Philosophical Examination of the Itsbat Nikah (Marriage Legalization) in Sirri Polygamy Following the Issuance of Supreme Court Circular No. 3 of 2018

The Indonesian Marriage Law Act Number 1/1974, and the Compilation of Islamic Law (KHI) regulate the constitutional law of polygamous marriage in Indonesia. The act states that the basic principle of marriage in Indonesia is monogamy. The act also says that the husband must show evidence telling his ability to fulfill his family needs. The study on these issues conducted in Indonesia is a part of the Indonesia Islamic family law. The neglected protection of the child’s rights in a family needs to be escorted through imposing the rules concerning it. This study aims to find out the implementation of the protection of child rights in Islamic law on polygamous marriage. This research employed a qualitative method with a socio-legal study case approach. The result of the study showed first, there is always a problem in the matter of the child’s rights that should be fulfilled by polygamist fathers that have to be protected. Second, the rights of children in polygamous marriage cannot be fulfilled equally especially in unrecorded polygamous marriages. Third, there is uncertainty in the marriage law related to the maturity of children who are still under the protection of parents, where this uncertainty will make it difficult to implement the law. Basically, the protection of children in polygamous marriages has been regulated in the Islamic Marriage Law in Indonesia. However, there are still many gaps in Islamic legal protection in child protection in polygamous marriages, plus there are still many people who do not comply and ignore it.

This paper aims to examine and analyze the juridical problems in the implementation of polygamy in Papuan traditional marriages which are established according to customary law. This research was conducted on Papuan customary communities in Sentani, Central Sentani District (Hobong Village) and West Sentani District (Doyo Village). The data were collected by means of interviews, and the data were analyzed through qualitative analysis. The results showed that the implementation of polygamy marriage in indigenous Papuan/Sentani communities carried out by Ondoafi / Ondofolo who as leaders in customary communities is not in accordance with the provisions in Law Number 1 of 1974 concerning Marriage. The Marriage Law is based on monogamy, but still provides concessions for those whose religions allow them to practice polygamy with fairly strict conditions. The requirements for polygamy in the Marriage Laws are set aside by Ondofolo who practices polygamy, the consent of the first wife is not required. By setting aside the requirements in the Marriage Laws for polygamy, there will be a negative impact on the polygamous marriage, namely that the marriage is not recorded or is illegitimate, resulting in children born in the marriage to become illegitimate children. The disharmony between customary law and national law (Marriage Laws) in terms of polygamous marriage among indigenous Papuans results in no sense of justice in the household. Lack of socialization regarding the Marriage Laws as a National Law to indigenous Papuans has resulted in a lack of legal awareness and resulting in minimal legal compliance. Keywords: Papuan Traditional Marriage - Marriage Law. DOI: 10.7176/JLPG/103-09 Publication date: November 30 th 2020

This research aims to determine the method of determining lineage in Islamic law. And to find out the perspective of Islamic law and sharia maqoshid on DNA testing as a determinant of nasab. This research was carried out using library research and paying attention to the field (Field Research). Literature study is a process of searching for various literature, the results of studies related to the research to be carried out. Literature study can be likened to a key that will open everything that can help solve research problems. The research results show that the method for determining lineage in Islamic law is (1) by legal marriage or Fasid marriage, based on the hadith: الوَلَدُ لَلْفِرَاشِ with the meaning of the word firasy being a wife who has been married, (2) method of recognizing lineage or descent, (3) method proof (bayyinah), namely the testimony of two men, or a man and two women. Thus, determining lineage by evidence is stronger than just by confession, because evidence to date is the strongest reason to determine and decide a case, (4) and the tasammu' method. According to Dr. Wahbah al-Zuhaili, determining lineages is permitted through tasammu' as in the law of marriage or wedding night, mendukhul wife, radha', birth and death. And this was agreed upon by the imams of the four schools of thought. That the perspective of Islamic law and maqoshid sharia regarding DNA testing as a determinant of lineage is hifz nasal (protecting offspring). Because the DNA test serves to free him from the accusations leveled against him, and he ensures that the accusations are not true, and proves his child's lineage to his father and this is the child's right, and reassures the husband's soul and erases the doubts in his heart. And a wife who doesn't want to do a DNA test even though her husband urges her is to cover up a certain disgrace, and the maqashid of sharia is hifdul irdh (maintaining self-respect). This is in accordance with the word of Allah SWT in Surah An-Nur verse 19 which shows the recommendation to cover up one's own and other people's disgrace, and to make sure to keep disgrace a secret, as explained by Yusuf Qardawi.

