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Journal articles on the topic 'Rights of the biological father'
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1
Louw, Anne. "The Constitutionality of a Biological Father's Recognition as a Parent." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 13, no. 3 (June 19, 2017): 155. http://dx.doi.org/10.17159/1727-3781/2010/v13i3a2688.
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Despite the increased recognition afforded to biological fathers as legal parents, the Children's Act[1] still does not treat fathers on the same basis as mothers as far as the automatic allocation of parental responsibilities and rights is concerned. This article investigates the constitutionality of the differential treatment of fathers in this respect, given South Africa's international obligations, especially in terms of the United Nations Convention on the Rights of the Child, to ensure that both parents have common responsibilities for the upbringing of their child. After a brief consideration of the constitutionality of the mother's position as parent, the constitutionality of the father's position is investigated, firstly, with reference to Section 9 of the Constitution and the question of whether the differentiation between mothers and fathers as far as the allocation of parental responsibilities and rights is concerned, amounts to unfair discrimination. The inquiry also considers whether the differentiation between committed fathers (that is, those who have shown the necessary commitment in terms of Sections 20 and 21 of the Children's Act to acquire parental responsibilities and rights) and uncommitted fathers may amount to discrimination on an unspecified ground. Since the limitation of the father's rights to equality may be justifiable, the outcomes of both inquiries are shown to be inconclusive. Finally, the legal position of the father is considered in relation to the child's constitutional rights – the rights to parental care and the right of the child to the paramountcy of its interests embodied in Section 28 of the Constitution. While there appears to be some justification for the limitation of the child's right to committed paternal care, it is submitted that an equalisation of the legal position of mothers and fathers as far as the automatic acquisition of parental responsibilities and rights is concerned, is not only justified but imperative if the constitutional rights of children are to be advanced and protected.[1] 38 of 2005.
2
Nduna, Mzikazi. "Growing Up Without a Father and a Pursuit for the Right Surname." Open Family Studies Journal 6, no. 1 (December 31, 2014): 31–38. http://dx.doi.org/10.2174/1874922401406010031.
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Young people who grew up without their biological fathers may or may not use their surnames. This paper contributes to an understanding of young people’s views of the relevance of a biological paternal surname. We conducted gender-matched in-depth interviews with 73 volunteers aged 14-39 in two South African provinces and transcribed and translated audio-recorded home language interviews into English. The findings indicate that the pursuit for using a biological father’s surname was motivated by seeking ancestral protection, seeking one’s father so that he could play an overseeing role in rituals, and citizenship rights; some participants believed that the use of a biological father’s surname was essential for registration for an identity document, passport, marriage and death certificate. However, there was no agreement in the data about the importance and usefulness of using a biological father’s surname. In conclusion, the article maintains that the father’s surname is important for some children who grew up without their fathers.
3
Ula, Faizatul Fil, Risma Meliyana, Rohmatul Ilahiyah, and Mohammad Tohir. "Hak Waris Bagi Anak Hasil Zina dalam Kajian Ilmu Matematika dan Hukum Islam." FOKUS Jurnal Kajian Keislaman dan Kemasyarakatan 5, no. 2 (December 28, 2020): 197. http://dx.doi.org/10.29240/jf.v5i2.1797.
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Mawaris in the fiqh discourse is commonly referred to as the science of faraidh. Faraidh discusses the issue of inheritance rights (tirkah) to the heirs of the owner who has passed away. One of the problems related to inheritance law is the inheritance rights for a child resulting from adultery and its distribution mathematically. Hence, this study aims to describe the role of mathematics in the distribution of inheritance rights for a child resulting from adultery based on the Islamic law. The research method used is a literature study, documentation, and focused discussion. The subjects in this study are inheritance and Islamic law, while the objects are children of adultery. The results show that: (1) the ability to perform basic operations and mathematical fraction operations plays an active role in the distribution of inheritance rights for a child resulting from adultery; (2) choosing the right problem-solving strategy is very helpful in distributing inheritance rights for a child resulting from adultery; (3) the role of mathematics in the distribution of inheritance rights for a child resulting from adultery can minimize the controversy that often occurs in society; (4) Islamic law has determined that a child resulting from adultery does not fester on the part of the biological father, but on the side of the biological mother even though the one who married the biological mother is the biological father; (5) a child resulting from adultery only gets inherited property from the biological mother, while from the biological father's side, that child only gets obligatory assets; and (6) the decendant’s status falls on the biological father if the child has been born for more than 6 months after the marriage contract between the parents
4
Hafidzi, Anwar, Nadiyah Khalid, and Rina Septiani. "THE BIOLOGICAL FATHERS HAVE CIVIL RIGHTS WITH EVIDENCE AND CONVICTION OF THEIR CHILDREN." Jurnal Ilmiah Al-Syir'ah 18, no. 2 (December 27, 2020): 127. http://dx.doi.org/10.30984/jis.v18i2.1127.
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This paper aims to prove that Biological Children can provide Civil Relations with their fathers if they have an apparent legal force. This study differs from other researchers in the comparative aspect of normative Law and Islamic Law. This difference lies in the Constitutional Court decision results, which states that children produced outside of marriage have a civil relationship with the mother and family of their mother, father, and family of their biological father, which can be proven by DNA testing between them. Meanwhile, according to Islamic Law, children outside of marriage (Zina) only have a civil relationship or blood relationship with the mother and the mother's family. The method used in this research is a literature review with a normative approach to the Constitutional Court decision and the Scholar's opinion on children outside of marriage (Siri). This research found that children can biologically provide civil relations with their parents if done in marriage and proven by clear legalities such as witnesses and marriage documents. The presence of a decision of the Constitutional Court is a legal assurance or defense of the human rights of a citizen, whether they have the correct data and facts to their civil relations.
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Sandimula, Nur Shadiq. "THE STATUS AND RIGHTS OF AN ILLEGITIMATE CHILD ACCORDING TO MAZHAB ASY-SYAFI'I PERSPECTIVE ON THE DEVELOPMENT OF ISLAMIC FAMILY LAW IN INDONESIA." Jurnal Ilmiah Al-Syir'ah 17, no. 2 (December 18, 2019): 121. http://dx.doi.org/10.30984/jis.v17i2.952.
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The problem of free social interaction brings a grave danger to society which is involved the sexual act out of wedlock which is known as fornication (zina) and causes a harming impact on their offspring psychologically, socially and religiously in the society. This paper is trying to analyze the perspective of an order of Shafi'i on the statuses and the rights of an illegitimate child. Based on library research, this research used a descriptive analysis method to derive the data and information from primary classical textbooks of mazhab Shafi'i. The result of this research shows that according to mazhab Shafi'i, a child who was born under six months after intercourse with her legal husband is believed to be an illegitimate child of another man. The children are not related to his/her biological father and the status of the child for his / her father is an ajnabiyya (non-mahram). If the child is a girl, her biological father is fully permissible to marry her. In the conclusion, the child is not related to his / her biological father and does not have any rights from his/her biological father whether a right to receive household expenses, a guardianship for marriage, and rights of inheritance.
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Marpi, Yapiter. "PERSPEKTIF HUKUM TERHADAP STATUS ANAK LUAR NIKAH DALAM MEMPEROLEH HAK WARIS KOMPILASI HUKUM ISLAM." As-Syar'i : Jurnal Bimbingan & Konseling Keluarga 1, no. 2 (March 25, 2020): 158–66. http://dx.doi.org/10.47467/as.v1i2.93.
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ABSTRACT
This study aims to determine and discuss the perspective of inheritance law on the status of out-of-wedlock children in obtaining the inheritance rights of Islamic law compilation. The method used is a qualitative method using secondary data and primary data for completeness of data, data analysis used using normative analysis. Based on the results of research, among others, first, the position of out-of-wedlock children according to Islamic Law is based on nasab as the legality of family relations based on blood relations, as a result of legal marriage. The problem is that there is no relationship between the child's relationship with his biological father; there are no rights and obligations between the child and his biological father, inheritance and so on; if by chance the child is a woman, then the biological father cannot be the guardian, so that the guardian can be a child out of wedlock; secondly, the status of inheritance rights for out-of-wedlock children according to Islamic law only have a mutual inheritance relationship with the family from the mother's side, however there is a need for legal breakthroughs related to this, namely in the Islamic inheritance system, there are grant institutions in the form of giving biological father's day and can also the wills of the Mandatory from his biological father.
Keywords; Inheritance rights, out-of-wedlock children, compilation of islamic law.
7
Purwaningsih, Sri Budi. "Outer Children Marriages Status After Constitutional Court Decision No: 46/PUU-VII/2010." Rechtsidee 1, no. 1 (March 19, 2016): 119. http://dx.doi.org/10.21070/jihr.v1i1.99.
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The decision of the Constitutional Court of the Republic of Indonesia No.46/PUU-VIII / 2010 dated 17 February 2012, granted the judicial review of Article 43 (1) of Law No. 1 of 1974 on Marriage by deciding that the article should read "Children who are born outside of marriage just had a civil relationship with her mother and her mother's family as well as with men as a father who can be proved based on science and technology and / or evidence, has blood ties according to law, including a civil relationship with his father's family". This Indonesian Constitutional Court's decision bring Juridical consequence that illegitimate children not only have a legal relationship with her mother, but also has a legal relationship with the father (biological) and his father's family, as long as it is proven with science and technology. The Constitutional Court's decision is a starting point in the legal protection of illegitimate children, namely the "right alignment" between the illegitimate child with the legitimate son. Illegitimate children have the rights to demand their civil rights toward their father (biological) as the same rights obtained by the legitimate son. How To Cite: Purwaningsih, S. (2016). Outer Children Marriages Status After Constitutional Court Decision No: 46/PUU-VII/2010. Rechtsidee, 1(1), 119-130. doi:http://dx.doi.org/10.21070/jihr.v1i1.99
8
Shanley, Mary L. "Fathers' Rights, Mothers' Wrongs? Reflections on Unwed Fathers' Rights and Sex Equality." Hypatia 10, no. 1 (1995): 74–103. http://dx.doi.org/10.1111/j.1527-2001.1995.tb01354.x.
