scholarly journals Konsep Harta Bersama dan Implementasinya di Pengadilan Agama

2014 ◽  
Vol 12 (1) ◽  
Author(s):  
Mesraini Mesraini
Keyword(s):  
Islamic Law ◽  
Community Property ◽  
Joint Property ◽  
Husband And Wife

Abstract: The Concept of  Joint Assets and its Implementation in the  Religious Court. Legislation in Indonesia stipulates that any property acquired during marriage becomes joint property of husband and wife, without distinguishing who works and who registered the property. If the marriage come to an ends, either through death or divorce, the property must be divided equally. In general, this study found that a panel of judges in the religious court division decided a case of the distribution of joint property is not outside of the statutory rules. Since no agreement or reconciliation had been made   by the husband and wife in dispute about the portion of the division of their property, the judge decided that the joint property be divided in the same amount. However, if there is an agreement between husband and wife, the division of the joint property will be based on that agreement.Keywords: community property, Compilation of Islamic Law, judgment, Court of Religion.Abstrak: Konsep Harta Bersama dan Implementasinya di Pengadilan Agama. Perundang-undangan di Indonesia mengatur bahwa setiap harta yang diperoleh selama perkawinan dijadikan sebagai harta bersama suami isteri, tanpa membedakan siapa yang bekerja dan harta itu terdaftar atas nama siapa. Apabila perkawinan itu berakhir, baik karena kematian maupun karena perceraian, maka harta tersebut harus dibagi dua sama banyak nilainya. Penelitian ini menemukan data bahwa secara umum majelis hakim Pengadilan Agama dalam memutuskan perkara pembagian harta bersama tidak keluar dari aturan perundang-undangan tersebut. Selama tidak ada kesepakatan atau perdamaian yang dibuat oleh suami dan isteri yang bersengketa tentang porsi pembagian harta bersama, majelis hakim memutuskan harta bersama tersebut dibagi sama banyak. Namun, apabila terdapat kesepakatan antara suami dan isteri, pembagian harta bersama didasarkan atas kesepakatan yang mereka buat.Kata Kunci: harta bersama, Kompilasi Hukum Islam, putusan hakim, Pengadilan AgamaDOI: 10.15408/ajis.v12i1.980

scholarly journals Juridical Review on Grants of Treasure Together Of Child Due Divorce In Religious/ Islamic Courts of Kendal

Jurnal Akta ◽  
2020 ◽  
Vol 6 (4) ◽  
pp. 741
Author(s):  
Bagus Malik Hakim ◽  
Akhmad Khisni ◽  
Munsharif Abdul Chalim
Keyword(s):  
Rule Of Law ◽  
Islamic Law ◽  
Secondary Data ◽  
Children Of Divorce ◽  
Primary Data ◽  
Community Property ◽  
Sense Of Justice ◽  
Religious Courts ◽  
Joint Property ◽  
Husband And Wife

Divorce in the event, then the entire joint property, the property acquired during the marriage is divided into two parts, namely the upper half of the husband and half to the wife. Kendal Religious Court in deciding the division of joint property, there are in accordance with the provisions of Islamic Law Compilation, is half portion for half of the husband and wife to. But there is also, Kendal Religious Courts decide part of the joint property of the wife is greater, which is part of the joint property to the wife more than in the joint property of the husband. There is also, the Religious Courts Kendal cut off all joint property is granted (given) to his son.The purpose of this research are: 1) To know and understand the implementation of joint property grants to children of divorce in the Religious Kendal. 2) To know and understand the considerations related decision Religious Court judges Kendal in community property donated to the children of divorce. 3) To know and understand the barriers and solutions implementation of joint property grants to children of divorce in the Religious Kendal. The data used in this study are primary data, secondary data and data that can support tertiary study, which was then analyzed by descriptive analytical method.Kendal Religious Court Decision on the Implementation of the Joint Grant Treasure Kids Due To Divorce Court Kendal Religion is a decision that truly reflects the sense of justice, reflect expediency and legal certainty. Therefore, when the divorced husband and wife agreed to grant the joint property willed to his son, accompanied by a deed of peace. Therefore, the verdict ideal is when it contains elements of Gerechtigekeit (justice), Zweckmassigkeit (benefit), and Rechtssicherheit (rule of law) in proportion.Keywords: Overview of Juridical; Grant; Treasure Together; Divorce.

