A trend of the present time
An examination of the 169 inheritance legal cases filed before the Supreme Court between 2000 and 2009 indicates that the debate in the Supreme Court from the 1950s-early 1960s has not changed much.
It still is about whether a widow is entitled to the separate property or marital property and how big her share should be, as well as about whether the daughter is an inheritor of her father's property and how much her share is. This is surprising given the fact that at the time the debate seemed to have been decided in favour of widows and daughters, as discussed in the previous section.Why is this the case? Does it have something to do with the lack of a tradition of jurisprudence and precedent in Indonesia? Because it is rooted in the Continental/Dutch legal tradition, many Indonesian judges consider that the legal system does not hold an obligation on them to refer to jurisprudence as an important source of law in handling similar cases (Komisi Yudisial 2017).
Therefore, the Supreme Court decisions hailed as ‘breakthroughs' in inheritance cases during 2000-2009 are often not new at all, as similar decisions were made in the late 1950s-early 1960s. They concern decisions to give a widow the right to inherit both the marital property and the separate property of her husband; to give a daughter the right to inherit her father's property. Other decisions are new indeed, such as those to give the inheritance right to fostered and adopted children (including women); and to give the right to the wife and children from a subsequent marriage to inherit the marital property of the husband from an earlier marriage.
The study found contradictions in these 169 decisions of the Supreme Court concerning the position of the widow. Some decisions do not recognise the right of surviving widows to inherit, so all rights of inheritance are given to the children. Others only give the widow the right to the marital property, but not to her husband's separate property.
What about daughters? Here the Supreme Court is more consistent. Its decisions determine daughters as heirs to their fathers, putting them on a par with sons. A daughter here means a female child born to the marriage between a man who is her biological father and her biological mother, regardless whether from a first or subsequent marriage. Like sons, daughters only have the rights to inherit the marital property of their father and their own mother and are not entitled to any share of inheritance from the estates of their fathers from marriages to other women. This is an important issue since several disputes have occurred between the wives and children from another marriage of that deceased man.
Looking at the Islamic court, where it regards the inheritance portion for a daughter, the study shows that in general, she receives less than her brother. Adopted children, both male and female, are recognised as the heirs of their adoptive father or mother, but their share should not exceed one-third of the inheritance. Still, in traditional Syariah law, adopted children are not recognised as inheritors at all.
As far as the separate property ofthe father or the husband is concerned, the stance of the Supreme Court is ambivalent. Some decisions determine that the wife is the one entitled to the separate property of the husband. However, some decisions grant the inheritance rights over the separate property to the children, not to the wife. If there is no child in the marriage, the separate property may be given to his siblings or his parents. I will now look more deeply into some of these issues.