Gender Equality in the Concept of Family Maintenance and Marital Property in Indonesian and European Legal Context: A Comparative study

Abstrak

This paper examines the concept of family maintenance and marital property in Indonesian and European law through a gender-based comparative analysis. This normative-comparative study aims to formulate a gender-equitable concept of family maintenance that can inform reconstructive thinking to the Indonesian legal reform. The findings show that the concept of family maintenance in European law reflects greater gender equality than that found in Indonesian law. In Indonesian law, the obligation to provide maintenance falls solely on the men, or husbands, while in European law, both spouses share equal responsibility for meeting household needs. This difference stems from the influence of Islamic law (which also places the obligation to provide for on husbands) and from the sociocultural context surrounding the Law No. 1 of 1974 on Marriage, which was enacted at a time when women did not yet possess equal legal and social status. Meanwhile, European countries adhere to the European Union's Human Rights Treaty, which adheres to the principle of equality and nondiscrimination. This gender inequality of family maintenance obligation in Indonesian law raises concerns, as women now have attained higher education, held professional positions, and earned substantial incomes, often exceeding those of their spouses. This situation has also contributed to an increase in divorce cases, as many women file for divorce due to economic reasons. Family maintenance is closely linked to marital property, as both relate to the financial and economic structure of the household. Indonesian marital property law also shares similarities with European law due to the influence of Dutch civil law. Understanding this concept of marital property should help balance the concept of maintenance to be equal for both spouses, because since after marriage, both spouses’ incomes become community property, unless otherwise stipulated in a marriage agreement. Therefore, this study contributes to ongoing discussions on family maintenance in Indonesian marriage law, which has remained largely unchanged since 1974 despite extensive social transformation.