The legality of pre/extra-marital sex and cohabitation in Indonesia

The current criminal code in Indonesia is the Napoleonic criminal code, which was written by French enlightenment thinkers, who argued for a modern (in 1800!) criminal code, which they said was not based in superstition, feudalism, taxation, or despotism. There would be no:

délits factices, créés par la superstition, la féodalité, la fiscalité et le despotisme

Following the collapse of the VOC (in 1799), the trading company that ran much of Indonesia, and the subsequent creation of the Kingdom of Holland, under the control of Napoleon Bonaparte, the Napoleonic criminal code was passed into Dutch law. This also became law in the Dutch Indies, and the current version is the Wetboek van Strafrecht voor Nederlands-Indië of 1915 (valid from 1918), barely changed from the original Napoleonic code.

After independence the colonial legal codes were kept in force, in order to provide a stable transition from the existing legal systems in the post-1945 chaos. The criminal legal code is valid only in Dutch, although the code is used in Indonesia almost exclusively in somewhat inaccurate Indonesian translations without any reference to Dutch, which is only taught at a very rudimentary level during Indonesian law degrees, far from sufficient to understand Dutch legislation.

Article 284 of the Criminal Code provides, in rough translation:
(1) There is a penalty of up to 9 months in prison for:
1a) a married man who commits adultery, or
1b) a married woman who commits adultery
2a) a man who commits adultery with a woman he knows to be married
2b) a woman who commits adultery with a man she knows to be married

(2) This can only be prosecuted by complaint from the offended-against spouse AND they must present a petition for divorce or legal separation, within three months of the act of adultery

Note that the Dutch word in the Criminal Code is ‘overspel’. In English this is properly ‘adultery’. In Indonesian ‘overspel’ is ‘gendak’. However, many translations incorrectly translate ‘overspel’ into Indonesian as ‘zina’. ‘Zina’ is not adultery, it is an Arabic term meaning ‘unlawful sexual intercourse’. While adultery is a form of zina, it is not the entire definition, and it is wrong to refer, for example, to people being ‘stoned to death for adultery’, in a Sharia country. This demonstrates a complete lack of understanding of what ‘zina’ is and that is to say that ‘zina’ is ‘unlawful sex’, which is simply ‘sex other than within a lawful marriage’. Indeed, in pure sharia law there are different subsets of ‘zina’ which represent English crimes such as ‘rape’.

It is important to understand that the enlightenment context of the original 19th century code, was that the crime was to disturb someone else’s marriage, which can be seen as a crime against another person. Whereas the context of zina is a crime against morality, that is to say against the will of God.

Therefore if you had sex with someone’s wife, but they did not break up as a result, you could not be subject to any punishment, because the marriage still continued, so no harm could be proven.

As time has gone on in the West, the treatment of ‘adultery’ as a serious offence has waned, and it is generally accepted that if you want to have sex with someone else’s wife, well that’s up to you and the police will not get involved.

Meanwhile in Indonesia, premarital and extramarital sex are simply regarded as immoral (even though very common), and this reflects religious teachings, in Christianity as well as in Islam, and the context of adultery was never as important as it was in the West.

2026 provisions

In 2023 Indonesia passed its new criminal code, Law number 1 of 2023. This comes into force on 2 January 2026, three years from the date of its passage.

The 2023 law replaces the Dutch-language code with an Indonesian one, strongly based on the existing code, but with input from Sharia law.

Thus, article 411:

1. Every person who has sex with a person who is not their husband or wife, can be punished by up to 1 year in prison or a fine of up to category 2.
2. This can only be prosecuted on a complaint from:
   a) the husband or wife of a married person
   b) the child or parent of a person who is not married

And the new article 412:

1. Every person who lives as if husband and wife, but are not married, can be punished up to 6 months in prison or a fine of up to category 2.
2. This can only be prosecuted on a complaint from:
   a) the husband or wife of a married person
   b) the child or parent of a person who is not married

Article 411 is titled ‘perzinaan’ or ‘the commission of zina’, while article 412 is referred to Indonesia as kumpul kebo. The word kebo is a corruption of the Dutch word gebouw, meaning ‘building’, while kumpul means 'gather’. Therefore article 412 is a prohibition against cohabitation.