Marriage under Law no. 1 Year 1974 about Marriage is the inner bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family (household) based on Belief in One Supreme God, while according to Compilation of Islamic Law (KHI) is a very bond Strong (mitssaqan ghalidzan) and practicing it is worship. In practice, households do not always run in accordance with the purpose of marriage, there are times when there is harmony between husband and wife, which can lead to divorce. From the problem, the researcher raised the title of Result of Husband to Violate Sighat Taklik Judging From Law Number 1 Year 1974 About Marriage And Islamic Law (Case Study of High Court Religious Decision No. 296/PDT.G/2014/PA.TTD). The purpose of this study is to find out about the divorce filed by the wife against a husband who violated sighat taklik in Law no. 1 of 1974 concerning Marriage and Islamic Law, as well as to know the judges' consideration in deciding cases of divorce due to husbands violating sighat taklik in the decision of Religious Court of Tebing Tinggi No. 296/PDT.G/2014/PA.TTD. The research method used in this research is normative juridical approach method, that is by examining the existing library materials. The research specification used is analytical descriptive. The research phase used is document study to collect secondary data covering primary law material, secondary law material, and tertiary legal material. Technique of collecting data by way of literature study. And by using qualitative normative analysis method. From the result of the research, the researcher get the conclusion that the violation of husked sighat by husband can be the reason of a wife to do divorce, because the violation of sighat taklik causes not reaching the purpose of marriage, which to form a sakinah family, mawaddah and warahmah, and happy and eternal based Belief in the one and only God. The wife divorce sued against the husband in the Marriage Law is called divorce, while in Islamic Law it can be called fasakh or khulu '. The panel of judges granted the divorce suit on the consideration of protecting the rights of women as wives.

U.S. citizens are overwhelmingly opposed to the legalization of polygamous marriage, but specific reasons for this opposition remain unclear. In this study we examined young adults' (n = 814) attitudes toward polygamous marriage as a function of myriad variables. Particular attention was given to the presumed association between attitudes toward same-sex marriage and polygamous marriage. Results indicated that, overall, young adults' attitudes toward polygamous marriage were neutral. Also, attitudes toward same-sex marriage significantly correlated with attitudes toward polygamous marriage. However, not all pro–same-sex marriage participants were pro-polygamous marriage. Moreover, opposition to same-sex marriage, (female) gender, higher levels of authoritarianism, and endorsement of traditional family values conjointly and individually predicted opposition to polygamous marriage. Implications of the findings are discussed, particularly in the context of U.S. discourse over the legalization of same-sex marriage.

The goal to be achieved in this research is to find out the legal consequences of the position of children in unregistered marriages according to Islamic Law and the Marriage Law. To understand the concept of unregistered marriage according to Islamic Law and the Marriage Law. In this study the authors used the normative juridical writing method, namely legal research conducted using statutory regulations.According to Islamic law, an unregistered marriage is considered valid because a marriage that meets the pillars and conditions of marriage will be considered valid. Siri marriages are considered invalid according to the Marriage Law, because they refer to the provisions of Article 2 paragraph (2) of the Marriage Law regarding registration of marriages. From the provisions of this article, it can be seen that the Marriage Law focuses on the validity of marriage on two elements, namely; Marriage must be carried out in accordance with the conditions and procedures determined by law (state law) and religious law. This means that unregistered marriages that are carried out only by complying with religious law are not valid from the point of view of state law.For the legal status of children from unregistered marriages, according to Islamic law, they are considered legitimate children according to religion, because the child was born in or as a result of a legal marriage. According to the Marriage Law, the status of the child is the same as a child out of wedlock and cannot be said to be a child in a legal marriage, therefore the child does not have a birth certificate. As a result, legally the child has no right to claim support, inheritance or guardianship rights from his father. However, children from unregistered marriages can obtain their rights in accordance with Constitutional Court decision Number 46/PUU-VIII/2010 as long as they can prove it.

