scholarly journals ISBAT Nikah Melegalkan Pernikahan Sirri Menurut Hukum Positif Dan Hukum Agama (Studi Di Pengadilan Agama Palangka Raya)

2015 ◽  
Vol 15 (1) ◽  
pp. 94-103
Author(s):  
Sanawiah Sanawiah
Keyword(s):  
Islamic Law ◽  
Marriage Law ◽  
Positive Law ◽  
Religious Law ◽  
The Law ◽  
Marriage Laws ◽  
Islamic Marriage ◽  
Legal Marriage ◽  
Laws And Regulations

The purpose of this study was to find out what sirri marriage laws according to Islamic Law and Positive Law, to find harmony and marriage requirements and to find out how the role of Religious Court of Palangka Raya in socialization confirmation marriage. The method used in this research is the method of legal normative. As for the type of research used in this study is inventory regulations that related to confirmation of marriage legalized marriage sirri according to Positive Law and Religious Law. Law wedding sirri results according to Islamic Law and Positive Law, sirri marriage according to Islamic Law illegitimate because it does not have a guardian of marriage, while marriage sirri in the view of the majority of Indonesian society is marriage not recorded but the terms and illegitimate pillars have been met in accordance with Islamic Law. Meanwhile, according to the law of the wedding positive sirri is as where according to Marriage Law in Indonesia if a legal marriage in syar'i then legitimate also according to law "marriage is not recorded" is legal according to the laws and regulations because according to Islamic Marriage Law applicable in Indonesia is based on Article 2 (1) of Law No. 1 of 1974 in conjunction with Article 4 Compilation of Islamic Law (as ius constitutun) in conjunction with Article 3 bill-HM-PA-Bperkw 2007 (as ius constituendum).

scholarly journals THE LEGALITY OF INTERRELIGIOUS MARRIAGE IN THE PERSPECTIVE OF ISLAMIC LAW AND INDONESIAN POSITIVE LAW

2017 ◽  
Vol 17 (02) ◽  
pp. 82
Author(s):  
Muchammad Ichsan
Keyword(s):  
Analytical Method ◽  
Islamic Law ◽  
Negative Outcomes ◽  
Marriage Law ◽  
Positive Law ◽  
The Law ◽  
Descriptive Method

This study aims at examining the legality of interreligious marriage according to Islamic law and Indonesian positive law. To reach the goal set by this research, a descriptive method is used in the writing while an analytical method is employed to scrutinize the relevant problems. This study finds that interreligious marriage has spread widely among Indonesians that it has now become a phenomenon. However, Islam does not recognize a Muslim woman's marriage unless she is married by a man belonging to the same religion, i.e. a Muslim. A Muslim man is not permitted to marry a mushrik (polytheist) woman. It is lawful for him to marry a woman from the Ahlul Kitaab (Jews and Christians), but Indonesian ulemas prohibit such a marriage as well because of the negative outcomes. Meanwhile, the 1974 Indonesian Marriage Law fails to address the issue of interreligious marriage in a clear manner. This brings forth at least three interpretations: firstly, the law does not regulate interreligious marriage at all; secondly, the law allows it; and thirdly, the law denies it. Through an analysis, the last interpretation is found to have stronger reasons than the others.  Penelitian ini bertujuan untuk menguji legalitas pernikahan antaragama menurut hukum Islam dan hukum positif Indonesia. Agar tercapai tujuan yang diinginkan, maka penelitian ini menggunakan metode deskriptif untuk menganalisis masalah yang sedang diteliti. Studi ini menemukan bahwa pernikahan antaragama telah menyebar luas di kalangan masyarakat Indonesia yang kini telah menjadi fenomena. Namun, Islam tidak mengenali pernikahan wanita Muslim kecuali jika dia menikah dengan pria yang memiliki agama yang sama, yaitu seorang Muslim. Seorang pria Muslim tidak diizinkan untuk menikahi wanita musyrik (politeis). Dan halal baginya untuk menikahi wanita dari Ahlul Kitaab (Yahudi dan Kristen), namun sebagian ulama Indonesia tetap melarang pernikahan semacam ini, karena beberapa alasan. Sementara itu, Undang-Undang Perkawinan Indonesia 1974 gagal menangani masalah pernikahan antaragama dengan cara yang jelas. Ini setidaknya menghasilkan tiga interpretasi: pertama, hukum sama sekali tidak mengatur pernikahan antaragama; Kedua, hukum mengizinkannya; Ketiga, undang-undang tersebut menolaknya. Melalui sebuah analisis tersebut di atas, disimpulkan bahwa jenis interpretasi yang terakhir ditemukan memiliki alasan yang lebih kuat daripada alasan yang lainnya.