COMPARATIVE STUDY ON GONO GINI'S ASSETS DUE TO A DEATH ACCORDING TO THE ISLAMIC LAW AND POSITIVE LAW

2019 ◽  
Vol 1 (1) ◽  
Author(s):  
Pardan Syafrudin
Keyword(s):  
Comparative Study ◽  
Common Property ◽  
Islamic Law ◽  
Positive Law ◽  
Community Property ◽  
Communal Property ◽  
Islamic Jurisprudence ◽  
Legal Restriction ◽  
The Common ◽  
Husband And Wife

The Common properties (community property) is an asset that the husband and wife acquired during the household lifes, which both of them is agree that after united through marriage bonds, that the property produced by one or both of them will be common property. It shows, that if there's an agreement between husband and wife before marriage (did not to unify their property), then the property produced both will not become a joint treasure. Thus, if a husband or wife dies, or divorces, then the property owned by both of them can be distributed in accordance with their respective shares, another case when the two couples are not making an agreement, then the property gained during marriage bonds can be divided into types of communal property. In Islamic law, this kind of treasure is not contained in the Qur'an or Sunnah. Nor in Islamic jurisprudence. However, Islamic law legalizes the existence of common property as long as it is applicable in a society and the benefit in the distribution of such property. In contrast to the positive law, this property types have been regulated and described in the Marriage Law, as well as the Islamic Law Compilations, which became the legal restriction in the affairs of marriage in force in Indonesia. In this study, the author tries to compile the existence of common property according to the Islamic law reviews and positive law.

Keadilan Distributif atas Pembagian Harta Bersama dalam Perkawinan bagi Keluarga Muslim di Indonesia

2018 ◽  
Vol 11 (1) ◽  
pp. 35-48
Author(s):  
Siah Khosyi’ah
Keyword(s):  
Common Property ◽  
Islamic Law ◽  
Married Couples ◽  
Dropping Out ◽  
Legal Cases ◽  
Islamic Jurisprudence ◽  
Marital Property ◽  
Joint Property ◽  
Husband And Wife ◽  
Muslim Scholars

The division of marital joint property after the breakup of marriage, whether dropping out of marriage due to divorce or due to death, is a new thing in Islamic jurisprudence (fiqh). This is because the concept of mutual treasure is not known in the books of classical Islamic jurisprudence of Muslim scholars of the schools at their times, in which their work are always made as referral in the legal cases up to the present days. In Indonesia, the distribution of common property is regulated in the Compilation of Islamic Laws Articles 96 and 97, which stipulate the rules of distribution of joint property for married couples whose married are off as a result of divorce or death. Article 97 of the Compilation of Islamic Law actually provides an overview of the flexibility of the distribution of common marital property, including in certain cases because the article is regulating (regelen) rather than forcing (dwigen), so that the division is not absolutely divided equally between husband and wife, and casuistically the provisions of that article may be disregarded.

scholarly journals PELAKSANAAN PUTUSAN NOMOR: 1719/PDT.G/2018/PA.BWI DALAM PEMBAGIAN HARTA PERKAWINAN DALAM PERKARA POLIGAMI

2020 ◽  
Vol 8 (2) ◽  
Author(s):  
ABDUR ROHMAN
Keyword(s):  
Islamic Law ◽  
Legal Certainty ◽  
Equal Share ◽  
Joint Property ◽  
Husband And Wife

 Dapat dideskripsikan, bahwa pelaksanan pembagian harta gono-gini dalam perkawinan poligami adalah sama dengan pembagian harta gono-gini dalam perkawinan monogami, yaitu masing-masing pasangan mendapatkan bagian sama antara suami dan para istri, sebagaimana maksud Pasal 37 Undang-undang Nomor 1 Tahun 1974 dan Pasal 97 Kompilasi Hukum Islam.  Ditetapkan harta bersama dalam perkara ijin poligami, adalah demi kemaslahatan dan melindungi Harta bersama Pemohon dan Termohon, agar istri yang  baru tidak mengklaim harta bersama tersebut dengan menerapkan 3 pilar tujuan hukum yaitu keadilan, kemanfaatan dan kepastian hukumKata kunci: kepastian hukum, poligami, perkawianan It can be described, that the distribution of the gono-gini assets in the polygamy marriage is the same as the distribution of the gono-gini assets in a monogamous marriage, where each pair gets an equal share between husband and wife, as intended in Article 37 of Law Number 1 of 1974 and Article 97 Compilation of Islamic Law. Determined joint property in the case of a polygamy permit, is for the benefit and protection of Assets with the Petitioner and Respondent, so that the new wife does not claim the joint property by applying the 3 pillars of legal objectives namely justice, expediency and legal certainty Keywords: legal certainty, polygamy, marriage 

scholarly journals Akibat Hukum Perceraian Terhadap Harta Benda Perkawinan

2019 ◽  
Vol 2 (2) ◽  
pp. 151
Author(s):  
Sugih Ayu Pratitis
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Applicable Law ◽  
Personal Property ◽  
Personal Rights ◽  
Marital Property ◽  
Shared Property ◽  
Legal Consequences ◽  
Joint Property ◽  
Husband And Wife

