scholarly journals The Settlement of Joint Property in Religious Courts of Indonesia (A Case in the Religious Court of South Jakarta)

AL- ADALAH ◽  
2019 ◽  
Vol 15 (2) ◽  
pp. 234
Author(s):  
Isnawati Rais
Keyword(s):  
Islamic Law ◽  
Marriage Law ◽  
Crucial Issue ◽  
Peaceful Settlement ◽  
Religious Courts ◽  
Joint Property

The settlement of joint property, after husbands and wives divorced, is a crucial issue in the Religious Courts of Indonesia. According to the provisions of the Islamic Law Compilation (KHI) and Marriage Law No. 1/1974, a joint property should be divided equally if done peacefully. This research analyzes the joint property settlement after divorce in the Religious Court of South Jakarta and compares it with a number of cases in other similar institutions. This study finds out that the rules as stipulated both in the KHI and Marriage Law No. 1/1974, was not rigidly applied by the judges. Instead, the judges at the Religious Court of South Jakarta took a flexible and casuistic solution for the disputes over the sharing of joint property between divorced couples. The settlement methods used by the judges vary, depending on the case that occurs empirically. The peaceful settlement was also pursued by the Religious Court of South Jakarta, although in general, it was unsuccessful.

scholarly journals The decision on joint properties in Bengkulu High Religious Court Jurisdiction

2021 ◽  
Vol 21 (1) ◽  
pp. 99-118
Author(s):  
Jayusman Jayusman
Keyword(s):  
Islamic Law ◽  
Marriage Law ◽  
Positive Law ◽  
Library Research ◽  
Joint Properties ◽  
Sense Of Justice ◽  
Religious Courts ◽  
Joint Property

Joint property disputes after divorce at the Religious Courts (PA) under the Bengkulu High Religious Court (PTA) jurisdiction are always equally settled by giving half for each ex-spouse, regardless of the domination in working to earn the properties. The decisions refer to the article 97 of the Compilation of Islamic Law (KHI). The decisions do not fulfill sense of justice regarding the ex-wife participating in earning the living. This library research would like to descriptively analyze the progressive law reviews of the decision related to joint properties with working wives set at some Religious Courts under the Bengkulu High Religious Court jurisdiction in 2016-2019 periods, in the context of reforming the Marriage Law in Indonesia. In drawing conclusions, the data are analyzed by applying progressive law theory. The study shows that Religious Courts’ decisions are not regulated in traditional Islamic law, but they are found in contemporary Islamic law by analogizing them as Shirkah with the division based on the agreement between the parties. In positive law perspective, the joint property division has been determined with each equally get half. In the meantime, from the progressive law perspective in the context of reforming the Indonesian Marriage Law, ex-wives participating in earning living should get a larger portion of joint properties than their ex-husbands, to fulfill the sense of justice. Their portions are decided amicably on the agreements of the parties

scholarly journals Problems of Islamic Law Compilation In Indonesia

2018 ◽  
Vol 5 (2) ◽  
pp. 91-98
Author(s):  
Arip Purkon
Keyword(s):  
Islamic Law ◽  
Legal Certainty ◽  
Marriage Law ◽  
Inheritance Law ◽  
Religious Courts

Abstract.Islamic Law Compilation is one of the efforts to implement Islamic law in Indonesia constitutionally. Islamic Law Compilation covers three legal fields, namely marriage, inheritance and benefiction. The Islamic Law Compilation contributes positively in providing legal certainty, especially for judges in religious courts. In addition, there are still a number of problems related to the Islamic Law Compilation, namely the issue of socialization, equality of perception and the fear of reducing Islamic law.Keywords: Islamic Law Compilation, Marriage Law, Inheritance Law, Benefaction   Abstrak.Kompilasi Hukum Islam merupakan salah satu upaya untuk mengimplementasikan hukum Islam di Indonesia secara konstitusional. Kompilasi Hukum Islam mencakup tiga bidang hukum, yaitu perkawinan, waris dan wakaf. Kompilasi Hukum Islam memberikan kontribusi yang positif dalam memberikan kepastian hukum, khususnya untuk para hakim di pengadilan agama. Selain itu, masih ada beberapa masalah terkait Kompilasi Hukum Islam, yaitu masalah sosialisasi, persamaan persepsi dan adanya kekhawatiran tereduksinya hukum Islam.Kata Kunci: Kompilasi Hukum Islam, Hukum Perkawinan, Hukum Waris, Wakaf

scholarly journals PERLINDUNGAN ANAK PERSPEKTIF HUKUM ISLAM DAN PERUNDANG-UNDANG

2019 ◽  
Vol 14 (1) ◽  
pp. 50-58
Author(s):  
Nurlaila Harun
Keyword(s):  
Child Care ◽  
Social Problems ◽  
Islamic Law ◽  
Court Decision ◽  
Adopted Children ◽  
Legal Certainty ◽  
Marriage Law ◽  
The Will ◽  
The Law ◽  
Religious Courts