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This article examines arguments concerning the right of an unwed biological father to consent to the adoption of his offspring, and to take custody of the child even against the mother's wishes. The understanding of gender-neutrality that supposedly supports many such arguments is false, and risks diminishing women's decision-making authority under the guise of sex equality. Laws governing unwed parent's rights must emphasize the centrality of parental responsibility in establishing parental rights.
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Hamam, Hamam. "The Status of Outside Marriage Children (The Study of Constitutional Court Regulation No. 46/PUU-VIII/2010 on February 27th, 2012 Based on the Fuqaha' Perspective)." International Journal of Educational Research & Social Sciences 2, no. 3 (June 29, 2021): 574–84. http://dx.doi.org/10.51601/ijersc.v2i3.85.
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Fornication is a kind of jarimah (felony) resulting in confusion of the biological father. However, nowadays, there is clarity on the status of the children out of marriage. The Constitutional Court issued a decision of regulation No. 46/PUU-VIII/2010 on February 27th, 2012 about the out wedlock children who have a civil relationship and the blood rapport with their biological father as long as it can be proven biologically. This regulation drives some criticisms from various parties; the pro-side of the Court Regulation will claim it in the term of the doer of the adultery, while the contra-side of the Court Regulation will review it in the term of legalized the adultery. Furthermore, the aims of this study are: First, to know the opinion of jurists' law (fuqaha‟) about the status of the out of wedlock children; Second, to find the legal implications of the out of wedlock children after the application of the Constitutional Court regulation No. 46/PUU-VIII/2010 on February 27th, 2012 based on the Fuqaha' perspective?. Moreover, this study uses the library research. The data are collected through the documentary of the primary and secondary data sources. The collected data are, then, analyzed qualitatively by using the content analysis. The results of this study are: Firstly, This according by the Shafi'i jurists' of four and the ad-Dzahiri the out of wedlock children (bastard) are not related to their biological father, but they are related to their biological mother and her family. Secondly, This according by some groups of Hanafi and Shaykh of Islam Ibn Taymiyah corroborated by ibn Qayyim al-Jauziyyah the wedlock children (bastard) are related to the men as their biological father and their father's family. Thirdly, the Constitutional Court (MK) regulations do not have any legal implications associated on the civil relationships of the out wedlock children (natural children) with their biological father. Moreover, the attitude of the biological father is classified as a jarimah (felony), and it is entitled to a penalty of the ta'zir; it is an obligation to provide the children, which the amount is considered to the fit and proper in accordance income of his; while the other civil rights includes the right of lineage, inheritance, and the rights of guardians. The ta'zir punishments in the provision of livelihood can be executed after the filing of a lawsuit and obtain an order from the Religion Court. The provision of the living is solely to satisfy the justice and legal protection for the interests of children's rights.
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Sabrina, Nahdiya, Thohir Luth, Masruchin Rubai, and Nurini Aprilianda. "Discrimination against Children Born Outside of Marriage in Indonesia." International Journal of Multicultural and Multireligious Understanding 7, no. 9 (October 1, 2020): 121. http://dx.doi.org/10.18415/ijmmu.v7i9.1930.
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The protection of Indonesian children as the nation's next-generation that is free from discrimination has not been fully implemented, it is evident in our society that there are still many children who do not get enough attention in protecting and fulfilling their rights. Children born out of wedlock are sometimes not recognized and neglected by their biological father. Unlike legitimate children whose rights are guaranteed and there are sanctions if these rights are not fulfilled by the father, for children born outside of marriage there is no penalty if the biological father neglects them. The method used in this research is the normative legal research method. This paper discusses the conditions of children born outside of marriage in Indonesia, discrimination against children born outside of marriage in Indonesia, and expectations for children born outside of marriage in Indonesia. Currently, there are no laws and regulations that state sanctions if the biological father does not want to be responsible for the birth of this child. This is certainly not in accordance with the mandate of the 1945 Constitution of the Republic of Indonesia Article 28D paragraph (1) which reads: “Everyone has the right to recognition, guarantee, protection and legal certainty that is just and equal treatment before the law.
11
Marshall, Jill. "CONCEALED BIRTHS, ADOPTION AND HUMAN RIGHTS LAW: BEING WARY OF SEEKING TO OPEN WINDOWS INTO PEOPLE'S SOULS." Cambridge Law Journal 71, no. 2 (June 15, 2012): 325–54. http://dx.doi.org/10.1017/s0008197312000517.
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AbstractAlthough rare, giving birth in secret or in concealed circumstances still happens in the United Kingdom. The new born child's existence is unknown to his or her biological ‘father’ and or to the wider biological family of the birth giver who wishes to place the child for adoption without his or her existence being revealed to them. Legal decisions need to be made judicially when a local authority seeks orders as to whether it is required to make further inquiries to identify and notify the biological father and or wider biological family as to any forthcoming adoption proceedings. Developments in European human rights law's protection of a right to respect one's private life provided by Article 8 of the European Convention on Human Rights (ECHR) towards a right to personal autonomy, identity and integrity can be interpreted in different ways. However, three positions are argued here to guard against an erosion of women's confidentiality and privacy in these circumstances. First, women's choices of concealment should be accepted with respect rather than perceived as inauthentic and therefore impermissible; this is in keeping with Article 2's right to life and Article 8's right to personal autonomy and integrity. Second, the right to family life protected by Article 8 of any wider biological family and father is not contravened by allowing women to give birth discreetly. Third, openness and transparency, when it comes to exact knowledge of one's parents in this context is not necessary for a child's identity rights, which are also protected by Article 8's right to personal identity, to be legally protected.
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Abubakar, Ali, Juliana Juliana, and Maisyarah Rahmi Hasan. "The Right of a Child Outside the Legal Marriage of a Biological Father: The Analysis of Ḥifẓ Al-Nafs as Law `Illat." Samarah: Jurnal Hukum Keluarga dan Hukum Islam 5, no. 1 (June 30, 2021): 153. http://dx.doi.org/10.22373/sjhk.v5i1.9256.
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This article aims to analyze the protection of life (ḥifẓ al-nafs) as the law reason (`illat) of the rights of children outside of legal marriage (ALPS) of biological fathers. Ḥifẓ al-nafs is assumed to be `illat emerging from many neglected ALPS phenomena and resulting in negative stigma and discrimination. This research is a study of Islamic law using the theory of `illat in analyzing the problem of children's rights outside of legal marriage. The research concludes that the presence of the 2010 Constitutional Court decision regarding the civil rights of ALPS with biological fathers reveals new spaces in seeing the nature of ALPS rights. This is different from the fatwa of the Indonesian Ulema Council and classical fiqh (Islamic jurisprudence) arguments, which tend to only link the child to the mother. Based on the Constitutional Court decision, the essence of ALPS rights from biological fathers is limited to civil rights. The responsibility of the biological father to ALPS is in the form of physical and mental support, while denying other rights such as guardianship of marriage; ALPS rights today have been largely abandoned. Thus, the protection/care is necessary. `Illat (the reason of law) in ḥifẓ al-nafs (protection of the life) is real and can be juxtaposed with `illat ḥifẓ al-nasl (protection of heredity). Ḥifẓ al-nasl does not completely fulfill the real requirements of an `illat which can abolish the abandonment of ALPS.
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Kuswanti, Etik, and Akhmad Khisni. "Juridical Review Of Agreement And Adoption Law Due For Adopted Children When Adopted Parent Lift Divorce." Jurnal Akta 5, no. 3 (September 5, 2018): 783. http://dx.doi.org/10.30659/akta.v5i3.3258.
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Kids are important in human life, a lot of people who are expecting the presence of children as successor descent but some have not given credence to be given the baby. Adoption is an alternative to get around this problem. One polemics are legal consequences for adopted children when the father of the foster mother divorced. This study aims to determine hadhanah for adopted children when the father of the foster mother divorced. This research using normative juridical approach, ie an approach based on the decision of the Supreme Court, law and jurisprudence. The results show that the Islamic Law Compilation (KHI) stated position adopted child the same as biological children they both get Hadhanah, except in the case of nasab so do not get the inheritance, but was borrowed for adopted children as contained only one-third. In the case of child maintenance rights for the adopted child under age, the rights given to a foster mother, if an adult or child is old enough lift may choose to want to go with whom, nevertheless all maintenance fees charged to the adopted child's adoptive father. Custody and all the costs of the foster child needs to last until the adopted child an adult, independent or have been married. If the adopted child if the woman he would marry then it could be a guardian of marriage are biological parents or biological relatives. So although the adoptive mother divorced fathers still be obliged to maintain and educate the adopted child.Keywords: Judicial Review, Adoption, Legal Consequences, Divorce
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Bukuru, Jean-Baptiste. "Biomedicine issues in the European Court of Human Rights Case-Law: Boljević v. Serbia." RUDN Journal of Law 25, no. 1 (December 15, 2021): 144–63. http://dx.doi.org/10.22363/2313-2337-2021-25-1-144-163.
