scholarly journals PEMBAGIAN HARTA BERSAMA DALAM PERKAWINAN MENURUT UNDANG-UNDANG NOMOR 1 TAHUN 1974 DAN HUKUM ISLAM

2020 ◽  
Vol 5 (1) ◽  
pp. 84-103
Author(s):  
Winarno Winarno
Keyword(s):  
Common Property ◽  
Islamic Law ◽  
Married Couple ◽  
The State ◽  
Men And Women ◽  
Positive Law ◽  
The Future ◽  
Mental Abilities ◽  
Shared Property ◽  
The One

Marriage is one of the religious commands that must be done by people who already have the physical and mental abilities to carry it out. In the law state of Indonesia, marriages are regulated by the state regarding the terms and conditions for someone who is going to get married, and both rules are directed at men and women. These rules are contained in Law Number 1 of 1974 and Islamic Law. Therefore, if the marriage does not meet the terms and conditions set, the marriage cannot be carried out. Since marriage is a union between a man and a woman, there will be cooperation, both cooperation in fostering households to achieve harmony and in finding property for survival. Each property obtained by a married couple will become a common property even though in terms of quantity, the one earned by each husband and wife can be different, even the one who earns money is only one of them. However, the marriage between the two makes the property belong together. Although in terms of civil and Islamic law, there are no strict rules regarding shared assets, but because the assets are obtained after marriage, they become shared property. Therefore, if a divorce in the future occurs or one dies, the assets must be divided in half. The rules for the distribution of shared assets do not actually violate the general provisions contained in either positive law or Islamic law.

scholarly journals Analisis Yuridis Perceraian Luar Pengadilan di Desa Nyormanis Kecamatan Blega Kabupaten Bangkalan Madura

AL-HUKAMA ◽  
2019 ◽  
Vol 9 (2) ◽  
pp. 433-458
Author(s):  
Kurnia Dwi Putri ◽  
Adinda Dian Eka Saputri ◽  
Nurul Firdausi ◽  
Luthfia Chairun Nisa
Keyword(s):  
Islamic Law ◽  
Married Couple ◽  
The State ◽  
Court Decisions ◽  
Positive Law ◽  
Court Hearing

Law in Indonesian has regulated the procedures for marriage, divorce, and reconciliation in Law No. 1 of 1974 concerning Marriage. And also stated in Law No. 22 of 1946 concerning the Recording of Divorce and Referrals. From the explanation contained in the positive law, it can be seen that the meaning of divorce is the breaking of the marriage ties of a married couple as a result of the failure to carry out the marriage due to several things such as death and court decisions. Divorce in law of Indonesian must be announced before the court. The pronouncement of divorce before the court is a mandate from article 115 of the Compilation of Islamic Law (KHI) which reads “Divorce can only be conducted in front of a Religious Court hearing after the Religious Court has tried and failed to reconcile the two parties.” But in fact, there are still many Indonesian people who do divorce not before the court. Divorce which is done outside the court is very negative, especially for the wife. Divorce is done only by word alone without going through a pledge in front of the court, then the state does not want to recognize the divorce, so that if the wife wants to remarry with another person, then it cannot be done because the wife does not have an official divorce certificate from the court.

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.

EFEKTIVITAS PELAKSANAAN PERATURAN PENCATATAN PERCERAIAN DI KANTOR URUSAN AGAMA

2020 ◽  
Vol 6 (1) ◽  
pp. 1-15
Author(s):  
Juriyana Megawati Hasibuan Dan Fatahuddin Aziz Siregar
Keyword(s):  
Islamic Law ◽  
The State ◽  
Judicial Process ◽  
Positive Law ◽  
State Administration ◽  
Shipping Costs ◽  
The Status ◽  
Happy Marriage ◽  
Religious Courts ◽  
Laws And Regulations

Marriage is a sacred bond which is ideally only held once in a lifetime. Both Islamic law and positive law require an eternal happy marriage. To support this the Koran proclaims marriage as mitsaqan galiza. The marriage is then registered in the state administration. In line with this, the laws and regulations are formulated in such a way as to make divorce more difficult. However, when there are acceptable reasons and due to coercive conditions, divorce can be done through a judicial process. The divorce must then be registered by taking certain procedures. The court delivered the notice and sent a copy of the decision to the marriage registrar to file the divorce properly. The implementation of this divorce record was not effective. The separation of the Religious Courts Institution from the Ministry of Religion has become a factor that causes the registration task not to be carried out. The loss of the obligation to submit a copy of the decision on the judge's ruling caused the recording to be constrained. The unavailability of shipping costs also contributed to the failure to register divorce. Even though there is a threat to the Registrar who neglects to deliver a copy of the verdict, unclear sanctions make this ineffective. As a result of the lack of recording of divorce, the status of husband and wife becomes unclear and opens opportunities for abuse of that status.

