scholarly journals Analisis Istihsan Atas Pertimbangan Hakim Terhadap Saksi Non Muslim Pada Perkara Perceraian

AL-HUKAMA ◽  
2018 ◽  
Vol 8 (2) ◽  
pp. 507-531
Author(s):  
Misbahul Zaman
Keyword(s):  
Islamic Law ◽  
Descriptive Analysis ◽  
Civil Procedure ◽  
Witness Testimony ◽  
The Status ◽  
Civil Cases ◽  
Law And Justice ◽  
Formal Requirements ◽  
Religious Courts

Verification in the Religion Court is important because the court upholds law and justice based on no other evidence, including in civil cases, such as divorce. One of the proofs is a witness testimony. The majority of Islamic law experts like Imam Malik, Imam al-Shafi'i or Imam Ahmad ibn Hanbal agreed that a witness must be a Muslim, so that in a case witnessed by someone who is not Muslim, his testimony is deemed invalid. This article wants to see a case of establishing non-Muslim witnesses in a divorce case in the Sidoarjo Religious Court by using descriptive analysis, which is systematically describing the facts and characteristics of the object studied by the later analysis and using the istihsan theory. Based on the analysis, the Sidoarjo Religious Court in Case No. 1889/Pdt.G/2017/PA.Sda. has received the status of a non-Muslim witness because it has fulfilled formal requirements in a civil procedure law. In line with istihsan theory, non-Muslim testimony is permissible because of the development of the present era and its greater difficulties so that it can be accepted in religious courts. If it is forced that witnesses to be Muslim, then justice seekers will be harmed and have difficulties.

EFEKTIVITAS PELAKSANAAN PERATURAN PENCATATAN PERCERAIAN DI KANTOR URUSAN AGAMA

2020 ◽  
Vol 6 (1) ◽  
pp. 1-15
Author(s):  
Juriyana Megawati Hasibuan Dan Fatahuddin Aziz Siregar
Keyword(s):  
Islamic Law ◽  
The State ◽  
Judicial Process ◽  
Positive Law ◽  
State Administration ◽  
Shipping Costs ◽  
The Status ◽  
Happy Marriage ◽  
Religious Courts ◽  
Laws And Regulations

Marriage is a sacred bond which is ideally only held once in a lifetime. Both Islamic law and positive law require an eternal happy marriage. To support this the Koran proclaims marriage as mitsaqan galiza. The marriage is then registered in the state administration. In line with this, the laws and regulations are formulated in such a way as to make divorce more difficult. However, when there are acceptable reasons and due to coercive conditions, divorce can be done through a judicial process. The divorce must then be registered by taking certain procedures. The court delivered the notice and sent a copy of the decision to the marriage registrar to file the divorce properly. The implementation of this divorce record was not effective. The separation of the Religious Courts Institution from the Ministry of Religion has become a factor that causes the registration task not to be carried out. The loss of the obligation to submit a copy of the decision on the judge's ruling caused the recording to be constrained. The unavailability of shipping costs also contributed to the failure to register divorce. Even though there is a threat to the Registrar who neglects to deliver a copy of the verdict, unclear sanctions make this ineffective. As a result of the lack of recording of divorce, the status of husband and wife becomes unclear and opens opportunities for abuse of that status.

scholarly journals Wyłączenie biegłego w postępowaniu arbitrażowym

2019 ◽  
Vol 116 ◽  
pp. 9-28
Author(s):  
Aleksandra Budniak-Rogala
Keyword(s):  
Expert Witness ◽  
General Rule ◽  
Civil Procedure ◽  
Legal Basis ◽  
Witness Testimony ◽  
Commercial Arbitration ◽  
Procedure Code ◽  
The Status ◽  
Arbitration Procedure ◽  
Special Knowledge

