scholarly journals The Problem of Underhand Marriage (Sirri) in Coastal Java Pati

2021 ◽  
Vol 3 (1) ◽  
pp. 81-105
Author(s):  
A. Zaenurrosyid ◽  
Abd Kahfi ◽  
Ali Syafa’
Keyword(s):  
Islamic Law ◽  
Qualitative Approach ◽  
Economic Problems ◽  
Positive Law ◽  
Normative Perspective ◽  
Husband And Wife

Dinamika hukum Islam mengalami tantangan beragam di Nusantara. Pernikahan di Pesisir Jawa menjadi problematis karena dilarang dalam hukum positif, namun dibolehkan dalam Islam. Penelitian ini dengan pendekatan kualitatif dalam perspektif sosio-normatif. Ditemukan beberapa kasus pernikahan bawah tangan di Pesisiran Jawa, Pati dengan keragaman alasan suami istri menikah dibawah tangan. Faktor yang dominan adalah persoalan ekonomi, hamil di luar nikah, maupun alasan study. (The dynamics of Islamic law face various challenges in the archipelago. Marriage on Marriage on the coastal Java becomes problematic because it is prohibited in positive law, but is allowed in Islam. This research applied a qualitative approach in a socio-normative perspective. Several Cases of underhand marriages have been found in coastal Java, Pati with a variety of reasons for husband and wife marrying on underhand. The dominant factors are economic problems, pregnancy out of wedlock, and study reasons.)

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.

scholarly journals Analysis of Corporate Governance on Islamic Bank in Indonesia

2019 ◽  
Vol 19 (2) ◽  
Author(s):  
Muhamad Nadratuzzaman Hosen ◽  
Nasimul Falah ◽  
Fitriyani Lathifah
Keyword(s):  
Corporate Governance ◽  
Islamic Law ◽  
Qualitative Approach ◽  
Islamic Banks ◽  
Islamic Bank ◽  
Positive Law ◽  
The Right ◽  
Islamic Values

This research demonstrates conceptual corporate governance (CG) which has relationship with regulations and Islamic teaching. Then, to investigate CG in Islamic Bank in Indonesia and to review law aspects and Islamic values related to rules of corporate CG in Islamic Bank in Indonesia. The study used qualitative approach using study literature and interview to analyze the implementation of corporate governance in Islamic bank in Indonesia. This study found that Islamic Banks which issued the rules of CG were not following philosophy of Islamic principles and not following strongly Islamic law and positive law. Hence, there were several fraud cases on Islamic banks inIndonesia. Islamic corporate governance in Indonesia still not find the implementation like in Malaysia. Rules of CG through regulation for Islamic bank is involving futher researher to examine the right policy. The regulation of corporate governance regulations for Islamic bank still need to be refined and turned into Islamic corporate governance standard in accordance with Islamic principles and national laws which required by Islamic bank.

scholarly journals Analisis Konsep Kawin Hamil pada Film Dua Garis Biru Perspektif Hukum Positif Indonesia dan Hukum Islam

2020 ◽  
Vol 1 (1) ◽  
pp. 8-16
Author(s):  
Emiliya Ehsaniyah
Keyword(s):  
Pregnant Woman ◽  
Pregnant Women ◽  
Islamic Law ◽  
Free Association ◽  
Men And Women ◽  
Positive Law ◽  
The Status ◽  
Legal Marriage ◽  
In Pregnancy ◽  
Husband And Wife

Nowadays, there are many cases of marriage for pregnant women, this is one of the effects of too free association between men and women. The phenomenon of pregnant marriage as a result of promiscuity among adolescents is reflected in the film Two Blue Lines. In Islamic law, people who engage in husband and wife relations outside of a legal marriage are punished as adultery. If the adultery results in pregnancy and marriage, the priests of the Madzhab have different opinions regarding the validity of the marriage and also the status of the child in the womb. Whereas in positive law (Marriage Law and KHI), the marriage of a pregnant woman is legal and the status of the child who is born later is categorized as a legal child. The purpose of this study was to determine and analyze the concept of pregnant marriage contained in the scenes of the film Dua Lines Biru to be analyzed using Law No.1 of 1974 concerning Marriage, Islamic Law, and Compilation of Islamic Law.

scholarly journals THE SHARIA MICROFINANCE AND THE COUNTER-HEGEMONIC MOVEMENT: EXAMINING THE LEGAL NORMS REGULATING ASPECTS OF INSTITUTIONAL AND BUSINESS ACTIVITIES IN SURAKARTA