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The article considers the recent case-law of the European Court of Human Rights in cases related to the use of the achievements of biomedicine in the light of the implementation of human rights and freedoms provided for by the European Convention on Human Rights and its additional protocols. In fact, the author pays special attention to the case of Boljević v. Serbia , in which the applicant, a Serbian citizen, alleged that his right to respect for private and family life had been violated as a result of the refusal of the Serbian national courts to reopen paternity proceedings, in which the applicant intended to prove, through DNA testing, that Mr. A was his biological father. It has to be mentioned that in this case in the 1970s the Serbian national courts issued final decision according to which Mr. A was not recognized as the applicant's biological father, and the applicant indicated that at that time it was impossible to carry out DNA test and he did not know about the existence of such decision (during the proceedings, the applicant was represented by a lawyer appointed by local authorities, since he was a minor), and that now there is such a possibility. In this connection, the applicant argued that the denial to satisfy his claims on procedural basis by the domestic courts violated his right to family and private life. The ECtHR ruled that Art. 8 of the Convention has been violated. In that case, the issues of compliance with a balance of private and public interests were dealt with (the interests of the applicant to establish his biological father identity and the interests of the state in maintaining legal certainty).
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Azizi, Alfian Qodri, Ali Imron, and Bagas Heradhyaksa. "Fulfillment of civil rights of extramarital children and its effect on social dimensions." Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan 20, no. 2 (December 31, 2020): 235–52. http://dx.doi.org/10.18326/ijtihad.v20i2.235-252.
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This article examines the fulfillment of the civil rights of extramarital children which has become a controversy since the issuance of the Constitutional Court decision no. 46/PUU-VIII/2010, which is considered as a progressive and responsive measure to guarantee children's rights. However, the content of this decision is considered to violate Islamic norms in giving family lineage to extramarital children for it will create a stigma that one does not need a sacred marriage institution if he only wants to establish a civil or lineage relationship with his biological father; instead, it only requires evidence based on science and technology or others in court. This article answers the questions of how to interpret the concept of the civil rights of extramarital children to avoid conflicts with Islamic norms and what are the philosophical and sociological benefits of fulfilling civil rights for extramarital children. This study is qualitative in nature. It is focused more on conceptual ideas based on library research using conceptual and case approaches. It was found that (1) the civil rights of extramarital children are not a lineage right but compensation from their biological father as a form of moral responsibility; (2) philosophically, the civil rights of extramarital children are to fulfill the value of social justice which is distributive and, sociologically, these rights create a prosperous social condition for society by fulfilling the civil rights of the next generation of the nation covering their physical, mental, spiritual, and intellectual needs.
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Jović-Prlainović, Olga. "Judgments of the European court of human rights v. The Republic of Serbia on the application of genetic testing in paternity litigation." Strani pravni zivot, no. 1 (2021): 47–61. http://dx.doi.org/10.5937/spz65-30886.
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The case law of the European Court of Human Rights is of great importance for the formulation of human rights standards as it applies the European Convention on Human Rights by interpreting the prescribed rights and freedoms taking into account social reality and legal regulation in Council of Europe member states. When joining this political organization the Republic of Serbia carried out the procedures of adjusting the legislation to the convention requirements, so that, in normative sense, Serbian family law systematically follows modern standards of human rights protection. The decisions of the Court in cases in which the issues of establishing paternity was applied by DNA analysis are conditioned by the circumstances of each individual case. In this paper reasearch is devoted to the two judgments of the European Court of Human Rights versus Republic of Serbia on determining the origin of the child from the father judgments that have a family law in the narrow sense in which Court took the position that domestic legislation did not take into account the relevant elements of the case, the possibility to establish a balance of relevant interests when determing the identity of the biological father regarding DNA analysis. By definition genetic testing implies the analysis of one genome and its products, its function or DNA or chromosomal analysis aimed at identifying or contradicting certain facts. This method involves comparing the DNA profile of a child with DNA profile of the potential father by comparing locus - specific gene location or DNA region on chromosome - which differ in their structure and length, so that non-blood person have different structure of the molecule in each analyzed locus, while biological relatives have the same structure. This means that their DNA profiles have visible traces of genetic heritage. Although every person has a vital interest in finding out information that complete his/her own knowledge of his/her background it is important to know that third party protection can prevent him/her from being forced into medical testing of any kind, including DNA analysis. Member States have different solutions to deal with in cases where a potential father refuses to undergo tests necessary to establish facts of a biological origin. In some jurisdictions non-compliance with medical testing is sanctioned by monetary or imprisonment penalty, while in others it is for the failure to act on a warrant the court activates the presumption of paternity. When paternity cannot be determined by DNA analysis, Member States must provide the determination of paternity by alternative means of evidence taking into account the existence of a fair balance between the right to know the origin and the right of potential father not to undergo this type of medical expertise.
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Nduna, Mzikazi, and Grace Khunou. "Editorial: Father Connections." Open Family Studies Journal 6, no. 1 (December 31, 2014): 17. http://dx.doi.org/10.2174/1874922401406010017.
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South Africa celebrated twenty years of democracy in 2014 following more than 100 years of colonization and institutionalized discrimination through Apartheid. A ‘broken’ family structure is one of the pathetic legacies left by political instability in post-colonial and post war countries globally. This phenomenon of broken families is evident in South Africa following the period of discrimination against Black people and the systematic migrant labor system that was sponsored by and for the Apartheid government. The migrant labor system separated fathers from their families and men left their families in the rural communities to work in the burgeoning mines and factories in urban areas. The current democratic State has a responsibility to strengthen broken families through policies and intervention informed by research evidence. There is an emerging body of research on Father Connections in post-war and post-colonial settings. This special issue brings together eight articles on Father Connections in South Africa. The articles present data from diverse but interesting research; for example the piece by Nduna M and Taulela M focuses on the experiences of ‘discovering’ biological fathers for youth who grew up with absent and unknown fathers. The participants that the article draws from are young women from a small town, in Mpumalanga. Through narrative analysis, the article explores how young people deal with finding out who their biological fathers are. In the article by Selebano N and Khunou G, the experiences of young fathers from Soweto are explored. It is illustrated in this article that, there are strong ties between young men’s experiences and the community values, history and culture where they experience fatherhood. The article by Langa M interestingly looks at narratives and meaning makings of young boys who grew up without fathers. Langa looks at how young boys can adopt alternative ideas of what it means to be a man in contexts that would otherwise be assumed to automatically lead to an embrace of hegemonic notions of masculinities. On a similar note the article by Nduna M focuses on experiences of young people who grow up without a father entering into endeavours to find and use their father’s surname. The article looks at how the signifying paternal ancestry is developed and maintained in contexts of father absence, through pursuing an absent father’s surname as the ‘right surname’. The article by Lesch E and Ismail A focuses on the significant question of the father daughter relationship and examines constraining constructions of fatherhood for daughters with a specific focus on the Cape Winelands community in South Africa. In Chauke P and Khunou G‘s contribution on the media’s influence on societal notions of fatherhood in relation to the maintenance system is examined. The article looks at how cases of maintenance are dealt with in print media. Franklin A & Makiwane M’s article provides a significant examination of male attitudes of family and children. This article begins to speak to the transformations of expectations of men in families. This transformation is addressed through a look at racially disaggregated quantitative data. Mthombeni A reviews a book, Good Morning Mr. Mandela by Zelda Le Grange where she examines some of the challenges of fatherhood in South Africa’s past and present.
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Cok Gede Mega Putra. "Civil Relationship of Children Born without Marriage with Biological Father based on Constitutional Court Decision Number 46/PUU-VIII/2010." NOTARIIL Jurnal Kenotariatan 5, no. 2 (November 24, 2020): 58–64. http://dx.doi.org/10.22225/jn.v5i2.2585.
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The purpose of this study is to analyze the civil relationship between the children born without marriage with his biological father and the arrangement about the civil relationship between the children whose mothers did not have marriage. This study is a normative juridical which is the approach used in this is is the statute approach, the case approach, and the conceptual approach. The legal material comes from document studies. This study is analyzed qualitatively. The results of this study showed that the children born outside marriage initially have only a civil relationship with their mother and mother's family according to Article 43 of Law Number 1 of 1974 concerning Marriage on what is meant by a child outside of marriage but with the Constitutional Court Decision Number 46/PUU-VIII/ 2010, then a child born outside marriage can have a civil relationship with father and his father's family. The father and mother have rights and obligations to the born, even if the child is born outside of marriage. In this study, it can be concluded that children born without marriage have civil relations with their biological father as stipulated in Decision of the Constitutional Court Number 46 / PUU-VIII / 2010. The arrangement of civic relationships between children whose mothers are not married as in Law Number 1 of 1974 on Marriage, but by Decision of the Constitutional Court Number 46/PUU-VIII/2010, the child has a civil relationship with his mother and father.
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Joamets, Kristi, and Tanel Kerikmäe. "European Dilemmas of the Biological versus Social Father: The Case of Estonia." Baltic Journal of Law & Politics 9, no. 2 (December 1, 2016): 23–42. http://dx.doi.org/10.1515/bjlp-2016-0010.
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Abstract The current understandings and practices related to biological and social fatherhood raise a crucial legal question about which model of fatherhood determination should be adapted to contemporary society: the model of a biological or social father bearing the rights and obligations related to the child. The general ideologies of being a father and the application of different approaches have been analysed comparatively, also trying to provide the best legal policy to consider when interpreting the rules of parenthood in Estonian Family Law Act and the Estonian legal practice. The paper considers the emerging legal concept of social fatherhood to be an inevitable prerequisite for protection of the interest of the child.
