that children's rights are fulfilled after
divorce. Currently, no unified system monitors whether parents fulfill their
obligations according to court decisions. This creates a gap where children can
easily be overlooked, especially if there is no oversight of fulfilling their
rights.
In addition, there are also problems in the training and
education of law enforcement, including judges, on specific issues related to
post-divorce child rights. Many judges may not have in-depth knowledge of the
psychological impact of divorce on children or are not trained enough to handle
cases involving conflicts of interest between parents and children. This can
lead to inadequate decisions that do not fully protect the interests of
children.
4. Recommendations
for Improving the Legal and Supervisory System
Based on the analysis of existing weaknesses, several
steps are needed to improve the legal system and supervision to better protect
children's rights after divorce. One of the main steps is to strengthen law
enforcement by introducing stricter sanctions for parties who do not comply
with court decisions related to custody and child support. These sanctions can
be fines, restrictions on certain rights, or even criminal penalties for those
deliberately neglecting their legal obligations.
In addition, it is important to improve education and
training for law enforcement on issues related to children's rights.
Specialized training programs for judges, lawyers, and court officers can help
improve their understanding of how to protect children's rights in divorce
cases. The program may also include training on the psychological impact of
divorce on children and how to consider these factors in decision-making.
Another step that can be taken is to introduce a more
effective monitoring mechanism to ensure the fulfillment of children's rights.
For example, the government can establish an independent body tasked with
monitoring and enforcing the fulfillment of court decisions related to custody
and child support. The agency can work closely with courts, local authorities,
and non-governmental organizations to ensure children receive the support they
need.
In addition, the law must be revised to adjust to the
development of the times and the needs of children in the modern era. For
example, the law could be expanded to include more specific provisions on
co-parenting, visitation arrangements, and child support in situations where
parents live in different locations. This revision should consider the child's
best interests as the top priority and ensure that the law is flexible but
still provides the necessary legal certainty.
5. A
Comprehensive Approach to the Protection of Children's Rights
A more comprehensive approach involving various parties,
including governments, legal institutions, non-governmental organizations, and
the community, is needed to improve the protection of children's rights. Public
education on the importance of protecting children's rights after divorce
should be improved through social campaigns, educational programs, and
counseling services. The purpose of this approach is to change perceptions and
attitudes towards divorce so that parents are more aware of their responsibilities
towards their children.
Furthermore, the government needs to play an active role
in providing support services for children involved in their parents' divorce.
These services can include psychological counseling, legal help, and social
support to help children cope with the negative effects of divorce.
Additionally, programs designed to strengthen the bond between children and
their parents, even after divorce, can help reduce any adverse effects that may
arise.
More inclusive policies are also needed to ensure that
all children, regardless of their social and economic background or parental
status, have equal access to legal protections. This policy should include
special protections for children living in vulnerable conditions, such as
children with disabilities or those from low-income families.
6. Policy
Conclusions and Implications
From the above discussion, it is clear that many
challenges are faced in applying Article 45 of Law No. 1 of 1974 related to the
protection of children's rights after divorce. Although the law is designed to
protect children's interests, many loopholes often cause children's rights to
be overlooked. These challenges include a lack of understanding of the law,
weaknesses in law enforcement, varied interpretations, and ineffective
oversight. To address these challenges, stronger measures in law enforcement,
increased education and training for law enforcers, and better oversight
mechanisms are needed. In addition, there is a need for a comprehensive
approach involving various parties to ensure that children's rights are
protected to the maximum. With these measures, it is hoped that Indonesia's
legal system can provide better protection for children whose parents are
divorced so that they can grow and develop in a safe and stable environment.
CONCLUSION
From the
analysis that has been carried out, it can be concluded that the protection of
children's rights after divorce in Indonesia still faces various significant
challenges. The application of Article 45 of Law No. 1 of 1974, which regulates
the obligations of parents to their children after divorce, has not fully gone
well. One of the main obstacles is the lack of legal understanding among the
community, especially divorced parents. This ignorance causes many children's
rights to be neglected in terms of care, education, and financial needs. In
addition, weaknesses in law enforcement and varying interpretations from judges
also add to the law's uncertainty, so court decisions related to custody and
child support are often not followed properly. The lack of an effective
oversight mechanism exacerbates this situation, as no system ensures that court
decisions are executed. To improve this condition, a more comprehensive and
coordinated approach is needed from various parties, including the government,
legal institutions, and the community. Steps that need to be taken include
increasing education and legal awareness, stronger law enforcement with strict
sanctions, and the development of monitoring mechanisms that ensure that
children's rights after divorce are properly fulfilled. By strengthening the
legal and supervisory system, as well as involving all levels of society in
efforts to protect children's rights, it is hoped that children involved in
their parent's divorce can continue to get the attention and support they need
to grow and develop properly.
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