Traditional and Customary Law of Inheritance in Indonesia

Author : Salmudin
Editor : Indrayanto
Translator : Indrayanto

In Indonesia there are three legal systems governing the issue of inheritance, ie Islamic law, Western law and customary law. Each legal system has style and characteristics of its own.Customary inheritance law has the complexion and distinctive characteristics of Indonesia, as stated by Hilman Hadikusuma:

It has the customary law of inheritance patterns and distinctive characteristics of Indonesia, which is different from Islamic law and Western law. Because the only difference from the natural background of the Indonesian people's mind that berfalsafah Pancasila with communities which are diverse yet. Background it is basically a life together that is mutual help in order to realize and peace in life. (Hilman Hadikusumah, 1983: hlm.19)

Besides the customary inheritance law is a rule governing the issue of customary inheritance. As stated by Soepomo. The customary law of inheritance includes the rules that govern the process to continue and pass down property goods and goods that do not materialize objects (immateriele goederen) from a human force (generatie) to the derivatives. (R. Soepomo, 1980: hlm.81 -82).

Inheritance law not only contained in customary law, but also found in Islamic law and Western law. This is not only due to the division in article 163 and article 131 IS, but the reality now is still felt and there is division.

To distinguish between inheritance law in one legal system with inheritance laws in other legal systems, so in this case used the term customary inheritance law. The term beneficiary there is no unity of meaning, whether found in legal dictionaries and other sources. There are interpreting the term beneficiary with "legacy, inheritance or doubtful debts left by a person who dies wholly or partially to the right of the heirs or the person specified in the will". In addition there is a mean heirs "who are entitled to receive inheritance from people who have died. "

It appears there are differences, on the one hand defines the term heir to the heritage and on the other hand defines the persons eligible to receive the family inheritance. The difference of opinion shows the lack of uniformity in the language of our laws.

To get a clear understanding of the need for unity of opinion on a term. To achieve that, the work done is to trace the etymology.

The term comes from the Arabic heritage that was taken over into Indonesian, which is derived from the word "warisa" means to inherit property, "meaning heir heirs, beneficiaries". Waris indicate people who receive or inherit property from someone who had died. It also can be seen from the "Word of Prophet Muhammad.: Ana warisu manla warisalahu means I became heir who does not have an heir (Ahmad and Abu David)."

In terms of customary law of inheritance broader meaning than the meaning of its origin, not only because the beneficiary after the death of the world but while he still lives of people who will leave his property to bequeath to their beneficiaries.

Customary inheritance law or some call it with the customary law of inheritance is customary law that essentially governs the person who left the property or give his property (Heir), estate (inheritance), heir (heirs and not the heiress) and property transfer and forwarding heir of the heir to the beneficiary.

To know in depth, following the opinion of the experts pointed out the customary law, such as Ter Haar, Soepomo, Faith Sudiyat, Soerojo Wignyodipoero and Hilman Hadikusuma.

According to Ter Haar BZN:

... Customary law of inheritance that includes the legal rules relating to the process over the centuries has attracted the attention, is the process of forwarding and switching of material wealth and of the derivative immateriel offspring.

According Soepomo:

The customary law of inheritance includes the rules that govern the process forward and turn over items that do not materialize objects (immateriele goederen) from a human force (generatie) to derivatives.

According Soerojo Wignyodipoero:

The customary law of inheritance include legal norms that define both the material wealth of a person who does that can be handed over to their offspring and simultaneously also regulate when, how and transitional processes. (Soerojo Wignyodpoero, 1985: 161)

According to Faith Sudiyat:

Customary inheritance law covers the rules and legal decisions relating to the router / transfer and transition / transfer of material and immaterial wealth from generation to generation.

According to Hilman Hadikusuma:

... Customary inheritance law is customary law that includes provisions on the lines of the system and the principles of inheritance law of inheritance, the heir and the inheritance and the way how the estate was transferred control and ownership of the heir to the heir.

Of the several opinions in the above there is a similarity that, customary inheritance laws governing inheritance forwarding and transfer wealth from one generation of offspring. This indicates the occurrence of customary law for inheritance must meet four basic elements, namely:

1. the Heir;
2. Treasure of Inheritance;
3. Inheritance of experts; and
4. Forwarding and estate transfer.

Customary heir

Heir is a person who owns or holds or controls or who left the property to be continued or be transferred to its progeny, or who left the property to be inherited to the beneficiaries.