DISQUALIFICATION OF AN EXPERT WITNESS IN AN ARBITRATION PROCEDUREThe legislator has not provided any specific regulations stipulating the legal basis of a disqualification of an expert witness in an arbitration procedure in the Polish Civil Procedure Code. As a result, it is clear whether it is possible and, if so, under what conditions it could take place. The proceedings before the arbitration court are entirely distinct from litigation, and, therefore, there are different rules concerning the evidentiary procedure, especially obtaining an expert opinion. During the arbitration procedure, as opposed to litigation, there are two modes of obtaining said evidence. As a general rule, there is a possibility of appointing an expert witness by the arbitration court; however, it is more common for the parties to appoint an arbitration expert witness. This justifies the different approach to the matter of disqualification of an expert witness — on the basis of the source of their appointment.Regarding the event of appointing an expert witness by the arbitration court, it is important to note that pursuant to the provision of Article 1184 § 2 sentence 2 of the Civil Procedure Code, the arbitration court is not bound by the provisions regulating the litigation. Therefore, in the arbitration procedure on the grounds of the rule stipulated by the provision of Article 13 § 2 of the Civil Procedure Code there is no legal basis to apply the provisions of Article 281 of the Civil Procedure Code regarding the disqualification of an expert witness. However, it appears that in the analyzed matter it is possible to resort to the IBA Guidelines on conflict of interests in international commercial arbitration. The expert witness appointed by the party shall be attributed the status of a witness with special knowledge expert witness. With this approach there is no need to resort to disqualification of an expert witness — the evidence in question shall be evaluated based on rules on witness testimony.

scholarly journals The Legal Status of Mut’ah Marriage in Indonesia

2021 ◽  
Vol 21 (3) ◽  
pp. 397
Author(s):  
Mimin Mintarsih ◽  
Lukman Mahdami
Keyword(s):  
Research Method ◽  
Legal Status ◽  
Islamic Law ◽  
Married Couples ◽  
Legal Certainty ◽  
Bad Faith ◽  
Criminal Sanctions ◽  
Political Contribution ◽  
The Status ◽  
Religious Courts

Mut'ah marriages with contract marriages bring a dilemma to society. The society views that this is halal (lawful) and legal, but in essence it does not carry out rights and obligations. The problem of this paper is how do civil cases (of mut'ah marriage) get legal certainty so that the logic of "urgent" becomes a status that can protect the rights and dignity of married couples in Indonesia? The purpose of this paper is to analyze the status of mut'ah marriage law so that it does not become a political contribution in Indonesia. The research method used is normative juridical. The result of this research is that in relation to the basis for practice of mut'ah which is considered an emergency, it is clearly contrary to Islamic law because the real aim and purpose of marriage are permanent. Mut'ah actually destroys human civilization and ethics or implies bad faith. The harm will befall the offspring. Children who are born have no legal certainty because they are considered children born of adultery. This research concludes that mut'ah is contrary to the basic provisions of the Material Law of the Religious Courts on Marriage which strictly prohibits mut'ah marriages (Article 2 paragraph 2 of Law No. 1 Year 1974 concerning marriage), the criminal sanctions are regulated in the Draft Law on the Religious Courts of Marriage Article 39 because it is not recorded and Article 144 concerning sanctions against the perpetrator, and the marriage is null and void by law.

scholarly journals Juridical Review of the Legal Imposition of the Defendant in the Sued Divorce Case as the Implementation of Just PERMA No. 3 of 2017

2020 ◽  
Vol 1 (2) ◽  
pp. 133
Author(s):  
Trubus Wahyudi ◽  
Masrur Ridwan
Keyword(s):  
Law Enforcement ◽  
Child Support ◽  
Islamic Law ◽  
Literature Study ◽  
High Court ◽  
Central Java ◽  
Education And Health ◽  
The Law ◽  
Law And Justice ◽  
Religious Courts

The law enforcement paradigm regarding the legal imposition of the Defendant in the case of sued divorce lawsuit as the implementation of Perma No. 3 of 2017, the factor of law protection and justice for women and children's rights due to the divorce of their parents in the Religious Court is essential as the upholding of the rule of law and justice. Judges in adjudicating women's cases against the law must adhere to the following principles: respect for human dignity, non-discrimination, gender equality, equality before the law, justice, benefit and legal certainty. The process of adjudicating a divorce case, even if the initiative of the case is from the woman, her rights must be protected by the former wife, as well as the rights of her child. Normatively, the legal arrangements for the divorce case are Article 73 to Article 83 of Law Number 7 of 1989 Jonto Article 114 to Article 156 Compilation of Islamic Law, and as the initiator of the filing of the divorce case is the wife as the plaintiff. This study uses a sample of several decision objects in certain Religious Courts in the jurisdiction of the High Court of Religion, Central Java, through a series of research methods with a sociological juridical approach or social legal research, and data collection techniques through interviews and literature study. The implementation of Perma No. 3 of 2017 regarding the legal imposition of the Defendant in the case of sued divorce lawsuit in the Religious Court can be formulated in the form of a dictum of the Judge's decision "Condemnatur" as a court product that contains the rights of the former wife as the Plaintiff, as well as the rights of child support, fees sustainability of education and health that is just.

