scholarly journals Family law reform in Indonesia according to the Maqashid al-shari’a perspective (A case study of Law no. 16 of 2019)

2021 ◽  
Vol 7 (2) ◽  
pp. 183
Author(s):  
Yuni Roslaili ◽  
Aisyah Idris ◽  
Emi Suhemi
Keyword(s):  
Review Process ◽  
Family Law ◽  
Law Reform ◽  
Constitutional Court ◽  
Library Research ◽  
Minimum Age ◽  
Age Limit ◽  
The Law

This research discusses family law reform in Indonesia in relation to the Law No. 16 of 2019 concerning the minimum age for child marriage. The study has been conducted using Maqashid al-syariah perspective in order to analyze first, the formulation of family law reform in Indonesia related to No. 16 of 2019, and second, the perspective of maqasid al-syariah in the law. The primary resource in this library research was Law No. 16 of 2019, and Marriage Law No. 1 of 1974. The results of the study found that family law reform regarding the age limit for marriage in Indonesia began with the existence of the judicial review process to the Constitutional Court regarding Law No.1 of 1974, more specifically Article 7 paragraph (1) which was perceived as contradictory to the 1945 Constitution Article 27 paragraph (1). This paper also proved that the determination of the age limit for marriage in Law No. 16 of 2019 is in accordance with the purpose of marriage and the objectives of sharia in general. In a nutshell, it can be concluded that there has been a reform of family law in Indonesia which can be seen from the aspect of the law regarding the age limit for marriage from nine years in the fiqh literature version to nineteen years in the version of Law No. 16 of 2019. In addition, Law no. 16 of 2019 also equates the minimum age for marriage between boys and girls, which is nineteen years, although classical fiqh literature distinguishes it.

scholarly journals PRODUK-PRODUK PEMBAHARUAN HUKUM KELUARGA ISLAM DI TURKI

2021 ◽  
Vol 2 (1) ◽  
pp. 68-87
Author(s):  
Arif Sugitanata ◽  
Suud Sarim Karimullah ◽  
Mohamad Sobrun Jamil
Keyword(s):  
Family Law ◽  
Identity Crisis ◽  
Civil Code ◽  
Social Conditions ◽  
Law Reform ◽  
Men And Women ◽  
Turkish People ◽  
Minimum Age ◽  
Age Limit ◽  
Islamic Family Law

This article discusses the products of Islamic family law in Turkey with the main focus of this article review is how the history and development of family law in Turkey and what are the products of family law reform in Turkey using literature studies. This paper finds that the development of family law reform in Turkey starting from al-Majallâh (1876), The Ottoman Law of Family Right (1917), Turkish Civil Code (The Turkish Civil Code of 1926) is a response to the influence and changes in social conditions. , politics, and an unstable economy, especially at that time the Turkish people were still experiencing an identity crisis. Then the product of family law reform in Turkey is divided into two scopes, namely munakahat and Mawaris, where part of the munakahat itself includes, khitbah, minimum age limit for marriage, prohibitions in marriage, polygamy, walimah, marriage annulment, marriage that is not legalized, divorce. , compensation in divorce, while in Mawaris includes, wills and the amount of distribution between men and women are equal. Abstrak Artikel ini membahas tentang produk-produk hukum keluarga Islam di Turki dengan fokus utama kajian artikel ini adalah bagaimana sejarah dan perkembangan hukum keluarga di Turki dan apa saja produk dari pembaharuan hukum keluarga di Turki menggunakan studi kepustakaan. Tulisan ini menemukan bahwa perkembangan pembaharuan hukum keluarga di Turki yang dimulai dari al-Majallâh (1876), The Ottoman Law of Family Right (1917), Peraturan Sipil Turki (The Turkish Civil Code of 1926) merupakan sebuah respon atas pengaruh dan perubahan kondisi sosial, politik, dan ekonomi yang tidak stabil apalagi pada masa tersebut masyarakat Turki masih mengalami kondisi krisis identitas. Kemudian produk dari pembaharuan hukum keluarga di Turki dibagi kedalam dua cakupan yakni munakahat dan mawaris, di mana bagian dari munakahat itu sendiri meliputi, khitbah, batas usia minimal menikah, larangan dalam perkawinan, poligami, walimah, pembatalan perkawinan, perkawinan yang tidak disahkan, perceraian, kompensasi dalam perceraian, Sedangkan dalam mawaris meliputi, wasiat dan jumlah pembagian antara laki-laki dan perempuan yang setara.

