Divorce Research Articles

Analyzing the Dynamics Between Sharia Law and Civil Law in Governing Divorce Proceedings Among Muslims in Malaysia and Comparing Legal Outcomes

Malaysia’s dual legal system, which comprises both Sharia and Civil Law, presents unique challenges and opportunities in the realm of divorce proceedings. This system allows for the coexistence of two distinct legal frameworks catering to the country’s multi-religious and multi-ethnic population. However, it also leads to divergent outcomes in divorce cases, influenced by differences in legal standards, cultural norms, and procedural approaches. The interaction between these systems affects not only the legal outcomes of divorce cases but also has profound social, economic, and psychological impacts on individuals and families. This paper explores the complexities of navigating the dual legal system in Malaysia, examining the specific challenges individuals face during divorce proceedings. It further discusses recommended policy adjustments and legal reforms aimed at harmonizing the systems to ensure more equitable and consistent outcomes. Additionally, the paper highlights the need for future research directions that could provide deeper insights and guide effective legal and social policies. This study underscores the importance of an integrated approach to legal reform that respects cultural diversity while striving for justice and equality within the legal framework.

Analisis Pandangan Hakim Terhadap Cerai Murtad Perspektif Hukum Islam di Pengadilan Agama Kraksaan Probolinggo Jawa Timur

This research examines the judge’s views on apostate divorce cases from the perspective of Islamic law at the Kraksaan Religious Court, Probolinggo, East Java. The research method used was descriptive qualitative with snowball sampling technique for sampling. Primary data was obtained from documentation and direct interviews with judges at the Kraksaan Religious Court, while secondary data came from books, laws and related journals. The results of the analysis show that the judge’s views on apostate divorce are influenced by various factors, including religious, legal, social, economic and humanitarian aspects. The judge carefully considers the reasons for apostate divorce in accordance with the provisions of Islamic law and applicable positive law. The judge’s decision in an apostate divorce case must take into account the welfare of the child, socio-cultural conditions, the couple’s economic capabilities, and the principles of justice. This research underscores the importance of judges’ decision making that is fair and balanced, taking into account all relevant factors to reach a dignified solution for all parties involved in the divorce process.

Examination Of The Ruling Of The Syar'iyah Court On Divorce Cases Lawsuit

When there is an indication of judicial negligence in providing legal considerations, it is highly possible to conduct an examination or investigation. The decision of the Bireuen Sharia Court regarding divorce on demand, the panel of judges pronounced talak ba’in sughrā against the plaintiff without first attempting reconciliation through the appointment of an arbitrator. Looking at the legal provisions, when a case falls under shiqāq, the judge must appoint an arbitrator. Therefore, departing from this issue, there is a need for an examination as to why the judge did not appoint an arbitrator to resolve the dispute and what legal considerations were provided by the judge. This study is designed with a qualitative pattern, utilizing a statutory approach. Data collection techniques involve documentation and interviews. The research findings prove that the panel of judges argued that it did not fall under shiqāq cases, hence the appointment of an arbitrator was not necessary. The legal considerations provided by the judge in the divorce ruling include fiqhiyah principles, legal provisions, Supreme Court jurisprudence, Quranic verse al-Rūm ayat 21, and fiqhiyah principles.

Interpretasi Asas Mempersulit Perceraian dalam Perspektif Hukum Islam

Marriage, as a facilitator of tranquility, affection, and mercy, may encounter serious challenges influenced by various reasons. When conflicts escalate within a household, Islam provides a solution through divorce or "talak." Despite the majority of Indonesian society viewing the pronouncement of talak as a sign of marriage dissolution, in reality, divorce is considered official only after a decision by the Religious Court in accordance with applicable regulations. This study employs a literature review method, focusing on collecting literary data and adopting a conceptual approach. The researcher details aspects of the law in Law No. 1 of 1974 related to the validity of talak in court according to Islamic law in Indonesia. Perspectives on divorce in Islam and the Marriage Law emphasize the necessity of implementation with consideration, justice, and responsibility. The primary objective of this research is to provide a comprehensive overview of the principle of complicating divorce and the validity of talak in court. The findings in this paper reveal that Islamic law, through Thalaq, regulates divorce with clear limitations, emphasizing the importance of administering Allah's law justly. The Marriage Law in Indonesia leads to complex procedures, including reconciliation efforts at the Religious Court before divorce. These regulations reflect awareness of the well-being and justice for all parties involved. The principle of complicating divorce in the Religious Court aims to encourage wise decisions, consider mutual interests, and ensure compliance with Islamic legal norms, creating a better understanding of Islamic law and Sharia with positive implications for society.

