The Icrar of Talak as A Result of Mut'ah Imposition Perspective of Mashlahah Mursalah

Abstract

The Marriage Law in Indonesia stipulates that divorce can only be done before a court hearing, therefore the validity of divorce outside the court is not recognized. To the husband who submits a divorce application, besides allowing the husband to declare divorce in front of the court, the panel of judges can also burden the husband with paying a number of obligations including in the form of mut'ah. In common practice, mut'ah is usually paid after the trial of the divorce pledge is completed, but since the issuance of SEMA Number 1 of 2017 which stipulates that judges can include in a decision that the obligation of mut'ah must be paid before the pledge of divorce, many judges then carry out mandate of SEMA Number 1 of 2017 on the grounds of providing legal certainty for women's rights. However, this actually becomes an obstacle for the husband to carry out the divorce vow if the husband is unable to make payments. However, the results of the study found that the non-implementation of the divorce pledge was due to the inability of the husband to pay the mut'ah burden that was required to be paid before the divorce pledge, so if viewed from the perspective of mashlahah mursalah it does not actually make this judge's decision unfair, as well as an order to pay mut'ah before the pledge of divorce being pronounced also does not make the decision unfair. In this case the judge has considered many things, not only consideration of the husband's rights but consideration of the welfare of the wife as well.