Marital Property within the Marriage Law: A Debate on Legal Position and Actual Applications

General background: The regulation of property assets in Indonesian marriage law operates within a dual framework involving the Civil Code and the Marriage Law, each establishing different principles on ownership and control. Specific background: These differences create practical ambiguity in marriages concluded without a prenuptial agreement, particularly when determining the status of separate and marital property upon dissolution. Knowledge gap: Despite substantial jurisprudence, limited scholarly analysis examines how both legal regimes interact in real disputes, especially in cases where property acquired before marriage becomes contested inheritance. Aims: This study analyzes the status and distribution of property assets in marriages without a prenuptial agreement by comparing the Civil Code and the Marriage Law, using Supreme Court Decision No. 2981 K/Pdt/2024 as a case reference. Results: The findings show that during marriage, property classification follows the Marriage Law, but upon dissolution—especially by death—the distribution of assets reverts to the parties’ respective legal system, resulting in the Civil Code governing inheritance for those subject to civil law. Novelty: This research clarifies the normative intersection between marital property and inheritance law in the absence of prenuptial agreements. Implications: The study highlights the need for harmonization between the Marriage Law and the Civil Code to ensure legal certainty and prevent interpretive inconsistencies in future marital property disputes. Highlights: Clarifies differences between the Marriage Law and the Civil Code in regulating property without a prenuptial agreement. Highlights how dissolution of marriage shifts asset distribution to the parties’ applicable legal system. Emphasizes the need for harmonization to prevent inconsistent judicial interpretations. Keywords: Marital Property, Separate Property, Civil Code, Marriage Law, Inheritance

Objective: The issue of divorce cases in family court has implications, resulting in the division of marital property. The object of the dispute is the house that wants to be divided equally. The case was in court decision No.205/Pdt.G/2016/PA.Ab for first instance, until the appeal process No.01/Pdt.G/2017/PTA.Ab second instance, and Supreme Court No.159K/Ag./2018 third instance and final decision at fourth instance namely review No.6PK/Ag./2019. The difference from all court decisions in the same case is due to avoid discrimination on children's rights. Methods: Qualitative research by using case approach in marriage law concerning marital property, specifically discussing some of the cases and decisions mentioned above, as well as obtaining decisions from related courts that may be reviewed and some supported from the results of religious court reports, although there are some parts of the judgment that are not published on the basis of court secrecy that maintains the privacy of the litigant community Results: The courts of first and second instance determine and divide the objects normatively by 50% presentation, but the courts of third and fourth instance are different and opposite, and in the final judgment, the objects of dispute are suspended and not distributed. Conclusion: The judge's judgment in the case ignored the rights of children who were still young children. If the object of dispute is divided by 50% presentation, the object must be auctioned and sold and the proceeds divided in half, but the litigant has no other place to live to protect the child and will ignore the child who does not have another house to live for the child. So, the judge does not distribute the object until the child is an adult, restoring the right to the child who was neglected after the divorce.

There are two concepts regarding marital assets according to the legal system in Indonesia, namely in the form of personal assets and joint assets. The correlation between marital property and IPR includes the legal and economic relationship between joint ownership of certain assets and the protection of creative or innovative rights. This research was conducted using normative research methods using statutory, conceptual and case approaches. The purpose of this research is to find out the position of royalties as marital property according to marriage law in Indonesia and to find out about the legal measures that can be taken by the parties regarding royalty rights as marital property in the event of a divorce. The research show that Copyright is a material right, so it can be concluded that Royalties fall into the category of intangible movable objects. Royalties which are intangible movable objects have value as joint assets. Then, dispute resolution regarding joint assets can be carried out through litigation and non-litigation processes. In practice, the division of joint assets can usually be resolved amicably, but if there is no agreement it will result in a legal process involving filing a lawsuit with the Religious Court. In terms of the division of marital property, it is regulated in the Civil Code, Marriage Law, and the Compilation of Islamic Law and the judge's considerations are based on the value of justice.

This study explores the legal dynamics between financial responsibility and marital property in the context of marriage in Indonesia, with a specific focus on reconciling the normative gap between Islamic law and Indonesia’s national legal system. While Islamic law places full financial responsibility (nafaqah) on the husband, Indonesian civil law applies a gender-neutral approach by recognizing joint marital property acquired during marriage, regardless of who earned it. This normative legal research employs a qualitative approach using statutory, conceptual, and comparative analyses of both Islamic legal texts (Qur’an, Hadith, and classical fiqh) and national legal instruments such as the Marriage Law No. 1 of 1974 and the Compilation of Islamic Law (KHI). The findings reveal a fundamental inconsistency: Islamic jurisprudence emphasizes the husband's economic duty, whereas civil law presumes equal ownership, potentially leading to legal ambiguity in divorce and inheritance cases. The study concludes that this dualism requires a contextual reinterpretation of the joint property regime that respects Islamic ethical values while adapting to modern socio-economic realities, including the increasing financial contributions of women. It is recommended that legal reforms recognize differentiated spousal roles without undermining gender justice. This research contributes academically by proposing an integrative legal framework that bridges the gap between normative Islamic obligations and the state’s egalitarian legal principles. Such a framework offers a more just, ethical, and socially relevant model for regulating financial responsibility and property rights in Muslim marriages within Indonesia’s plural legal system.