It can be seen that while both the old adultery law and the new zina law are delik aduan, which is to say that they can only be prosecuted by a complaint from a victim, the scope of ‘victim’, has been increased widely. This reflects certain facts:

1. an unmarried adult is considered to be under their parents’ authority, despite being, say, 30 years’ old. In most Indonesian cultures it is required to pay a dowry to the parents of a bride to compensate them for taking their daughter, hence even though the woman may be working and living outside the parental home, she still belongs to the parents in a real sense.
2. a woman who is not a virgin is of lower value in this context, as she may be considered unmarriagable by many men, so indeed there is some financial loss.
3. there are many sources of law both in Indonesia and elsewhere in the world, but in this context where it is believed that extramarital sex is immoral, as a result of religious teachings, religion can be seen as an important source of law.

Therefore we can specifically offer the following advice:

• since the offence cannot be proceeded against without a complaint from the family, foreigners are free to fornicate with each other as much as they like and this will remain the case in future, though it’s conceivably possible that foreigners from other conservative cultures (such as Malaysia) in the future will file zina complaints in Indonesia.

De-facto relationships

It can be seen from the above that the so-called de-facto relationship, cohabitation, or kumpul kebo is generally regarded as immoral, and will from 2026 be illegal. Despite this, there are many Indonesian women who cohabit with foreign men, most often in Bali. Cohabitation can give rights for them to immigrate to Western countries, which generally no longer require partners to be married to qualify for settlement visas and other rights.

The question of whether it is at all acceptable to cohabit is dependent on local practice; in certain areas nobody cares, in others it may cause outrage, and local leaders may insist you leave.

Indonesia has the expression ‘sudah kawin tapi belum nikah’, where ‘sudah’ means ‘already’, and ‘belum’ means ‘not yet’, and ‘kawin’ means either ‘to have sex’ OR ‘to marry’, whereas ‘nikah’ means ‘to marry’. However in fact both كَاوِين‎ (kawin) and نِكَاح ‎(nikah) mean ‘to have sex’ (along with ‘to marry’) in Arabic. Indeed, in medieval England it was rare to marry in church, and you became married by moving in with your wife and having sex with her.

This kind of marriage did not cause any issues in medieval times, in that it was understood that by (at least publicly and overtly) taking a woman into your home as your wife, then that was an irrevocable act of marriage, and it was not necessary to go through the trouble and expense of a church marriage. Eventually things became more formalized, and marriages were performed in church by a priest (vicar), rather than in bed between the two parties (though the annulment, or dissolution of a marriage, as distinct from divorce, continued to be possible in cases where the religious wedding was never completed by the act of sex). In Indonesia the cost and troublesome nature of marriage means that there are many who do things similarly and are ‘husband and wife’ even if they did not necessarily go through the formal recognition of doing so by going to the church and civil registry, or religious affairs office.

As a foreigner living or travelling with your Indonesian girlfriend it is likely to be assumed by those around you that you are husband and wife, even if this is neither of your understandings, and you do not intend to commit to a permanent relationship, at least at this time. This can be advantageous in that the assumption of a marital bond is not typically checked, and at least at the present time. I refer to an Indonesian girlfriend, in that sexual roles are not at all equal in Indonesia, so a relationship between a foreign woman and an Indonesian man is quite different in terms of its dynamics. Many Indonesians assume that foreigners practice seks bebas, that is ‘free love’ or ‘promiscuity’, so if a foreign woman is involved with an Indonesian man then she is not deemed debauched by this process to the same extent that an Indonesian woman would be by a foreign man.

In 2026 cohabitation will become illegal, albeit still only on complaint from the parents, children or indeed spouse.