scholarly journals Understanding the Rights of Wife in The Law Number 1 of 1974 About Marriage Among the Terrorist Wives in Central Java

2020 ◽  
Vol 8 (1) ◽  
Author(s):  
Rosdiana Rosdiana ◽  
Hotnidah Nasution
Keyword(s):  
Islamic Law ◽  
Secondary Data ◽  
Primary Data ◽  
Marriage Law ◽  
Positive Law ◽  
Central Java ◽  
Religious Doctrine ◽  
Library Research ◽  
The Status ◽  
The Law

AbstractThe terrorist or ex-terrorist wives in Solo have experienced diverse conditions after their husband officially becomes a terrorist prisoner who has been lived in jail. The Rights of Wife in Law No. 1 of 1974 about Marriage among terrorist wives in Solo have sharpened the analysis on how their level of perception of the wife’s rights that regulated by Law No. 10 of 1974. This study aims to reveal the reality of cases that took place with terrorist wives related to the fulfillment of their rights as a wife regulated by law, and to categorize their marital status related to the validity in a positive law (whether the marriage is registered or not in The Office of Religious Affairs (KUA)). Besides, this paper also wants to explore the terrorist wives' understanding who are legally married in KUA regarding their rights which are highly protected by the law. This research uses a qualitative method which aimed to find concepts and theories, and library research by applying the empirical or sociological legal approach. Data sources used are Primary Data, namely the terrorist prisoner’s wives in Solo, and secondary data from the Marriage Law (Law No. 1 of 1974), Compilation of Islamic Law (KHI), books, journals, articles, views of legal experts, and the results of other paper and writings related to the problems that become the subject in this research discussion. The descriptive data analysis method aims to figure out systematically, factually and accurately the facts about the understanding of terrorist wives related to their rights in the Marriage Law (Law No. 1 of 1974). After analyzing and interpreting the existing data, it can be concluded that the terrorist prisoner wives in Central Java have a fairly good understanding of their rights as wives regulated in Law No. 1 of 1974. If only there are rights that undermanned by them for the unfulfilled obligations by the husband, then it is caused by their sincerity attitude towards the husband status who becomes a prisoner. The religious doctrine that is strong enough makes the prisoner’s wife do not ask many of her rights, both physical and mental rights that are not well fulfilled. For them, the status of a husband to become a terrorist prisoner is a Shari reason which consequences must be accepted sincerely.Keywords: Understanding, wife's rights, Terrorist Prisoner’s Wives

scholarly journals Criminal Act of Sexual Gratification: Fiqh Jināyah and Positive Law Perspective

Al-Ahkam ◽  
2018 ◽  
Vol 18 (1) ◽  
pp. 97
Author(s):  
Nadea Lathifah Nugraheni
Keyword(s):  
Islamic Law ◽  
Government Regulations ◽  
Sexual Gratification ◽  
Public Facilities ◽  
Positive Law ◽  
Case Comparison ◽  
The Law ◽  
The Government ◽  
Role Of The Government