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 KONSEKUENSI MARRIED BY ACCIDENT DALAM PERSPEKTIF HUKUM POSITIF DAN HUKUM ISLAM

2018 ◽  
Vol 9 (2) ◽  
pp. 133
Author(s):  
Imawanto Imawanto ◽  
Edi Yanto ◽  
Mappanyompa Mappanyompa
Keyword(s):  
Research Methods ◽  
Islamic Law ◽  
Biological Father ◽  
Men And Women ◽  
Positive Law ◽  
Legal Guardianship ◽  
Illegitimate Child ◽  
Legal Perspective ◽  
The Guardian ◽  
Cover Up

This article discusses married by accident, which is a marriage that is forced to be carried out between a pair of men and women because the woman is already pregnant, their parents must marry her, in order to cover up their disgrace in the community. Using juridical-normative research methods. The results of the study are, first, the law of being married by accident is permitted both by positive law and Islamic law, secondly, the position of a married by accident child becomes a legitimate child in the perspective of positive law, and an illegitimate child in the perspective of Islamic law. Third, in a positive legal perspective, the legal guardianship and inheritance rights of a daughter from married by accident are her biological father and inheritance rights from her parents, whereas in Islamic legal perspective the child resulting from married by accident biological father has no right to give heirs and is not entitled also be the guardian of the child.keywords: Islamic law; married by accident; positive law. AbstrakArtikel ini membahas tentang married by accident, yaitu pernikahan yang terpaksa dilakukan antara sepasang laki-laki dan perempuan karena perempuannya sudah hamil terlebih dahulu, orang tua mereka harus menikahkannya, dalam rangka menutupi aib mereka di masyarakat. Menggunakan metode penelitian yuridis-normatif. Hasil penelitian, pertama, hukumnya married by accident di bolehkan baik oleh hukum positif dan hukum Islam, kedua, kedudukan anak married by accident menjadi anak sah dalam perspektrif hukum positif, dan anak tidak sah dalam  perspektif hukum Islam. Ketiga, dalam perspektif hukum positif, hak wali dan hak waris anak perempuan dari married by accident adalah ayah biologisnya dan memperoleh hak waris dari kedua orang tuanya, sedangkan dalam perspektif hukum Islam anak hasil dari married by accident ayah biologis tidak berhak memberikan waris dan tidak berhak pula menjadi wali anak tersebut ketika menikah.kata kunci: hukum Islam; hukum positif; married by accident.

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.

scholarly journals PUNISHMENT FOR THE EXTRAORDINARY CRIME PERPETRATOR ON CHILDREN ECONOMIC EXPLOITATION IN INDONESIA COMPARISON OF LAW IN AUSTRALIA, SENEGAL AND ENGLAND

2019 ◽  
Vol 7 (3) ◽  
pp. 97-101
Author(s):  
Aristya Windiana Pamuncak
Keyword(s):  
Psychological Health ◽  
Public Perception ◽  
Comparative Law ◽  
The State ◽  
Positive Law ◽  
Economic Exploitation ◽  
The World ◽  
The Future ◽  
Study Child ◽  
Physical And Psychological Health

Purpose of Study: Child exploitation and slavery have become a new phenomenon of global crime because it occurred in every part of the world. The exploitation of infants and children in our public perception is underestimated because of cases subject to prosecution only mild and included unusual punishment. Methodology: This research was normative, in analyzing phenomena that occur in society, the authors attempted to answer some of the problems of the rule of positive law in Indonesia in solving the problems of exploitation of children, how to tackle the exploitation of children by other countries, and recommendations to resolve the problems of exploitation against children. Results: Exploitation crimes against children or slavery more appropriately included as an extraordinary crime committed against children, because such measures will not only affect the physical and psychological health but also will greatly affect the future of children and the future of a nation. Implications/Applications: Comparative law between the State of Australia, Senegal, and England, can be recommended for the legislature to make the formulation of regulations on the handling of the exploitation of children more effectively and quickly.

Islam, Islamic Law and Constitution Making: International and Domestic Engagement in the Constitution-Making Process in Afghanistan

MAZAHIB ◽  
2020 ◽  
Vol 19 (1) ◽  
Author(s):  
Ahmad Rofii
Keyword(s):  
Public Participation ◽  
Islamic Law ◽  
International Community ◽  
The Other ◽  
The Public ◽  
The Future ◽  
The One ◽  
Constitution Making