Legal Marriage—who Needs it?: The Marriage Contract. By Lenore J. Weitzman. [New York: The Free Press. 1981. 536 pp. (incl. index) $17.95.]Legal Marriage—who Needs it?: Cohabitation Without Marriage. By Michael D. A. Freeman and Christina M. Lyon. [Aldershot, Hants.: Gower, 1983. 228 pp. (incl. index). £15.00.]Legal Marriage—who Needs it?: Unmarried Couples. By Winifred H. Holland. [Toronto: The Carswell Company. 1982. 249 pp. (incl. index) Can.$32.50.]Legal Marriage—who Needs it?: The Family Home. By W. T. Murphy and Hilary Clark. [London: Sweet and Maxwell. 1983. xxi and 229 pp. (incl. index) £6£95 (paperback).]Legal Marriage—who Needs it?: Fundamentals of Securities Regulation. By Louis Loss. [Boston and Toronto: Little Brown and Company. 1983. xxiii and 1353 pp. No price stated.]Legal Marriage—who Needs it?: Economic Realities and the Female Offender. By Jane Roberts Chapman. [Lexington, Massachusetts: Lexington Books. 1980. 234 pp. (incl. bibliog. and index). No price stated.]Legal Marriage—who Needs it?: Girl Delinquents. By Anne Campbell. [Oxford: Basil Blackwell. 1981. 266 pp. Paperback: £4‐50.1Legal Marriage—who Needs it?: The Analysis of Judicial Reform. Edited by Philip L. Dubois. [Lexington: D. C. Heath. 1982. xiv and 221 pp. £18·50.]Legal Marriage—who Needs it?: The Politics of Judicial Reform. Edited by Philip L. Dubois. [Lexington: D. C. Heath. 1982. xi and 187 pp. £18·50.]Legal Marriage—who Needs it?: Prosecution in the Public Interest. By Susan R. Moody and Jacqueline Tombs. [Edinburgh: Scottish Academic Press. 1982. xiii and 167 pp. £12·00.]Legal Marriage—who Needs it?: Free Speech: A Philosophical Inquiry. By Frederick Schauer. [Cambridge: Cambridge University Press. 1982. 237 pp. £ 20·00 (hardback) £6‐50 (paperback).]Legal Marriage—who Needs it?: English Law and French Law. By René David. [Stevens/Eastern Law House. 1980. 195 pp. Hardback: £12·50.]Legal Marriage—who Needs it?: La Responsabilité Civile. By André Tunc. [Economica. 1981. 161 pp. Paperback: 65F.]

This article discusses the politics of marriage law in the Russian Muslim diaspora. The Muslim community in Russia faces challenges in carrying out their marriage according to the principles of the Islamic religion amidst the legal regulations in force. This article analyzes the political development of marriage law in the Russian Muslim diaspora, including the recognition of Islamic marriage law, the settlement of legal conflicts between Islamic marriage and state law, and the role of Islamic organizations in safeguarding Muslim marriage rights. This article also presents case studies, examples of legal marriage practices in the Russian Muslim diaspora, and obstacles and solutions encountered in dealing with different legal regulations. This study uses normative research methods. Conceptual, literary and sociological approaches are used in normative or doctrinal research. Data analysis in this study used qualitative analysis methods. The results of the study state that there are political implications of the marriage law of the Russian Muslim diaspora, in addition to the challenges and opportunities in fulfilling the elements of the rights of the Muslim community in Russia. Therefore, it is expected to contribute to broadening the understanding of the politics of marriage law in the Russian Muslim diaspora and exploring issues related to Muslim marriage rights in the context of that country.