The regulation of copyright as marital property in Law No. 28 of 2014 concerning Copyright is not explicitly regulated, but indeed in the provisions of Article 16 of the Copyright Law, it seems to be open to interpretation that copyright in this case is in the form of economic rights that are indeed obtained during the marriage and constitute movable property that is also part of the joint property that must be divided upon the termination of the marriage due to divorce. Law No. 1 of 1974 concerning marriage also does not clearly regulate the position of copyright as part of joint property, but it is clearly stated in the Marriage Law that property acquired during marriage is joint property, which must be divided between husband and wife when the marriage ends due to divorce. Legal certainty regarding copyright as part of joint property already exists, but it is still considered insufficiently concrete. There is no clear and concrete regulation regarding the mechanism for dividing copyright as joint property. Copyright brings two consequences, namely moral rights and economic rights in the form of royalties, public. Meanwhile, joint property stipulates that all acquired joint property must be divided into two, and this is where the conflict lies. The absence of clear rules has resulted in legal uncertainty regarding the period of distribution of economic rights to copyright as joint property, even though it has been decided by the court.

In marriage, there is joint property that is included in the marital property owned by the couple in the marriage. Indonesia regulates this marital property in several regulations, one of which is Law Number 1 of 1974 concerning Marriage. Joint property is property acquired during marriage by the husband and wife. The existence of property in marriage often becomes a problem when the couple divorces. Divorce can be the beginning of problems regarding property in marriage. Regarding the division of property, it cannot be done arbitrarily, but must be emphasized in terms of fairness. In this regard, the Marriage Law gives freedom to every divorced couple who wish to divide their joint property according to their respective laws. In the provisions of the Marriage Law, joint property, personal property, and earned property are types of property in marriage. This study aims to analyze the legal provisions on joint property in the Marriage Law and the Compilation of Islamic Law, as well as the division of property for divorced couples, which must be based on fairness. This study uses a normative juridical research method through a legislative approach based on written laws in Indonesia as the legal material used.

The purpose of this research is to analyse the legal status of children born from marriages of different nationalities in the perspective of Indonesian Civil Law and Islamic Law. This research is important because children born from mixed marriages are entitled to protection of their legal status in order to maintain the continuity of life, legal position and civil interests. The research method used is normative juridical legal research with qualitative data types in the form of secondary data consisting of primary legal materials, secondary legal materials and tertiary legal materials relevant to the topic of this research and data collection techniques using library research or literature studies with legal material analysis techniques using descriptive analysis methods. The results of this study state that the law of marriage between different nationalities in the perspective of Indonesian civil law and Islamic law raises problems with the law of marriage itself as well as the legal status, civil rights and citizenship rights of children. In the perspective of Indonesian civil law and Islamic law, the law of marriage of different nationalities is a valid marriage and the legal status of the child is a legitimate child, the civil rights of children from marriages of different nationalities are the same as children in general and the legal status of the child's citizenship as an Indonesian citizen follows the citizenship of the father or mother who is an Indonesian citizen and can also have dual citizenship until he is 18 years old or married, after which the child must declare choosing one of his citizenship.

Legal position of non-marital children according to 19th century Serbian legislature and judicial practice is examined in this paper. Provisions and court decisions on personal rights, property rights and rights of succession of illegitimate children are presented and critically analyzed. Children born out of wedlock were not equal to children born in lawful marriage. Therefore, significance of legalization of illegitimate children regarding improvement of their legal status is accentuated. As non-marital relationships were condemned in patriarchal Serbian 19th century society, illegitimate children were considered a product of sin and family disgrace. Hence, legislative and judicial attempts to protect their interests and improve their legal position are emphasized in this paper. Beside legalization, adoption was also the way to better position of illegitimate children in great extent, as adopted child was granted the status of a child born in lawful marriage. That is a reason why judicial practice concerning adoption, widespread in 19th century Serbia, is scrutinized and critically analyzed in the article.

