scholarly journals LEGITIEME PORTIE DALAM HUKUM WARIS ISLAM DI INDONESIA

2015 ◽  
Vol 1 (2) ◽  
Author(s):  
Shintiya Dwi Puspita ◽  
Fabian Fadhly
Keyword(s):  
Islamic Law ◽  
Civil Code ◽  
Inheritance Law ◽  
Inheritance System ◽  
The Absolute ◽  
Adat Law

Indonesia recognizes three different inheritance system based respectively on the Civil Code, Islamic law and adat law. This article discusses the regulation concerning legitieme portie, the absolute right of the successor (heirs) which by law cannot be disregarded by the benefactor. The question here is whether legitieme portie, expressly regulated in the western inheritance law may also be found in the Islamic inheritance system? The second question concerns the possibility of – within the Islamic inheritance system – through the application of the legitieme portie - to deny the wife and/or parents’ right to the inheritance. This research argues that the Islamic inheritance system contains rules which cannot be disregarded by the benefactor and at the same time guarantee the wife’s right to the inheritance left by the benefactor.

scholarly journals HUKUM KEWARISAN DALAM KOMPILASI HUKUM ISLAM (KHI) DI INDONESIA

ALQALAM ◽  
2009 ◽  
Vol 26 (1) ◽  
pp. 129
Author(s):  
Yusuf Somawinata
Keyword(s):  
Supreme Court ◽  
Islamic Law ◽  
Inheritance Law ◽  
Joint Project ◽  
The Past ◽  
Inheritance System ◽  
The Supreme Court ◽  
The Absolute ◽  
Definition Of ◽  
Marital Law

The Islamic laws of inheritance has improved and eliminated the imbalances of the inheritance system conducted by many people both in the past and at present. Islamic laws of inheritance does not contain arbitrariness to the heirs, but gives the absolute justice.The efforts to endorse Islamic laws on the positive laws in Indonesia have been done continuously by the Islamic leaders and prominent figures. These are proven by the emergence of Religious Judicature Competency in article 49 UU No.7 of 1989, and the completing of the joint project between the Supreme Court of RI and the Ministry of Religious Affairs of Indonesia on Islamic Law Compilation containing the material of marital law, inheritance law, and law of religious foundation in 19 91.Since the Presidential Instruction of RI No. 1 of 1991 and the decision of the Ministry of Religious affairs of RI No. 154 of 1991 were issued, Islamic law Compilation in Indonesia had obtained power and juridical form to be practiced by religious court, other administration institutions as well as by community that needs it in solving the problems regulated in this compilation.Inheritance law as regulated in Islamic Law Compilation is basically an inheritance law taken from the opinion of jumhur fuqaha. However, there are some exceptions, I such as in the cases of wasiat wajibah, naqisah (radd), and definition of off spring (walad).

scholarly journals Sistem Waris Dalam Perspektif Islam dan Peraturan Perundang-undangan Di Indonesia

2018 ◽  
Vol 5 (2) ◽  
pp. 147-160
Author(s):  
Afidah Wahyuni
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Family Law ◽  
Civil Code ◽  
Inheritance Law ◽  
Hereditary System ◽  
Inheritance System ◽  
The Right ◽  
To Receive

