Ariyanto
Faculty of Law, Universitas Yapis Papua, Papua, Indonesia.

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RECONSTRUCTING CUSTOMARY MARRIAGE LAW: A COMPARATIVE STUDY OF INDONESIA AND SOUTH AFRICA Yenny Febrianty; Ariyanto; Desy Maryani; Jonathan Rey Cusa; Rindiana Larasati
KANUN:JURNAL ILMU HUKUM Vol. 28 No. 2: August 2026: Constitutional Law and Global Development
Publisher : Universitas Syiah Kuala

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24815/kjih.v28i2.1494

Abstract

The prevalence of unregistered customary weddings and child marriage practices in many Indonesian communities continues to render children vulnerable in legal contexts, notably regarding civil status, inheritance, and legal protection. South Africa serves as a significant comparative paradigm via the Recognition of Customary Marriages Act 1998 and Constitutional Court jurisprudence, which imposes constitutional human rights standards as substantive constraints on the acknowledgment of customary norms. This study utilizes a normative-juridical methodology incorporating statutory, conceptual, and comparative approaches, focusing on the principle of the best interests of the child as articulated in international human rights law, specifically the Convention on the Rights of the Child (CRC) and its subsequent interpretative frameworks. The findings indicate that the reform of customary marriage law should not solely concentrate on administrative registration or the banning of child marriage, but also on creating a constitutional harmonization framework that safeguards living customary law while ensuring that customary practices do not infringe upon the fundamental rights of children. The South African model demonstrates the coexistence of constitutional primacy, judicial review, and legislative acknowledgment of customary marriage within a multiple legal framework, all while safeguarding children's rights. This article  advances the establishment of a child-rights constitutional framework for the regulation of customary marriage within multiple legal systems and provides a comparative basis for prospective reforms of customary marriage law in Indonesia.