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 Peralihan Harta Bersama Melalui Hibah Tanpa Izin Salah Satu Pihak Berdasarkan Undang-Undang Nomor 1 Tahun 1974 dan Kompilasi Hukum Islam

2019 ◽  
Vol 3 (1) ◽  
pp. 81-94
Author(s):  
Agustina Dewi Putri ◽  
Darmawan Darmawan ◽  
Teuku Muttaqin Mansur
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
The Other ◽  
Legal Action ◽  
Legal Research ◽  
Shared Property ◽  
Legal Consequences ◽  
Husband And Wife

Menurut Pasal 36 ayat (1) Undang-Undang Nomor 1 tahun 1974, mengenai harta bersama, suami atau isteri dapat bertindak atas persetujuan kedua belah pihak. Adanya ketentuan Pasal tersebut di atas, menunjukkan bahwa jika seorang suami atau isteri, bermaksud melakukan perbuatan hukum yang objeknya terkait dengan harta bersama (misalnya menjual, menghibahkan dan lain-lain), baik itu berupa barang bergerak atau barang tidak bergerak, maka perbuatan hukum tersebut harus didasarkan pada persetujuan kedua belah pihak (suami dan isteri). Untuk mengetahui dan menjelaskan akibat hukum dari peralihan harta bersama melalui hibah tanpa izin dari salah satu pihak. Metode Penelitian yang digunakan adalah penelitian hukum yuridis normatif dan Ketiadaan persetujuan baik suami atau isteri memberi akibat hukum bahwa peralihan harta bersama tersebut menjadi batal demi hukum.As for article 36 paragraph (1) mentions that anything regarded to the shared-property should be with the consent of both parties. It is in line with Article 92 about Compilation of Islamic Law which mentions that either husband or wife without any consent of the other partner is not allowed to sell or transfer the ownerships of the shared-property. Provisionsof the article indicate that if the husband or wife intends to carry out a legal act whose object is related to a common asset (for example selling, granting, etc). whether it is movable or immovable property, the legal action must be based on agreement of both parties (husband and wife). To figure out and explain the legal consequences of share assets transfer throght a grant without permission from one of the parties. Research method used in this is normative juridical legal research. To find out and explain the comparison of provisions on the transfer of property with husband and wife based on Law Number 1 Year 1974 and Compilation of Islamic Law Absence of approval from both husband and wife gives legal consequences that transfer of shared property becomes null and void by law.

scholarly journals Akibat Hukum Perceraian Terhadap Harta Benda Perkawinan

2019 ◽  
Vol 2 (2) ◽  
pp. 151
Author(s):  
Sugih Ayu Pratitis
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Applicable Law ◽  
Personal Property ◽  
Personal Rights ◽  
Marital Property ◽  
Shared Property ◽  
Legal Consequences ◽  
Joint Property ◽  
Husband And Wife

<p>The emergence of the problem of joint property in a marriage is usually when there is a divorce between husband and wife, or when the divorce process is taking place in the Religious Court. The purpose of the study is to examine the position of joint property in marriage according to Islamic law and the provisions of the legislation and the legal consequences of divorce on marital property. The research method used is a type of normative research where research is carried out by first researching the materials that are in accordance with the problem to be studied. The result of this research is that the position of husband and wife property obtained in marriage is shared property except personal property which is under the marriage will be the personal rights of each husband or wife. While due to divorce between husband and wife, the assets obtained during marriage are divided in half for the husband and half for the wife. The method for resolving cases of sharing of shared assets at the Religious Court is if the divorce has been approved by a judge, then a husband and wife can submit a request for sharing of shared assets in accordance with applicable law. And if a divorced husband and wife do not want to carry out the distribution of shared assets, then one of the parties can submit a request for execution in the Religious Court to force those who do not want to carry out the decision in accordance with what was decided by the Religious Court.</p>

scholarly journals ISLAMIC FAMILY AND CHILD PROTECTION LAW’S PERSPECTIVE ON VIOLENCE AGAINST CHILDREN

2020 ◽  
Vol 7 (2) ◽  
pp. 127
Author(s):  
Beni Chandra ◽  
Toha Andiko
Keyword(s):  
Child Protection ◽  
Research Method ◽  
Islamic Law ◽  
Family Law ◽  
Comparative Approach ◽  
Psychological Violence ◽  
Violence Against Children ◽  
Positive Law ◽  
Library Research ◽  
Physical And Psychological Violence