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Cholis, Arinie Sherlita. "THE LEGAL STANDING & INHERITANCE RIGHTS FOR OUT-OF-WEDLOCK CHILD IN RELATION TO THE CONSTITUTIONAL COURT'S DECISION IN TERMS OF CIVIL INHERITANCE LAW." Audito Comparative Law Journal (ACLJ) 1, no. 2 (September 30, 2020): 71–77. http://dx.doi.org/10.22219/audito.v1i2.13759.
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The problems regarding the legal standing of an out-of-wedlock child that demands inheritance rights from both biological parents. The purpose of this thesis are to find out about the legal standing regarding the relationship between out-of-wedlock children and how the inheritance rights of an out-of-wedlock child in the distribution of inheritance by both biological parents are related to the Constitutional Court Decision Number 46/PUU-VIII/2010 in terms of civil inheritance law. The type of research used in this journal is Normative Juridical. The problem approaches used in writing this paper are the Statutory Approach and the Conceptual Approach. The legal material used is primary legal material and secondary legal material. This research of the problem after the Constitutional Court's Decision Number 46/PUU-VIII/2010 can be concluded that the out-of-wedlock child has not only a civil relationship with his mother but also with his biological father if he/she can prove it with science and technology and in inheritance issues, the child out of wedlock in terms of civil law must be recognized by his biological father so that he/she can become an heir, but with the Constitutional Court Decision Number 46/PUU-VIII/2010, the out-of-wedlock child can get not only a share of the inheritance from his mother who is without recognition but also inheritance from his/her biological father if it is proven to have a civil relationship as evidenced by science and technology
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Rumadaul, Siti Rabiah. "Comparison of Positive Law and Islamic Law In Recognition Outside Marriage Children's Legal Status." Musamus Law Review 2, no. 2 (April 30, 2020): 106–17. http://dx.doi.org/10.35724/mularev.v2i2.3029.
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Recognition of the legal status of children outside of marriage is regulated in Article 280 of the Civil Code and Islamic Law does not recognize the recognition of children outside of marriage which is regulated in Article 100 of the Compilation of Islamic Law, so that the legal consequences that arise later are different. A child outside of marriage is a child born to his parents without a legal marriage between the father and mother. Therefore, the child does not have the status or position in law as a legitimate child. This type of research conducted by the author is Empirical Juridical Research, namely research by studying, investigating and studying according to what has been determined by the applicable regulations and real facts that occur in the community with the aim to learn and find data and real events that actually happened, with use the legal approach and case approach. In the results of this research and discussion it is explained that in Positive Law a child outside of marriage can be ratified by a confession, whereas in Islamic Law there is no recognition. Recognition of children outside of marriage in Positive Law raises the result of the endorsement and the resulting relationship with the legal consequences. Whereas in Islamic Law the law of an out-of-wedlock child is not entitled to obtain lineage relationship, livelihood, inheritance rights and others from his biological father because it only has a lineage relationship with his mother and his mother's family, but if the biological father wants to give part of his property, this can be done through a will. Related to the difference between the recognition of Positive Law and Islamic Law, it is considered necessary to pay attention, because of the importance of recognition of children outside of marriage, which results in civil rights in the future. Then later the child outside of marriage also gets the distribution of inheritance (inheritance), guardianship rights and other rights. The government through legislation also needs to pay attention to the management of the inheritance (inheritance) of children outside of marriage so that it becomes an absolute right for children outside of marriage in the future.
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Sri Istiawati, Yusriana, Deliani, and Saniah. "Inheritance Rights of Children Out of Wedlock in the Perspective of Islamic Law." Konfrontasi: Jurnal Kultural, Ekonomi dan Perubahan Sosial 8, no. 3 (September 21, 2021): 186–96. http://dx.doi.org/10.33258/konfrontasi2.v8i3.156.
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The aims of study are to find out Inheritance Rights of Children Out of Wedlock in the Perspective of Islamic Law. This study use qualitative research. The result in this study shows that Pregnancy out of wedlock will have a huge psychological impact on the child. The child will be ostracized in the midst of society and there will be tremendous confusion when he grows up to marry because it may be without his biological parents, especially his father, attending.
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Yunanto, Yunanto. "RECOGNITION OF ILLEGITIMATE CHILDREN IN VARIOUS LAWS IN INDONESIA." Diponegoro Law Review 2, no. 1 (April 28, 2017): 85. http://dx.doi.org/10.14710/dilrev.2.1.2017.85-100.
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In any regulations in Indonesia, there are differences in the inherent status and rights between legitimate and illegitimate children. Consequently, it surely affects the relationship between the children and their parents. Illegitimate children only have the civil relationship with their mothers. In order that the illegitimate children have a certain relationship with their biological fathers, it requires a legal action in the form of the recognition of biological father. However, there are legal ambiguities in the regulations that govern the institution of the recognition of children as stated in the Indonesian Civil Code, Law No. 23 of 2006 in conjunction with Law No. 24 of 2013, and the Decisions of the Constitutional Court No. 46/ PUU-VIII/ 2010 as a corrective provision to the Marriage Law (UUP), and the Islamic Law Compilation (KHI). The legal effects are: the discrimination derived from legal injustice and certainty in the implementation of the child recognition.
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Nurlaelawati, Euis, and Stijn Cornelis van Huis. "THE STATUS OF CHILDREN BORN OUT OF WEDLOCK AND ADOPTED CHILDREN IN INDONESIA: INTERACTIONS BETWEEN ISLAMIC, ADAT, AND HUMAN RIGHTS NORMS." Journal of Law and Religion 34, no. 3 (December 2019): 356–82. http://dx.doi.org/10.1017/jlr.2019.41.
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AbstractThis article examines the cases of children born out of wedlock and adopted children with the aim of depicting the mechanisms through which the concepts of biological fatherhood, derived from the human-rights framework, and adoption, derived from the customary law framework, have been adopted into Indonesian Islamic family law. We argue that the introduction of external concepts into family law pertaining to Muslims requires an adaptation process in which the relation between these external concepts and core Islamic family law concepts is determined. In the case of children born out of wedlock, this adaptation to core Islamic norms means that biological fatherhood does not lead to a full legal father-child relationship, despite a 2012 Constitutional Court ruling establishing that children born out of wedlock have a civil relationship with their biological father. In the case of adoption, it means that there is no full adoption, despite recognition of customary adoptions under Indonesian law. We argue that in a context of strong support for a religion-based family law, reforms tend to take the form of conditions or exceptions to core religious concepts, as replacing these concepts altogether would be perceived as jeopardizing the religious character of the law. While attempts to replace core Islamic family law concepts will inevitably meet strong resistance, there is much more tolerance for introducing family law reforms that aim at changing the way that Islamic concepts are applied in practice.
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Megawati, Karina, and Ghansham Anand. "Hak Waris Anak Adopsi Dari Orang Tua Yang Telah Bercerai Dalam Perspektif Hukum Perdata Barat." Res Judicata 1, no. 2 (December 18, 2018): 115. http://dx.doi.org/10.29406/rj.v1i2.1235.
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Pluralism concerning stipulation of regulation regarding inheritance in Indonesia commonly stimulates numerous problems. This situation is getting complicated when it deals with regulation about adoption. Complex issue that commonly occurs within this regulation is concerning the status of adopted children when their foster parents are getting divorce. The present study aims to examine and elaborate further about civil connection between adopted children and their foster parents coupled with their inheritance rights when their parents are divorced based on western civil law point of view. The method uses in the present study is normative legal research, in which conducted it is conducted by examining the library materials or secondary law while in finding and collecting the data is done by two approaches, namely the law and conceptual approaches. The present study shows that based on Staastlaad 129:1917 it is stated that adopted children possess civil relation with their foster parents in which the relationship is same as with their biological parents. Therefore, although their foster parents are divorced, they still hold inheritance rights from their foster father and mother. Moreover, inheritance rights that holds by adopted children is equal with the inheritance rights that is possessed by biological children.
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Imawanto, Imawanto, Edi Yanto, and Mappanyompa Mappanyompa. "KONSEKUENSI MARRIED BY ACCIDENT DALAM PERSPEKTIF HUKUM POSITIF DAN HUKUM ISLAM." Media Keadilan: Jurnal Ilmu Hukum 9, no. 2 (October 30, 2018): 133. http://dx.doi.org/10.31764/jmk.v9i2.890.
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This article discusses married by accident, which is a marriage that is forced to be carried out between a pair of men and women because the woman is already pregnant, their parents must marry her, in order to cover up their disgrace in the community. Using juridical-normative research methods. The results of the study are, first, the law of being married by accident is permitted both by positive law and Islamic law, secondly, the position of a married by accident child becomes a legitimate child in the perspective of positive law, and an illegitimate child in the perspective of Islamic law. Third, in a positive legal perspective, the legal guardianship and inheritance rights of a daughter from married by accident are her biological father and inheritance rights from her parents, whereas in Islamic legal perspective the child resulting from married by accident biological father has no right to give heirs and is not entitled also be the guardian of the child.keywords: Islamic law; married by accident; positive law. AbstrakArtikel ini membahas tentang married by accident, yaitu pernikahan yang terpaksa dilakukan antara sepasang laki-laki dan perempuan karena perempuannya sudah hamil terlebih dahulu, orang tua mereka harus menikahkannya, dalam rangka menutupi aib mereka di masyarakat. Menggunakan metode penelitian yuridis-normatif. Hasil penelitian, pertama, hukumnya married by accident di bolehkan baik oleh hukum positif dan hukum Islam, kedua, kedudukan anak married by accident menjadi anak sah dalam perspektrif hukum positif, dan anak tidak sah dalam perspektif hukum Islam. Ketiga, dalam perspektif hukum positif, hak wali dan hak waris anak perempuan dari married by accident adalah ayah biologisnya dan memperoleh hak waris dari kedua orang tuanya, sedangkan dalam perspektif hukum Islam anak hasil dari married by accident ayah biologis tidak berhak memberikan waris dan tidak berhak pula menjadi wali anak tersebut ketika menikah.kata kunci: hukum Islam; hukum positif; married by accident.