<p>This paper describes the concept of sexual gratification based on positive legal views in Indonesia and <em>fiqh jināyah</em>. This type of qualitative research with the method of collecting library data is also normative in looking at and approaching cases of sexual gratification. This study uses several approaches, including case, comparison, and conceptual approaches. The government has regulated the Law Number. 31 of 1999 which has been updated by Law Number. 20 of 2001 on combating corruption. Moreover, it is stated in Article 12 B that explains matters including gratuities, such as money, goods, commissions, checks, travel tickets and other public facilities. Basically, the sanction of sexual gratification has fulfilled government regulations but has not yet been applied. Thus, it is necessary to reform the law of sexual gratification in Indonesia. The theory of Mukhtalath in Islamic law can be an alternative solution to cases of sexual gratification. The synchronicity of the role of the government and the clear rules and regulations relating to cases of sexual gratuity are urgently needed to achieve justice and legal validity.</p><p class="IABSSS" align="center">[]</p><p>Tulisan ini mendeskripsikan konsep gratifikasi seksual berdasarkan pandangan hukum positif di Indonesia dan <em>fiqh jināyah</em>. Penelitian ini berjenis kualitatif dengan metode pengumpulan data kepustakaan juga bersifat normatif dalam memandang dan melakukan pendekatan terhadap kasus gratifikasi seksual. Penelitian ini menggunakan beberapa pendekatan, diantaranya pendekatan kasus, perbandingan dan konseptual. Pemerintah telah mengatur UU Nomor. 31 Tahun 1999 yang telah diperbaharui oleh UU Nomor. 20 tahun 2001 tentang pemberantasan korupsi. Terlebih tercantum dalam pasal 12 B yang menjelaskan hal-hal yang termasuk gratifikasi, seperti, uang, barang, komisi, check, tiket perjalanan dan fasilitas umum lainya. Pada dasarnya sanksi gratifikasi seksual telah memenuhi aturan pemerintah, akan tetapi belum diaplikasikan. Dengan demikian perlu pembaharuan terhadap hukum gratifikasi seksual di Indonesia. Teori tentang Mukhtalath dalam hukum islam dapat menjadi alternatif solusi akan kasus gratifikasi seksual. sinkronisitas peran pemerintah dan jelasnya aturan perundang-undangan terkait kasus gratifikasi seksual sangat dibutuhkan demi tercapainya keadilan dan keabsahan hukum.</p>

scholarly journals Konsep Kedewasaan Subyek Hukum

2020 ◽  
Vol 5 (2) ◽  
pp. 257-269
Author(s):  
Ahmad Sainul
Keyword(s):  
Islamic Law ◽  
Age Difference ◽  
Legal Certainty ◽  
Marriage Law ◽  
Men And Women ◽  
Positive Law ◽  
The Law

There is a difference in the concept of the legal maturity limit according to Islamic law and positive law. The legal subject's maturity is fifteen years old or ihtilam for men and menstruation for women. whereas according to positive law there is no legal certainty regarding legal skills in the age of 18 years, 21 years, or after marriage, resulting in confusion in determining one's skills before the law. Then the age difference in the Marriage Law for men and women needs to be equalized and needs to be re-agreed in accordance with physical and mental considerations for all parties who will get married

scholarly journals FACTORS IN RELIABILITY AS A REASON TO POLYGAMI ACCORDING TO ISLAMIC LAW AND POSITIVE LAW

2020 ◽  
Vol 12 (1) ◽  
pp. 93-106
Author(s):  
Imam Hafas
Keyword(s):  
Qualitative Methods ◽  
Islamic Law ◽  
Focal Point ◽  
Descriptive Analysis ◽  
The Public ◽  
Positive Law ◽  
The World ◽  
The Law ◽  
Research Types ◽  
Laws And Regulations

The dynamics of polygamy are not uncommon to talk about, considering that polygamy is widely practiced by the public and the actions of polygamy are not in accordance with the existing laws and regulations or laws in Indonesia. Many actions of polygamy violate the existing rules, one of which is the existence of marriage outside the KUA conducted secretly. A family will never achieve happiness in the world without the descendants born from the bond of marriage. Indonesia is one country that is able to see and interpret the actions of polygamy that occur outside the court or without the knowledge of the first wife. This is triggered by the desire of a husband who wants to polygamy or gets married for the second time. Talking about a marriage that is not always happy, can even bring a disaster, both on the part of a wife and a husband. One way is to get offspring from the marriage. In scientific studies that will be the focal point is about the reason for a husband to carry out acts of polygamy, both in Islamic provisions and in the provisions of the law. The method in scientific studies here uses qualitative methods with normative juridical research types and the nature of descriptive analysis research, as well as using an inductive thinking framework.