<p>The emergence of the problem of joint property in a marriage is usually when there is a divorce between husband and wife, or when the divorce process is taking place in the Religious Court. The purpose of the study is to examine the position of joint property in marriage according to Islamic law and the provisions of the legislation and the legal consequences of divorce on marital property. The research method used is a type of normative research where research is carried out by first researching the materials that are in accordance with the problem to be studied. The result of this research is that the position of husband and wife property obtained in marriage is shared property except personal property which is under the marriage will be the personal rights of each husband or wife. While due to divorce between husband and wife, the assets obtained during marriage are divided in half for the husband and half for the wife. The method for resolving cases of sharing of shared assets at the Religious Court is if the divorce has been approved by a judge, then a husband and wife can submit a request for sharing of shared assets in accordance with applicable law. And if a divorced husband and wife do not want to carry out the distribution of shared assets, then one of the parties can submit a request for execution in the Religious Court to force those who do not want to carry out the decision in accordance with what was decided by the Religious Court.</p>

scholarly journals Disparity In The Judge's Ruling About Community Property Disputes After Divorce (An Analysis of The Verdict In The South Jakarta Religious Court, Religious Court of Jakarta And Supreme Court)

2018 ◽  
Vol 6 (1) ◽  
pp. 19-44
Author(s):  
Kamarusdiana Kamarusdiana
Keyword(s):  
Supreme Court ◽  
Theoretical Approach ◽  
Common Property ◽  
Islamic Law ◽  
Legal Theory ◽  
Fundamental Problem ◽  
Legal Positivism ◽  
The South ◽  
Community Property ◽  
Joint Property

Abstract. There is a discretion in the South Jakarta Religious Court with the provisions of the Compilation of Islamic Law. Thus, the fundamental problem of legal theory and theory which is used by the Judge to decide upon the joint property, why the decision is different between the judges at the first level, the appeal and the cassation, and how the parties' argument in acquiring the common property. The result shows that the argument used by the panel of judges at the first level is in fact of the law property obtained from the income of the wife in addition to meet the sense of justice and benefit. While the judges at the higher level and Cassation in the Supreme Court are more normative to the existing of legal norms. The theoretical approach used by judges at the first level is the theoretical approach of legal realism while the judges at appeal level and Cassation use theories of legal positivism. Keywords: Joint Property, Legal Positivism, The Ijtihad Of Judges, The Disparity Of The Verdict. Abstrak. Terdapat ketidaksesuaian putusan mengenai pembagian harta bersama pada Pengadilan Agama Jakarta Selatan dengan ketentuan dalam Kompilasi Hukum Islam. Sehingga, yang menjadi permasalahan mendasar hukum dan teori apa yang digunakan oleh Hakim untuk memutus harta bersama tersebut, kenapa putusan tersebut berbeda antara hakim ditingkat pertama, banding dan Kasasi, serta bagaimana argumentasi para pihak dalam memperioleh harta bersama. Berdasarkan hasil penelitian penulis, Argumentasi yang digunakan majelis hakim ditingkat pertama ialah secara fakta hukum harta yang diperoleh lebih banyak dari hasil penghasilan isteri disamping untuk memenuhi rasa keadilan dan kemaslahatan. Sedangkan hakim ditingkat II (PTA) dan Kasasi di Mahkamah Agung lebih normatif kepada norma hukum yang sudah ada. Pendekatan teori yang digunakan oleh hakim ditingkat pertama lebih kepada pendekatan teori realisme hukum sementara hakim ditingkat banding dan Kasasi lebih banyak menggunakan teori positivisme hukum.Kata Kunci: Harta Bersama, Positivisme Hukum, Ijtihad Hakim, Disparitas Putusan. DOI: 10.15408/jch.v6i1.8266

scholarly journals Marriage Treasure Ownership in Arabic and Nusantara Fiqh Perspectives