scholarly journals The Reform of the Procedural Religious Court Law Based on Islamic Law in Indonesian Legal System

2017 ◽  
Vol 1 (2) ◽  
pp. 114
Author(s):  
Abdullah Gofar
Keyword(s):  
Islamic Law ◽  
Civil Procedure ◽  
New Order ◽  
Applicable Law ◽  
Philosophical Orientation ◽  
Procedural Law ◽  
History Of ◽  
Western Law ◽  
Substantive Law ◽  
Religious Courts

The history of the development of religious courts and the inner atmosphere struggle of Muslims in Indonesia which faced the state’s political force in the New Order era has brought forth the religious procedural law. Article 54 of The 1989 Law No.7 stated that "the applicable law in the Religious Courts are applicable procedural law in the General Court, except those specifically regulated in this law." Philosophically, the Western law both civil substantive law (Burgerlijke Wetboek) and formal law/civil procedure (HIR and Rbg), prepared using the approach of individualism, secular, the optical properties of the nature legal dispute was seen as objects (Zaak) which is sheer material. While the substantive law in religious courts is the law derived from Islamic law that stem from philosophical values of Islam. So, the presence of the Religious Courts in the scope of judicial in Indonesia still raises problems, including: Why is the western law of civil procedure which promote the value of materialism and formal correctness adopted into religious procedural law, whereas the philosophical orientation is not aligned with the substantive law based on Islamic law, and what are the efforts to reform the reformulation of procedural law of religious courts.

scholarly journals Legal Respect for Children from Sirri's Marriage in the Perspective of Islamic Marriage Law and Regulations Indonesian Law in the District Labuhanbatu

2021 ◽  
Vol 4 (2) ◽  
pp. 2043-2052
Author(s):  
Khairani Amalia Tambunan ◽  
Sriono Sriono ◽  
Risdalina Siregar
Keyword(s):  
Islamic Law ◽  
Field Research ◽  
Marriage Law ◽  
Rights Of The Child ◽  
Islamic Religion ◽  
The Status ◽  
Legal Consequence ◽  
Conducting Research ◽  
Religious Courts ◽  
Legal Marriage

Sirri marriage is a marriage that is legal according to the viewpoint of the Islamic religion, while a legal marriage according to the provisions of Articles 1 and 2 of the Marriage Law is that apart from being carried out on the basis of religion it must also be registered. This study aims to determine the legal consequences for children resulting from unregistered marriages based on Islamic law and statutory regulations. This study uses an empirical juridical method, which is conducting field research, in order to support data related to this research by conducting research at the Religious Courts.. The results showed that Labuhanbatu Regency is an area where many people still carry out unregistered marriages or sirri marriages. This can be seen from the data from the Rantauprapat Religious Court from 2018 until now, there have been 53 recorded cases regarding under-handed marriages that have been ordained. So that the legal consequence of the child resulting from a Sirri marriage has the status of an out-of-wedlock child and he cannot accept the rights of the child as a child from a legal marriage based on the marriage law. In the life of the nation and state, all citizens are obliged to obey and be bound by the prevailing laws and regulations in Indonesia.

scholarly journals PERTIMBANGAN HAKIM TERHADAP PERKARA CERAI GUGAT SUAMI GHAIB DAN AKIBAT HUKUMNYA DI PENGADILAN AGAMA KARAWANG