Abstract:Inheritance law according to Islamic law is one part of family law (al-Ahwalus Syahsiyah). This science is very important to learn so that in the implementation of the division of inheritance there is no mistake and can be carried out as fairly as possible, because by studying the Islamic inheritance law for Muslims, will be able to fulfill the rights relating to inheritance after being abandoned by Muwarris (heir) and submitted to the heirs who have the right to receive it. Thus, one can avoid sin, namely not eating the property of people who are not their rights, because there is no fulfillment of Islamic law regarding inheritance. The inheritance legal system according to the Civil Code does not distinguish between sons and daughters, between husbands and wives, they have the right to inheritance, and the sons share sons and daughters, the part of a wife or husband is the same as the child. When linked to the hereditary system, the Civil Code adheres to a bilateral descent system, where each person connects himself to the descendants of his father and mother, meaning that heirs are entitled to inherit from the father if the father dies and has the right to inherit from the mother if the mother dies.Keywords: Inheritance System, Islamic Law, Indonesian Legislatio Abstrak:Hukum Kewarisan menurut hukum Islam merupakan salah satu bagian dari hukum keluarga (al-Ahwalus Syahsiyah). Ilmu ini sangat penting dipelajari agar dalam pelaksanaan pembagian harta waris tidak terjadi kesalahan dan dapat dilaksanakan dengan seadil-adilnya, sebab dengan mempelajari hukum kewarisan Islam bagi umat Islam, akan dapat menunaikan hak-hak yang berkenaan dengan harta waris setelah ditinggalkan oleh muwarris (pewaris) dan disampaikan kepada ahli waris yang berhak untuk menerimanya. Dengan demikian, seseorang dapat terhindar dari dosa yakni tidak memakan harta orang yang bukan haknya, karena tidak ditunaikannya hukum Islam mengenai kewarisan. Sistem hukum kewarisan menurut KUHPerdata tidak membedakan antara anak laki-laki dan anak perempuan, antara suami dan isteri, mereka berhak terhadap harta warisan, dan bagian anak laki-laki sama dengan bagian anak perempuan, bagian seorang isteri atau suami sama dengan bagian anak. Apabila dihubungkan dengan sistem keturunan, maka KUHPerdata menganut sistem keturunan bilateral, dimana setiap orang itu menghubungkan dirinya dengan keturunan ayah maupun ibunya, artinya ahli waris berhak mewaris dari ayah jika ayah meninggal dan berhak mewaris dari ibu jika ibu meninggal.Kata Kunci: Sistem Waris, Hukum Islam, Perundang-undangan Indonesia

Tinjauan Hukum Islam Terhadap Penerapan Hukum Waris Adat Di Desa Margajaya Kecamatan Lemahsugih Kabupaten Majalengka

2020 ◽  
Vol 11 (1) ◽  
pp. 13-32
Author(s):  
Devi Nurmilasari ◽  
Yoyo Hambali
Keyword(s):  
Quantitative Research ◽  
Islamic Law ◽  
Field Research ◽  
Secondary Data ◽  
Primary Data ◽  
Legal Rights ◽  
Adopted Children ◽  
Research Activity ◽  
Inheritance Law ◽  
Inheritance System

The application of inheritance law in the indigenous people of Margajaya, Lemahsugih Subdistrict,Majalengka Regency, which basically still adheres to the customs and traditions that they follow fromtheir ancestors. The inheritance system used in Margajaya customary inheritance uses the Parentalsystem, in which the father and mother are equally strong, in terms of distribution and application ofinheritance to the Margajaya customarycommunity. This type of research is Field Research, and themethod uses the Mix Methods method. Namely a research method by combining qualitative researchmethods with quantitative research in a research activity, so that more comprehensive, valid, reliableand objective data will be obtained. The data used in this study are primary data obtained frominterviews and documentation while secondary data is obtained from Liberal Research. The samplestaken in this study were the followers of Packu, Akur and Segendong Sepikul, while for the populationthey were more inclined towards the customary tradition, namely Akur. In data collection techniques,researchers used interview data, observation and documentation. And for the Data Analysis Techniquein its stages, observation, editing, classification, re-verification, analysis and drawing conclusions.The results of the study found that indigenous wans in Margajaya village are using parental customarylaw which is only focused on children and adopted children. The share of the heir’s parents only as agift for his parents, is not included in the wansan. The distribution of the wansan property was oftenpostponed by reason of using the children until they got married. The factor behind the occurrenceof this interview is the lack of knowledge of Islamic legal rights. The implementation of the law thatoccurs in Margajaya village, when viewed from Islamic law, is basically not in accordance withIslamic law. Things like this are considered normal and common in Margajaya society because it is atradition from generation to generation and their ancestors. The custom that is used by the communityin the distribution of inheritance cannot be used as a legal benchmark because it is against Nash, eventhough the purpose of an inheritance is carried out in accordance with Maqasıd Al Syan ah, namelyjustice, it is still not acceptable to Islam

scholarly journals Humanisme Waris Dalam Islam

2019 ◽  
Vol 6 (1) ◽  
pp. 13-26
Author(s):  
Afidah Wahyuni
Keyword(s):  
Family Life ◽  
Islamic Law ◽  
Human Life ◽  
Inheritance Law ◽  
Men And Women ◽  
Male And Female ◽  
Inheritance System ◽  
Differences Of Opinion ◽  
The Difference