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Zozula, Jolanta. "Presumption of the child’s origin from the husband of the mother within 300 days of marriage termination or annulment, and in the event of judicial separation – de lege lata and de lege ferenda remarks." Problemy Opiekuńczo-Wychowawcze 584, no. 9 (November 30, 2019): 33–46. http://dx.doi.org/10.5604/01.3001.0013.6019.
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The article is dedicated to the institution of the presumption of the child's origin from the husband of the mother as one of three ways to determine the child's origin from the father. In the opinion of the author, with the current availability of genetic tests (DNA), the regulation “extending” this presumption to children born after the termination or annulment of marriage, after the judicial separation and declaring any of the parents to be deceased, does not implement the principle of protecting the good of the child and in particular his right to grow up in the family and the identity right. The current shape of the regulation of the Family and Guardianship Code regarding this presumption significantly hinders, and certainly delays, the possibility of establishing biological paternity and granting the biological father the status of legal father, which is most desirable and justified. The current legal status is not favorable either for the child, his biological father or his mother's ex-husband. Taking into account the progress of genetics by the legislator and enabling the recognition of paternity on the basis of out-of-court DNA test results at any time of the child's birth after the termination or annulment of his mother's marriage by the genetic father, would significantly improve the paternity determination procedure and relieve the courts. These changes are also of great importance in the context of family evolution and the growing acceptance of informal relationships in which children are born and raise.
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Joni, Muhammad. "PERKAWINAN YANG TIDAK DICATATKAN: DAMPAKNYA BAGI ANAK." Musãwa Jurnal Studi Gender dan Islam 12, no. 2 (July 1, 2013): 237. http://dx.doi.org/10.14421/musawa.2013.122.237-259.
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The analysis in this article will utilize the principles of non-discrimination and the best interest of the child. The principle of non -discrimination is central in all international human rights convention. This principle of non-discrimination is deeply entwined with the principle of the best interest of the child. The latter principle is of paramount consideration in the issue of marriage registration. This article stresses that registration of marriage is not simply a simple nor personal issue, but also raises the issue of the rights of children. Therefore, this issue cannot be distanced from the responsibility and role of the state. Unregistered marriages have a direct effect on children as legal subjects, and individual whose rights are guaranteed, recognized and protected. Unregistered marriages are simply incompatible with the rights of children, as those marriages are positioned vis-à-vis the need for child protection, whether in family law or their individual fulfillment of rights. The legal consequence from such unregistered marriages is unfairly burdened on children. Therefore, the risks and consequences of such marriages stand as a barrier to children’s rights. The legal vacuum which arise must be dealt with. Children born from unregistered marriages must still have a legal relationship with both parents, a relationship which cannot be subverted legally. Even when born from unregistered marriages, the non-marital child must still have civil relations with his biological mother and her kin as well as his biological father and his kin.
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Alfiander, Dodon. "KEWARISAN ANAK ANGKAT YANG BERKEDUDUKAN SEBAGAI ASHÂBUL FURÛDH (Analisis Terhadap Putusan Pengadilan Agama No. 287/Pdt.G/2006/PA.Pdg.)." JURIS (Jurnal Ilmiah Syariah) 17, no. 1 (June 30, 2018): 85. http://dx.doi.org/10.31958/juris.v17i1.1002.
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The Case No. 287/ Pdt. G/ 2006/PA. Pdg. is a lawsuit Wasiat Wajibah submitted to the Religious Court of Padang. The Religious Court of Padang sets the plaintiff on this case as an adopted child who is entitled to obtain a mandatory will from his foster mother's estate. Where as between the plaintiff and his adoptive mother has a very close kinship relationship. The plaintiff is the real child of his adoptive brother's brother, while at that moment the plaintiff's adoptive mother was the heir of Kalâlah. The Law of Inheritance of Islam recognized the right of inheritance to the sister’s child. Sister’s son's inheritance is not clearly contained in the Qur'an and the hadith of the Prophet Muhammad pbuh. However, sister’s child's inheritance rights are basically through the extension of the understanding of other whose rights are described in the Qur'an, because if he or she has no sister and brother, the position can be replaced by the child. Sister’s child will not get the right as long as his father who connects him to the heir is alive. This can be understood as the concept of "Expanding Brotherhood Meanings". Thus, the decision of the Religious Court of Padang on the Wasiat Wajibah which sets the plaintiff to obtain the right to the property of his adoptive mother through Wasiat Wajibah is not appropriate. This is because the plaintiff has a very close kinship with his adoptive mother. Therefore, the plaintiff is more aptly part of the heritage of his adoptive mother through his right as an heir (ashâbul furûdh), not as a mandatory will. This is because the plaintiff replaces the position of his biological father as the heir because he has died earlier than his adoptive mother. The Plaintiff is entitled to receive a share of furûdh against the inheritance of his adopted mother. The furûdh portion obtained is based on the letter of al-Nisâ verse 176.
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Muhammad, Muhammad. "Telaah Kritis terhadap Argumen Mayoritas Ulama tentang Nasab Anak Zina." ISLAMICA: Jurnal Studi Keislaman 14, no. 2 (March 1, 2020): 194–219. http://dx.doi.org/10.15642/islamica.2020.14.2.194-219.
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he lineage of the children of adultery as agreed by religious scholars (‘ulam?’) and Indonesian Ulama Council (MUI) is ascribed to the mother, not the father. This is due to the unclarity of the marital bond between the woman and the man who conduct adultery, and due to the uncertainty of sperms that fertilize the ovum (egg cell) of a woman. Consequently, the children of adultery become exiled and marginalized in society, bearing mistakes of their ‘parents’. In fact, Islam has emphasized that every child born is essentially chaste. If the child born from adultery is ascribed to the mother, he/she does not have whatever rights from the father. Therefore, it is important to review the question regarding the lineage of the children of adultery, in order to determine the future of the children. Based on the literature research with critical analysis method, this article argues that the children of adultery remain to be biologically ascribed to the father together with their rights from the latter. The children born from adultery do not bear the mistakes of their ‘parents.’ In the contemporary era, to determine the children lineage can use such a tool as DNA test that is believed as accurate.
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Margaria, Alice. "Anonymous Birth." International Journal of Children’s Rights 22, no. 3 (October 27, 2014): 552–80. http://dx.doi.org/10.1163/15718182-02203004.
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Although the right to know one’s origins has increasingly gathered momentum, anonymous birth remains an insurmountable obstacle to access in identifying information concerning one’s biological parents, at least within the Italian legal context. The judgment of the European Court of Human Rights (ECtHR) in the case of Godelli v Italy reiterated that the problematic issue does not lie in the woman’s right to remain anonymous per se, but rather in its irreversible nature. In addition to providing an analytical account of the main legislative and judicial milestones in the regulation of anonymous birth in Italy, the present paper wishes to shed light on two issues which has thus far been disregarded: firstly, all the arguments in favour of reversibility tend to be adoptee-centred, thus failing to contemplate the rise of a similar desire for knowledge on the side of the woman and, as a result, her right to initiate a search for her child; secondly, although the multiplicity of parties concerned is often invoked as a peculiarity of as well as a source of complexity in the regulation of anonymous birth, the figure of the biological father is de facto rarely acknowledged and involved, under the controversial assumption that all undesired pregnancies which lead to anonymous birth are the result of abusive relationships.
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Hosking, G. "Aleksandr Tvardovsky’s ‘two fathers’." Voprosy literatury, no. 3 (June 22, 2021): 13–45. http://dx.doi.org/10.31425/0042-8795-2021-3-13-45.
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Tvardovsky’s evolution as writer and editor reflected the paradoxes of his epoch, and was crystalised in his relationship to ‘two fathers,’ his biological father and Stalin. In his youth in the 1930s he renounced the former because he idealised the latter’s ideology and programme. The renunciation caused him personal trauma, which was intensified by the experience of the arrest and condemnation of several of his close literary colleagues in the late 1930s. Those experiences raised in him questions he could not answer at the time. After 1953, however, as Stalin’s past crimes were gradually publicly revealed, Tvardovsky reassessed his admiration of him. He remained faithful to socialism as an ideal, but now aimed to clear the way for its future optimum development by using memory to rediscover and understand the Soviet Union’s true history. This process required him also to reassess the memory of his father, and to take full responsibility for having renounced him. He completed this evolution only with the composition of his last major work, By the Right of Memory [Po pravu pamyati].
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Kogan, Vanessa. "The Potential of Domestic and International Courts to Protect Women’s Right to Family Life in the North Caucasus." Journal of Human Rights Practice 12, no. 1 (February 1, 2020): 237–43. http://dx.doi.org/10.1093/jhuman/huaa021.
