The Risk of Criminalization of Unregistered Married Couples Under the Definition of Cohabitation as a Criminal Offense in the National Criminal Code

Abstract

Law Number 1 of 2023 concerning the National Criminal Code contains a new provision that has attracted attention from various parties, namely Article 412 concerning the crime of cohabitation. This article threatens criminal penalties for anyone living together as husband and wife outside of marriage. This formulation raises particular concerns because it has the potential to ensnare couples in unregistered marriages, a practice that has long existed in Indonesian society and is considered valid under religious law, even though it is not yet registered under state law. This article aims to address two questions: first, how should the phrase "outside of marriage" in Article 412 be interpreted when dealing with unregistered couples; and second, to what extent does the application of this article risk criminalizing them. This study uses a normative juridical method with a statutory and conceptual approach. The results show that textually and systematically, the lack of registration can place unregistered marriages at risk for the application of the phrase "outside of marriage," although the lack of registration does not necessarily prove that all elements of the crime have been met. Teleologically, room for exceptions remains open if the elements of religious validity are proven to be met, such as a guardian, witnesses, a dowry, and the appropriate time for the marriage contract. However, in practice, the risk of criminalization remains real, particularly because the absolute complaint mechanism has the potential to be misused as a pressure tool by families who disapprove of a relationship, with the most severe impact being felt by women and children. This article recommends the need for technical guidelines that provide clear parameters to distinguish genuine cohabitation from authentic unregistered marriages.