Wasiat kepada Anak Tidak Sah Taraf: Analisis Terhadap Enakmen Wasiat Orang Islam bagi Negeri-negeri di Malaysia

Implications of the Verdict of Constitutional Court Number 46/PUU-VIII/2010 on the Hereditary Right of Illegitimate Children Born of Mixed Couple in Islamic Law Perspective

Sunnah is the second source of Islamic teachings after the Qur'an. Because the sunnah provides an explanation of the generality of one verse of the Qur'an which has a global meaning, so the meaning is clear. In this case, as one parcel of the generality. It's just that, the sunnah as a source of Islamic law there are still understandings or groups who reject it as one of the foundations or sources of Islamic law. And one of the ideas that reject the sunnah as a source of Islamic teachings or law is to understand the renegade of the sunnah. Where this understanding states that the Qur'an is the main and only source. All issues relating to the hablun min Allah and hablun min annas are all clearly illustrated in the Qur'an, so that the sunnah cannot be used as a source or basis. And according to the Shafi'ite Imama that it turns out that there is still a renegade understanding that there are moderate thoughts that can accept the sunnah as a foundation in Islamic law. That is still using the sunnah but the sunnah is valuable mut mutha who have many narrators and it is impossible to do lies in an action or deed. Keywords: Sunnah, Ingkar Sunnah, Imam Syafi’i

Before the Federal Court’s decision in Tan Kah Fatt v Tan Ying (2023), a distinction had always been drawn between the inheritance right of a legitimate child and an illegitimate child in Malaysia. While a legitimate child has an automatic right to inherit the parents’ intestate estate, such right was not available to an illegitimate child. An illegitimate child may only inherit the intestate estate if he has been legitimised. Without legitimisation, an illegitimate child would be ineligible to succeed to his father’s intestate estate. The illegitimate child’s entitlement to succeed on his mother’s intestacy is conditioned on the absence of any legitimate issue surviving the mother. However, Tan Kah Fatt has altered this legal position. This article seeks to examine the change of the law of the inheritance right of illegitimate non-Muslim children in Malaysia, the effects of this Federal Court’s decision and some concerns about this case. Doctrinal research is employed, and the discussion is confined to the law of intestacy for non-Muslims in Malaysia only. This article suggests that amendments of relevant statutes are needed if Malaysia truly intends to equalise the illegitimate child’s inheritance right to intestate estate as that of the legitimate child.

This study aims to analyze the legal status of illegitimate children from the perspective of Islamic law and civil law in Indonesia, focusing on aspects of lineage, inheritance rights, and legal protection. This study uses a literature study method with descriptive-analytical analysis to compare regulations in Islamic law and positive law. In Islamic law, illegitimate children only have lineage and inheritance rights through the mother and her family, while in civil law, illegitimate children can obtain legal recognition from their parents through a process of recognition or a court decision. This study also highlights the role of the Constitutional Court Decision Number 46/PUU-VIII/2010 which provides further legal protection for illegitimate children, especially regarding civil rights. Although there are fundamental differences in the recognition of lineage and inheritance rights, both legal systems agree on the importance of protecting children's basic rights

The Role of Customs in Islamic Personal Law

An illegitimate child will have legal consequences, namely having no legal relationship with his or her biological father, both regarding education and inheritance. Constitutional Court Decision Number 46/PUU-VII/2010, provides the position and rights of children outside of marriage, giving rise to dualism in its application. It is necessary to examine more deeply the status of inheritance rights of illegitimate children according to normative juridical and Islamic law, as well as what the status of inheritance rights of illegitimate children is after the Constitutional Court decision. In Islamic law and positive law, it is stated that illegitimate children cannot be assigned to their (biological) father. This means that illegitimate children cannot inherit from each other between the child and his father and his father's family based on the consensus of the ulama. The Constitutional Court's decision provides the right for illegitimate children to have a civil relationship with their father, as long as it can be proven based on science and technology and/or other legal evidence. In its implementation, this decision still requires an explanation in the form of legislation that regulates the extent of a child's civil relationship with their biological father.