scholarly journals Mereview Arah Undang-Undang Perbankan Syariah di Indonesia

2011 ◽  
Vol 2 (1) ◽  
pp. 91 ◽  
Author(s):  
A. Zuliansyah
Keyword(s):  
Islamic Law ◽  
The State ◽  
Economic Activities ◽  
Positive Law ◽  
Interesting Study ◽  
Finance Law ◽  
Religious Law ◽  
The World ◽  
Modern Economic ◽  
Laws And Regulations

The application of Islamic law in the activities of banking/finance  or  other modern economic activities is not a simple job. The study of the banking law, or sharia  finance law to be an interesting study and challenging for the world of law in Indonesia, where the positive law (law) in the country of Indonesia is different from  that applicable to the religious law  (Islam). Enforcement of religious law (Islam)  must go through a process referred to as  the ”positivisasi” Islamic law. In this case, Islamic law accepted by the state  in  positive laws and regulations that apply  nationally. This paper will examine  the law of Law no. 10 of 1998 concerning Amendment to law number 7 of 1992. Likewise, Law number 21 of 2008 has some interesting general provisions to be observed. General provisions referred to (Article 1) is a novelty and will  provide certain implications

scholarly journals سبق الإسلام تأريخيًا وتفوقه في إرساء حقوق الإنسان (دراسة مقارنة بين التشريع الإسلامي والنظم الوضعية)

2017 ◽  
Vol 19 (1) ◽  
pp. 115
Author(s):  
Yousif Abdallah Mustafa Abdalrazeq
Keyword(s):  
Human Rights ◽  
Islamic Law ◽  
Analytic Approach ◽  
Obvious Advantage ◽  
Positive Law ◽  
The World ◽  
History Of ◽  
The Law ◽  
Islamic Civilization

<p>هذه دراسة تدور محاورها حول التشريع الإسلامي والنظم الوضعية. هدفت الدراسة إلى إبراز دور الإسلام التأريخي في إرساء حقوق الإنسان، انتهجت الدراسة المنهج الاستقرائي التحليلي، وتناولت الدراسة الموضوع بالبحث والتحليل معتمدةً في ذلك على التشريع الإسلامي وما جاءت به الحضارة الإسلامية التي سادت العالم، ذلك بأن التشريع الإسلامي إلهي المصدر وصالح لكل زمان ومكان، على عكس النظم الوضعية التي تتحدث عن قضية الساعة، وقد استشهدت الدراسة بمجموعة من أقوال رجال النظم الوضعية مقارنة في موضوع البحث التي ظهر من خلالها تفوق التشريع الإسلامي بصورة واضحة نالت إعجاب واعتراف كثير من العلماء والمفكرين في العالم.</p><p>This study covers Islamic law and positive law, which aims to show the role of Islam in the history of establishing human rights. It employs inductive analytic approach. Hence, it mainly refers to the law of Islam (Islamic tasyri') and what is brought by Islamic civilization leading the world. It is due to the fact that Islamic tasyri’ comes from Allah and is worth of all time and place. On the contrary, the positive law made by man deals with the problems related to time and conditions. This study is supported by legal experts to compare both laws. The finding shows the obvious advantage of Islamic tasyri' rather than other regulation or positive law. Its overwhelming advantage is also confirmed by world legal experts</p>

scholarly journals KEDUDUKAN PERKAWINAN BEDA AGAMA DAN PERKAWINAN CAMPURAN DI INDONESIA

2020 ◽  
Vol 19 (1) ◽  
pp. 84
Author(s):  
Mariani Mariani
Keyword(s):  
Analytical Method ◽  
Research Method ◽  
Islamic Law ◽  
The State ◽  
Marriage Law ◽  
Mixed Marriages ◽  
Positive Law ◽  
Marriage Laws ◽  
Religious Differences

There are two categories of mixed marriages in Indonesia, namely mixed marriages between religions / different religions and mixed marriages across countries / different nationalities. This research method using descriptive-analytical method. The conclusions are: Mixed marriages carried out in Indonesia refer to the applicable marriage laws in Indonesia. In order to carry out mixed marriages between Indonesian citizens and citizens of other countries, in general the requirements for marriage as regulated in the marriage law must first be met; Mixed marriages across countries, namely marriages made by Indonesian citizens with foreign citizens are allowed and legalized / recognized by the State, as long as all the terms and conditions regulated by the laws of the respective countries of origin of the bride and groom are fulfilled and there is no prohibition for both of them to carry out wedding; and Islamic Law and Indonesian Positive Law allow marriage between two people of different nationalities, but prohibit mixed marriages due to religious differences and do not obtain legal legality.

