scholarly journals Talak di Luar Pengadilan Perspektif Fikih dan Hukum Positif

2021 ◽  
Vol 3 (1) ◽  
pp. 67-84
Author(s):  
M Muhsin ◽  
Soleh Hasan Wahid

Abstract: Divorce is breaking the ties of marriage and ending the husband and wife relationship. According to Fiqh law, divorce is considered legally binding when a husband pronounces the word talaq to his wife clearly and figuratively. Meanwhile, according to the Marriage Law, it is explained that divorce can only be carried out before the court after the court concerned tries and fails to reconcile the two parties. The focus of the problem in this study is: (1) What is the status of divorce outside the court according to fiqh law and positive law? (2) Which is used as a guideline between the two divorce proceedings on the termination of marriage? The type of research conducted by the author is field research using qualitative methods. The analysis used is the descriptive analysis method. The number of respondents in this study was five people with the category of divorce outside the court. Based on the method used in the study, it was concluded that the divorce handed down out of court was legal, according to fiqh, so that the marriage broke up by fiqh rules. However, the divorce is not legal according to positive law in Indonesia, so that in the eyes of positive law, the marriage has not been broken, and the positive law that applies in Indonesia is used as a guide to the dissolution of marriage because the legal consequences arising after the divorce are more clearly regulated so that obligations and rights that arise after the divorce is more secure.Abstract: Talak adalah melepaskan ikatan pernikahan dan mengakhiri hubungan suami istri. Menurut hukum Fikih perceraian dianggap jatuh hukumnya ketika seorang suami mengucapkan kata talak kepada istrinya baik secara jelas maupun kiasan. Sedangkan menurut Undang-Undang Perkawinan dijelaskan bahwa perceraian hanya dapat dilakukan di depan pengadilan setelah pengadilan yang bersangkutan berusaha dan tidak berhasil mendamaikan kedua belah pihak. Fokus masalah dalam penelitian ini adalah: (1) Bagaimana status talak di luar pengadilan menurut hukum fikih dan hukum positif? (2) Manakah yang dijadikan pedoman antara dua proses perceraian terhadap putusnya perkawinan? Jenis penelitian yang dilakukan penulis merupakan penelitian lapangan (field research) yang menggunakan metode kualitatif. Analisis yang digunakan adalah metode analisis deskriptif. Jumlah responden dalam penelitian ini sebanyak lima orang dengan kategori melakukan penceraian di luar Pengadilan. Berdasarkan metode yang digunakan dalam penelitian dihasilkan kesimpulan bahwa, talak yang dijatuhkan di luar pengadilan adalah sah menurut fikih, sehingga perkawinannya putus sesuai dengan aturan fikih. Namun perceraian tersebut tidak sah menurut hukum positif di Indonesia, sehingga di mata hukum positif perkawinannya belum putus dan hukum positif yang berlaku di Indonesia yang dijadikan sebagai pedoman terhadap putusnya perkawinan, dikarenakan akibat hukum yang ditimbulkan setelah terjadinya perceraian lebih diatur dengan jelas, sehingga kewajiban dan hak yang timbul setelah terjadinya perceraian lebih terjamin.