Legal sources, the Qur'an and the Sunnah/Hadith present various forms of challenge to legal scholars. This chapter presents a general historical overview of these two sources of Islamic law in addition to some of the challenges that they pose to jurists, both as independent and complementary textual sources. It deals with a brief introduction on the definition, authenticity, status and authority of these two sources both in the classical Sunni view and in some modern studies, followed by a discussion of specific case studies that illustrate their nature as legal sources. The chapter suggests that the notion that Islamic law is based on what its textual sources ‘say’ is untenable. It outlines how the Qur'an and the Prophet Muhammad’s Sunnah/Hadith were used as Islam’s primary legal sources. The primary legal sources in the classical Sunni view of Islamic law are the Qur'an and the Prophet Muhammad’s Sunnah/Hadith.

This research investigates the legal and social implications of childfree decisions on inheritance rights in Islamic family law through a comparative juridical approach. The phenomenon of childfree, namely the decision of a husband and wife not to have children, raises questions about how inheritance rights are regulated and implemented in accordance with Islamic law. This study analyzes various views from the main schools of Islam (Hanafi, Maliki, Syafi'i, and Hanbali) as well as fatwas from leading fatwa institutions such as Dar al-Ifta al-Misriyyah and the Indonesian Ulema Council. The research results show that the childfree decision influences the social structure of the family and brings significant changes in the distribution of inheritance rights. Analysis of actual cases reveals that the absence of children in a family can transfer part of the inheritance to other relatives such as siblings or parents. This research recommends the need for increased education and inclusive legal guidance to reduce social stigma and ensure fairness in inheritance distribution, so that Islamic family law can be more responsive to contemporary social dynamics.

Illegitimate children or children out of wedlock are under a legal relationship with their mother and their mother's family as stipulated in Law No.1/1974. On the other side, KUHPdt/BW views that the legal relationship is entitled to the person who acknowledges it. The Constitutional Court has declared Article 43, paragraph (1) of the Marriage Law to be conditionally unconstitutional. Problems occur in from the decision of the Constitutional Court Number: 46 / PUU-VIII / 2010 regarding the status of illegitimate children and inheritance from the father. In Islamic law, illegitimate children are not eligible for the inheritance from their fathers since there has to be a lineage or a legal relationship between them. This research comprehensively discusses the characteristics of inheritance distribution to illegitimate children in positive Indonesian law, as well as the reduction of a wife's inheritance rights as a result of the legal consequences of inheritance distribution to illegitimate children based on Constitutional Court Decision Number: 46/PUU-VIII/2010. In this normative legal research, case approach was used to analyze relevant laws and regulations and examine several relevant cases. The results confirm the apparent support for the inheritance rights of illegitimate children, which lies within the mother's family line. However, according to Article 863 of the BW, if there are legal offspring, a husband, or a wife, illegitimate children inherit only one-third of what legitimate children would receive.

This article examines NU which is an organizational structure among Muslims who have trends in applying Islamic law. One of the foundations of the Nahdlatul Ulama in establishing Islamic law has never been separated from the context of the Qur'an, Hadith, Ijma 'of the Companions and Qiyas. So the outline in taking the source of Islamic law is related to the hadith problem which is made as a reference in the sense of Nu in using hadith as the legal basis for four schools, moreover the usual lower hadith, dha'if hadith is used as a source search method law. Taking in the community often discussed the system of extracting Islamic legal sources. We will analyze this short article by analyzing the methods that are used at the same time in order to find out the hadiths used in applying the source of Islamic. The results of this study show that the hadith in the perspective of NU scholars is as a reference to Islamic law and that the hadith has a strong blasphemy based on the study of sanad, matan, and rawi as well as the quality and quantity of hadith based on methods in attributing Islamic law.Keywords: NahdlatulUlama, Hadith, Method.