Abstract. Children are children, and not little adults. Thus, the treatment of children whether involved in criminal acts or those experiencing social problems must be addressed for the welfare of children. The need for children adoption within Indonesian Islamic community will also be increasingly important for those who need it, in order to obtain legal certainty in which can be obtained by a court decision including the decision of the Religious Court. The marriage law and religious justice law have regulated in detail about child care and guardianship which are compiled in a compilation of Islamic law. The Law on Religious Courts explicitly states that the Religious Courts are a court for Muslims regarding cases or matters that are in its authorities. Muslims in this case are not only adults but also children. Unfortunately, the issue of children protection is not referred explicitly in the authorities of the Religious Courts. However, to serve and to fulfill the legal needs of Muslims regarding to child care, the Religious Courts, at the request of someone who adopts a child based on Islamic law, may issue a decision on adoption in terms of the child concerned as a proof of completion of the will must be regulated in the Compilation of Islamic law of Religious Courts. Consequently, the rights and obligations of parents who have adopted children with Islamic law have special characteristics that are different from the rights and obligations of parents who have adopted children without Islamic law. Abstrak. Anak-anak adalah anak-anak, dan bukan orang dewasa kecil. Dengan demikian, perlakuan terhadap anak-anak apakah terlibat dalam tindakan kriminal atau mereka yang mengalami masalah sosial harus ditangani untuk kesejahteraan anak-anak. Kebutuhan adopsi anak dalam komunitas Islam Indonesia juga akan semakin penting bagi mereka yang membutuhkannya, untuk mendapatkan kepastian hukum yang dapat diperoleh melalui keputusan pengadilan termasuk keputusan Pengadilan Agama. Hukum perkawinan dan hukum keadilan agama telah mengatur secara rinci tentang pengasuhan anak dan perwalian yang disusun dalam kompilasi hukum Islam. Undang-Undang tentang Pengadilan Agama secara eksplisit menyatakan bahwa Pengadilan Agama adalah pengadilan bagi umat Islam tentang kasus atau hal-hal yang ada dalam otoritasnya. Muslim dalam hal ini tidak hanya orang dewasa tetapi juga anak-anak. Sayangnya, masalah perlindungan anak tidak dirujuk secara eksplisit dalam otoritas Pengadilan Agama. Namun, untuk melayani dan memenuhi kebutuhan hukum umat Islam terkait perawatan anak, Pengadilan Agama, atas permintaan seseorang yang mengadopsi anak berdasarkan hukum Islam, dapat mengeluarkan keputusan tentang adopsi dalam hal anak yang bersangkutan sebagai bukti penyelesaian kehendak harus diatur dalam Kompilasi hukum Islam Pengadilan Agama. Akibatnya, hak dan kewajiban orang tua yang mengadopsi anak dengan hukum Islam memiliki karakteristik khusus yang berbeda dengan hak dan kewajiban orangtua yang mengadopsi anak tanpa hukum Islam. 

POLEMIK DI SEPUTAR HUKUM ISBAT NIKAH DALAM SISTEM HUKUM PERKAWINAN INDONESIA

2017 ◽  
Vol 11 (2) ◽  
pp. 233-246
Author(s):  
Ramdani Wahyu Sururie
Keyword(s):  
Legal Status ◽  
Islamic Law ◽  
Legal Protection ◽  
Legal Order ◽  
Legal Certainty ◽  
Marriage Law ◽  
The Law ◽  
Religious Courts