Marriage aims to form a happy, eternal, and conscious family without pressure. From a marital relationship, rights and obligations, including property, are regulated in the marriage law. For certain couples, marital property needs to be separated and a special agreement is made that regulates the separation of assets and obligations of both partners. In the case that it was found that there was a couple who made a separation agreement made after the marriage took place, there is a fact that the agreement was requested to be canceled for various reasons from the plaintiff. With these facts, the purpose of this study is to examine the legal aspects of the cancellation of the marriage agreement made after the marriage took place. This research method used a normative juridical method with a conceptual approach and legislation. The conclusion of this study is that marriage is a form of relationship between a man and a woman with the aim of forming a family, that it is undeniable that marriages are carried out between Indonesian citizens and foreigners and this is that there are legal differences that apply to men and women in mixed marriages because of differences in nationality. . In mixed marriages, there will be things regarding property that are different from marriages between Indonesian citizens and Indonesian citizens. The marriage agreement made by the couple before the marriage can be in the form of an authentic deed made before a notary as a public official, if the marriage agreement is made after the marriage it will result in null and void.

This research aims to reveal that royalties as intangible movable objects can be counted as assets in marital property. Various perspectives such as Islamic law, civil law, and the Indonesian National Marriage Law fight to strengthen the argument. This research is normative legal research that is prescriptive in nature using a conceptual approach, a statutory approach, and a comparative approach. Empirically, intellectual property rights are difficult to be considered objects that can be shared. The main focus in this research is on the legal and ethical aspects that underlie profit sharing in the context of intellectual property as a right. On the other hand, the civil law perspective explores the secular law that regulates the distribution of royalties. This article examines the issue of managing legal conflicts between several different legal systems and identifies points of convergence and divergence between Islamic legal perspectives and intellectual property law and marriage law.

This article critically examines the legal protection of a wife’s separate property within Indonesia’s national legal system, focusing on the normative conflict between Article 119 of the Indonesian Civil Code (Burgerlijk Wetboek) and Article 35 of Law Number 1 of 1974 on Marriage. The core legal issue addressed is whether the automatic community of property regime established by Article 119, which absorbs all assets into joint marital property in the absence of a prenuptial agreement, remains compatible with constitutional principles of gender equality, legal certainty, and substantive justice. The objective of this study is to evaluate the continuing relevance of Article 119, assess its practical impact on the economic rights of wives, and formulate a juridically sound reformulation that aligns civil law with constitutional and human rights standards. This research employs a normative juridical method, utilizing statutory, conceptual, jurisprudential, and comparative approaches. Primary legal materials include the Civil Code, the Marriage Law, the 1945 Constitution, and selected Supreme Court decisions, while secondary materials consist of legal doctrine and international scholarly studies on matrimonial property regimes. The findings demonstrate that Article 119 of the Civil Code is no longer consistent with Indonesia’s constitutional commitment to gender equality and legal protection, as it allows a wife’s separate property to be absorbed into joint marital assets and exposed to division, inheritance claims, or creditors’ rights. In contrast, Article 35 of the Marriage Law affirms the autonomy of each spouse over separate property and reflects a more equitable legal paradigm. Judicial practice, however, still shows normative dualism, generating legal uncertainty and structural vulnerability for wives. The study further finds that progressive jurisprudence has begun to recognize separate property rights, but these developments remain fragmented without legislative reform. This study is significant because it provides a comprehensive normative and constitutional justification for reformulating Article 119 of the Civil Code, proposing a shift from an automatic community of property regime to a model based on individual property autonomy and mutual consent. By integrating constitutional principles, gender justice, and comparative family law, this research contributes to the development of a more coherent, equitable, and modern Indonesian civil law system that effectively protects the economic rights of wives within marriage.

This study discusses the legal consequences of the absence of a marriage agreement on marital property according to the Indonesian legal system, especially based on the Civil Code and the Marriage Law No. 1 of 1974. By default, the absence of a marriage agreement leads to the enactment of a system of property union, in which all property acquired during the marriage is considered joint property. This condition has various legal implications, such as the vulnerability of personal property to third-party claims, difficulties in proving ownership of inherited property, and potential conflicts in the division of property in the event of divorce or death of one of the spouses. This study also highlights the difference in the regulation in Islamic law that does not recognize the automatic union of property, but still has the potential to cause disputes if there is no written agreement. The research method used is empirical normative with a qualitative approach, examining positive legal provisions and practices that develop in society. The results of the study show that low public understanding and negative stigma towards marriage agreements are the main factors in the low making of these agreements. The Constitutional Court Decision No. 69/PUU-XIII/2015 which allows the making of agreements during the marriage period expands legal protection, but its implementation still faces challenges. This study recommends the need to increase legal education and socialization on the importance of marriage agreements to provide certainty and fair legal protection for the parties in the institution of marriage.