Author(s):  
Mochammady El Akbar ◽  
Muhammad Arfan Mu'ammar

Wakalah bil ujrah covenant implementation is an agreement covenant of an authority delegation to do something (delegating an affair) in which the implementation can be implemented in the field of wedding exertion by a wedding organizer. But generally, in the field implementation, the society has not been fully acknowledge and understanding how this implementation of an authority delegation in a wedding exertion accords with the the things which have been appointed by the syari’a economic law, and the legal consequences from the achieved wakalah agreement.The problems formulation of this thesis is how the form of the wakalah covenant implementation and also the system of the ujrah taking in the authority delegation of a wedding exertion by Shahira Wedding Organizer Surabaya and analyzing the implementation based on the syari’a economic law of the National Syari’a Board - Majelis Ulama Indonesia (DSN-MUI).This Study was conducted using online research instruments (online field research) with qualitative method. As for the data collecting techniques were done and achieved by online, observation, and the documentation data that are in correlate to the object of the study. The collected data, furthermore is arranged and analyzed using descriptive analysis method, it is describing how the akad wakalah bil ujrah implementation concept in obligating the authority the wedding exertion is done from the shahibbul hajat to Shahira Wedding Organizer Surabaya.The results of the research show that the wakalah bil ujrah covenant implementation in delegating the authority from the shahibbul hajat to Shahira Wedding Organizer Surabaya is done orally through the agreement in choosing the packages of Gumush, Altin, and Platin using simple statements (informal language) as the Surabaya’s people do. Furthermore it will be followed by some representation acts by the Shahira Wedding Organizer Surabaya. Dealing with the ujrah or the fee taking, it will be alocated and included into the price-list of the packages that automatically when it was on the first offer, the value of ujrah has been written and agreed. According to the perspective of the syari’a economic law, this wakalah bil ujrah practice done by the Shahira WO has fulfilled the well conformity in the implementation for the whole components between the both sides have been fulfilled in both of the pillars and the requirements that have been set by the Fatwa DSN-MUI No. 10/DSN-MUI/IV/2000 about wakalah.Keywords : Wakalah Bil Ujrah, Wedding Organizer and Syari’a Economic Law Perspective


2020 ◽  
Vol 14 (02) ◽  
pp. 170-194
Author(s):  
Dwi Astuti Furi

Early marriage or marriage at a young age is an inner and outer bond that is carried out by a young man or woman who has not yet reached the ideal level to make a marriage, in other words that the marriage is being done before adulthood age. Early marriage still often occurs in Badegan District, Ponorogo. Conducting a field reseach regarding the views of Ponorogo ulama (religious scholars) about early marriage, data collection is done through direct interviews. Then the data is re-examined (editing), systematically arranged in the form of exposure (organizing) and analyzed in accordance with the discussion by using rules, theory and proposition so that it finds valid results. From the data collection, discussion with descriptive analysis method was carried out, namely describing the problem of information that would be used as the object of discussion in order to get a view and legal settlement of the Ponorogo scholars as the end of the research. From this study it can be concluded that (1) Early marriage from the perspective of ulama in Ponorogo according to Fiqh perspective is legal, while in the eyes of positive law in Indonesia, it should be avoided; (2) The basis of the argumentation of scholars in Ponorogo Regency in judging early marriage is naqli and aqli. The naqli basis used in establishing the validity is the proposition of the text of a hadith which narrates that Rasulullāh married Aisha at the age of 9, and the basis of the aqli used is benefit to avoid greater harm. As contained in the Marriage Law (UU Pokok Perkawinan) No. 1 of 1974 that limits the age of marriage with the aim of avoiding harm.


Jurnal Akta ◽  
2018 ◽  
Vol 5 (4) ◽  
pp. 871
Author(s):  
Pulung Jati Kusuma ◽  
Akhmad Khisni

Premarital agreements on joint property made before or during the marriage took place, the parties may determine the contents of the agreement, especially respect the innate property of each party in a premarital agreement. In Act No. 1 of 1974 About the Marriage of Article 29 paragraph (1) confirms that at the time or before the marriage took place two parties by mutual consent may submit a written agreement authorized by the employee registrar of marriage, after which it shall also apply to third parties lodged. Having made premarital agreement then the next must be registered in the district court clerk's office in legal marriages were held, the purpose of such registration in order to satisfy the principle of publicity. Background of the problem, authors conducted a study entitled "Juridical Study Of Premarital On Joint Property Which Made By Notary And Legal Consequences In The District Of Kudus". This study raises the issue of implementation of joint property on premarital agreement made by the notary in Kudus and the legal consequences of the implementation of a premarital agreement. The purpose of this study is to investigate the implementation of the agreement For Premarital of joint property made by a notary in Kudus and to know the legal consequences of a premarital agreement made by the notary. The data used in this study are primary data, secondary data and data that can support tertiary study, which was then analyzed by descriptive analysis method. Based on the results of data analysis concluded that Premarital agreements about the estate property that is made before a notary in the Kudus District by husband and wife time before or after the course of the marriage as provided for in Article 29 of Act No. 1 of 1974 About Marriage asserts that the agreement must not violate limits of the law, religion and morality. Agreement it means the contents can be related to any of any one of them the separation of joint property during the agreement was detrimental to the parties and does not conflict with the nature and purpose of marriage. The legal consequences premarital agreement made by a notary it is binding and valid as the Law for the parties. If the premarital agreement that has been made by the husband and wife there was a violation.Keywords: Juridical Study; Premarital Agreements; Joint Property.