Abstract:The inheritance system in Islam reaps several differences of opinion, especially when faced with the values of religious humanism such as the value of brotherhood, freedom and equality. Differences of opinion are more visible in the concept of inheritance between men and women, 2: 1. However, in terms of humanism, justice cannot be separated from human life. Whereas Islam itself has its own meaning about justice; that fair does not always have to be the same. Therefore, the concept of 2: 1 between male and female heirs in Islamic law is not a form of injustice. This is due to the factors behind the development. One of them is the difference in the roles of men and women in family life. Where women get a living, while getting inheritance rights. Whereas men get inheritance rights, but still have to support the women who are in their dependents.Keywords: Inheritance Law, Inheritance Humanism, Islamic Law Abstrak:Sistem waris dalam Islam memang menuai beberapa perbedaan pendapat, apalagi bila dihadapkan pada nilai-nilai humanisme religius seperti nilai persaudaraan, kebebasan, dan persamaan. Perbedaan pendapat lebih terlihat pada konsep pembagian waris antara laki-laki dan perempuan, 2:1. Namun demikian, dalam paham humanisme, keadilan tidak bisa dipisahkan dari kehidupan manusia. Sedangkan Islam sendiri memiliki makna tersendiri tentang keadilan; bahwa adil tidak selalu harus sama. Oleh karena itu, konsep 2:1 antara ahli waris laki-laki dan perempuan dalam syariat Islam, bukan suatu bentuk ketidakadilan. Hal ini disebabkan karena adanya faktor yang melatarbelakangi pembangian tersebut. Salah satunya ialah perbedaan peran laki-laki dan perempuan dalam kehidupan keluarga. Dimana perempuan mendapat nafkah, sekaligus mendapat hak warisan. Sedangkan laki-laki mendapat hak warisan, namun masih harus menafkahi kaum perempuan yang berada di dalam tanggungannya.Kata Kunci: hukum waris, humanisme waris, hukum Islam

scholarly journals PEWARISAN BERDASARKAN HUKUM WARIS ADAT TERKAIT SISTEM KEKERABATAN DI INDONESIA

2020 ◽  
Vol 5 (1) ◽  
pp. 56-70
Author(s):  
Subekti Subekti ◽  
Suyono Yoyok Ucuk
Keyword(s):  
Islamic Law ◽  
Customary Law ◽  
Natural Background ◽  
Conceptual Approach ◽  
Inheritance Law ◽  
Is Research ◽  
Kinship System ◽  
Inheritance System ◽  
The Difference ◽  
Western Law

There are three kinds of inheritance law in Indonesia, namely Islamic inheritance, Customary inheritance and BW inheritance. The scope of this writing is limited to customary inheritance law. The parts of customary law have a big influence on customary inheritance law and vice versa. Customary inheritance law has its own characteristics and characteristics that are unique to Indonesia, which is different from Islamic law and western law (BW). Because the difference lies in the natural background of the Indonesian people who have the philosophy of Pancasila with a society that is Bhinneka Tunggal Ika. The inheritance law that exists and applies in Indonesia to date is still not in the form of legal unification. The purpose of this study is to analyze the inheritance system according to the customary inheritance law related to the kinship system in Indonesia.The type of research used in this research is normative juridical research, namely research on legal systematic is research conducted on primary and secondary legal materials, the terms of reference used are the basic definitions contained in the legal system. The approach used is a conceptual approach, a statute approach and a case approach. Types of Legal Materials are primary legal materials and secondary legal materialsThe results of this study indicate that the inheritance system according to the Adat Inheritance Law does not refer to the kinship system of the customary law community. Customary law communities whose system of collective inheritance can occur are parental kinship systems. Heritage assets related to inheritance must be distinguished from the origin of the assets, because they are related to the kinship system that exists in the local customary law community, whether parental, patrilineal or matrilineal, because not all inheritance can be divided individually.

scholarly journals Certainty of Legal Distribution of Inheritance through Grants (Study in Dompu District, Dompu Regency)

2019 ◽  
Vol 6 (2) ◽  
pp. 490
Author(s):  
Arif Rahmat ◽  
Lalu Husni ◽  
Aris Munandar
Keyword(s):  
Family Conflict ◽  
Islamic Law ◽  
Customary Law ◽  
Economic Factors ◽  
Legal Certainty ◽  
Inheritance Law ◽  
The People ◽  
The Family ◽  
The Absolute ◽  
Religious Courts