ADDIN ◽  
2018 ◽  
Vol 12 (2) ◽  
pp. 555
Author(s):  
Nur Khoirin
Keyword(s):  
Islamic Law ◽  
The Other ◽  
Way Of Life ◽  
Joint Property ◽  
Husband And Wife

<p>One of the problems that often arise after the divorce is the ownership of assets acquired during marriage, whether it belongs to the husband, wife, or both of them. According to the Compilation of Islamic Law or the fiqh of the results of <em>ijtihad fuqaha</em> Nusantara, the assets obtained in marriage, except those obtained through inheritance or grants from parents/family, are joint property of husband and wife (gono gini). One party may not use it except getting agreement from the other parties. And if marriage breaks, either because of divorce or death, then it must be divided into two. In the books of Arabic Fiqh, there is no joint property because marriage does not cause a mixture of wealth. Nonetheless, in the books of fiqh provides the possession of wife's assets, such as dowry, livelihood, mut'ah, <em>iwadl</em> and <em>tirkah</em>. If the provision of fiqh is carried out consistently, then when a divorce occurs, the husband must leave the house, because all the property has become the property of his wife through a way of life. But this is certainly not fair. Therefore the determination of the existence of joint property in marriage is a moderate opinion and a benefit.</p>

scholarly journals Joint Property Distribution upon Divorce Reviewed From the Contribution of Husband and Wife in the Household

2021 ◽  
Vol 3 (1) ◽  
pp. 1-20
Author(s):  
Eka Ristianawati
Keyword(s):  
Islamic Law ◽  
Civil Code ◽  
Dual Role ◽  
Fair Share ◽  
Property Distribution ◽  
Descriptive Research ◽  
The Family ◽  
Approach Method ◽  
Joint Property ◽  
Husband And Wife

Joint property distribution has been regulated in the Islamic Law Compilation (KHI), namely, Article 97 which explains that a widow or widower is entitled to half of the joint property. The distribution is fair if the husband and wife make the same contribution in the marriage. However, in fact, today we often find that wives are being the backbone of the family while husbands do not earn a living or husbands earn a living for the family, but wives do not take care of the household. If such a situation is found, is the article 97 of KHI still relevant? This paper presents a concept of joint property distribution based on the contribution of husband and wife in marriage which is considered fairer for both of them than what has been stipulated in the KHI and the Civil Code Articles 128-129. The type of research used is descriptive research. This means that research is discussed in the form of an explanation described in words carefully and thoroughly. The approach method used in this research is a normative juridical approach. The results of this study explain that to obtain the justice, judges can act contra legem (against the law) where justice should give a share to everyone based on his services or contributions (Aristotle). The joint property distribution in marriage from a justice perspective is the distribution of joint property by assessing the amount of contribution of the parties. A fair share does not have to be 50% for widowers and 50% for widows. The husband can get a smaller share from the wife if the contribution is less during the marriage and does not carry out his obligation as the breadwinner and the wife can get a larger share from the husband if the wife plays a dual role, and vice versa.Pembagian harta bersama telah diatur dalam Kompilasi Hukum Islam yakni pada pasal 97 dijelaskan bahwa janda atau duda berhak separuh dari harta bersama. Pembagian tersebut adil apabila suami dan istri memberikan kontribusi yang sama dalam perkawinan. Akan tetapi pada faktanya saat ini sering kita temui istri menjadi tulang punggung keluarga sedangkan suami tidak mencari nafkah atau suami mencari nafkah untuk keluarga akan tetapi istri tidak mengurus rumah tangga. Jika ditemukan keadaan seperti itu apakah masih relevan KHI pasal 97 tersebut. Tulisan ini menyajikan sebuah konsep pembagian harta bersama berdasarkan kontribusi suami istri dalam perkawinan yang dinilai lebih adil untuk keduanya daripada apa yang sudah diatur dalam KHI dan KUHPerdata Pasal 128-129. Hasil dari penelitian ini dijelaskan bahwa untuk mendapatkan sebuah keadilan hakim dapat bertindak contra legem (mengenyampingkan undang-undang) dimana keadilan itu seharusnya memberikan bagian kepada setiap orang didasarkan atas jasa-jasanya atau kontribusinya (aristoteles). Pembagian harta bersama dalam perkawinan jika dilihat dari perspektif keadilan adalah pembagian harta bersama dengan menilai besaran konstribusi para pihak. Dimana pembagian yang adil tidak harus 50 % untuk duda dan 50% untuk janda. suami bisa mendapatkan bagian yang lebih kecil dari istri apabila kontribusinya kurang selama perkawinan dan tidak menjalankan kewaibannya sebagai pencari nafkah dan istri bisa mendapatkan bagian yang lebih besar dari suami jika istri berperan ganda, begitu uga sebaliknya. 