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Abstract The North Caucasus region of Russia is known for spawning the highest number of adverse judgments from the European Court of Human Rights compared to any other Russian region—over 500 as of mid-2020. Since 2005, the Court has found Russia responsible for enforced disappearances, extrajudicial killings and torture carried out on a mass scale during the second Chechen war and in its aftermath. The Head of the Chechen Republic, Ramzan Kadyrov, has become internationally infamous for the brutal repression of even his mildest critics, ensuring that most Chechens will be too afraid to claim their rights in any forum. Domestically, the Russian federal authorities have either ignored or tacitly condoned the increasing subversion of state law in the region in favour of de facto customary norms—adat—and elements of sharia law that have had a devastating effect mainly on women’s and girls’ rights. Harmful traditional practices such as ‘honour killings’, child marriage, bride-kidnapping, and—in certain remote mountain regions of Dagestan—female genital mutilation take place on a regular basis. Yet such violations, however grave, do not easily lend themselves to litigation. This practice note focuses on one of the few areas in the region in which systematic focused litigation is being carried out in domestic courts, often against enormous odds: the systematic denial of women’s right to family life after divorce or the death of their children’s biological father.
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Wijaya, I. Gede Eka Julia Artanida. "Kedudukan Anak Adopsi dalam Pewarisan Berdasarkan atas Hukum Adat Bali." Jurnal Preferensi Hukum 1, no. 2 (September 15, 2020): 42–46. http://dx.doi.org/10.22225/jph.1.2.2373.42-46.
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The law of inheritance is a law that regulates what should happen to the deceased person's property, in other words, it regulates the transfer of property left by the deceased to the heir. In principle, only rights and obligations in the field of property law can be inherited, and it does not include rights and obligations in the field of law that cannot be inherited, such as work agreements, employment relationships, individual membership, and authorizations. This research was conducted with the aim of describing the rights and obligations of an adopted child in inheriting property by the adopted parent and the position of the adopted child in inheriting property by the adopted parent. This research was conducted using empirical legal research methods. The results of this study indicated that adopted children in Bali are entitled to receive an inheritance from their adopted parents as well as their biological parents. This is known as ma’bubun dua ma’saruran patomali. Its meaning has two kiblat oase, that is to be able to be given an inheritance from adoptive parents as well as biological parents. On the other hand, the adopted child is obliged to maintain and establish family relationships as harmonious as possible, and carry out or replace the role or obligation of the adopted father/mother to the duties of the area where he lives (local community). In addition, the position of the adopted child in the inheritance of the property by the adopted parent is equal to or completely the same when compared to the biological child. Therefore, the adopted child is also entitled to inherit the inheritance of the adopted parent.
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Sihotang, Erikson. "Paradigma Hakim Atas Perlindungan Hukum Anak Luar Kawin Kajian Putusan Mahkamah Konstitusi Nomor 46/PUU-VII/2010." Jurnal Ilmiah Raad Kertha 2, no. 1 (July 8, 2020): 1–29. http://dx.doi.org/10.47532/jirk.v2i1.149.
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Article 28b paragraph (2) of the 1945 Constitution provides that "every child has theright to live, grow and develop and has the right to protection from violence anddiscrimination.” Child is the mandate at the same gift of Almighty God, which always shouldwe watch for in her inherent dignity, dignity, and rights as a human being which must beupheld. This paper analyzes the Constitution Court Decision No.46/PUU-VII/2010. Thedecision to make a breakthrough law for children born non-marital child. According toIndonesian civil law that non-marital child only have a legal relationship with his/herbiological mother, and according to the law number 1 of 1974 on Marriage that childrenborn non-marital child have a legal relationship with his/her biological mother dan his/her mother family. problem of this research, how are judge’s law paradigm in Decision No.46/PUU/VII/201. This research is the normative research, using the statutory approach, caseapproach and conceptual approaches. The main data is secondary data. Based on the resultsof the research thatThe judge’s paradigm in the constitutional court ruling is in contrast tothe Indonesian Civil Law and the law number 1 of 1974 on marriage. And according to theverdict non-marital child also has legal relationship with his/her biological father.
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Rohmawati, Rohmawati, and Ahmad Rofiq. "Legal reasonings of religious court judges in deciding the origin of children: a study on the protection of biological children’s civil rights." Ijtihad : Jurnal Wacana Hukum Islam dan Kemanusiaan 21, no. 1 (June 30, 2021): 1–20. http://dx.doi.org/10.18326/ijtihad.v21i1.1-20.
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This study explores the extent to which religious court judges decided the origin of biological children following the implementation of the Indonesian Constitutional Court Decree number 46/PUU-VIII/2010. A substantial ambiguity was apparent in the Indonesian family law concerning civil relationships between children born out of wedlock and their biological fathers. Consequently, judges had different legal interpretations over status of children, which created disparities of the children’s civil right protection. This study focuses on investigating the judges’ legal reasonings when deciding origin of biological children born out of wedlock. This is a case study with a legal philosophical approach. Data collection includes document collection, whereas data analysis involves deductive and inductive approaches. This study found three typologies of judges’ legal reasonings in relation to how they decided the origin of the biological children. Pragmatic judges would not provide legal protection to the biological children as they failed to accept lineage of these children towards their parents, creating uncertainty over the children’s legal status. Conservative judges with a positivistic mindset would acknowledge legal relationship between the biological children and their mothers, generating the children’s civil rights in relation to their mothers. Progressive judges would provide legal protection to the biological children. Progressive judges accepted the lineage of these children towards their parents but acknowledged their civil rights in relation to their fathers in limited ways such as living allowance and testament. Disparities of judges’ decisions regarding the origin of the biological children substantially created a legal uncertainty to these children.
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Firyal, Wafda. "Pemberian Hak Hadanah Kepada Ibu Tiri dalam Putusan Pengadilan Agama Sidoarjo Nomor: 0763/Pdt.G/2018/Pa.Sda Perspektif Maslahah Mursalah." AL-HUKAMA' 9, no. 1 (June 3, 2019): 231–63. http://dx.doi.org/10.15642/alhukama.2019.9.1.231-263.
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This article is a library research on the granting of rights to stepmothers in the decision of the Sidoarjo Religious Court Number: 0763/Pdt.G/2018/PA.Sda. The research data are collected using documentation techniques and are analysed using descriptive analysis techniques and using a deductive mindset that is by outlining the decision of the Sidoarjo Religious Court which is then reviewed from the perspective of maslahah mursalah. The panel of judges in determining the right of gift to stepmothers in the Sidoarjo Religious Court's decision, based on article 41 letter (a) of Law Number 1 of 1974 jo. article 105 and article 156 letter (a) Compilation of Islamic Law and the proposition in the book Bajuri juz II. In addition, a willingness from the Defendant who is the biological father of the child to give the right of gift to the Plaintiff's Reconstruction is a point that is included as consideration by the panel of judges. In Islamic law which is examined from the theory of maslahah mursalah, the judge's consideration to establish the right of hadanah to the stepmother in the Sidoarjo Religious Court's ruling is in accordance with the purpose of the hadanah namely to prioritize the interests and benefit of the child so that later he or she can grow into a good person under the care of an appropriate person, even though the child is not a biological child of the Reconvention Plaintiff, the Reconvention Plaintiff is in fact more feasible and competent to have the right of hadanah.
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Rofi'atun, Rofi'atun, Akhmad Khisni, and Rozihan Rozihan. "Civil Rights Of Children Outside Married Due Isbat Nikah Of Polygamy (Analysis of Islamic Court of Rembang Decision No. 99 / Pdt.G / 2018 / PA.Rbg.)." Jurnal Daulat Hukum 2, no. 4 (April 7, 2020): 617. http://dx.doi.org/10.30659/jdh.v2i4.8377.
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This study discusses the civil rights of children outside the mating due to confirmation of marriage polygamy, Problems taken author in this thesis is how the legal protection of children outside marriage related his civil rights especially on custody of marriage and inheritance rights to men as fathers biological, because the Indonesian Constitution the Act of 1945 and other regulations related to children's rights requires such a case, article 28 B (2) the result of amendments to the Act of 1945 states "Every child has the right to live, grow and develop and is entitled to protection from violence and discrimination, as well as the norms of Islamic law every child born in the holy predicate attached to him (Fitrah), so that the civil rights of Islam also guaranteed, regardless of whether the child was born out of and / or as a result of a legal marriage or a result of Sirri Marriage.The research method used by writer is a normative juridical approach where the study was conducted based on legal materials main by way of studying the theories, concepts, principles of law, rule of law, court decisions and legislation relating to this study.The results showed that based on the decision number: 99 / Pdt.G / 2018 / PA.Rbg, in the case of confirmation polygamous marriage, civil rights children outside marriage (polygamy) or Sirri equal to the rights of children born and / or result polygamous marriage is official, so that the legal rights of children outside marriage in the decision on child custody and inheritance rights equal to other biological children were born of the first marriage. thus based on the decision of the civil rights of children protected by law, to get justice, and the certainty of the status and civil rights.Keywords: Civil Rights of Children Outside Marriage; Sirri Polygamy; Rights of Guardianship And Inheritance.
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Marongiu Buonaiuti, Fabrizio. "Recognition in Italy of filiation established abroad by surrogate motherhood, between transnational continuity of personal status and public policy = Il riconoscimento in Italia del rapporto di filiazione costituito all’estero tramite maternita’ surrogata, tra continuita’ dello status e ordine pubblico." CUADERNOS DE DERECHO TRANSNACIONAL 11, no. 2 (October 1, 2019): 294. http://dx.doi.org/10.20318/cdt.2019.4959.