scholarly journals The Ruling of the Constitutional Court of the Republic of Indonesiaconcerning Children Age Limit and its Rights

2018 ◽  
Vol 40 (2) ◽  
pp. 61
Author(s):  
Bagus Hermanto
Keyword(s):  
Child Protection ◽  
Constitutional Court ◽  
Human Right ◽  
Constitutional Review ◽  
Study Approach ◽  
Presidential Decree ◽  
Age Limit ◽  
The Law ◽  
The Republic

Indonesian laws determines different age limit for the children. The Law of Republic of Indonesia Number 1 Year 1974 concerning Marriage holds the age limit for the children until 16 years old for the women and 19 years old for the men. Meanwhile, on the Law of Republic of Indonesia Number 23 Year 2002 concerning Child Protection, the age limitation both for women and men is 18 years old. This Child Protection Act has adopted norm as stipulated in the Convention of the Rights of Children, as ratified through Presidential Decree Number 36 Year 1990. Some violations of the human right of children in Indonesia were more or less related to the unclear limitation of the age of children. A few years ago, this situation was brought into legal concern as a constitutional review was lodged before the Constitutional Court of Republic of Indonesia. This court has finally issued a Judgment Number 30-74/PUU-XII/2014 that addressing the issue in concern. Once should be noted that not all Justices had a similar opinion on the Judgment as one Justice expressed a different opinion. The main purpose of this paper is to analyze the legal consideration contained in this Judgment. In addition, it also intends to criticize the Justice’s Dissenting Opinion that was addressed against this Judgment. This paper is set as a Normative Legal Research that uses case study approach and statutory approach. Key Words      : Constitutional Court, Indonesia, Children Rights, Age Limit.

scholarly journals Islamic Family Law Reform: Early Marriage and Criminalization (A Comparative Study of Legal Law in Indonesia and Pakistan)

2019 ◽  
Vol 4 (2) ◽  
Author(s):  
Fatum Abubakar
Keyword(s):  
Islamic Law ◽  
Family Law ◽  
Married Couples ◽  
Early Marriage ◽  
Law Reform ◽  
Child Marriage ◽  
Marriage Law ◽  
Minimum Age ◽  
Age Of Marriage

In this paper I want to compare of legal law in Indonesia and Pakistan about early marriage. In Indonesia, marriage law No. 1/ 1974 explained that the limit of age of marriage is sixteen (16) years for women and nineteen (19) years for men. In Pakistan, after the 1961 MFLO amendment, Pakistan established the minimum age of marriage under the Child Marriage Restraint Act, 1929, is eighteen (18) years for men and sixteen (16) years for women. In addition to Law No. 1 of 1974, in Indonesia, the KHI is clearly repeating Article 15 Paragraph (2), for candidates who have not reached the age of 21 years, they must obtain permission as provided in Article 6 Paragraph (2), (3), (4), and (5) of Law No. 1 year 1974. Otherwise, in Indonesia this regulation is slower than other perversions country that I mention. The questions in this paper are; first, why does the legislation of Indonesia provides dispensation of marriage in the Court for prospective couples under the age of marriage? Second, why does Pakistan's legislation give prison sanctions and penalties for married couples under the age of marriage? Thirdly, why does the legislation of Indonesia and Pakistan implement different determination of law for early marriage? The conclusion; if both prospective brides are still below the minimum age for marriage, the parents of the two brides-to-be may submit a marriage dispensation in a religious court. Dispensation of this marriage is regulated in Minister of Religious Affairs Regulation No. 3 year 1975, specifically for people who are Moslems. This matter the marriage law also provides an outlet as a solution if the minimum age requirement is not met. Otherwise, In Pakistan, Historically; the marriage of children is in conflict between those who feel established and those who want change by reforming their family law. So, MFLO 1961 came out of the outcome of the change of the Child Marriage Restraint Act 1929 to sanction marriage with fines and imprisonment for married couples who are married under the minimum age set for marriage. Even sanctions are given for parents, guardian, and marriage organizers as well as even more than the sanctions given to his son. Even if the renewal of Islamic law in the Indonesia have been done. Indonesia is somewhat late in doing Islamic law reform than Pakistan.