"Isbat nikah" is the verification of a marriage. Juridically, marriage verification is regulated under the laws such as Law No. 1 of 1974 on Marriage, Law Number 7 of 1989 on Religious Courts, and Law No. 3 of 2006 and Law Number 50 of 2009 on Changes in the Religious Courts Act. The regulations stipulate that marriage verification is allowed for marriage performed before the Law Number 1 of 1974. In practice, marriage verification submitted to the Religious Court is done after the enactment of Law Number 1 of 1974. The acceptance of "marriage verification" by the Religious Court for the marriage taken place after the 1974 Marriage Law was based on the Compilation of Islamic Law (KHI), whereas KHI's legal status is not included in the Indonesian legal order. The essence of marriage verification is a legal determination. This means that a verified marriage remains valid because the marriage that is verified is merely on administrative reason. The position of marriage verification is a part of giving legal protection and legal certainty. The position of the KHI, which regulates in more detail the marriage verification, functions regulatively in the midst of a vacuum of religious judicial law. In addition, the judge may decide whether to grant or deny the application of marriage verification. Thus, it can be concluded that the nature of marriage verification is a part of legal discretion.

Polemik di Seputar Hukum Isbat Nikah dalam Sistem Hukum Perkawinan Indonesia

2017 ◽  
Vol 11 (2) ◽  
pp. 233-246
Author(s):  
Ramdani Wahyu Sururie
Keyword(s):  
Legal Status ◽  
Islamic Law ◽  
Legal Protection ◽  
Legal Order ◽  
Legal Certainty ◽  
Marriage Law ◽  
The Law ◽  
Religious Courts

"Isbat nikah" is the verification of a marriage. Juridically, marriage verification is regulated under the laws such as Law No. 1 of 1974 on Marriage, Law Number 7 of 1989 on Religious Courts, and Law No. 3 of 2006 and Law Number 50 of 2009 on Changes in the Religious Courts Act. The regulations stipulate that marriage verification is allowed for marriage performed before the Law Number 1 of 1974. In practice, marriage verification submitted to the Religious Court is done after the enactment of Law Number 1 of 1974. The acceptance of "marriage verification" by the Religious Court for the marriage taken place after the 1974 Marriage Law was based on the Compilation of Islamic Law (KHI), whereas KHI's legal status is not included in the Indonesian legal order. The essence of marriage verification is a legal determination. This means that a verified marriage remains valid because the marriage that is verified is merely on administrative reason. The position of marriage verification is a part of giving legal protection and legal certainty. The position of the KHI, which regulates in more detail the marriage verification, functions regulatively in the midst of a vacuum of religious judicial law. In addition, the judge may decide whether to grant or deny the application of marriage verification. Thus, it can be concluded that the nature of marriage verification is a part of legal discretion.

scholarly journals THE SETTLEMENT OF DISPUTES REGARDING DIVISION OF JOINT PROPERTY AFTER A DIVORCE IN THE CENTRAL ACEH REGENCY

2021 ◽  
Vol 21 (2) ◽  
pp. 170
Author(s):  
Hazar Kusmayanti ◽  
Efa Laela Fakhriah ◽  
Bambang Daru Nugroho
Keyword(s):  
Islamic Law ◽  
Customary Law ◽  
Marriage Law ◽  
Settlement Of Disputes ◽  
Joint Property

This resarch reviews disputes revolving around the division of joint property after a divorce in the Central Aceh Regency using the methods; discussion with family, discussion by involving the customary institution Sarak Opat, and filing a claim to the Takengon Syar’iyah Tribunal. In general, division of joint property in the Central Aceh Regency is done by discussion through the customary institution Sarak Opat. The division of joint property after a divorce in the Central Aceh Regency that is done through discussion takes into account which household the child grew up in and how much money that household makes. Although this is not in accordance with the provisions of Indonesia’s Marriage Law and the Islamic Law Compilation, it may be in accordance with Article 37 of Indonesia’s Marriage Law and that this would not violate the rules within Islamic Law nor Customary Law, since in its core within Islamic Law and Customary Law there are specific rules regarding percentage of division of joint property following a divorce

scholarly journals PERLINDUNGAN ANAK PERSPEKTIF HUKUM ISLAM DAN PERUNDANG-UNDANG

2019 ◽  
Vol 15 (1) ◽  
pp. 50-58
Author(s):  
Nurlaila Harun
Keyword(s):  
Child Care ◽  
Social Problems ◽  
Islamic Law ◽  
Court Decision ◽  
Adopted Children ◽  
Legal Certainty ◽  
Marriage Law ◽  
The Will ◽  
The Law ◽  
Religious Courts