Yustitia ◽  
2021 ◽  
Vol 7 (2) ◽  
pp. 224-235
Author(s):  
Singgih Hasanul Baluqia ◽  
Puti Priyana
Keyword(s):  
Research Methods ◽  
Government Regulation ◽  
Islamic Law ◽  
Descriptive Analysis ◽  
Secondary Data ◽  
Scientific Papers ◽  
The Status ◽  
Long Time ◽  
Using Data ◽  
Husband And Wife

Marriage is a sacred bond between a man and a woman as husband and wife. With the aim of creating a sakinah household, mawaddah wa rahmah. However, in reality there are many incompatibilities that happened between husband and wife in a journey of household, which in the end leads to not achieving the purpose of marriage which ends in divorce. There are many factors that trigger the occurrence of divorce, one of which is the disappearance of one party by leaving the other party without giving news for a long time and resulting in uncertainty about the status of the abandoned marriage. The purpose of this study is to find out and examine how judges consider divorce cases against unseen (ghaib) husbands and their legal consequences at the Karawang Religious Court. Research Methods in this scientific papers using normative juridical research methods. As well as using data collection techniques carried out using descriptive analysis techniques, with secondary data sources, which include primary legal materials such as laws and regulations relating to the rights of children and wives in divorce cases against unseen husbands, as well as secondary legal materials such as books. , journals, articles, and other legal doctrines. The results of the research that have been carried out basically in the judge's decision on the divorce case with the unseen husband which is the basis for the judge's consideration is the absence of the defendant whose his existence are unknown, namely the waiting period or iddah for the Plaintiff is set for at least 90 (ninety) days from the verdict has permanent legal force as intended by Article 11 paragraph (1) and paragraph (3) of Act Number 1 of 1974 jo. Article 39 Government Regulation Number 9 of 1975 paragraph (1) letter (b) jo. Article 153 paragraph (2) letter (b) and Article 153 paragraph (4) Compilation of Islamic Law (KHI), and the issuance of a certificate of occultation from the local village.

scholarly journals PROBLEMATIKA IDDAH WANITA HAMIL DI LUAR NIKAH

Mahakim ◽  
2018 ◽  
Vol 2 (2) ◽  
Author(s):  
Moh. Nafik
Keyword(s):  
Pregnant Women ◽  
Legal Status ◽  
Islamic Law ◽  
Descriptive Analysis ◽  
Library Research ◽  
Marriage Contract ◽  
The Status ◽  
The Subject ◽  
Written Materials ◽  
Legal Consequences

There are many aspects that need to be studied to see and understand in detail, including the study of the opinions of ulama ‘and KHI in addressing the problematic marriage of pregnant women out of wedlock. In this study, researchers sought to examine these two perspectives by looking at the underlying factors of the contovercial marriage of pregnant women out of wedlock in Indonesia. This is very urgent because the differences in legal consequences contained in KHI and perceptions of ulama ‘, which are actually manifestations of Islamic law are very visible. As in Article 53 KHI which tends to open wide the possibility for people who are not responsible for adultery, coupled with the legal consequences contained in KHI for adulterers is very light compared to the had law applied in some Islamic countries. To simplify this research, the compilers use a type of library research (library rescarch), whose data sources are extracted from written materials in the form of legal texts, both in the form of verses of the Qur’an, the books of hadith, rules of Islamic law and other written sources that are relevant to the subject matter of the marriage of pregnant women out of wedlock. The nature of this research is descriptive-analysis-comparative research. Because this study besides describing the marriage of pregnant women in the study of fiqh science descriptively, also compared the opinions of ulama ‘and KHI regarding the status of iddah for pregnant women out of wedlock. From the perceptions of ulama ‘and KHI, then the conclusion arises that there are differences of opinion between the two. For the Mālikī the marriage of pregnant women out of wedlock is divided into the marriage of pregnant women due to adultery with men who impregnate (biologically) and / or with other men (non-biological). Whereas KHI is more general and does not differentiate with whom the woman will marry. Apart from that, the child is pregnant. Pregnant women out of wedlock may be married by someone who impregnates her or by someone else who is not impregnating her, because there is no real prohibition from the Koran or Hadith. And the legal status of a legal marriage contract while fulfilling the pillars and the marriage conditions that have been determined by Islamic law, in addition there is also an element of benefit. Keywords: Iddah, Pregnant Outside of Marriage, Hamil Di Luar Nikah

scholarly journals Progressivity of Judges in Domestic Violence Disputes Settlement in The Case of Divorce in The Religious Court