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Abstract: A recent judgment by the Sezioni Unite of the Italian Corte di cassazione has ruled on a highly sensible and controversial issue, concerning the compatibility with the Italian public policy of a foreign court order, establishing a bond of filiation between a child born by surrogacy and the intended father, materially the same sex spouse of the biological father, despite the absence of any genetical link. The Sezioni Unite declared that such a court order could not be recognized, as incompatible with the Italian public policy. In so deciding, they appeared to have taken a step back as compared to an earlier judgment delivered by the first civil chamber of the same Corte di cassazione in 2016, where a more favourable attitude had prevailed. As compared to the said earlier judgment, the Sezioni Unite, besides distinguishing the circumstances occurring in the two cases, provided a more flexible reading of the public policy exception in private international law, partly overruling the narrower reading provided in the earlier judgment, which had limited its scope to those principles concerning the protection of fundamental rights enshrined in international and European instruments, as well as in the Italian Constitution. In the conclusions it reaches, the judgment by the Sezioni Unite reveals a substantial alignment with the solution envisaged by the European Court of Human Rights in its Advisory Opinion of 10 April 2019, contemplating adoption by the intended, non-biological parent, as the avenue by which the right of the child to his private life with that parent might be enforced.Keywords: Status filiationis, surrogate motherhood, public policy, recognition of personal and family status, Art. 8 ECHR.Riassunto: Una recente sentenza delle Sezioni Unite della Corte di cassazione ha affrontato una questione molto delicata e controversa, costituita dalla riconoscibilità in Italia di un provvedimento giurisdizionale straniero costitutivo di un rapporto di filiazione tra un minore e il padre di intenzione – materialmente il coniuge dello stesso sesso del padre biologico – in assenza di alcun legame genetico. Nell’affermare che un tale provvedimento non può essere riconosciuto in quanto in contrasto con l’ordine pubblico, le Sezioni Unite sono parse compiere un passo indietro rispetto a una precedente pronuncia della I sezione civile della stessa Cassazione del 2016, nella quale aveva prevalso un approccio di maggiore apertura. Rispetto a tale precedente pronuncia, le Sezioni Unite, oltre a sottolineare le differenze tra le fattispecie che si presentavano nei due casi, hanno adottato una definizione maggiormente flessibile del limite dell’ordine pubblico nel diritto internazionale privato, del quale la precedente decisione della sezione semplice aveva dato una lettura eccessivamente restrittiva, limitandone la portata a quei soli principi internazionalmente condivisi in materia di tutela dei diritti fondamentali e a quegli ulteriori principi che trovano affermazione nella Costituzione italiana. Nelle conclusioni raggiunte, la pronuncia delle Sezioni Unite rivela un sostanziale allineamento con la posizione assunta dalla Corte europea dei diritti dell’uomo nel suo parere consultivo del 10 aprile 2019, facendo riferimento all’adozione del minore da parte del genitore d’intenzione privo di legami biologici, come la via attraverso la quale il diritto del minore alla sua vita privata con tale genitore può ricevere tutela.Parole chiave: rapporto di filiazione, maternità surrogata, ordine pubblico, riconoscimento degli status personali e familiari, Art. 8 CEDU.
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Sulaiman, Sulaiman. "STATUS EFFECT ON CHILDREN OUTSIDE MARRIED STATUS AFTER CONSTITUTIONAL RELIGIOUS COURT DECISION." Jurnal Akta 8, no. 2 (June 29, 2021): 93. http://dx.doi.org/10.30659/akta.v8i2.7924.
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The purpose of this study as follows 1) To identify and explain Child outside influence married status of the right to inherit after the Constitutional Court decision No. 46/PUU-VIII/2010 in the Religious Court Kendari, 2) To identify and explain the barriers outside the married status of children of the right to inherit after the decision of the Constitutional Court Number 46/PUU-VIII/2010 in the Religious Court Kendari, 3) To identify and explain solutions to overcome barriers outside the married status of children of the right to inherit after the decision of the Constitutional Court Number 46/PUU-VIII/2010 in the Religious Court Kendari. The method used by researchers is sociological approach juridical law and specification in this study were included descriptive analysis. The sources and types of data in this study are primary data obtained from field studies with interview Religious Court Judge in Kendari. And secondary data obtained from the study of literature. Based on the results of the research are In terms of inheritance after the court ruling, the position of a child outside of married as intended by the constitutional court decision outside the married is not the same child with the natural child, has been gaining street or space to get recognition for the sake of protection of the rights of the child outside the married. In this case the Constitutional Court to decide Article 46/PUU-VIII/2010 on children outside of married, deserved to be recognized by the biological father and is also entitled to inheritance equal to the other children. Constraints in this Constitutional Court decision is a matter of perspective among law enforcement and government officials to give up the rights to illegitimate children are no different treatment or other discriminatory treatment.
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Ananta, Muhamad Jefri, Dominikus Rato, and I. Wayan Yasa. "Perceraian dan Akibat Hukumnya terhadap Anak dan Harta Bersama Menurut Hukum Adat Osing di Desa Aliyan, Kecamatan Rogojampi, Kabupaten Banyuwangi." e-Journal Lentera Hukum 4, no. 3 (December 14, 2017): 221. http://dx.doi.org/10.19184/ejlh.v4i3.5587.
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Divorce or dissolution of the marriage means the return of husband and wife into group family own. According to Osing adat law in Aliyan village, Rogojampi, Banyuwangi Regency, the divorce will give the rise to rights and obligations of children and joint property. The community of Osing adat law embraces the system of bilateral kinship which pulls the descendant line of the second parent with regard to the divorce by which children are given the freedom to choose by following the father or the mother. The community of Osing adat law never discriminates on the ground of biological children, legal children, adopted children and stepchildren, and legal position children. In the system of bilateral kinship, with regard to the divorce, the legal position of the property will return to the origin and joint property will be shared equally.
Keywords: Divorce, Osing Adat Law, Legal Position, Children and Joint Property
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Bernstein, Neil W. "Bodies, Substances and Kinship in Roman Declamation: The Sick Twins and Their Parents in Pseudo-Quintilian Major Declamations 8." Ramus 36, no. 2 (2007): 118–42. http://dx.doi.org/10.1017/s0048671x00000710.
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Believe me, good folks, this is not so inconsiderable a thing as many of you may think it;—you have all, I dare say, heard of the animal spirits, as how they are transfused from father to son &c. &c—and a great deal to that purpose:—Well, you may take my word, that nine parts in ten of a man's sense or his nonsense, his successes and miscarriages in this world depend upon their motions and activity, and the different tracts and trains you put them into, so that when they are once set a-going, whether right or wrong, ‘tis not a half-penny matter,—away they go cluttering like hey-go-mad; and by treading the same steps over and over again, they presently make a road of it, as plain and as smooth as a garden-walk, which, when they are once used to, the Devil himself sometimes shall not be able to drive them off it.Claims about the physical substances and the reproductive processes of human bodies underwrite presuppositions about familial identities and roles in many cultures. The claim, for example, that the male is the true parent and the female a mere receptacle becomes part of a brief for justified matricide in Aeschylus'Eumenides(657-673). Roman declaimers often take up the question of whether blood is thicker than water. A would-be adoptive father finds his attempt to adopt a young man criticised as a symptom of the disease of luxury (Sen.Con.2.1), while a foster father finds his argument for retaining his adolescent foster sons rebutted by the birth father's claim that his biological ties are more significant—even though the birth father has not seen the children since he exposed them shortly after birth (Sen.Con.9.3). Depending on the observer, the birth of twins may be viewed as a source of family pride, as evidence of the mother's adultery, or as an abomination.
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Abdullah, Nafilah. "MENYOAL KEMBALI PERKAWINAN DI BAWAH TANGAN (NIKAH SIRRI) DI INDONESIA." Musãwa Jurnal Studi Gender dan Islam 12, no. 1 (January 29, 2013): 63. http://dx.doi.org/10.14421/musawa.2013.121.63-81.
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All people who enter the gates of family life through marriages intend to achieve a prosperous and harmonious family life and receive blessing in this world and the next. Marriages must therefore be done in accordance with religious law. A marriage is legal if conducted in accordance with one’s religion, and must be recorded in the Office of Religious Affairs (KUA). Marriages which are not recorded by authorized officials are sirri marriages, and are contrary to legislation. Furthermore, its harm can be seen from its consequence, the lack of legal certainty between husband and wife and the children. This entails the legal consequence that sirri marriages do not have a Marital Deed and children borne of such marriage receive no government recognition, and are considered children born out of wedlock, only having civil relations with the mother and the mother’s family. The wife and children abandoned by a biological father cannot take legal action for the fulfillment of their economic rights or for joint marital assets.
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Ajanwachuku, Michael Akpa. "A Critical Appraisal of the Right of Inheritance of Children Born Out of Wedlock." Hasanuddin Law Review 1, no. 1 (May 12, 2016): 1. http://dx.doi.org/10.20956/halrev.v1i1.192.
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The phenomenon of the so-called bastard children has growth astronomically worldwide. In Nigeria, the rights of children born out of wedlock to inherit their biological fathers who died intestate was wholly dependent on the acknowledgement of paternity. This paper attempts to unravel the recent development in the law of inheritance in Nigeria with respect to children born out of wedlock. It concludes from the review of case laws in Nigeria that there is a significant progressive development of the law in Nigeria. Absent acknowledgement of paternity, children born out of wedlock may now inherit their biological fathers if they can provide other evidence of paternity, including the use of DNA technology.