2020 ◽  
Vol 1 (4) ◽  
pp. 617-630
Author(s):  
Rokhmat Sucipto

The obligation of children to provide for their parents and the growing reality in Indonesia today, many children leave their parents but give up their livelihood obligations. The question arises how the practice of releasing children from their parents at the Wredha Harapan Ibu (PWHI) Nursing Home in Bringin Ngaliyan Semarang is a perspective of Islamic law and positive law. Article 46 Paragraph (2) Marriage Law Number 1 of 1974. The research author uses descriptive analysis method that is analyzing information about the real situation now. The study uses field research with interview and documentation methods as well as taking various supporting literature to be used as a reference in the preparation of this study. This research approach is normative. The results of the author's research: First, first entrusted until now the parents have never filled their children. Secondly, first of all, they are left with routine maintenance once fulfilled, but the habit does not last long. Third, the first deposited until now has never given a living, but still gives a living only rarely given. In Islamic law the release of parents' living is not in line with the teachings and recommendations of the Islamic religion which are stated in the Al-Quran and Al-Hadith as well as the agreement of the ulama as well as contrary to the positive law in force in Indonesia as stated in the Law Article 46 Paragraph (2) Law Number 1 of 1974 concerning marriage.


2020 ◽  
Vol 1 (2) ◽  
pp. 165-178
Author(s):  
Reza Umami Zakiyah ◽  
Eneng Nuraeni

Ideally, a married couple lives together to carry out their respective duties and obligations. However, because the demands of work cause some of them must be far apart and live the life of Long Distance Relationship (LDR) as happened in Batujaya Village, Kec. Batujaya, Kab. Karawang. The problem that arises is how the pattern of fulfilling the rights and obligations of husband and wife in Batujaya Village, Kec. Batujaya, Kab. Karawang. How to communicate on LDR and how to overcome the difficulties that arise between the two. Through research using descriptive analysis method, the results of the study show that: (1) The pattern of fulfilling the rights and obligations of a husband and wife who are on a LDR at Batujaya Village, Kec. Batujaya, Kab. Karawang can be understood in three aspects, namely the Financial/material aspect is done by meeting in person/transferring money through Alfamart/ATM/POS. The biological aspect when far apart is by interacting by telephone, occupying with homework. Psychological aspects, namely by giving attention over the phone or when meeting by serving all their needs. (2) The way of LDR husband and wife communication via telephone, massage, whatsapp, and video call, but for those who do not use the telephone as a communication tool, the communication is carried out directly when meeting. (3) The way to overcome the difficulties that arise between the two is to maintain mutual trust, understanding, commitment, intensive communication, mutual attitude. The difficulties faced are financial, trust, communication, cooperation and sexual needs.Idealnya pasangan  suami istri hidup bersama dalam satu  rumah untuk melaksanakan tugas dan kewajiban masing-masing. Namun, karena tuntutan pekerjaan menyebabkan sebagian dari mereka harus berjauhan dan menjalani kehidupan Long Distance Relationship (LDR) seperti yang terjadi di Desa Batujaya, Kec. Batujaya, Kab. Karawang. Masalah  yang timbul yaitu bagaimana pola pemenuhan hak dan kewajiban suami istri di Desa Batujaya, Kec. Batujaya, Kab. Karawang. Bagaimana cara komunkasi suami istri LDR dan bagaimana cara mengatasi kesulitan yang timbul diantara keduanya. Melalui penelitian yang menggunakan metode deskriptif analisis ini, hasil penelitian menunjukan bahwa: (1) Pola pemenuhan hak dan kewajiban suami istri Long Distance Relationship (LDR) di Desa Batujaya, Kec. Batujaya. Kab. Karawang dipahami dalam tiga aspek yaitu Aspek Finansial/materi dilakukan dengan pola bertemu langsung/mentransfer uang melalui Alfamart/ATM/POS. Aspek biologis ketika berjauhan yaitu dengan berinteraksi melalui telepon, menyibukan diri dengan pekerjaan rumah. Aspek psikologis yaitu dengan memberikan perhatian lewat telepon ataupun saat bertemu secara langsung dengan melayani segala kebutuhan masing-masing. (2) Cara komunikasi suami istri LDR melalui telephone, sms, whatshap, dan Video call, tetapi untuk mereka yang tidak menggunakan telepon sebagai alat komunikasi, maka komunikasinya dilakukan secara langsung pada saat bertemu. (3) Cara mengatasi kesulitan yang timbul diantara keduanya yaitu saling menjaga kepercayaan, pengertian, komitmen, komunikasi intensif, sikap saling terbuka. Adapun kesulitan yang dihadapi yaitu masalah keuangan, kepercayaan, komunikasi, kerjasama dan kebutuhan seksual.