The Dudley Lee Case: A new approach to factual causation and its implications for transformative jurisprudence

2017 ◽  
Vol 30 (1) ◽  
pp. 273-289
Author(s):  
Anmari Meerkotter
Keyword(s):  
Case Note ◽  
Constitutional Court ◽  
Recent Contribution ◽  
New Approach ◽  
State Accountability ◽  
The Law ◽  
Transformative Impact ◽  
Constitutional Jurisprudence ◽  
Law Of Delict

The Constitutional Court (CC) judgment of Lee v Minister of Correction Services 2013 2SA 144 (CC) is a recent contribution to transformative constitutional jurisprudence in the field of the law of delict. This matter turned on the issue of factual causation in the context of wrongful and negligent systemic omissions by the state. In this case note, I explore the law relating to this element of delictual liability with specific regard to the traditional test for factual causation – the conditio sine qua non (‘but-for’) test. In particular, I note the problems occasioned by formalistic adherence to this test in the context of systemic state omissions as evidenced by the SCA judgment in the same matter. I also consider the manner in which English courts have addressed this problem. Thereafter, I analyse the CC’s broader approach to the determination of factual causation as one based on common sense and justice. I argue that this approach endorses a break from a formalistic application of the test and constitutes a step towards an approach which resonates with the foundational constitutional values of freedom, dignity and equality. Furthermore, it presents an appropriate solution to the problems associated with factual causation where systemic omissions are concerned. I then consider the transformative impact of the Lee judgment. In particular, I argue that the broader enquiry favoured by the CC facilitates the realisation of constitutionally guaranteed state accountability, and amounts to an extension of the existing norm of accountability jurisprudence. Hence, I contend that the judgment presents a further effort by the Constitutional Court to effect wholesale the constitutionalisation of the law of delict, as well as a vindicatory tool to be used by litigants who have been adversely affected by systemic state omissions.

THE 2017 AMENDMENTS TO THE LAW REFORM (MARRIAGE AND DIVORCE) ACT 1976: A MILESTONE OR A STONE’S THROW IN THE DEVELOPMENT OF MALAYSIAN FAMILY LAW?

2020 ◽  
Vol 28 (2) ◽  
pp. 449-479
Author(s):  
Sridevi Thambapillay
Keyword(s):  
Child Custody ◽  
Family Law ◽  
Law Reform ◽  
The Real ◽  
The Past ◽  
Marriage And Divorce ◽  
Conversion To Islam ◽  
Family Issues ◽  
The Law ◽  
Muslim Family

The Law Reform (Marriage and Divorce) Act 1976 (LRA) which was passed in 1976 and came into force on 1st March 1982, standardized the laws concerning non-Muslim family matters. Many family issues concerning non-Muslim have emerged ever since, the most important being the effects of unilateral conversion to Islam by one of the parties to the marriage. There has been a lot of public hue and cry for amendments to be made to the LRA. After much deliberation, the Malaysian Parliament finally passed the amendments to the LRA in October 2017, which came into force in December 2018. Although the amendments have addressed selected family law issues, the most important amendment on child custody in a unilateral conversion to Islam was dropped from the Bill at the last minute. Howsoever, at the end of the day, the real question that needs to be addressed is whether the amendments have resolved the major issues that have arisen over the past four decades? Hence, the purpose of this article is as follows: first, to examine the brief background to the passing of the LRA, secondly, to analyse the 2017 amendments, thirdly, to identify the weaknesses that still exist in the LRA, and finally, to suggest recommendations to overcome these weaknesses by comparing the Malaysian position with the Singaporean position. In conclusion, it is submitted that despite the recent amendments to the LRA, much needs to be done to overcome all the remaining issues that have still not been addressed.