The making of the 2004 Constitution was a significant moment amidst the continuing conflicts in Afghanistan. It was an attempt to transform differences and conflicts into a shared agenda for the future of the country. The process of constitution-making in Afghanistan was marked by intense negotiations between the international community and actors, on the one hand, and domestic actors, on the other. The outcome would be called a “win-win solution”. This essay focuses on the making of the Islam-related clauses: How was the public participation? How has the negotiation been undertaken? What was the result and why? This essay is an attempt to answer those questions. It will argue that the process of constitution-making in Afghanistan particularly with regard to the Islam clauses is the acts of negotiations between different competing actors. The Constitution is the product of negotiations not only between international and domestic actors, but also between domestic actors. As evident in the making of the Islam clauses, these negotiations might be characterized as between puritan Islamist and more moderate Muslim actors.Pembuatan Konstitusi Afghanistan tahun 2004 adalah momen penting di tengah konflik yang terus berkecamuk. Ia merupakan upaya untuk mentranformasi perbedaan dan konflik menjadi agenda bersama bagi masa depan negeri ini. Proses pembuatan konstitusi Afghanistan ditandai oleh negosiasi yang intens antara masyarakat dan aktor-aktor international di satu sisi, dan aktor-aktor domestik di sisi lain. Hasilnya dapat disebut ‘win-win solution’. Tulisan ini fokus pada pembuatan klausul-klausul Islam: Bagaimana partisipasi publiknya? Bagaimana negosiasi dilakukan? Apa hasil dan mengapa? Tulisan ini adalah upaya untuk menjawab pertanyaan-pertanyaan tersebut. Ia akan beragumen bahwa proses pembuatan Konstitusi di Afghanistan khususnya terkait dengan klausul-klausul Islam merupakan tindakan negosiasi antara aktor-aktor yang berbeda. Konstitusi Afghanistan tidak saja merupakan produk negosiasi antara aktor-aktor internasional dan domestik, tetapi juga di antara aktor-aktor domestik itu sendiri. Sebagaimana terbukti dari pembuatan klausul-klausul Islam, negosiasi-negosiasi tersebut dapat dikarakteristikan sebagai negosiasi antara aktor puritan Islamis and aktor yang lebih moderat.

Seeing the State

2018 ◽  
pp. 124-165
Author(s):  
Jelle J.P. Wouters
Keyword(s):  
Political Conflict ◽  
Status Quo ◽  
The State ◽  
The Political ◽  
Men And Women ◽  
Political Status ◽  
Postcolonial State ◽  
Dual Relation ◽  
The One ◽  
The Way

This chapter examines how protracted political conflict shapes the ways ordinary Naga men and women ‘see’ the postcolonial state. For most Nagas, long decades of conflict were marked by a dual relation to the state. On the one hand, they experienced the coercive, repressive powers of the state, while, after the enactment of Nagaland in 1963, the state manifested itself as a source of largesse and livelihood, as part of a politically driven policy of ‘seduction’ to tie Nagas to existing state structures and the political status quo. These historical experiences muddled distinctions between the state as a benevolent provider and protector, and that of a dispenser of bodily violence and misery, between the state as a lucrative resource and reservoir of public resentment. The way Naga villagers engage and ‘see’ the state, I argue, is mediated by this historical ambiguity.

scholarly journals “Under The Hand” Divorce Islamic Law Study of the Implementation of Divorce

2016 ◽  
Vol 4 (1) ◽  
pp. 22
Author(s):  
Oom Mukarromah ◽  
Entus Syamsurrizal
Keyword(s):  
Death Certificate ◽  
Islamic Law ◽  
Trial Court ◽  
Government Regulations ◽  
Divorce Law ◽  
Marriage And Divorce ◽  
Positive Law ◽  
Social Fact ◽  
The People ◽  
The One

Islamic Law regulates marriage and divorce sufficiently; Islamic jurists argue that if someone sentences the word talak and its kind to his wife then the talak is considered as valid. Meanwhile, positive law states that “Talak is a declaration of a husband performed in front of court session in Religious Court which becomes one of the reasons of divorce”. The fact shows that the people of Carenang, Serang, tend to refer on the Islamic law of divorce, not the one declared before the trial court. This matter engenders the illegal aspect of law, such as issuing a false death certificate to the former spouse. In order to elucidate the problem, the author proposes two main questions: (1) How is the concept of “under the hand” divorce based on fiqih and positive law?; (2) How is the Islamic Law review on the Article 39 Point 1 Law No. 1 of 1974 about Marriage and Article 34 of Government Regulations No. 9 of 1975? This study is conducted in normative jurisdiction and sociological jurisdiction which is comparatively descriptive analytic. This study is also conducted through mashlahah mursalah approach and Bentham utility principle. The results of the study show that; first, “under the hand” divorce performed by Carenang’s people is considered valid through the eye of Islamic Law, while it is invalid based on Positive Law due to the absence of the pledge before the trial court. Second, the behavior of “under the hand” divorce in Carenang has become a social fact and is included in Al-Maslahah al-Daruriyah category. The enactment of divorce law regulated by Article 39 Point 1 Law No. 1 of 1974 about Marriage and Article 34 of Government Regulations No. 9 of 1975 is covered in the Al-Maslahah al-Hajiyah category.

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