Reconstruction of Marriage Dispensation Regulations in the Perspective of Human Rights Based on the Value of Justice

Abstract

Marriage dispensation is the granting of permission to marry against deviations from the minimum age permitted in the marriage law. Marriage dispensation can be requested from the court with urgent reasons and must be married immediately. This urgent reason has caused debate, because based on the determination of the religious court as a whole it grants or gives dispensation approval to prospective brides who are pregnant or have committed acts prohibited by religious law and decency. While reasons other than that can be rejected by the judge. The purpose of this research is to analyze and find the reconstruction of the regulation of marriage dispensation in the perspective of human rights based on the value of justice. This study uses the Postpositivism paradigm, with an empirical juridical approach that uses primary data. Methods of data collection using interviews, observation, and field systems. The legal theory used in this dissertation is the theory of justice as the Grand Theory, the middle theory of the legal system theory and the Applaid theory of the theory of benefit. The results of this dissertation research found that the regulation of marriage dispensation in the perspective of human rights has not had the value of justice, namely the current marriage dispensation system based on Law Number 16 of 2019 has not fulfilled a sense of justice related to equal rights before the law and Article 28 B of the Law -The 1945 Constitution of the Republic of Indonesia, it can be seen that dispensation is only given to prospective brides who are pregnant. The current weaknesses in the regulation of the dispensation of marriage in the perspective of human rights are weaknesses in legal substance, legal structure and legal culture. The weakness of the marriage dispensation system is that it does not provide a clear understanding of the urgent reasons, causing debate regarding the urgent reasons and giving rise to the interpretation that the urgent reason is that the candidate is pregnant and results in differences of opinion from the judges. Reconstruction of the regulation on the dispensation of marriage in the perspective of human rights based on the value of justice, namely by reconstructing the provisions in Article 7 paragraph (2) of Law Number 16 of 2019, namely that it is necessary to change the sentence or phrase "reasons are very urgent" and amended with the phrase "which based on the interests of the candidate.