This study aims to analyze and examine the factors that influence the distribution of inheritance through grants in Dompu District, as well as reviewing the legal certainty of inheritance distribution through grants in Dompu District.The results of the study show that: Factors that influence the distribution of inheritance through grants to the Dompu Sub-District Community are Concern Factors of family conflict, Economic Factors and Efforts to protect the absolute part of the heirs. In terms of the distribution of inheritance through grants to the Dompu Subdistrict community, there is no legal certainty, that with empirical facts on the people of Dompu Subdistrict, there are still many inherited disputes from heirs after the parents as heirs die. began on some heirs who did not have good intentions and denied the results of the agreement in terms of the distribution of inheritance through grants agreed together by all heirs, which is a customary practice from generation to generation in the Dompu community, then the heirs demanded back in share based on Islamic inheritance law, under the pretext that if a family (Islam) has two laws that apply such as customary law and Islamic law, then as long as the community must obey and comply with the provisions of Islamic law as well. If the heirs still cannot agree and feel an objection regarding the inheritance given by the heir by means of the heir’s gift during his lifetime, then it can be resolved through the Religious Court. This is in accordance with Article 49 of Law No. 3 of 2006 concerning the Religious Courts. But these things affect the harmony and division within the family. That from the results of research on inheritance events in the Dompu community.

scholarly journals WASIAT KEPADA AHLI WARIS MENURUT KOMPILASI HUKUM ISLAM DAN KITAB UNDANG-UNDANG HUKUM PERDATA

NOTARIUS ◽  
2018 ◽  
Vol 11 (1) ◽  
pp. 115
Author(s):  
Paula Franciska
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Civil Code ◽  
Inheritance Law ◽  
Analytical Research

AbstractCompilation of Islamic Law (KHI) and Civil Code acknowledge testament in its inheritance law. However, there are differences in arrangements regarding the testament in the KHI and Civil Code. The purpose of this study are to compare the regulations regarding the forms and limitations of the testament in the KHI and Civil Code and to analyze the implementation of the regulations regarding the shape and limitations testament on Decision Number 175 / PDT.G / 2012 / PA.BN and Decision Number 433 / PDT.G / 2011 / PN. JKT.PST. The research method used is socio-legal approach, with descriptive- analytical research specification.From the results of the research conducted it can be concluded that in the KHI, the testament can be made verbally or written and limit the testament can only be given a maximum of one-third of the inheritance or if the testamant is more than one-third then the approval of the heirs are needed. Whereas in the Civil Code, a testament must be in the form of a deed and require the assistance of a Notary in its manufacture and the testament shall not infringe the Legitieme Portie owned by the heirs.  AbstrakKompilasi Hukum Islam dan Kitab Undang-Undang Hukum Perdata sama- sama mengakui adanya wasiat dalam hukum kewarisannya namun terdapat perbedaan dan persamaan dalam pengaturannya. Tujuan penelitian ini adalah untuk membandingkan pengaturan tentang bentuk dan batasan wasiat dalam KHI dan KUHPerdata dan menganalisis penerapannya pada putusan Nomor : 175/PDT.G/2012/PA.BN dan putusan Nomor : 433/PDT.G/2011/PN.JKT.PST. Metode penelitian yang digunakan adalah pendekatan socio-legal dengan spesifikasi penelitian deskriptif-analitis. Dari hasil penelitian yang dilakukan disimpulkan bahwa dalam KHI, wasiat dapat dibuat secara lisan maupun tertulis dan membatasi wasiat hanya dapat diberikan maksimal sebesar sepertiga dari harta warisan Pewaris atau jika wasiat lebih dari sepertiga maka diperlukan persetujuan dari ahli waris. Sementara dalam KUHPerdata, wasiat harus berbentuk akta dan memerlukan bantuan Notaris dalam pembuatannya dan wasiat tidak boleh melanggar Legitieme Portie yang dimiliki oleh ahli waris.  

scholarly journals IMPLEMENTASI DALAM PENYELESAIAN PERMASALAHAN AHLI WARIS PENGGANTI (STUDI BANDING BERDASARKAN HUKUM WARIS ISLAM DAN HUKUM WARIS PERDATA)