scholarly journals MARRIAGE AGREEMENT FOR THE JOINT ASSETS IN MIXED COUPLE MARRIAGE ACCORDING IN INDONESIA BOOK OF CIVIL LAW NUMBER 1 OF 1974 POST DECISION OF THE COURT OF CONSTITUTION NUMBER 69/PUU-XIII/2015

2021 ◽  
Vol 9 (1) ◽  
pp. 290-301
Author(s):  
Titik Triwulan Tutik
Keyword(s):  
Islamic Law ◽  
Civil Law ◽  
Court Decision ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Mixed Marriage ◽  
Equal Rights ◽  
The Status ◽  
Joint Property ◽  
Husband And Wife

This study aims to analyze the position of the Marriage Agreement for Joint Treasures in Mixed Marriage from three sides of the law, namely Civil Law, Law Number 1 of 1974, and Constitutional Court Decree Number 69/PUU-XIII/2015. Hypothesis: Decision of the Constitutional Court Number 69/PUU-XIII/2015 in line with Islamic law that prioritizes equal rights and obligations between husband and wife in terms of ownership of assets in marriage. The method: used is normative (dogmatic) legal research, which is intended to find and formulate legal arguments, through analysis of the subject matter. While the approach used in this study there are 4 (four) types, namely: the statutory approach, comparative approach, conceptual approach, and case approach. The results: of the study show that the Constitutional Court Decision Number 69/PUU-XIII/2015 has provided a practical solution in overcoming the problems of a Marriage Agreement on Joint Assets: First, a marriage agreement can be made before, during and after the marriage is implemented. Second, ratification of a marriage agreement may be by a notary public, and effective from the date of the marriage agreement, and may be revoked. Third, marriage agreements are binding on third parties, especially related to the position of joint property in the marriage. This means that, Indonesian citizens have the right to joint property in a mixed marriage as long as the marriage agreement states that. The ruling is in line with Islamic law that prioritizes equal rights and obligations between husband and wife in terms of ownership of assets in a marriage. Conclusion: The legal consequences of the Constitutional Court Decision Number 69/PUU-XIII/2015 on the status of joint property made a marriage agreement after marriage which began since the marriage took place followed by the status of shared property becomes separate if both parties wish in the agreement, as well as assets to be obtained in the future remain the property of each party, without having to obtain a court decision regarding the separation of assets. This ruling is in accordance with Islamic law which prioritizes equal rights and obligations between husband and wife in terms of ownership of assets in marriage.

scholarly journals The Concept of Joint Property Ownership of Husband and Wife

2022 ◽  
Vol 4 (1) ◽  
pp. 15-19
Author(s):  
Musfira Musfira ◽  
Syahrizal Abbas ◽  
Khairani Khairani ◽  
Wahyu Khafidah
Keyword(s):  
Data Analysis ◽  
Research Method ◽  
Islamic Law ◽  
Literature Study ◽  
Legal Research ◽  
Property Ownership ◽  
Shared Property ◽  
Joint Property ◽  
Husband And Wife ◽  
A Share

Specifically, this study is the concept of joint property ownership of husband and wife. The focus of this study is important because, in the Marriage and Islamic Law Compilations, The property obtained in marriage becomes the joint property.So that, when a divorce or death occurs, each person gets half a share, in the regulation, there is no question about who produced it. In the reality of life in society, many wives work to earn a living, so it was interesting to study the different proportions in the distribution of property, in the event of a divorce. The problem of this research was how the concept of the joint property rights of husband and wife. In answering these problems, this research was carried out using the Socio-Legal Research method, by looking at the reality on the ground, to interpret joint property in changing situations. The technique of collecting data was through literature study, while the data analysis was qualitative. The findings of the study indicated that the practice of sharing assets with judges tends to use normative construction. Each of them got half a share and this was seen as an injustice, both through regulation and reconstruction of thinking in the distribution of the shared assets. Keywords: concept, ownership, shared property, marriage, law.

Sign in / Sign up

Export Citation Format

Share Document