scholarly journals PERAN NOTARIS DALAM PEMBAGIAN WARISAN KEPADA ANAK HASIL LUAR KAWIN DITINJAU DARI HUKUM HARTA KEKAYAAN DAN PEWARISAN SERTA HUKUM WARIS BARAT

Jurnal Akta ◽  
2017 ◽  
Vol 4 (2) ◽  
pp. 211
Author(s):  
Muhammad Sidiq ◽  
Akhmad Khisni
Keyword(s):  
Islamic Law ◽  
Civil Code ◽  
Problem Analysis ◽  
Married Child ◽  
Positive Law ◽  
Legal Literature ◽  
Scientific Papers ◽  
Definition Of ◽  
Legal Marriage

The research of this thesis in order to (1) to know the definition of a child outside marriage in a positive law of Indonesia is a child born in a legal marriage according to a religion that fulfills the provisions, it is just not recorded in the civil record; Judging by the Compilation of Islamic Law and the Civil Code (2) to know the magnitude of division of marriage out of the Compilation of Islamic Law and Civil Code (3) to know there is a Notary's role in the division of inheritance in the making of Statement of Inheritance and Certificate of Inheritance. Starting a dispute relating to the building of a married child in the future, the Notary may make peace deeds and / or agreements on the release of copyright.This research uses normative juridical approach. This study uses secondary legal materials, which include positive laws or regulations, research results, scientific papers, and other legal literature references that support problem analysis. This approach seeks to examine and explore and seek answers to what should be of every problem.This study produces in essence (1) Outsider is a child born in a legal marriage according to religion is not yet recorded. Therefore, according to Islam, the outsider is legally and legally entitled to inheritance, as well as seen from the perspective of civil law (2) The magnitude of the division of marriage out of the Compilation of Islamic Law is to use the calculations commonly used to divide the inheritance Using principles in KHI. Similarly, the Civil Code that divides the inheritance of children outside of marriage based on the principle of the Civil Code. In contrast to the inheritance division of an out-of-wedlock child (in the sense of the Civil Code) divided according to which group he was abandoned. The offspring studied by the authors differ from the definition of children outside marriage in the Civil Code (3) The role of a notary in the division of inheritance contributes to the making of the Statement of Inheritance and the Inheritance Certificate. In the event of a dispute, a Notary may produce peace deeds and / or an agreement of waiver of claim.Keywords: Outsider married, Marriage Law, Compilation of Islamic Law, Notary

scholarly journals IMPLEMENTASI HUKUM TERHADAP “PERKAWINAN BEBALU” MENURUT HUKUM ISLAM DAN HUKUM INDONESIA

Ulumuddin ◽  
2019 ◽  
Vol 11 (1) ◽  
pp. 73
Author(s):  
Faozan Sembahulun
Keyword(s):  
Islamic Law ◽  
Sociology Of Law ◽  
Traditional Society ◽  
The Past ◽  
Positive Law ◽  
The People ◽  
Religious Law ◽  
The Government ◽  
Islamic Marriage ◽  
Legal Consequences

The Bebalu marriage in Sembalun society is a part of tradition has happened from the past and developed to the current. Bebalu is a term for people who do divorce outside the court (non-litigation). The Bebalu closely relates to the religious law, although without leaving the roles of positive law in Indonesia. It happens due to religion dominantly believed by the people in region is Islam and it aims to respect the sacredness of the tradition. This article attempts to examine how the implementation and the legal consequences of the Bebalu. Using approach of sociology of law, this article argues that from the perspective of Islamic law the Bebalu is permissible and even legitimate. The reason is that the Bebalu fulfils the primary requirements of Islamic marriage. However, legally it cannot be accepted due to the marriage is not registered to the state. Accordingly, the divorce process of the Bebalu seems to contradict the law. The main problem of the traditional society in Sembalun as well as its marriage of Bebalu is the lack of communication about law that should be delivered by the government. It happens due to the difficult access to the region.

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