Determining a Suicide under Australian Law

2018 ◽  
Vol 41 (2) ◽  
Author(s):  
Stephanie Jowett ◽  
Belinda Carpenter ◽  
Gordon Tait
Keyword(s):  
Case Law ◽  
Law Reform ◽  
Practical Matter ◽  
The Law ◽  
Recent Government

This article examines the role of coroners in making legal determinations of suicide in Australia. Research indicates that the requirement to make findings of intent and capacity in unexpected, violent deaths can be difficult for coroners and recent government inquiries have suggested that the law contributes to the problem. A review of laws and commentary that guide coroners in Australian states and territories reveals not only that coroners are the only persons tasked with making routine legal determinations of suicide, but that such legal guidance lacks clarity. This article concludes that law reform would aid coroners by clarifying definitional issues, removing inconsistency between state jurisdictions and increasing the transparency of case law. Along with requirements for a determination of intent, which is a practical matter previously raised by the Victorian Coronial Council, such changes would go some way to ensuring that Australian suicide statistics are more reliably created.

LEGAL RIGHTS AND WOMEN'S AUTONOMY: CAN FAMILY LAW REFORM IN MUSLIM COUNTRIES AVOID THE CONTRADICTIONS OF VICTORIAN DOMESTICITY?

Hawwa ◽  
2007 ◽  
Vol 5 (1) ◽  
pp. 33-54
Author(s):  
Danaya Wright
Keyword(s):  
Civil Society ◽  
Women's Rights ◽  
Family Law ◽  
Law Reform ◽  
Women’S Rights ◽  
Legal Change ◽  
Women’S Autonomy ◽  
Women's Autonomy ◽  
Muslim Countries ◽  
The Law

AbstractIn early- and mid-nineteenth century England, numerous law reformers targeted the law of coverture. Under this law married women lost custody of children, lost any property they brought, could not make a will or enter into a contract once they married, and they could not seek a divorce if their marriage broke down under the doctrine that husband and wife were a single unit before the law. The discourse of the reform debates, however, presented women as either violent and intemperate, and thus requiring the chains of coverture to keep them from bringing down the pillars of civil society. Or, they were seen as victims in sore need of the law's protection from violent and intemperate men. At no time were they viewed as legal agents, capable of exercising rights responsibly or as rational actors, who could be entrusted with the care and control of raising children single-handedly. But as the law changed to accommodate demands for women's rights, it is clear that women did not destroy civil society, nor have they attained equal power and autonomy with men. Thus, in looking at the reforms, and the forces that inhibited the reforms in Victorian England, we can begin to think more critically about how law reforms occur, how men and women are situated, and how barriers to equality frustrate legal change. With that history, I believe we are better situated to understand the demands for change in family law and women's rights in Muslim countries. Much of the rhetoric is ironically familiar. And I argue that knowledge of the pitfalls that threatened legal change in the Anglo-American west can help us avoid them in law reform arenas across the Muslim world. Of course, it is not simply that by learning our history we can hope not to repeat it. Rather, by understanding the complex interplay of reformist arguments and conservative pressures, we are better able to see beneath the rhetoric to the power structures inhibiting women's autonomy that lurk beneath the surface.

scholarly journals METODE PENGASUHAN ANAK PASANGAN PERNIKAHAN DINI (STUDI KASUS TIGA KELUARGA PERNIKAHAN DINI DI KECAMATAN PONJONG KABUPATEN GUNUNGKIDUL DAERAH ISTIMEWA YOGYAKARTA)

2020 ◽  
Vol 16 (2) ◽  
pp. 166-179
Author(s):  
Siti Rofingah
Keyword(s):  
Government Policy ◽  
Case Study Research ◽  
Field Research ◽  
Research Field ◽  
Early Marriage ◽  
Data Presentation ◽  
Analysis Techniques ◽  
Minimum Age