2019 ◽  
Vol 7 (3) ◽  
pp. 45-51
Author(s):  
Kelik Wardiono ◽  
Wardah Yuspin
Keyword(s):  
Islamic Law ◽  
Secondary Data ◽  
Qualitative Approach ◽  
Primary Data ◽  
Microfinance Institutions ◽  
Business Incubation ◽  
Legal Norms ◽  
Positive Law ◽  
Library Studies ◽  
Depth Interviews

Purpose of study: Research aims at the study of legal norms that are formed and used to regulate the institutional aspects and business activities of the Islamic Micro Finance (LKMS) as well as the counter-hegemonic movement that lies behind them. Methodology: This research employs qualitative approach, which based on secondary data in the form of written documents, collected through library studies and primary data from informants, collected through in-depth interviews and observations in four LKMS in Surakarta LKMS Al-Huda UNS, LKMS Al-Abidin, LKMS AmanahUmmahUMS, LKMS Al-Muayyad. Results: The Legal norms established and used to regulate the institutional and business aspects of the four Sharia Microfinance Institutions in Surakarta show that there are certain aspects in common, and differences on the other. The norms used in regulating the institutional and business aspects of Sharia Microfinance Institutions in Surakarta show a mixture of norms in Islamic law and the MUIs Fatwa, the Norms (in positive law) governing banks, financing institutions, partnerships, and cooperatives, with elements of the more prominent Islamic law. Applications: The existence of the equations of the norms used in the background by the existence of counter-hegemonic movement built by The Small Business Incubation Center (PINBUK), which has passed through the corporate phase but has not exceeded the hegemonic phase. While the differences of norms used, due to the different degrees of cultural penetration of each Sharia Microfinance Institutions against the hegemonic movement driven by PINBUK.

scholarly journals DAMPAK YURIDIS SUMPAH LI`AN BERDASARKAN HUKUM ISLAM DAN HUKUM POSITIF

Mahakim ◽  
2021 ◽  
Vol 5 (1) ◽  
Author(s):  
Setiawan Setiawan
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Positive Law ◽  
Library Research ◽  
Break Up ◽  
Legal Consequences ◽  
Husband And Wife

The process of building a household life, of course, there are many trials that arise, not a few of these trials result in a marriage relationship that has been built for years to end in court. Referring to various sources of Islamic law, there are several forms of divorce, namely: talaq, khulu`, fasakh, `ila`, li`an, zhihar, and nusyuz. When we look at the rules about marriage in the Compilation of Islamic Law (KHI), through section 116 KHI explained, that one of the causes of divorce is the existence of adultery committed by one of the parties from both husband and wife. In the event that a divorce is carried out because of adultery and then it is resolved by means of a li`an, then there are other legal consequences that will be borne by the parties, namely husband and wife and even children of both of them are affected. In this study, researchers used the library research method. The results of the research on the legal impact of the li’an Oath on wives and children according to Islamic law; husband is free from the threat of had qadzaf,adultery that the husband accuses his wife of is right, lineage of the child the wife was carrying was only related to the mother, the wife is free from the threat of adultery, li`an caused the marriage to break up forever. Meanwhile, according to positive law; li`an caused the marriage to break up forever, lineage of the child the wife was carrying was only related to the mother, and for the husband there is no obligation to provide a living.

scholarly journals Persepsi Terhadap Nikah Sirri Kasus Masyarakat Desa Sinarrancang, Kecamatan Mundu, Kabupaten Cirebon

2011 ◽  
Vol 18 (1) ◽  
pp. 75
Author(s):  
Ismail Zubir
Keyword(s):  
Islamic Law ◽  
Qualitative Approach ◽  
West Java ◽  
Governmental Institution ◽  
Positive Law ◽  
Religious Courts

This study aims to find out the perception of people in Sinarrancang, Mundu, Cirebon, West Java, on nikah sirri (“secret” marriage). Using qualitative approach the study reveals that in their opinion nikah sirri mean  nikah “kyai”, it is a marriage by ulama and  has become a long hereditary tradition. According to  fiqih munakahat (a branch of Islamic law which studies  about  marriage) this kind of marriage is legitimate because it meets the conditions and requirements of marriage. According to positive law, however,  such  marriage is illegal for not being registered at KUA (a governmental institution which administers Muslim marriage). In order to change their perception on nikah sirri, it needs to socialize UU No. 1 Tahun 1974 continuously. KUA’s service to people has to be addressed so that its accountability  and responsibility could run effectively; and more importantly the draft  of   Religious  Courts Law Materials that would provide punishment for those conducting nikah sirri do not contradict with Islamic law. <br /><br />

scholarly journals Marriage Tradition of Marlojong in Community of Mandailing Natal District (Study of Islamic and Positive Law Implementation)