Abstract. Children are children, and not little adults. Thus, the treatment of children whether involved in criminal acts or those experiencing social problems must be addressed for the welfare of children. The need for children adoption within Indonesian Islamic community will also be increasingly important for those who need it, in order to obtain legal certainty in which can be obtained by a court decision including the decision of the Religious Court. The marriage law and religious justice law have regulated in detail about child care and guardianship which are compiled in a compilation of Islamic law. The Law on Religious Courts explicitly states that the Religious Courts are a court for Muslims regarding cases or matters that are in its authorities. Muslims in this case are not only adults but also children. Unfortunately, the issue of children protection is not referred explicitly in the authorities of the Religious Courts. However, to serve and to fulfill the legal needs of Muslims regarding to child care, the Religious Courts, at the request of someone who adopts a child based on Islamic law, may issue a decision on adoption in terms of the child concerned as a proof of completion of the will must be regulated in the Compilation of Islamic law of Religious Courts. Consequently, the rights and obligations of parents who have adopted children with Islamic law have special characteristics that are different from the rights and obligations of parents who have adopted children without Islamic law. Abstrak. Anak-anak adalah anak-anak, dan bukan orang dewasa kecil. Dengan demikian, perlakuan terhadap anak-anak apakah terlibat dalam tindakan kriminal atau mereka yang mengalami masalah sosial harus ditangani untuk kesejahteraan anak-anak. Kebutuhan adopsi anak dalam komunitas Islam Indonesia juga akan semakin penting bagi mereka yang membutuhkannya, untuk mendapatkan kepastian hukum yang dapat diperoleh melalui keputusan pengadilan termasuk keputusan Pengadilan Agama. Hukum perkawinan dan hukum keadilan agama telah mengatur secara rinci tentang pengasuhan anak dan perwalian yang disusun dalam kompilasi hukum Islam. Undang-Undang tentang Pengadilan Agama secara eksplisit menyatakan bahwa Pengadilan Agama adalah pengadilan bagi umat Islam tentang kasus atau hal-hal yang ada dalam otoritasnya. Muslim dalam hal ini tidak hanya orang dewasa tetapi juga anak-anak. Sayangnya, masalah perlindungan anak tidak dirujuk secara eksplisit dalam otoritas Pengadilan Agama. Namun, untuk melayani dan memenuhi kebutuhan hukum umat Islam terkait perawatan anak, Pengadilan Agama, atas permintaan seseorang yang mengadopsi anak berdasarkan hukum Islam, dapat mengeluarkan keputusan tentang adopsi dalam hal anak yang bersangkutan sebagai bukti penyelesaian kehendak harus diatur dalam Kompilasi hukum Islam Pengadilan Agama. Akibatnya, hak dan kewajiban orang tua yang mengadopsi anak dengan hukum Islam memiliki karakteristik khusus yang berbeda dengan hak dan kewajiban orangtua yang mengadopsi anak tanpa hukum Islam. 

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.

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 JUDGE’S DISCRETION IN ISLAMIC FAMILY LAW: INDONESIAN RELIGIOUS COURTS EXPERIENCE

2014 ◽  
Vol 3 (3) ◽  
pp. 203
Author(s):  
Muhamad Isna Wahyudi
Keyword(s):  
Law Enforcement ◽  
Islamic Law ◽  
Family Law ◽  
The State ◽  
State Law ◽  
Legal Tradition ◽  
Muslim Countries ◽  
The Law ◽  
Religious Courts ◽  
Joint Property

Tension between Islamic legal tradition and the modern nation state’s role in establishing dan reforming law has become the global controversies and conflicts in Muslim countries over the last decades including Indonesia. Since the enactment of Law No.1/1974 on Marriage, then Compilation of Islamic Law (Kompilasi Hukum Islam/KHI) under President Instruction No.1/1991, dualism of the validity of marriage has been arising in Indonesian Muslim society. The dualism has led to ambivalence towards law enforcement among judges of religious courts in dealing with the petitions for the legalization of marriage while the Law restricts the petitions to marriages before the enactment of Law No.1/1974. In this case, judges of religious court have deviated from the state law by granting legalization to marriages occurred after the enactment of Law No.1/1974. Such deviation is known as judge’s discretion. Despite judges of religious courts seem to adhere to the Islamic legal tradition than the State law in the case of legalization of marriage; they have deviated from Islamic legal tradition or state law in terms of the fulfillment of divorced wife’s rights, joint property, custody, and inheritance. Their discretion is merely to provide the justice to the litigants when the application the letter of the law is contradictory to justice. In this way, they have also taken a part in reforming the Islamic FamilyLaw.Keywords: judge, discretion, justice.

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