The Indonesian Government guarantees the rights and protection of children by Act 35 of 2014 concerning Child Protection. The law provides absolute protection for children against physical and psychological violence that they may receive, but on the other hand there is an interest in Moslem’s families to educate their children according to Islamic law (fiqh), so that there is a contradiction both of them. This research was conducted to determine the view of Islamic family and positive law on the problem of handling and protecting children and the limits of violence against children. The researchers used a comparative approach and library research method. Based on the research conducted, it is found that Islamic family and positive law go in line to provide protection for children. The differences are in the perspective of “children”, violence against children, the application of physical and psychological punishment, and actions against perpetrators of violence. In addition, there are limits to acts of both physical and psychological violence as a preventive and repressive measure against children, according to the provisions of Islamic family law

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 LESBIAN, GAY, BISEKSUAL, TRANSGENDER (LGBT) PERSFEKTIF IMAM SYAFI’I, HUKUM ISLAM DAN HUKUM POSITIF

Nuansa ◽  
2018 ◽  
Vol 11 (2) ◽  
Author(s):  
H Suwardin
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Same Sex ◽  
Positive Law ◽  
Sexual Violation ◽  
Library Research ◽  
The Law

This research raises  about Had for Lesbians, Gay, Bisexual, Transgender (LGBT) Perspective of Imam Shafi’i, Islamic Law and Positive Law. This research method is library research. The results of this study indicate that Had Lesbi- an, Gay, Bisexual, Transgender (LGBT) according to Imam Syafii Imam Syafii’s opinion about LGBT is considered a very damned act and  is considered as jarimah regardless of the perpetrators, whether done by unmarried people or people those who are married, it is referred to as fahisyah and is regarded as against the law. It also does not reduce its criminal value, even though it is done voluntarily or like it. Although no one feels aggrieved, it is still seen as a very despicable sexual violation, without knowing priorities. Had in the Islamic law perspective on Lesbians, Gay, Bisexual, Transgender (LGBT) that LGBT punished this behavior seen from the side where he channeled his lust for the same sex. So, if he were a man, when he channeled lust desires to fellow men, then the law was included in the category of gay (liwath) and if he was a woman, when channeling his lust for others, then the law was included in the category of lesbian . the scholars also agreed that the clerics forbid transgender behavior

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 Konstruksi Nalar Rechtvinding Hakim dalam Pemberian Izin Poligami yang Berkeadilan Gender dalam Putusan Pengadilan Agama Jombang No. 0899/Pdt.G/2016/PA.Jbg

AL-HUKAMA ◽  
2019 ◽  
Vol 9 (2) ◽  
pp. 496-517
Author(s):  
Abdullah Taufik ◽  
Ilham Tohari
Keyword(s):  
Content Analysis ◽  
Research Method ◽  
Islamic Law ◽  
Gender Justice ◽  
Legal Research ◽  
Analysis Techniques ◽  
Positive Law ◽  
The One ◽  
Legal Discovery ◽  
Religious Courts

The practice of polygamy in Indonesia until now has drawn criticism from some feminists who did not agree. But on the one hand, both Islamic law and positive law permit various conditions. In this case, the Religious Court (PA) becomes the last fence which becomes the determining point for a man to be able to polygamy. For this reason, researchers conducted a study of PA decisions on polygamy, namely Jombang PA Decision No. No. 0899 / Pdt.G / 2018 / PA.Jbg . The focus of the problem is (1) the value of gender justice in the decision and (2) reasoning rechtvinding(legal discovery) judge. The method used in this study is a normative-qualitative legal research method with content analysis techniques from Charles Purse. The results showed that the practice of polygamy licensing in the Religious Courts had actually gone through processes that reflected gender justice. This is reflected in the obligation of the Religious Court to summon the longest wife of the applicant for polygamy to be asked for willingness and information. The results of subsequent studies show that PA Jombang judges used hermeneutic techniques in making legal discovery efforts. Because, they not only focus on aspects of legality, but also consider the contextualization.

scholarly journals MEDIATION SYSTEM IN DISPUTES OF OWNERSHIP PERSFECTIVE ACADEMIC ISLĀḤ (A Research in Aceh Besar)

2020 ◽  
Vol 10 (2) ◽  
pp. 208
Author(s):  
Riadhus Sholihin ◽  
Oktavi Maulizar
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Descriptive Analysis ◽  
Document Analysis ◽  
Third Party ◽  
Peace Agreement ◽  
Positive Law ◽  
Field Notes ◽  
Mediation System ◽  
The Village