2020 ◽  
Vol 1 (1) ◽  
pp. 181-186
Author(s):  
I Gusti Agung Gede Catra Artawan ◽  
I Nyoman Budiartha ◽  
I Nyoman Sutama

Underground water is water that is contained in a layer of soil or rock below the soil surface. This study aims to determine the government's authority in regulating groundwater permits and what are the legal consequences of violating unlicensed groundwater use. The research was conducted using empirical legal research methods, source of the data which was used are primary and secondary sources of legal materials, methods of collecting legal materials using documentation studies and field research, and analyzing legal materials using descriptive analysis methods. The results of this study indicate that the Government's authority in permitting groundwater is regulated in the Bali Governor Regulation Number 5 of 2016 concerning Groundwater Permits, particularly in Article 3 paragraph (1), it is explained that the Governor has the authority to manage groundwater in CAT in the province. In Article 3 paragraph (2), the authority of the Government (Governor) is reaffirmed, including several things, namely: granting permits for groundwater drilling; give permission to extract groundwater; grant permits for the use of groundwater; granting permits for groundwater exploitation; grant permits to groundwater drilling companies; provide guidance, supervise technical investigations and use of Groundwater. As a result of violations of the use of groundwater by violating the parties in accordance with Article 15 paragraph (1) of Law Number 11 of 1974 concerning Irrigation, it is stated that anyone who deliberately runs water and / or water sources business without permission from the Government is punishable by imprisonment. 2 (two) years and or a maximum fine of Rp. 5,000,000 (five million rupiah).


Author(s):  
Fatahuddin Aziz Siregar

The South Tapanuli community adopts a patrilineal kinship system so that women do not get inheritance, even if there is acquisition of property, women receive it not in their capacity as heirs but in the form of holong ni ate as confirmed in the Supreme Court Jurisprudence number 506K / Sip / 1968 dated January 22, 1969 However, on the other hand the Tapsel community underwent a process of Islamization that was quite deep, so that the customary law of South Tapanuli was also influenced by positive law including Jurisprudence which gave heir to girls later issued by the Supreme Court number 528K / Sip / 1972 dated 17 January 1973. This rule makes the practice of distributing the assets of Tapsel's community inheritance also shifts no longer according to the full provisions of adat law.This paper focuses on answering the factors that cause the shift in Batak customary inheritance in Tapsel, how the form of Batak adat inheritance shifts in Tapsel, and how the role of Islamic law in the shifting Batak customary inheritance in Tapsel. To answer this, use descriptive-analytical field research using data collection techniques in the form of observations and interviews with traditional leaders, religious leaders, judges and the community who carry out the distribution of inheritance.From this search, the authors found that the practice of inheritance in Tapsel society has shifted from adat inheritance caused by two factors, namely, First, the factor of Islamic law because Tapsel people have understood Islam well and run it in various fields of life including in the distribution of inheritance. Given that there are dozens of Islamic education institutions in Tapsel according to the author has given a pretty good understanding of Islamic law. So in general it can be said, that this change is a consequence of the Islamization process experienced by the Tapsel people. Second, is the factor of higher power or positive law because until now the community still believes that only the Religious Courts as a place to solve the problem of inheritance to obtain legal certainty.The shift to adat inheritance occurs in several patterns. The first pattern is a total change from customary form to division according to faraid, this pattern occurs in areas that are fairly Islamic, namely the Mandailing Natal region, although of course there are some people who divide in a way that is not consistent in carrying out Islamic law. The second pattern is to carry out adat law, namely in communities that are relatively strict with adat, namely in the Padang Lawas and Sipirok regions, in this area many cases seem to have carried out faraid formally but the substance still reflects the spirit of adat law. The third pattern, namely the way of division which is a combination of Islamic law and customary law, which is a fairly moderate community in the Angkola region.Islamic law has contributed by shifting the implementation of customary law to Islamic law. People who according to customary law do not receive inheritance become heirs who receive a certain portion. At first the mother did not count as an heir, then given a part 1/3 or 1/6. Istdri initially did not get any portion of the inheritance then received 1/4 or 1/8. Girls initially only have the status of olong ate, then receive a relatively large portion, which is 1/2 or 2/3.