2019 ◽  
Vol 2 (2) ◽  
pp. 448-460
Author(s):  
Kasman Kasman ◽  
Yasir Nasution ◽  
Pagar Pasaribu
Keyword(s):  
Islamic Law ◽  
Qualitative Approach ◽  
Natural Setting ◽  
Marriage Law ◽  
Positive Law ◽  
Marriage Customs ◽  
Formal Requirements ◽  
Material Requirements ◽  
Descriptive Qualitative

This study is aimed to describe the marriage tradition of Marlojong in community of Mandailing Natal District. This study focuses on study of Islamic and positive law implementation of the marlojong. This study is conducted by using descriptive qualitative approach because this study is to understand phenomena related to the implementation of marriage law in a natural setting of society, to understand a phenomenon based on information data obtained from informants. The result shows that there are there motivations of marlojong marriage implementation in Mandailing Natal District. First because they were unable to pay the dowry / tuor requested by the parents of the girl. Second, because they were not allowed to get married. Third, because they avoided the costs of implementing the marriage customs. The implementation of marlojong marriage in the Mandailing Natal community does not contradict the provisions of Islamic law. Pillars and marital conditions are met in accordance with the provisions of Islamic law. So that the marlojong marriage carried out by the Mandailing community is legal according to Islamic Law. The implementation of Marlojong marriage to the Mandailing Natal community according to Positive Law in Indonesia is legal because it does not violate the material requirements and formal requirements that have been determined in Law No. 1 of 1974 concerning Marriage and Compilation of Islamic Law. 

scholarly journals Legal Implementation and Effectiveness of Fulfilling Post Divorce Children

2020 ◽  
Vol 8 (2) ◽  
pp. 193-201
Author(s):  
Musidah Musidah
Keyword(s):  
Empirical Research ◽  
Islamic Law ◽  
Qualitative Approach ◽  
Male Parent ◽  
Legal Certainty ◽  
Legal Studies ◽  
Positive Law ◽  
Break Up

In the study of Islamic law and positive law, children are the responsibility of parents until the child is an adult. But the most dominant in supporting the child is the male parent since the child came out of the mother's womb. In this study the focus is on the form of implementation and legal effectiveness of the decision on the livelihood of the child which imposes responsibilities to the father after the marriage break up due to divorce. This study aims to understand and analyze relating to the Implementation of Law and the Effectiveness of Post-Divorce Childhood Fulfillment. This study uses a qualitative approach, with the type of socio-legal studies or juridical-empirical research. The results showed that the implementation of the fulfillment of children's livelihoods after the breakup of marriage due to divorce can be said to not fully reach the target (not yet effective). So that judges are deemed necessary to take steps so that the fulfillment of children's living after divorce can be carried out, for the sake of legal certainty of children as victims of divorce from both parents.

scholarly journals ANALISIS PEMBAGIAN HARTA BERSAMA DALAM KONDISI MATI KALALAH (Studi Kasus Putusan Nomor 197K/AG/2015)

2018 ◽  
Vol 1 (1) ◽  
pp. 488
Author(s):  
Tetty Hariyati ◽  
Wahyuni Retnowulandari
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Secondary Data ◽  
Legal Research ◽  
Domestic Life ◽  
Positive Law ◽  
Community Property ◽  
The Law ◽  
Husband And Wife

The division of community property is a very essential issue in domestic life. Regarding the positive law taking in force in Indonesia, the division of community property for Islam is regulated in the Compilation of Islamic Law (KHI) where the Compilation of Islamic Law regulates the division of community property for both widowed (widowed and not remarried) and divorced (divorced and not remarried). The widowed is regulated in article 96 of the Compilation of Islamic Law and the divorced is regulated in article 97 of the Compilation of Islamic Law. If examined from these two articles, both equally regulates  if the marriage relationship broke up, the community property is divided for husband and wife, each will get a 50:50 part. However, this is different based upon  Decision Number 197K / AG / 2015 The division is greater for the wife of 60% and 40% for husband. In this case the problem raised here is how the regulation makes an arrangement for division of community property in dead condition without father and children (mati kalalah) under the law of inheritance in Indonesia and how the judge's consideration related to the division of community property in dead condition without father and children (case study: Decision number 197K / AG / 2015)? The author here used normative legal research method that is descriptive and primary and secondary data and also supported by interviews in this study.