Heir in Indonesian society is different between the heirs in a patrilineal society in the Batak with the heir to the matrilineal Minangkabau society or bilaterally in the Java community. In a patrilineal society in the Batak, the heir is the father, in the Minangkabau matrilineal society is heir to the mother, whereas in Java with the bilateral community is heir to both parents, Mom and Dad.

In Minangkabau, who became heir to the mother, because her kids Powered clannya part, Whereas the father is not included in the group tied to them his relatives.

In the Batak of the Father who became the heir, because marriage is honest, so the mother went to her husband and broke up in the environment at all with his family, he went and joined into the clan of her husband.

Indigenous estate

Estate is the property abandoned or given by the heir to the beneficiary, whether that can be shared and which can not be divided. Generally, property estate is undivided and the treasures that can be shared. To know both the property need to know the nature, origin and status of the estate. Estate can be divided into four sections, namely:

1. Treasure origin
2. Granting property
3. Livelihoods and property
4. Inherited rights and obligations.

Property of origin is the property acquired or held by the heir before the marriage that was brought into the marriage, whether it be the heritage property or property by gift.

Can be distinguished heritage with the heritage who remain undivided and the heritage that can be shared, as well as an innate property there is an innate property of the wife and husband innate treasure. Both this treasure in our society have a different position in accordance with the form that society.

Legacy

As stated that there was treasure peningggalan heritage with the undivided and heritage that can be shared. In a lot of bringing the issue of inheritance is the undivided heritage, because of this wealth as if there are heirs kehilangang his right to have individual or master fully.

An inheritance is not divided in our customary law due to the nature and position of the treasure. In the bilateral community in Java, the heritage can become the undivided heritage when such a widow or children who are minors must receive a living from it and providing a living is not guaranteed if held division.

In Minangkabau, known for such high inheritance gadang house, farming or cultivation. In this matrilineal society treasures which belonged to the mother as the center pengusaannya. This heritage is not as central command. This legacy can not be held individually but collectively have it for members of the maternal relatives. In addition to the Minangkabau, another example of land in peninsular Hitu kin dati Ambon, in this patrilineal society wealth is controlled by boys and male offspring.

Against property or relatives in Minangkabau in Ambon Hitu mastery led by mamak head in Minangkabau inheritance, dati in Hitu head.

In addition to the factors above, undivided inheritance because the property was reserved only for the care of penguasaannya patrilineal society such as in switch-switch in Bali legacy dominated by boys replace the oldest parents to take care of and maintaining his brothers , or in adhering to Semendo matrilineal inheritance system only controlled and managed, are not transferable, to girls who are known to wait tertus tubang. "... And also in other areas, in general, many of the heritage not remain divided and provided to meet the material needs of families left behind". (R, Soepomo, 1980: hlm.81).

"It is not yet free from the rule of law partnership is concerned, such as soil kesikepan in Cirebon area." Another possibility, which is "probably the heritage that is not divided because after the death of the owner, his property as a family treasure dijadian indivisible unity."

In addition to the above mentioned, which causes undivided inheritance was also described by Soerojo, because its legal status is tied to a place / position (eg goods sacred palace of Cirebon entirely appropriate Kasepuhan falls on heirs who became sultan Sepuh and goods- goods were still stored in the palace Kasepuhan). (Faith Sudiyat, 1981: hlm.156)

While the heritage which can be divided in general contained in the patrilineal communities in Batak, and bilaterally in the Java community, and did not rule on the areas that heritage with the above due to the shift of the age and kinship systems merenggangnya property is divided, but not at prinsifnya can be divided. In Minangkabau, also known as low pusata treasure that is all the heritage of one or two armed relatives, for example, from a grandfather or grandmother heads the unity of descent that includes relatives of members who are not so large, it may eventually owned by the father or mother so it does not become real property divided.

Similarly, in Semende which became the property remains undivided or divided only wait tubang property only, while the treasure can be shared outside tubang property. The property can be divided is usually a source of income or assets of property by gift.

Congenital property

Innate property is property owned by husband or wife before marriage. Therefore be divided between husband and treasure treasure congenital congenital wife. That there is an innate property bound by relatives and some were not bound by the relatives.

Innate property bound by such relative wealth of the husband who brought the husband who was taken to the residence of his wife (matrilokal) in a matrilineal society in Minangkabaum treasure given to girls as a girl in her Batak who brought her husband settled in the place of residence (patrilokal) which Tano or building called saba.

Innate property that is not bound by relatives, because the property was the result of the husband's income while still flunky (treasure celibacy, South Sumatra), a treasure waiting for the wife or a maiden to a rich treasure of women in Bali either men or property.

Innate property that is bound to relatives, in prinsifnya will return to relatives, while the property is not inherently tied to the relatives will be distributed to the beneficiaries.