Indonesia is a highly diverse country, comprising a multitude of tribes, groups, races, and religions, and is endowed with a rich cultural heritage. The heterogeneity of Indonesian society provides the context for interfaith and other forms of marriage. The specific legislation that governs marriage is Law Number 1 of 1974. It is commonly assumed that Law No. 1/1974 requires immediate revision due to its outdated nature and inability to address contemporary issues pertaining to marriage. Consequently, there are numerous provisions within the Marriage Law that require amendment or addition. For instance, there is a need to introduce more robust penalties for those who violate the Marriage Law, whether they are involved in interfaith marriages, same-sex marriages, polygamous marriages, or marriages contracted without the requisite formalities. This study aims to examine the evolution of marriage law in Indonesia and the challenges it has faced. It employs a descriptive qualitative approach with a literature review. The findings reveal that Indonesia's marriage regulation has undergone three distinct phases, each characterised by its own set of issues. Additionally, the country's marriage law has experienced two distinct periods: one following independence and the other following the enactment of Marriage Law Number 1 of 1974.

Hadhanah is an act that must be carried out by their parents, because without hadhanah it will result in the child becoming abandoned and his life will be wasted. Fiqh scholars agree that the principle of caring and educating is an obligation for parents, because if children are still young, it will have a damaging effect on the child and their future can even threaten the existence of their soul. This study aims to investigate and analyze the protection of hadhanah rights in three countries, namely Saudi Arabia, Turkey, and Indonesia. This research will use normative research methods. The results of this research are hadhanah rights in Islam in Saudi Arabia, Turkey, and Indonesia. Saudi Arabia, with its legal system based on the Hambali madhhab, emphasizes the protection, education, and custody of children supervised by Islamic authorities. Turkey, with its more moderate civil law, ensures the fulfillment of children's rights in divorce decisions, with attention to the protection, care, and education of children. In Indonesia, the Marriage Law and the Compilation of Islamic Law affirm the protection and maintenance of children in accordance with the principle of Islamic hadhanah rights. Turkey is considered more responsive to the changing times by integrating modern values in the protection of children's rights, followed by Indonesia's progressive adaptation. The contribution of this research is that this analysis is expected to provide in-depth insights into the development and implementation of Islamic family law in various countries with different backgrounds.

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.

This study aims to analyze marriage regulations with child protection, namely Law Number 16 of 2019 on Marriage and Law Number 35 of 2014 on Child Protection. These two regulations will be analyzed to protect children who marry underage. The study method used is normative juridical. As a novelty, the study tries to compare marriage arrangements with child protection arrangements. The purpose and perspective of underage marriage between the two regulations are different. The research results show that marriage law has a different spirit than child protection law. This is shown in the marriage law, which states that children are still allowed to marry for urgent reasons by applying for a dispensation to the court. However, child protection law explicitly does not allow this. Therefore, there is a need for more detailed regulation regarding the category of "urgent reasons" regulated in the marriage law. Keywords: Marriage; Children; Protection.

Interfaith marriage always controversial in Indonesia. The granting of permission to register interfaith marriages has been rampant in the District Court before the existence of Supreme Court Circular Letter No. 2 of 2023 concerning the prohibition of registering interfaith marriages. The granting of permission to register interfaith marriages is very controversial because it is not clearly regulated in the marriage law. Surabaya District Court with Number: 916/Pdt.P/2022/PN.Sby has given permission for registering interfaith marriages. This research aims to find out the legal considerations of the judge in granting permission for registering interfaith marriages, and to analyze the decision in terms of the Marriage Law and the Human Rights Law. This study is a library study with a normative juridical approach. It uses the legality theory and the universality and relativity theory of human rights. This study concludes that the judge has considered the human rights of the petitioners to grant the registration of marriage between different religions. In terms of the Marriage Law, the legal considerations used by the judge are not quite right, because the article explains that marriage is prohibited if it is prohibited by religion, and all religion in Indonesia prohibit interfaith marriage. In terms of the Human Rights Law, it is explained that a marriage is valid if it is in accordance with the provisions of the applicable laws and regulations, so that the legalization of marriage should refer to the Marriage Law.