This article will explain how the authority of village officials in resolving disputes over ownership of aid houses is mediated? To answer the problem above, the writer uses the descriptive analysis research method, where the data obtained is sourced from observations, interviews, photoshoots, document analysis, and field notes compiled by the writer at the research location which is not set forth in the form of figures. From the results of the study it can be seen that based on Aceh Qanun Number 9 of 2008 concerning the Development of Customary Life and Customs where village officials have the authority to reconcile disputes that occur within the community by deliberation / mediation and one of the village apparatuses that mediates the parties who disputes to end their disputes peacefully. The consequence of the mediation decision is the termination of the dispute that occurred and the parties agreed to make peace by making a peace agreement and carrying out the agreement accordingly. The concept of mediation in positive law is no different from the concept of iṣlāḥ in Islamic law which involves a third party to reconcile the disputing parties. The content of the agreement of the mediation that has been carried out by the parties, is allowed in Islamic law because the purpose of iṣlāḥ or mediation is to end the dispute.

scholarly journals KOMERSIALISASI NIKAH SIRI DI DESA PEKOREN KECAMATAN REMBANG PASURUAN JAWA TIMUR

AL-HUKAMA ◽  
2018 ◽  
Vol 8 (1) ◽  
pp. 169-193
Author(s):  
Salman Alfarisi
Keyword(s):  
Qualitative Research ◽  
Research Method ◽  
Islamic Law ◽  
Religious Leaders ◽  
Operational Cost ◽  
Qualitative Research Method ◽  
Positive Law ◽  
Doing Business ◽  
Operational Costs ◽  
Legal Marriage

This article is a study of the commercialization practice of secret marriage in Pekoren Village, Rembang Subdistrict, Pasuruan Regency, East Java Province. Secret marriage is carried out by the community using a broker service. In carrying out its duties, the broker asks for payment in the form of dowry money for operational costs and paying for the services of the Kyai who marry off. This case was analyzed using the eyes of Islamic law and juridical law. While the method used is a descriptive qualitative research method by collecting data through reading or reviewing the expressions and behaviors observed from the speakers in the field. From the field it is described, that the commercialization of secret marriage in Pekoren Village is a fixation of the price of dowry as an operational cost that uses the services of kyai and brokers to find the type of women wanted by interested person. In Islamic law, secret marriage is a legal marriage with the fulfillment of requirements and pillars of marriage. Brokers in this case can be categorized as buying and selling because of doing business, but it is still not suggested in Islam. In Positive Law, unregistered marriage is not valid because one element is not fulfilled, namely marriage recording. In line with these conclusions, the holders of the marriage registration policy must emphasize the regulation of marriage registration. For religious leaders, should not facilitate the  secret marriage ceremonies which are patterned as pleasure.

scholarly journals DEBATE OF ISLAM AND COUNTRIES IN THE CONSTITUANTE BOARD, 1956-1959

2019 ◽  
Vol 2 ◽  
pp. 155-174
Author(s):  
Heri Herdiawanto ◽  
Valina Singka Subekti
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Secondary Data ◽  
The State ◽  
Islamic State ◽  
Basic Group ◽  
Constituent Assembly ◽  
Library Research ◽  
The One ◽  
The Relationship

This study examines Hamka's political thinking about Islam and the State in the Basic State debate that took place in the Constituent Assembly 1956-1959. Hamka belongs to the basic group of defenders of the Islamic state with Mohammad Natsir in the Masyumi faction, fighting for Islamic law before other factions namely the Nationalists, Communists, Socialists, Catholics-Protestants and members of the Constituent Assembly who are not fractured. Specifically examines the issue of why Islam is fought for as a state basis by Hamka. and how Hamka thought about the relationship between Islam and the state. The research method used is a type of library research with literature studies or documents consisting of primary and secondary data and reinforced by interviews. The theory used in this study is the theory of religious relations (Islam) and the state. This study found the first, according to Hamka, the Islamic struggle as the basis of the state was as a continuation of the historical ideals of the Indonesian national movement. The second was found that the constituent debate was the repetition of Islamic and nationalist ideological debates in the formulation of the Jakarta Charter. Third, this study also found Hamka's view that the One and Only God Almighty means Tauhid or the concept of the Essence of Allah SWT. The implication of this research theory is to strengthen Islamic thinking legally formally, that is thinking that requires Islam formally plays a major role in state life. The conclusion is that Indonesian society is a heterogeneous society in terms of religion. This means that constitutionally the state recognizes the diversity of religions embraced by the Indonesian people and guarantees the freedom of every individual to embrace religion and realize the teachings he believes in all aspects of life. Hamka in the Constituent Assembly stated that the struggle to establish a state based on Islam rather than a secular state for Islamic groups was a continuation of the ideals of historical will.

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