Can be increased because of an innate property income, gifts or favors given to one party or the living treasures that can be owned by one party, such as property income in Aceh when the husband and wife do not give or lunch to her husband in search of treasure, in West Java precisely in the Sunda known nyalindung galung ka that is, if the marriage is the wife of a rich or poor husband manggih otherwise known as the rich.

"Wealth can be distinguished between the innate husband husband as a treasure celibacy congenital or innate aptitude husbands as property."

Similarly, the wife of an innate property. Wife as well as an innate property with congenital husband can be distinguished between innate property to place the husband because honest wedlock, an innate property as a treasure waiting for wedlock wife semanda (matrilokal) or assets of innate aptitude in free-wedlock live independently despite the influence of family or relatives . (Hilman Hadikusumah, 1983: hlm.56).

As a treasure celibacy, then the property is an innate property guardian, while the property is the wife of an additional property, usually occurs when the honest marriage of the wife settled in the place of residence of the husband (patrilokal) and this happens in many patrilineal society. When the property was taken as stock celibacy in marriage, the wife as property wealth on hold and her husband settled in the place of the wife (matrilokal), while the husband-wife innate property in Java, is an innate property debriefing of each property apart from their parents.

Granting property

Granting property is property owned by the heirs because of either a gift from the husband for the wife, a gift from parents, relatives giving, giving to others, the gifts of marriage or because the grants will.

Distinguished from the treasures treasures of origin, because the original property existed prior to the marriage while giving existing property after marriage.

Provision of marital property because of the husband, in Aceh; jinamee, Minahasa; hoko, South Sulawesi; sunrang or dowry are the property of the wife and later will be inherited by the beneficiary. Treasure this gift does not have children then this property will be returned to the relatives as an additional property to the property by gift. Similarly, gifts received by a woman from her future husband belonged to the wife.

Treasure of the parents, in some societies bound by the relatives, such as granting the father's property to her daughter when she was Batak or while children are in a marriage (saba buildings, pauseang, beauty probir), when the wife is dead and has no children, then this property will be returned to relatives.

Treasure of relatives, usually occurs when the relatives are able and families who were given the less able. According to customary law if the provision was directed to one of the husband and wife, then the property becomes the property of the husband or wife who was given it, but if the gift was addressed to the husband and wife, then the property becomes joint property.

Granting property of others, such as the provision of a co-worker. If the property is designated as a gift to one of the husband and wife, as well as giving relatives only gift motive is different. The relatives usually based self-pity, compassion or mutual help, while giving others a sense of friendship and so forth.

Granting property by gifts-gifts in the marriage when one party addressed to the husband and wife, then the property becomes the property of either party, provided that, but when given to both, then the property becomes community property provision.

While granting property karean grants will, in general, property is still tied to the property heirs, so that will nantina were taken into account in the division of property inheritance, because it is bound by the relative wealth of menghibah wasiatkan.

Treasure Livelihoods

Living treasures are the treasures acquired by husband and wife, husband or wife in a marriage just because of the efforts of husband and wife or either of the parties.

Generally, property acquired in marriage is community property husbands and wives, but in some communities there are treasures just living husband or wife's income property just because the form of marriage and kekerabatannya system. In Minangkabau suarang property known treasures, the gono-gini Java, Kalimantan perpantanganm treasure in Bugis and Makassar known cakkara.

Joint property can be increased because of property by gift, estate administration, and other property intended for families who provided it.

Treasure husband living there in Aceh, to be her own husband's income if the wife does not give stock in obtaining the property. In the Sundanese of West Java, income derived by the husband belonged to the husband when their marriage the husband is rich (rich manggih). In Minangkabau property obtained by the husband who truly living from his own as his own.

While living treasures such as the Sunda wife when the marriage of the wife of the rich and the poor husband (nyalindung galung ka), then the property belongs to the living wife wives.Against property income each spouse, the property will be returned to the living relatives.

Inherited Rights and Obligations

In Minangkabau rulers of the position of the rights and obligations when deemed incompetent, based on the family council can be replaced by a male sibling. Rights and obligations of the eldest male in Bali to replace both parents are not replaced by his brother. The rights and obligations in Semende tubang wait can not be given to the other girls.

While the amounts payable under customary law heir to the estate entrance, became heir to the debt obligation of the beneficiary, as in Toba Batak, Dayak and Bali. But the collector is limited when its right in 40 days since the death of the heir does not collect or not to notify his right to the inheritance, the right to sue is lost and if the beneficiary is not able to pay off debt or heir can only partially paid, then the collector can not forcing the beneficiary.