2020 ◽  
Vol 5 (2) ◽  
pp. 233
Author(s):  
R. Tetuko Aryo Wibowo ◽  
Thohir Luth

This study aimed to explore deeply about the legal consequences of children born as a result of married by accident. The method used is formative juridical with the main reference Article 53 Compilation of Islamic Law, Article 250 of the Civil Code, Article 42 of the Marriage Law, and the Al-Qur’an namely Surat Al Isra ‘verse 32. The results of the study indicate that based on Compilation of Islamic Law, Article 250 of the Civil Code, and Article 42 of the Marriage Law, the legal status of a child resulting from a married by accident is a legitimate child, so it has the descent, inheritance rights, and guardianship rights of both parents. However, based on the Qur’an and the opinion of jumhur ulama, the legal status of a child resulting from the married by accident depends on the length of birth from the time of marriage. If more than six months old, the child’s status is legitimate so that he is entitled to both parents. If it is less than six months, then the status is an illegitimate child, so that he is only entitled to his mother from the descent, guardianship rights, and inheritance rights.


2020 ◽  
Vol 3 (2) ◽  
pp. 84
Author(s):  
Ari Wirya Dinata

Fiduciary is one of the guarantees where the debtor has the right to control and take advantage of the goods that are used as fiduciary security objects. Article 15 paragraphs (1), (2), and (3) of Law Number 42 Year 1999 concerning Fiduciary Guarantee regulates the execution mechanism for fiduciary security objects when the fiduciary giver (debtor) experiences breach of promise to the fiduciary recipient (creditor). So far, the execution mechanism for fiduciary security objects regulated in the Act creates legal uncertainty and harms the debtor's rights. Because it gives too much power to the creditor. The imbalance of power relations between debtors and creditors towards the handling of the problem of breach of contract actually causes an injustice in existing fiduciary institutions. The Constitutional Court, through decision number 18 / PUU-XVII / 2019, tries to return the fiduciary institution to the spirit of equilibrium relations between debtors, creditors, and fair fiduciary guarantees. After the decision of the Constitutional Court Number 18 / PUU-XVII / 2019. Has there been a harmonious power relationship between two legal subjects in fiduciary guarantees. This paper examines the pre and post fiduciary guarantee institutions of the Constitutional Court and analyzes the legal consequences that occur. This paper uses a type of juridical-normative research using primary data and primary, secondary and tertiary legal material. While the analysis method uses qualitative methods


2021 ◽  
Vol 13 (3-2) ◽  
pp. 373-388
Author(s):  
Ksenia Yarushina ◽  

The article applies K. Geertz scientific approach of ‘detailed description’ to a modern urban wedding. The work is based on materials of field research into the marriage practices among young Perm families. The research techniques included semi-formal interviews and case-studies of 26 persons (13 families) during the period 2016–2020. These qualitative methods were necessary to get information about an important life event: from the first meeting a future partner to the wedding ceremony. Such methods helped identify cultural bases for the bride and groom’s practices. The paper provides a detailed interpretation of only one case, consisting of several narrative sections. Every narrative is a personal view of the participant at the wedding ceremony. The narrative “wedding as a drama” shows a woman’s interpretation of the celebration. The bride’s story has some negative connotations. The bride expresses rejection of the wedding procedure and some of its attributes. The narrative “wedding as a holiday” represents the man’s view. The groom’s comments contain mostly positive connotations. His story highlights the status elements of the celebration. He stresses his family’s contribution to the wedding ceremony. Analyzing both narratives, an additional aspect of the topic was explored: “wedding as a parents’ project”. It shows the older generation’s role in the organization of the wedding. In addition, the paper describes some stories which are repeated in the narratives, including various forms of objectification, gender roles in the young family, and shifting of social roles.


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