One of the impacts of unregistered marriage lies in the status of children. Children of unregistered marriages according to Indonesian positive law have the same status as illegitimate children, where illegitimate children only have a civil relationship with their mother, and in the birth certificate they are only listed in the mother's name. In fact, later it will be difficult for the child to be in the position of heir when he demands what is his right, apart from that he has no right to a living, education and inheritance from his father. The title of this research is Consistency of the Compilation of Islamic Law with Law Number 1 of 1974 Article 43 Concerning the Inheritance Rights of Children of Siri Marriages. Problem formulation: How are the inheritance rights of children from unregistered marriages regulated based on the compilation of Islamic law? What is the consistency of Law Number 1 of 1974 Article 43 with the Compilation of Islamic Law regarding the inheritance rights of children of unregistered marriages? The research was conducted using a normative juridical approach. The data used is primary, secondary and tertiary data. Data analysis was carried out qualitatively and based on the results of the analysis, conclusions were then drawn using a deductive approach. The conclusion of this research is that the Marriage Law and the Compilation of Islamic Law have similarities regarding the legal position of children in unregistered marriages. Based on these provisions, children of unregistered marriages do not fulfill the elements of being legitimate children according to Article 42 of the Marriage Law because in order to fulfill the elements of a valid marriage according to the Marriage Law, it must be officially registered. So it can be concluded that children of unregistered marriages based on the Marriage Law and KHI are children outside of marriage. So the legal consequences according to both are the same, namely that children of unregistered marriages do not have inheritance rights from their father because they are considered to only have a civil relationship with their mother.

The division of Islamic legal sources has several different placement sequences. For example, the sequence of sources of Islamic law that have been agreed: the Qur'an, Sunnah, Ijma 'and Qiyas. Some other scholars divide the source of Islamic law is divided into two namely: Naqli and Aqli. Naqli consists of the Qur'an and Sunnah, while Aqli consists of Ijma and Qiyas. On the other hand, putting the Qur'an and Sunnah alone as a source of Islamic law and some putting reason as the first source of Islamic law before the Qur'an and Sunnah became its own problems. Mahmud Syaltut said that the source of Islamic law there are three, namely the Qur'an, Sunnah and Ijtihad bi ra'yi (reason). The understanding of Mahmud Syaltut's legal sources departs from the relation between text and context. The Qur'an and Sunnah are intended as a direct approach to the text. While ra'yu is ijtihad to the various problems that are not found in the texts which are then practiced through the method of ijma ', the school of sahabi, qiyas, istihsan, istihsab, maslahah mursalah,' urf, Sadd al-dzariah, Syar'u man qoblana . According to Harun Nasution, explaining the position of reason and revelation is the intellect of knowing the existence of God, knowing that man is obliged to worship and thank him but reason is incapable of knowing all the attributes of God and can not know the way to worship him , it is the revelation that explains to the mind how to worship and thank God. And reason also can not know the details of good and evil. Here is the function of revelation that reinforces the opinion of reason through the sacred and absolute nature contained in the revelation. This study aims to explain the concept of the order of sources of Islamic law so that readers can understand various differences. The approach of qualitatif and this research is library research approach. The method used is the method of description - analysis, which is expected to explain the position of Islamic legal sources. In the author's analysis, the Qur'an has clearly explained in several verses that reason has a very important role given by Allah as a gift and mercy to increase piety to Him. So the position of reason becomes a way to help humans, especially mujtahids in deciding contemporary legal cases as long as they do not contradict the Qur'an and Sunnah. In this day and age the process of ijtihad is still very wide open because times are constantly changing. Nevertheless The application of ijtihad does not apply to individual fardi ijtihad) but to jama'i (collective) ijtihad. Because modern science is increasingly complex, the mastery of all fields by a mujtahid is very difficult, so it can be united according to experts in their respective fields to jointly determine legal issues. Keywords: Alqur'an, Sunnah, Akal, Source of Islamic Law,.