In Minangkabau, when the heir to (the mother) has an unpaid debt and by the beneficiary, then the undivided property can be used to settle debts with the approval of the heir to the family, headed by the chief beneficiary mamak. In Lampung, Lampung, for example in the position of Naka Pepadun oldest man (child punyimbang), so his father died, the customary position, title and custom fittings and all the attributes of ancestral lands and move forward on punyimbang children, even channeling replace this father can apply before the person parents died.

Customary heir

Beneficiary is the person who is entitled to continue / accept or master / property inheritance. In general, inheritance is a descendant of the nearest heir or heirs who called heirs, but in some forms of society there are people who are entitled to an estate heir who was not called inheritance.

Beneficiary in the form of society and the system of inheritance differ from one another, bilaterally in the Java community is different from the patrilineal society in Batak and Minangkabau matrilineal. Likewise, people with a different system of inheritance is different from individual communities or with the collective system of inheritance mayorat system.

According Hazairin, "two kinds prinsif to find out who the heirs, namely first and second line of the principal virtue of replacing the main line." Prinsif Both are applicable to individual and collective inheritance system, but both prinsif this does not apply to the inheritance system because the system of inheritance mayorat mayorat heir has been determined. In mayorat system in Bali male heir is the eldest male, while in the system of women in Semendoeadalah mayorat oldest daughter called to wait tubang.

Main line replacement is a real way to determine who among the heirs of a group of people who are heir to the primacy of the family environment and how their respective parts, if the beneficiary law allows, while the line is the principal virtue of a law that determines the line between the class-precedence perikutan faction in the family's heir, in the sense that one group take precedence over other groups with the result that something is not necessarily included in the calculation if there is a more mainstream group. Classification is as follows:

• The first class is all the descendants of the heir
• The second faction is the old man's heir
• Golonga third is the heir to the brethren
• The fourth class is the parent of the heir to the parents (the grandparents).

As stated above groups differ from one society to another system. All offspring (children), both men and women are heirs of both parents in the Javanese, Madurese, Dayak and Toraja in Sulawesi, because in this society adopted the system of bilateral descent, while in the matrilineal society in Minangkabau all descendants of the parties mother, both men and women, while the father will be inherited by relatives. Similarly, in a patrilineal society in Batak descent who had become heir to his father was just a boy.

Adopted child the same position under customary law with the widow, not as heirs but is entitled to a living heir of the heritage, especially in the case of joint property. Widows are not an heir because he was considered a foreigner, but as a wife she is entitled to maintenance from the husband's legacy especially in Java, widow occupies a special place when small children are still minors, the widow who ran her husband's property and enjoy with their children until their children adult.

Stepchild is not an heir but because lives with her father or stepmother who left the estate, so he only participated enjoyed the course.

Children born outside marriage, according to customary law only inherited her mother alone, but in certain areas like in Minahasa (raw foster) can inherit his father after the recognition of the child (mahelilikur), and among the Javanese and other areas children daeragh who were born outside marriage can be inherited her biological father on the basis of compassion (parimirma).

The inheritance above, now appears there is a shift especially after the dispute to the estate, either through jurisprudence and in legislation such as the Marriage Law Law. 1 Year 1974 which led to a bilateral system in the form of society so that children somehow become heirs.

The nature of customary inheritance law

Customary inheritance law is part of customary law which are a reflection of the form of Indonesian society. Customary law has the qualities and motifs.

Deviating from the individualistic Western European law-liberalistis, customary law has the following motifs:

1. Have the nature of togetherness (communaal) is strong, meaning that human beings under customary law is in a close community ties, strong sense of togetherness, a sense of community includes the entire field of customary law.
2. Having complexion "magisch-religieus", which is associated with the view of Indonesia's natural life.
3. Legal system is overwhelmed by these thoughts all-concrete, which means that customary law is concerned the number and he repeated over and over-Nexus Nexus concrete life. Customary law systems use the type of legal form of transportation department concrete (eg, how the state semasyarakat friends, transportation sales (displacement) in agreement about the land, etc.).
4. Customary law has a very visual nature, means of transportation-communications are considered legal because it only happens by the set with a bond that can be seen (visible signs).Customary law as an unwritten law established and maintained by the rulings of law in society daripara organizers, namely the first judges in legal procedures gubernemen the Dutch East Indies and in-laws governance autonomous regions and subsequently the village heads in the bottom layer wide of the villagers. (R, Soepomo, 1965: hlm.107)

As part of customary law, then the properties and motifs can be seen or reflected in customary inheritance law.