Abstract This research was conducted with the aim of describing the childcare methods carried out by three early marriage families in Ponjong District, Gunungkidul Regency. The background of this research is the existence of government policy in Law Number 1 of 1974 article 7 paragraph (1) concerning Marriage which explains the minimum age limit for marriage so that the benefit of the household is achieved, but the phenomenon of early marriage is still happening in the District of Ponjong Regency Gunungkidul, even able to maintain the household and be able to carry out childcare duties at a young age if reviewed psychologically immature mentally, emotionally, psychologically and physically. This type of research is a qualitative research with a type of case study research (field research). Determination of informants by purposive sampling. The subjects of this study were three families of early marriage, children of early marriage partners (if they were able to provide information) and the Young Clerk of the Wonosari Religious Court Law. Then, the object of research is the method of parenting early marriage partners. Data collection techniques used were observation, interviews, and documentation. While the data analysis techniques used are data reduction, data presentation and conclusion making. The results showed that the methods carried out by early marriage couples included exemplary education methods, methods through habituation, education methods through advice and dialogue, as well as education methods through the awarding and punishment. The three early marriage families apply a number of collaborative methods for parenting. Keywords: childcare methods, early marriage.

scholarly journals SYARIAH COMPATIBILITY AND HUMAN RIGHTS IN DETERMINING THE AGE OF MARRIAGE

1970 ◽  
Vol 21 (2) ◽  
pp. 263-274
Author(s):  
Rumi Suwardiyati ◽  
Siti Rohmah ◽  
Andi Muhammad Galib ◽  
Abdul Halim
Keyword(s):  
Human Rights ◽  
Secondary Data ◽  
Strategic Decision ◽  
Constitutional Court ◽  
Religious Leaders ◽  
Marriage Age ◽  
Minimum Age ◽  
Age Limit ◽  
Age Of Marriage ◽  
Religious Understanding

The purpose of this research is to examine the interpretation of constitutional judges regarding the age limit for marriage which is considered to contain compatibility and efforts to harmonize sharia and human rights principles in their decisions. This is motivated by child marriage tends to ignore the rights of children and women. Unfortunately, this practice is often affirmed by religious understanding and even state law. The research method used is normative juridical using secondary data. As for this research will analyze the decision of the Constitutional Court Number 22/PUU-XV/2017.  This research will show the conflict between the interpretation of sharia - which has been the authoritative area of ​​religious leaders - and the principles of Human Rights (HAM). Meanwhile, the interpretation of the judges of the Constitutional Court seems to contain a discourse on the compatibility and harmony of sharia and human rights. This research per reflects the approach of the Constitutional Court and the strategy of the petitioners in an effort to review the constitutionality of the minimum age for marriage as stated in the Marriage Law. The various approaches and arguments put forward show that the applicant made a strategic decision by trying to break a patriarchal culture and injustice before the Constitutional Court.  Keywords: Marriage Age Limit, Syariah, Human Rights, Constitutional Court 

scholarly journals Law and Social Affairs; An Analysis of Early Marriage Factors in Nibung Village, Koba District, Centra Bangka Regency

2019 ◽  
Vol 2 (1) ◽  
pp. 51-57
Author(s):  
Arifin Faqih Gunawan
Keyword(s):  
Negative Trend ◽  
Early Marriage ◽  
Positive Trend ◽  
Marriage Law ◽  
Minimum Age ◽  
Age Limit ◽  
The Law ◽  
Social Affairs

The Marriage Law, number 1 of 1974 gives the minimum age limit for a person to be allowed to marry if a man has reached the age of 19 years and a woman has reached the age of 16 years. This study explains the factors influence the occurrence of early marriage in Nibung Village, Koba District, Central Bangka Regency. The purpose of this study is to identify the factors that influence the occurrence of early marriage in Nibung Village, and to see the public's understanding of early marriage from the side of the Law. The results of this study indicate that there are 2 categories of factors that influence early marriage. There are two positive trend factors which are parents’ perceptions & culture and beliefs. There are also two negative trend factors which are intellectuality and the value of virginity.

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