2018 ◽  
Vol 2 (1) ◽  
pp. 1
Author(s):  
Nita Triana
Keyword(s):  
Domestic Violence ◽  
Islamic Law ◽  
Descriptive Analysis ◽  
Religious Texts ◽  
Court Judge ◽  
Holistic Understanding ◽  
The Law ◽  
One Year ◽  
The Right ◽  
Religious Courts

This study aims to describe and analyze the Judge Progressiveness in the case of a �divorce �related �to domestic violence. The principle of law governing civil judges is passive, in reality this principle creates difficulties for women (wives) victims of domestic violence to achieve justice. The research method used is �non-doctrinal tradition with a socio-legal approach, and qualitative descriptive analysis. The results of the study illustrate. Religious Courts Judges as one of the law enforcers are very potential to seek justice for victims of domestic violence, the majority of whom are women, because many cases of domestic violence ended in divorce cases in the Religious Courts. But the consideration of the religious Court Judge in deciding the case of a divorce petition �is not yet progressive, the Judge still adheres to the principle of law, that the Civil Judge is passive. So that when the Plaintiff (Wife) does not demand income and compensation from her husband. The Plaintiff (Wife) as a victim of domestic violence will not get a living idah, mut'ah, maskan, kiswah and any compensation from the Defendant (Husband). Religious Court Judges have not yet explored other relevant legislation, including progressive religious texts that favor women as victims of domestic violence to strengthen the building of their arguments. Whereas in the case of divorce by talak, the Judge views the law in book in his legal considerations �by giving protection to the wife, namely by giving the wife the right to earn a living Idah, Mutah (a living for one year to entertain the wife divorced by her husband), maskan and kiswah, according with what is stipulated in the Marriage Law and the Compilation of Islamic Law. The paradigm of the operation of the Judge in a country with a pluralistic culture such as Indonesia, it's time to change to a more progressive direction, Judge is no longer limited to the existence of a mouth that sounds the sentence of the law ( le judge est uniquenment la bouche qui pronance le most de lois) Judge also not tools designed to be logical and work mechanically, but whole people who have sensitivity to humanitarian and social concerns. Progressive judges learn and are good at making interpretations that are not literal (connotative), and have a high sense of empathy to be able to catch social norms that contextually support each prescription of the Act. The holistic understanding of the judges has the potential to provide justice for women victims of domestic violence.

TINJAUAN HUKUM ISLAM TERHADAP JANJI (WA’AD) DI PERBANKAN SYARI’AH

ALQALAM ◽  
2014 ◽  
Vol 31 (1) ◽  
pp. 23
Author(s):  
Muhamad Nadratuzzaman Hosen ◽  
Deden Misbahudin Muayyad
Keyword(s):  
Islamic Law ◽  
Descriptive Analysis ◽  
Second Opinion ◽  
Law System ◽  
Cause And Effect ◽  
Islamic Bank ◽  
First Category ◽  
The Status ◽  
The Law

Review of Islamic Law in terms of promising (waad) at Shariah Bank. This article explains the review of Islamic law in terms of promising in the view of Fiqh. There are any debates or controversies among Islamic Jurists (Fuqaha) that the status of promising is in implementing operational bank. According to some jurists, firstly, promising is mustahab (bounded religion) but promising is not committed with the Law or Ragulations. Secondly, promising is absolutely bounded religion or compulsory to be implemented, thirdly, promising is compulsory depend on requirement of promising (muallaq) with two categories. First category is compulsory even though the requirements are not fulfill and second is not compulsory due to not fulfill requirements. The second opinion is acceptable for authors with some reasons which are discussing in this article. The method of this article used to descriptive analysis focusing the emerging of waad in implementing the operational shariah bank by studying classical literatures and Contemporer in Islamic Law. The aim of this study is to investigate and to explore the rules of waad in Islamic Contracts at Shariah Bank with looking the cause and effect of waad because there is no waad contract in the article of law and regulation in Law System in Indonesia.Keywords: Wa’d, Islamic Bank, DSN-MUI,murabaḥah

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