Jurnal Akta ◽  
2017 ◽  
Vol 4 (1) ◽  
pp. 103
Author(s):  
Sarijo Sarijo ◽  
Akhmad Khisni
Keyword(s):  
Islamic Law ◽  
Civil Code ◽  
Theory Theory ◽  
Legal Research ◽  
Inheritance Law ◽  
Straight Line ◽  
Approach Method ◽  
The Law ◽  
The Difference ◽  
Theory Of Law

The study aims to determine the extent to which the replacement of substituted heirs in the case of a substituted heirs system, the implementation of substituted heirs and parts thereof, and the similarities and differences of substitute heirs under the Law of Inheritance and the Law of Inheritance of the Civil Code.The research used with approach method that is juridical normative method is legal research done by giving priority to researching library materials and documents. The specification in this research is using analytical descriptive, this method aims to provide an overview that is done by using a qualitative way that consists of: Theory-theory of law, legal doctrines, as well as opinions from legal experts.The results of this study and discussion: 1) The system of heirs according to Islamic Law is "the amount of property of the deceased in the net, after deducting the payment of the debts of the testator". Whereas in the law of the inheritance of the Civil Code there is no known regulatory difference on the basis of the kind or origin of goods left by the heirs.2) According to the Islamic inheritance law that the lineage entitled to obtain part of the substitute is replaced by a downward straight line, from a straight line upward and from a straight line to the side. Meanwhile, according to the law of the Civil Code inheritance from Hazairin's teaching that the brother of his father, both male and female, is not a barrier to replace his father's position, it is most important that his father had died earlier than the heir (grandfather). 3) The equality of the surrogate heirs in both laws is a person who succeeds the heirs who first passed away from the heirs who should have acquired the inheritance, and the replaced heir is the link between a person who succeeds and heirs. While the difference in terms of replacing the position of his father and: the rights obtained by the successor heirsKeywords: heirs, surrogate heirs, Mawali, Islamic Inheritance Law, Inheritance Law of the Civil Code.

scholarly journals Inheritance Laws in Indonesia

2017 ◽  
Vol 1 (2) ◽  
pp. 99
Author(s):  
Irawaty Irawaty ◽  
Diyantari Diyantari
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Civil Law ◽  
Inheritance Law ◽  
Law System ◽  
The People ◽  
System 2 ◽  
Religious Nation ◽  
Civil Law System ◽  
Adat Law

Indonesia implements civil law system. There are three sub legal systems which are implemented until today. They are: positive/national law system, Islamic law system, and Adat law system. The majority of Indonesians are Islamic believers. The people claim that they are a religious nation. However, the implementation of the inheritance law in accordance with the Islamic law and the Adat law is sometimes different. One of the ethnic groups which has different regulation in heritance is Minangkabau. Minangkabau inheritance adat law has been a controversy. It is because while they claim that all Minangkabau people are Islam, they implement an inheritance law that is said as violating the Islamic inheritance law. In Islam, inheritance is passed down to children, both daughter(s) and son(s)  with the composition son(s) inherits two parts compared to daugther(s). Many people  mislead that the Minangkabau inheritance law passes down the inheritance to daughter(s) only. This paper discusses: 1) how are inheritance matter regulated in each of the aforementioned sub legal system? 2) how is inheritance matter regulated in Minangkabau ethnic group?    

scholarly journals Pembagian Harta Waris Adat Lampung Sai Batin Kabupaten Pesisir Barat Perspektif Hukum Islam

2018 ◽  
Vol 10 (2) ◽  
pp. 217-240
Author(s):  
Kusnadi Kusnadi
Keyword(s):  
Decision Maker ◽  
Islamic Law ◽  
Native People ◽  
Inheritance Law ◽  
Native Peoples ◽  
The Absolute ◽  
Major Division ◽  
Division System ◽  
The Way

This article discusses the analysis of Islamic law against the distribution of the community's heirs in Sai Batin Marga Pasar Krui. The system used by the native people in Sai Batin Pesisir Barat is divided into two forms: first, the native peoples in Pasar Krui use the matriarchal major division system. Women are only entitled to live in the house and manage the garden, but not to sell it. If they do not have a daughter, the boy is also allowed to get the heirs. Second, the native peoples in Way Napal use the patrilineal division system. The absolute decision is possessed by the heirs as the owner and the absolute decision-maker. To whom the treasure will be distributed and the amount of it is determined by the decision of the testator. The way used in this distribution is washiyah (will). This is because they are still hard with the customary rules and their lack of understanding of the Islamic inheritance law that part of Islamic religious rules.

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