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Ajanwachuku, Michael Akpa. "A Critical Appraisal of the Right of Inheritance of Children Born Out of Wedlock." Hasanuddin Law Review 1, no. 1 (May 12, 2016): 1. http://dx.doi.org/10.20956/halrev.v1n1.192.
Full textAbstract:
The phenomenon of the so-called bastard children has growth astronomically worldwide. In Nigeria, the rights of children born out of wedlock to inherit their biological fathers who died intestate was wholly dependent on the acknowledgement of paternity. This paper attempts to unravel the recent development in the law of inheritance in Nigeria with respect to children born out of wedlock. It concludes from the review of case laws in Nigeria that there is a significant progressive development of the law in Nigeria. Absent acknowledgement of paternity, children born out of wedlock may now inherit their biological fathers if they can provide other evidence of paternity, including the use of DNA technology.
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Nakayama, Noriyuki, Tetsuya Yamada, Hirohito Yano, Yuki Kato, and Toru Iwama. "COT-05 Experience of fertility preservation in 3 male cases and 1 female case with high-grade glioma." Neuro-Oncology Advances 2, Supplement_3 (November 1, 2020): ii21. http://dx.doi.org/10.1093/noajnl/vdaa143.094.
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Abstract High-grade glioma (HGG) has a low survival rate, and fertility preservation (FP) has rarely been discussed in the field of Japanese neurosurgery. We report on 4 reproductive patients, including 2 male patients who became biological fathers. Case 1 was a 23-year-old man with anaplastic oligodendroglioma (AO) of the right frontal lobe. Temozolomide maintenance therapy (TMZ-MT) was completed 42 courses after the initial surgery for economic reasons. 21 months later, a local recurrent lesion appeared, so TMZ-MT was restarted after removal this lesion. When he married at 32 years old, the couple wished a desire for childbearing. The TMZ-MT was stopped at 47 courses from the resumption and they aimed for spontaneous pregnancy. At 5 months after discontinuation of TMZ-MT, Gd-enhanced lesions increased again, so we changed the course to in vitro fertilization and resumed TMZ-MT. The couple had a biological baby at his 33 years and 10 months old. Case 2 was a 33-year-old married man with AO of the right parietal lobe. After partial removal, the FP information was explained and cryopreservation of sperm was performed. As of 23 months after the first operation, he became a biological father by in vitro fertilization. Case 3 was a 31-year-old married man with diffuse midline glioma (H3K27M mutant) in the cervical spinal cord. After partial removal, we provided FP information in the same manner, but the couple did not chose cryopreservation of sperm due to his mRS 5. Case 4 was a 24-year-old female with anaplastic astrocytoma of the brain stem. FP information was provided after stereotactic biopsy, but she chose to start radiochemotherapy without cryopreservation of eggs. Patients of reproductive age with HGG, especially oligodendroglial tumors who have a higher survival rate than astrocytic tumors, should be positively informed about FP before treatment begins.
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Wahyudi, Muhamad Isna. "Judges’ Legal Reasoning on Child Protection: Analysis of Religious Courts’ Decisions on the Case of Child Parentage." Al-Jami'ah: Journal of Islamic Studies 55, no. 1 (June 26, 2017): 127–54. http://dx.doi.org/10.14421/ajis.2017.551.127-154.
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This paper examines four religious courts’ decisions on child legal status, especially child parentage, after Constitutional Court’s decision on the legal status of child born out of wedlock. The Constitutional Court’s decision has triggered controversy on the rights of child born out of wedlock due to lack of explanation concerning term ‘civil legal relationship with the biological father’. To study the decisions, the author uses legal philosophy approach, both in legal science and Islamic law, focused on legal reasoning used by judges in decisions on child parentage. As the result, the author finds two types of legal reasoning employed by judges of religious courts in dealing with cases of child parentage, doctrinal-deductive legal reasoning and maṣlaḥa based legal reasoning. It argues that the employment of doctrinal-deductive legal reasoning by the judges has not benefitted children and therefore the protection of child’s rights has not been optimally made nd that the employment of maṣlaḥa based legal reasoning by the judges has led to the better protection of child’s rights.[Tulisan ini membahas empat putusan pengadilan agama terkait status hukum anak, khususnya waris anak, setelah dikeluarkannya putusan Mahkamah Konstitusi (MK) tentang status hukum anak di luar nikah. Putusan MK telah memicu kontroversi karena kesenjangan penjelasan tentang adanya hak perdata seorang anak yang lahir di luar nikah dengan ayah biologisnya. Dalam mengkaji persoalan ini, penulis menggunakan pendekatan filsafat hukum, baik secara ilmiah atau hukum Islam, yang fokus pada argumentasi hukum para hakim dalam kasus hak waris anak. Penulis setidaknya menemukan dua tipe argumentasi yang digunakan para hakim dalam kasus tersebut, yaitu: alasan hukum legal deduktif-doktrinal dan alasan hukum berbasis maṣlaḥah. Tipe yang pertama cenderung melemahkan perlindungan hak anak, sedangkan tipe kedua justru akan menguatkan hak anak.]
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Lazuardi, Glery. "Status Kewarganegaraan Ganda Dilihat dari Perspektif Undang-Undang Nomor 12 Tahun 2006 tentang Kewarganegaraan Republik Indonesia." SIGn Jurnal Hukum 2, no. 1 (August 12, 2020): 43–54. http://dx.doi.org/10.37276/sjh.v2i1.64.
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This study aims to analyze the status of dual citizenship in terms of Law Number 12 of 2006 on Citizenship of the Republic of Indonesia. This research uses normative legal research methods. Normative legal research is research conducted by conducting a study of statutory regulations, namely Law Number 12 of 2006 on Citizenship of the Republic of Indonesia, whether it is relevant to be applied to a legal problem. The legal problem in this study is the citizenship status of Gloria Natapradja. In 2016, Gloria Natapradja was dismissed as an official of the Heirloom Flag raiser after having French citizenship, who followed the citizenship of her biological father. After conducting research, it is known, the state has an obligation to protect the rights of citizens. The state should pay attention and protect citizens regarding the status of citizens. The problems experienced by Gloria Natapradja, because citizenship status can be seen as not yet the maximum role of the government to protect citizens. The issue of citizenship in Gloria Natapradja requires the government to review the regulation of citizenship status as regulated in Law Number 12 of 2006 on Citizenship of the Republic of Indonesia.
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Skosana, Themba, and Sandra Ferreira. "STEP-PARENT ADOPTION GONE WRONG: TURNER V TURNER (GJ) (unreported) case number 13040/2013 of 19 June 2015." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 19 (May 10, 2016): 1. http://dx.doi.org/10.17159/1727-3781/2016/v19i0a731.
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Step-parent adoption happens where a child is adopted by the spouse or civil union partner of a biological parent. This is a drastic invasion into the life of a child because (except if provided for otherwise) an adoption order terminates all parental responsibilities and rights any person had in respect of a child immediately before the adoption, and confers full parental responsibilities and rights in respect of the adopted child upon the adoptive parent. Under specific circumstances an adoption order may also be rescinded, again disrupting the life of the child dramatically. Because of the immense impact on a child, rescission of an adoption order has to be handled with kid gloves.In Turner v Turner two children had been legally adopted by their step-father while the Child Care Act was in operation. After the implementation of the Children’s Act, however, he applied for these adoption orders to be rescinded. The court was faced with a situation where the application had been brought in contravention of the maximum two-year-period as prescribed by the Children’s Act. Although it was argued that non-compliance with this statutory requirement prevented the court from adjudicating this matter, Mokgoatlheng J focused on the best interests of the child, considered the legality of the adoption orders (why?), and ultimately concluded that the supremacy of the best interests of the child meant that he was not precluded from hearing the application. In the end he ordered rescission of the adoption orders. The judgment cannot be supported.
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Mas'udah, Laily. "STUDI HUKUM ISLAM TENTANG PENGANGKATAN ANAK (ADOPSI) DI UNIT PELAKSANA TEKNIS PERLINDUNGAN DAN PELAYANAN SOSIAL ASUHAN BALITA KOTA SIDOARJO." Usratuna: Jurnal Hukum Keluarga Islam 3, no. 2 (June 30, 2020): 61–87. http://dx.doi.org/10.29062/usratuna.v3i2.187.
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Implementation of Adoption in the Technical Implementation Unit for the Protection and Social Service of Sidoarjo City Toddler Child Care goes through 9 stages: prospective adoptive parents make an application letter for adoption of a child and written who the prospective adopted child is, filing the adoption administration filing stage, the adoption eligibility test stage with the holding of home visit I, submission of prospective adopted children to Prospective Adoptive Parents, the second step of the feasibility test of adoptive parents, the Recommendation Phase of the Social Service, the consideration phase by KEMENSOS in the PIPA Team session, certificate of granting permission for adoption of the child, finally the court's decision to determine the Court. The rights of children in the Technical Implementation Unit for the Protection and Social Services of Sidoarjo City Toddler Child Care have fulfilled the provisions contained in articles 4 through article 18 of Law Number 23 Year 2002 concerning Child Protection. In Islamic law, adoption of a child may not break the text between the child and his biological parents because it will have legal consequences for the child in terms of inheritance and marriage. In inheritance, adopted children are not included in the category of factors that cause someone to inherit each other, so that the adopted child has no right to inherit from his adopted father. If the adoptive parent wishes to give property to the adopted child it can be distributed by means of a grant while he is still alive or by will.