scholarly journals Isbat Nikah Siri dalam Putusan Hakim Mahkamah Syar'iyah Lhoksukan

2021 ◽  
Vol 23 (1) ◽  
pp. 72
Author(s):  
Agustin Hanapi ◽  
Mulyadi Mulyadi ◽  
Mursyid Djawas
Keyword(s):  
Legal Status ◽  
Islamic Law ◽  
Descriptive Analysis ◽  
Legal Protection ◽  
Married Couples ◽  
Qualitative Approach ◽  
Research Approach ◽  
Analysis Method ◽  
Positive Law

Positive law only limits marriage isbat to marriages that occurred before Law no. 1 of 1974 because there is no rule requiring registration. Meanwhile, unregistered marriages that occur after the regulation cannot carry out isbat marriage, because the law only limits it before the enactment of Law no. 1 of 1974. However, the Compilation of Islamic Law provides space as Article 7 paragraph (3) letter e which reads that marriages are carried out by those who do not have marriage barriers according to Law no. 1 of 1974. Article 7 has provided a very broad absolute competence regarding isbat marriage, even though KHI is not included in the hierarchy of Legislation. Judges are given the flexibility to perform ijtihad for the benefit of all parties. This article is the basis for consideration of the Lhoksukon Syar'iyah Court judges in granting the application for isbat marriage for unregistered married couples, namely number: 131/Pdt.P/2019/MS.Lsk. number: 313/Pdt.P/2019/MS.Lsk. For this reason, this paper wants to answer the question of how the judges of the Lhoksukon Syar'iyah Court considered the reasons for the isbat of unregistered marriages, and what was the legal status of the judge's determination of the isbat of marriages for unregistered married couples. The method used is descriptive analysis method with a qualitative approach. The research approach is juridical normative and juridical sociological, using the theory of legal protection. Then use the theory of maqāṣid syarī'ah to realize goodness while avoiding evil, or take advantage and reject harm. The results of the study stated that the consideration of the judges of the Lhoksukon Syar'iyah Court in the case of isbat marriage for unregistered married couples was in accordance with the laws and regulations, the judge was also not rigid in ijtihad but considered sociological and problematic aspects.Hukum positif hanya membatasi isbat nikah pada perkawinan yang terjadi sebelum UU No. 1 Tahun 1974 karena belum ada aturan mewajibkan pencatatan. Sedangkan nikah siri yang terjadi setelah aturan itu tidak dapat melakukan isbat nikah, karena Undang-Undang hanya membatasi sebelum berlakunya UU No. 1 Tahun 1974. Namun Kompilasi Hukum Islam memberi ruang sebagaimana Pasal 7 ayat (3) huruf e yang berbunyi perkawinan yang dilakukan oleh mereka yang tidak mempunyai halangan perkawinan menurut UU No. 1 Tahun 1974. Pasal 7 ini telah memberikan kompetensi absolut yang sangat luas tentang isbat nikah, padahal KHI tidak termasuk dalam hierarki Peraturan Perundang-Undangan. Hakim diberikan keluasan untuk berijtihad demi kemaslahatan semua pihak. Pasal inilah menjadi dasar pertimbangan Majelis hakim Mahkamah Syar’iyah Lhoksukon dalam  mengabulkan permohonan isbat nikah bagi pasangan nikah siri, yaitu nomor: 131/Pdt.P/2019/MS.Lsk. nomor: 313/Pdt.P/2019/MS.Lsk. Untuk itu tulisan ini ingin menjawab  pertanyaan bagaimana pertimbangan Hakim Mahkamah Syar’iyah Lhoksukon terhadap alasan isbat nikah siri, dan bagaimana status hukum terhadap penetapan Hakim mengenai isbat nikah bagi pasangan nikah siri. Metode yang digunakan adalah metode deskriptif analisis dengan pendekatan kualitatif. Adapun pendekatan penelitian bersifat yuridis normatif dan yuridis sosiologis, dengan menggunakan teori perlindungan hukum. Kemudian menggunakan teori maqāṣid syarī‘ah untuk mewujudkan kebaikan sekaligus menghindarkan keburukan, atau menarik manfaat dan menolak mudarat. Hasil penelitian menyebutkan bahwa pertimbangan hakim  Mahkamah Syar’iyah Lhoksukon dalam kasus isbat nikah bagi pasangan nikah siri telah sesuai dengan peraturan perundang-undangan, hakim juga tidak kaku dalam berijtihad tetapi mempertimbangkan aspek sosiologis dan masalahat.

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