Regulations on joint property in polygamous marriages are not specifically addressed in legislation. This legal vacuum creates legal consequences and uncertainty for the community. This study aims to analyze the regulations related to the mechanism for dividing joint property acquired in marriage and the essence of separating joint property in polygamy applications. This research uses normative legal research. The primary legal materials used are the Marriage Law, Court Decisions, and the Compilation of Islamic Law (KHI). The secondary legal materials include reference books, journals, and research results. Data analysis was conducted qualitatively. The results of the study show that the mechanism for dividing property in polygamous marriages is not specifically regulated in legislation. Existing regulations only stipulate that joint property is divided between widows and widowers, whether the marriage ends due to divorce or death. In practice, the division of joint property in Religious Courts can be categorized into two types: the separation of property directly stipulated in the decision on the application for polygamy and after the occurrence of divorce or the death of one party, based on the general principles in the Marriage Law and KHI. There is a need for the reconstruction of the Marriage Law to ensure legal certainty in the context of the division of joint property. [Abstrak: Pengaturan harta bersama dalam perkawinan poligami tidak diatur secara spesifik pembagiannya dalam peraturan perundang-undangan. Kekosongan hukum ini menimbulkan konsekuensi hukum serta ketidakpastian hukum bagi masyarakat. Kajian ini bertujuan untuk menganalisis pengaturan terkait dengan mekanise pemilihan harta bersama yang diperoleh dalam perkawinan dan hakikat pemilahan harta bersama dalam permohonan poligami. Penelitian ini menggunakan jenis penelitian hukum normatif. Bahan hukum primer yang digunakan yaitu UU Perkawinan, Putusan Pengadilan dan KHI. Bahan hukum sekunder yang digunakan yaitu buku referensi, jurnal dan hasil penelitian. Analisis data dilakukan secara kualitatif. Hasil penelitian menunjukkan mekanisme pembagian harta poligami belum diatur secara spesifik dalam peraturan perundang-undangan. Pengaturan yang ada hanya menentukan harta bersama di bagi kepada janda dan duda baik putusnya perkawinan maupun karena terjadinya perceraian. Pengalaman praktik pembagiannya harta bersama di Pengadilan Agama dapat dikategorikan menjadi dua yaitu pemilahan harta yang langsung dipilah dalam penetapan permohonan izin poligami dan pasca terjadinya perceraian maupun meninggal salah satu pihak dengan berpedoman pada prinsip umum dalam UU Perkawinan dan KHI. Perlunya rekonstruksi UU Perkawinan yang berdimensi kepastian hukum dalam konteks pembagian harta bersama.]

The case against Decision Number 101/Pid.B/2018/Pn Kph with the application of Article 351 paragraph (1) of the Criminal Code in criminal cases of domestic violence, as well as the application Law No. 23 of 2004 concerning Domestic Violence for victims of domestic violence with underhanded marriage ties that are not in line with legal objectives in terms of certainty, justice and benefit. This research is a normative legal research using a statutory approach. The results of the research show that the application of Article 351 paragraph (1) of the Criminal Code does not fulfill the legal objectives in terms of certainty, justice, and legal benefits. This is due to the fact that the panel of judges, through their considerations, does not see that underhand marriage is a legal marriage, whereas in the KHI and the Marriage Law it is considered that marriages carried out in accordance with religious verses are legal marriages, so that the application Law No. 23 of 2004 concerning Domestic Violence can be applied as a legal basis. Implementation the Law No. 23 of 2004 concerning Domestic Violence can be applied to victims of domestic violence with underhanded marriage ties, based on the KHI and the Marriage Law, this is also strengthened by The Lex Specialis Derogat Legi Generalis so that victims of domestic violence with underhand marriage ties are no longer only protected by general regulations, namely the Criminal Code, but special regulations, namely Law No. 23 of 2004 concerning Domestic Violence Law (PKDRT).