As a nation governed by law and upholding human rights, Indonesia recognizes and protects the basic rights of every citizen, including the right to form a family. In this context, the Indonesian constitution expressly guarantees this right, as outlined in the following provisions: Article 28B paragraph (1) of the 1945 Constitution, hereinafter referred to as the 1945 Constitution, "Everyone has the right to form a family and continue the lineage through a legal marriage." This article recognizes the right of every person to form a family through a legal marriage. This is a basic constitutional right that is the foundation of marriage law in Indonesia. The phrase "legal marriage" implies that the state has the right to regulate the validity of marriage through law. Divorce is the termination of a marriage between a husband and wife based on a legally binding court decision. In the context of Indonesian law, divorce cannot be done simply, but must go through a court process to ensure the validity and legal protection for both parties, including children born in the marriage. This is regulated in Law Number 1 of 1974 concerning Marriage, specifically in Article 38, which states that a marriage can be terminated due to: death, divorce, or a court decision (in certain circumstances, such as annulment of marriage). This peace decision has the same legal force as a court decision that has permanent legal force (inkracht), so it is binding on the parties and must be implemented. The presence of this peace decision is expected to provide legal certainty and end the dispute completely. The rights of children to parental property after the division of marital property according to the Marriage Law are entitled to receive living expenses and welfare until the child reaches adulthood. The peace decision between divorcing parents regarding the division of marital property agrees to give their assets to the child, which includes education costs and the child's welfare.

The birth of the Marriage Law No. 1 of 1974, especially the breakup of marriage has led to the dualism of Islamic law in Indonesia. Regarding Divorce on the one hand, Muslims are taught in Islamic fiqh that Divorce is the right of a husband, where if a wife is mentally ill even without a witness, then the divorce falls, while the marriage law in Indonesia, including the Islamic ummah, is specifically regulated in the Law Compilation Islam, determines that divorce can only be done before a religious court after going through a trial. Moreover, two Islamic organizations in Indonesia, namely Muhammadyah and Nahdlatul Ulama have different opinions. On the one hand, NU in the 28th Congress in Yogyakarta in 1989 gave a legal decision that Divorce was the husband's prerogative which could be dropped anytime and anywhere even without reason. If the husband has dropped divorce outside the Religious Court, then the divorce is valid. While the Majlis Tarjih Muhammadiyah in his fatwa that was tried on Friday, 8 Jumadal Ula 1428 H / 25 May 2007 M gave a ruling that divorce must be carried out through a court examination process, divorce carried out outside the court was declared invalid. The views of NU and Muhammadiyah above reflect a contradiction. Therefore the Indonesian Ulema Council based on the MUI IV 2012 Fatwa gave a fatwa as a middle way to resolve these differences with its fatwa that divorce outside the legal court is valid provided there is a syar'i reason that the truth can be proven in court. Iddah Divorce is calculated since husband drops divorce and for the benefit of benefit and guarantees legal certainty, divorce outside the court must be reported (ikhbar) to the religious court. With the Normative Juridical research method, the author tries to discuss the problem, namely trying to find the problems that arise as a result of these rules and find a way out how the MUI fatwa can be applied. From the results of the study, the authors conclude that the unrecognized Divorce legality outside the court causes legal chaos due to uncertain laws for the Islamic ummah, namely in terms of when the fall of divorce and the end of the iddah period, concerning triple divorce, concerning the validity of the status of children born after the fall Divorce and concerning the validity of the second marriage and the status of the child that was born which could damage the religion and descent of the Islamic ummah in Indonesia. If Marriage is legal according to the religion, then Divorce should also be valid if carried out according to the religious law. Factors that cause divorce outside the court include economic factors, juridical factors, sociological factors and customs factors, regarding the distribution of marital assets due to divorce outside the court, in general, the community resolves issues regarding marital property in a family manner by including local ulama and traditional leaders.

Prior to the passing of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988, the legal position was that a civil marriage trumped any customary marriage. Entering into a civil marriage had two major effects, namely it dissolved any existing customary marriage, and it prevented a man from entering into any subsequent marriage with another woman. However, post-1988, the legal position was slightly altered. An earlier civil or customary marriage trumped any subsequent marriage. A man who was a party to a customary marriage could no longer enter into a civil marriage with another woman; that civil marriage would be invalid. This note discusses the case of the late Zulu king, Goodwill Zwelithini, and his various consorts. The first marriage in 1969 was a civil marriage. The subsequent marriages were customary marriages. As pointed out earlier, strictly speaking in law, these subsequent marriages were invalid owing to the earlier civil marriage to the first wife. This position remained the same in 1988. It must be borne in mind that the invalidity in question came about because of past inequality. South Africa is now a constitutional state that prides itself as the epitome of basic human rights, including equality and human dignity. It would be hypocritical to espouse basic human rights in the Constitution, while perpetuating past inequality in the context of the above customary marriages. In the case under present discussion, Zulu v Mathe, the court missed an opportunity to pronounce on the validity of customary marriages that were invalidated, due to inequality. Arguably, the court also missed the opportunity to pronounce on the validity of the late King’s last customary marriage, which was entered into in 2014, many years after the passing of the Recognition of Customary Marriages Act 120 of 1998. This case note is a critical discussion of this aspect of the judgment.