Communal properties can be seen from the nature of the estate. Property inheritance in customary law is not an abstract entity that can be assessed with the money or if it may be divided or sold, then the results were parceled out to his beneficiaries, but the estate in customary law is a concrete entity that can not be divided.

Custom estate is the property of the heirs of togetherness. In customary law there is also no right to refuse to be a beneficiary, this shows the togetherness of the nature of the heir to the heir.In the case of estate that can not be divided like property or assets of relatives in Minangkabau in Semende tubang wait, that does not mean the other heirs have no rights against the property.Similarly, in Bali, but the heir who did not control or own property are entitled to enjoy the property or obtained rights to comply with the results obtained rights to the property or to meet the needs of life while still small or immature.

Similarly, other inheritance rights, customary inheritance laws do not recognize the principle of absolute legiteieme portie or part as in the Islamic inheritance law and inheritance law under western law.

Concrete nature of the customary law of inheritance can be seen from the division of property inheritance. Usually in the division of property inheritance, not by the exact same amount among the beneficiaries but by balancing the family council in accordance with the decision. Delivery of property to their heirs heir is usually determined, to a certain property is given to beneficiary A, the property located at X is distributed to beneficiaries named B and so on. So the delivery or distribution of property inheritance in customary law is a concrete, tangible.

Magies religious nature can be seen from the attitude and behavior of the heir or heirs while still alive. Heir would not give his money to the beneficiary if the view is considered contrary to community law and heir adatm will not arbitrarily to other heirs or estate robbed entirely, because these actions will damage the harmony of the spirit of travel will hamper even the heir who has died, and the heir to feel afraid to do acts which, according to local belief will get a curse. In some specific properties such as the traditional ceremonies. All this shows the religious nature of magies in wealth inheritance.

Visual nature of the laws of inheritance can be seen from the transfer of property inheritance. In the delivery of customary legal estate should be bright and witnessed by the other heirs.Delivery took place at once, and property inheritance when it also fell to the heirs. When the handover, there is a beneficiary who is not present, is usually deferred until the beneficiary is present. During his heirs can give part of life estate to one of the designated heir. Delivery takes place when it was also, not deferred until a certain time.

Apart from the properties and motifs above, customary inheritance law also has properties primarily in the estate. According to the customary law of inheritance, the legacy does not constitute a unity with non-estate property inheritance from the heir, because it must be seen the origin, nature and position of the existing wealth in relation to the heir.

In accordance with the flow of the Indonesian people's mind or the properties mentioned above, in the customary inheritance law have characteristics in accordance with Indonesian national philosophy of Pancasila which, as indicated by Hilman Hadikusuma.

With a description of the decline stems from the precepts, principles of Pancasila as the Indonesian way of life, we can conclude that the customary law of inheritance in the Indonesian nation is not merely have the principle of concord and the principle of equal rights in inheritance, but there are also legal principles consists of:

1. principle of Godhead and self-control
2. Equal rights and the principle of collective rights
3. principle of harmony and kinship
4. Deliberation and consensus principle
5. principles of justice and Parimirma.

Because it shows the properties and the typical pattern, then the customary inheritance laws have a place separate from other legal heirs. Fitting to what was said by Soepomo, "The customary law of inheritance shows motifs that are" typerend "for the flow of Indonesian traditional thinking". Then say "The customary law of inheritance jointed-prinsif prinsif arising from these flows and the concrete mind of the nation kommunal Indonesia. "

Inheritance system

Inheritance system is affected by the descent system. Therefore to know the system of inheritance, need to pay attention to the prevailing system of offspring or adopted by the community. It should be noticed descent system (family law), kesanaksaudaraan (Ter Haar), the law of kinship (Faith Sudiyat), because it is the essence of the customary law of inheritance.

Theoretically the system can be differentiated descendants of three kinds, as described Hilman Hadikusuma, descent systems Theoretically it can be differentiated into three patterns, namely:

1. Patrilineal systems, ie systems which was drawn by the descendants of the father, where men were more prominent position of influence from the position of women in inheritance (Gayo, Alas, Batak, Nias, Lampung, Buru, Seram, East Nusa Tenggara, Irian).
2. Matrilineal system, which is drawn by descent system according to matrilineal, where women are more prominent position of influence from the position of men in inheritance (Minangkabau, Enggano, Timor).
3. Parental or bilateral system, ie two-sided system of descent (father-mother), in which the position of men and women are not distinguished in the inheritance of (Aceh, East Sumatra, Riau, Java, Kalimantan, Sulawesi and others).