This study aims to analyze the concept of syar’u man qablanā and its position as a source of Islamic law, examined from various perspectives of fiqh scholars. There are still differences in the various views of fiqh scholars regarding the position of syar’u man qablanāas, a source of Islamic law, particularly as a basis for establishing fatwas. Furthermore, this study also examines the application of syar’u man qablanā as a basis for establishing fatwas by the Indonesian Ulama Council. This used qualitative method, employing a literature review with discourse analysis and adopting a normative research approach through the utilization of the statute and conceptual approaches. This study concludes that the scholars agree that syar’u man qablanā, which is not explained in the Qur'an does not apply to the people of the Prophet Muhammad. As for the syar’u man qablanā which is not mentioned in the Qur'an, the scholars have several views in concluding it. Indonesian Ulama Council has made at least nine verses of the Qur'an containing syar’u man qablanā as a basis for establishing several fatwas, such as fatwas concerning ijarah, syarī’ah card, multiservice financing, kafalah, syarīa factoring, and other fatwas related to the contemporary transactions. This study contributes to strengthening the study of the implementation of syar’u man qablanā as a basis for establishing Islamic law, especially in determining fatwas by contemporary scholars

This research examines inheritance rights to joint property for extra-marital children obtained through wills and the protection of wives as heirs in Islamic law. Islamic law does not recognize joint property, whereas the Civil Code and Marriage Law apply it only to legal spouses. Extra-marital children have no rights to joint property unless granted through a will, which requires the wife's consent and cannot exceed 1/3 of the testator's assets without other heirs' approval. Recognized extra-marital children have limited inheritance rights, receiving a maximum of 1/3 of a legitimate child's share if the testator has legal descendants or the entire estate if no legitimate heirs exist. Extra-marital children only inherit from their mother and her family, with no paternal inheritance rights unless granted through a mandatory will, as stipulated in Constitutional Court Decision Number 46/PUU-VIII/2010. In Bima customary law, extra-marital children can only inherit through a will. Wives, as heirs in Islamic law, receive 1/4 of the inheritance if the testator has no children and 1/8 if children exist. Before inheritance distribution, debts and wills are settled, with wills limited to 1/3 of assets, ensuring no harm to legal heirs. Extra-marital children are not direct heirs but may receive a share through wills. In Bima customary law, a wife remains an heir, although her inheritance may be reduced if there is a will for extra-marital children. This methodology ensures a comprehensive understanding of inheritance rights through both theoretical and practical perspectives in Islamic and customary law.

Based on article 43 paragraph (1) of the Marriage Law, children born out of wedlock only have civil relations with their mothers and their mother's family. Therefore, serial marriage will annul the rights of wives and children, including in terms of inheritance. In practice, the distribution of inheritance in Bireuen Aceh Regency shows something different. Children from serial marriages are given inheritance and treated like legitimate children, because the child is religiously legitimate. This study aims to determine the provisions of the law on the fulfillment of the inheritance rights of siri married children in the distribution of inheritance property, the mechanism for fulfilling the inheritance rights of children from serial marriages in Bireuen Regency and the review of sharia maqashid on serial marriage children in Bireuen Regency. Research Specifications use qualitative research methods, namely by using content analysis, by describing and describing the content of the findings that the author gets, then connecting with the problems posed so that they can find objective, logical, consistent, and systematic conclusions in accordance with the desired goals, and data collection is guided by facts found when conducting research in the field with an empirical juridical approach. The results showed that, based on the provisions of the legislation, the status of children born from serial marriages is illegitimate children, because the state does not recognize a marriage bond without recording. The child only has a sexual relationship with his mother and his mother's family. The mechanism for the distribution of inheritance to children from serial marriages in Bireuen Regency is carried out based on the rules of Islamic law as well as local customary law with three categories. First, Children who receive the same inheritance rights as children from a registered marriage really depend on the amount of assets left by their parents. Second, children who get inheritance with different amounts from legitimate children by law depend on the success rate of the gampong apparatus in conducting consultations with legal heirs. Third, children who do not get inheritance rights at all from their parents' estate because the property is managed by legal family members based on state provisions, the non-disclosure of the property and also the unwillingness of legal heirs to give the heir's estate. And The fulfillment of inheritance rights for children from serial marriages in Bireuen Regency meets the principles of maqashid sharia hifz al-nafs and hifz al-nasl in the category of children who acquire fully inherited property and partially. With the provisions of the marriage performed fulfill the pillars and conditions in accordance with Islamic law. So that the child from the serial marriage has the same status as the child from the recorded marriage. Therefore, the child of a serial marriage is entitled to a share of the inheritance from both his mother and father's side.