This can be seen, from 2026, to carry numerous risks for the foreigner:

1. foreigners (of either sex!) can be blackmailed if they are living, unmarried, with an Indonesian partner. For example, if the relationship ends, whether because the Indonesian has a new partner, or because the foreigner has lost interest, then the family can report the foreigner to the police.
2. foreigners who have sex with Indonesians (of either sex) could also be blackmailed. For example, it’s obvious that there are women of easy virtue in certain bars and restaurants in Jakarta and Bali, looking to meet foreigners. Some may be one night arrangements, for a fee, others looking to get married, but all carry the risk that if you have sex with them that you can be blackmailed.
3. Women (in particular) who claim to be janda (divorced or widowed), but are in fact only separated from their husband carry the additional risk of a legal complaint from their estranged husband, whom you might not even know.

In conclusion it’s basically ok for a foreign couple to do as they will, now, and in the future. But the creation of the law against cohabitation might cause changes in future. Even though cohabitation is a delik aduan, the fact that it will be a crime means that people (local police, local leaders) might reasonably try to prevent it. We shall wait and see. This, however, is not likely to affect tourists, just the small number of foreign-foreign couples living in Indonesia, especially in conservative areas.

Much more at risk are those mixed couples where the foreigner in the future faces serious criminal threats, if they are not married. Beware and be prepared! For now, I would generally advise to proceed on the basis that kawin and nikah are indeed the same thing, at least in respect of Indonesian women, to avoid various social and familial problems. If you are a foreign woman with an Indonesian man, then you don’t need to worry in the same way.

The age of consent

Although, as per the above, unmarried children are still legally the responsibility of their parents even in their 30s, there are specific laws that apply to sex with people below a certain age.

According to article 287 of the old (current) criminal code:
1) Anyone who has sex with a woman not his wife, whom he knows or should reasonably suspect to be under 15, or not of marriageable age [i.e. 15] shall be punished by up to 9 years in prison

2) This can only be prosecuted on complaint, except if the woman is under 12 years old.

The Marriage Act of 2019 provides for a marriage age of 19 for both sexes, however dispensation can be applied for in both cases, to allow children to marry with parental agreement.

The criminal code also provides at article 290 that anyone who membujuk (seduces) a child whom they should realize is less than 15 to perform lewd acts with themselves, or another, is guilty of a crime.

At article 292 it is provided that an adult who performs lewd acts with a minor of the same sex is guilty of a crime. Although the code does not specify the age of majority, and it was likely 15, current laws and development mean this is likely 18.

The child protection law provides at Article 76E:

No-one shall use violence, threaten violence, force, deception (tipu muslihat), a series of lies, or membujuk a child to perform an obscene act (perbuatan cabul).

Membujuk means ‘persuade’ or ‘seduce’. Obscene acts include homosexual acts, whereas the provisions of zina and adultery are only in relation to heterosexual penetrative intercourse.

Child is defined in that Act as any person less than 18 years old. The offence carries a prison sentence of at least 5 years, and up to 15 years, and a fine of up to 5 billion rupiah.

It can be reasonably assumed that anyone under the age of 18 will be treated as having been seduced, albeit it’s obviously open to interpretation.

Under KUHP 2023, all of the above provisions are replaced with articles 419 and 473, which provide that vaginal, oral and anal sex, as well as penetration of the genitals with an object, are classed as rape, when performed with a child (defined in article 150 as ‘under 18’). Sexual acts falling short of the definition of rape are also illegal when performed with a child and carry a punishment of up to 7 years in prison for having sex with a child. This is no longer only prosecutable upon complaint.

Therefore it can clearly be seen that although it is not 100% clearly illegal for an 18 year old man to have sex with a 17 year old girl, it is not unequivocally legal either. From 2026 the age of consent in Indonesia will be unequivocally 18! This however will not apply if you first marry this person (child!).

Currently for single Indonesians aged 18 and over it is legal to have sex, but from 2026 the zina law will kick in, if they are not married. However zina carries a much lighter punishment than child rape, and requires a complaint from the family, so sex with a 17 year old girl would be a serious crime, whereas with an 18 year old it would be more of a blackmail opportunity.