Divorce Due To Apostasy (Study of Differing Decisions in Religious Courts)

The case of divorce due to apostasy is a civil case that is not directly regulated in Indonesian legislation. Therefore, there are differing decisions in cases of divorce due to apostasy. In the divorce case No. 0333/pdt.G/2013/PA.Bdw, with the reason of the husband's apostasy, the court issued a decision of talak bain sughra, while in the divorce case No. 3/pdt.G/2019/PA.Bky, with the same reason, the court issued a decision of fasakh. The research method used is a normative method with a statutory approach. The researcher employs descriptive analysis in discussing relevant theoretical studies related to divorce due to apostasy. The findings of this research are: 1) the legal considerations of the judges in the cases No. 0333/pdt.G/2013/PA.Bdw and No. 3/pdt.G/2019/PA.Bky were not appropriate and should have referred to KHI article 116 letter k. 2) the judges' decisions in the cases No. 0333/pdt.G/2013/PA.Bdw and No. 3/pdt.G/2019/PA.Bky were in accordance with the maqasid shariah in terms of preserving religion because both decisions terminated the marriage bond, either through talak bain sughra or through fasakh.

Przegląd orzecznictwa Sądu Najwyższego (za okres listopad 2023–grudzień 2023)

Overview of the decisions of the Polish Supreme Court The judgment of the Polish Supreme Court of December 20, 2023 (case file no. III CZP 41/23) is of particular importance for legal practice. The Court indicated that in the case of notifying the party or their representative about the impossibility of preparing a justification for the contested decision, appealing against this decision is not conditioned upon the effective submission of a request for justification and the delivery of the decision along with the justification. In the judgment of December 14, 2023 (case file no. III CZP 32/23), the Polish Supreme Court stated that in divorce cases, both those not concluded by July 3, 2021, and those initiated between July 3, 2021, and April 14, 2023, the first-instance court shall adjudicate with a single judge unless the president of the court orders the case to be heard by a panel of three judges. If such a case is heard by a single judge and two lay judges, the proceedings are null and void (Article 379 point 4 of the Polish Code of Civil Procedure).

Custody and Obligations of Parental Alimation of Children After the Breakup of Marriage Due to Divorce in Terms of Law Number 1 Of 1974 Concerning Marriage

<p><em>The research entitled;Parents' Custody Rights and Alimentary Obligations for Children After Dissolution of Marriage Due to Divorce in View of Law Number 1 of 1974 concerning Marriage; was carried out in the jurisdiction of Jayapura City with the aim of finding out and analyzing the causal factors the occurrence of divorce and custody and fulfillment of parental alimony obligations towards children.</em></p><p><em>This research is empirical legal research using the Normative Juridical and Empirical Juridical approach methods. The Normative Juridical Approach is by reviewing the provisions of statutory regulations relating to the rights aspect of divorce and the legal consequences of divorce in relation to Custody Rights and Parental Alimony obligations following the dissolution of the marriage due to divorce, while the Empirical Juridical approach is by looking at the implementation of the provisions Laws relating to divorce and custody rights and parental alimony obligations apply in society. The results showed that the factors causing divorce in the city of Jayapura in general for the continuous disputes, disputes and quarrels triggered by the attitudes and behavior of both the husband and wife namely a. The existence of love with women and other men, b. Husband rarely goes home; c. Husband is light hand by beating the wife. Meanwhile, in most court decisions on divorce cases, the majority of judges decide that custody rights are given to the wife based on psychological considerations and legal considerations. The psychological considerations are because the children are still small and not yet mumayyiz so they still really need more attention from their mother, and the husband's morals are not good, so there are concerns that it will affect the child's psychological development during his growth period. Furthermore, regarding the fulfillment of alimony obligations in the context of the care and development of the child, in general it is not carried out well, generally parents (fathers) lack or neglect their alimony obligations towards the child on the grounds that they have a new family, because they are not given custody, because of their economic capabilities, so does not carry out his alimony obligations as ordered by the applicable statutory provisions.</em></p>

The Mediation Process at the Soreang Religious Court Becomes a Means of Reconciliation in Divorce Cases in Soreang, Bandung Regency Based on Supreme Court Regulation Number 1 of 2016

Divorce is an event that often involves various conflicts and complex issues, both from a legal and social perspective. Religious Courts have a key role in handling divorce cases and mediation has been one of the approaches applied to seek amicable solutions in these cases. This study aims to find out how the Soreang Religious Court handles divorce cases in Bandung Regency in accordance with Supreme Court Regulation No. 1 of 2016. This research adopted a qualitative method. The process of collecting information through literature study. Once the data was collected, analysis was conducted in three stages: data reduction, data presentation, and conclusion drawing. The research shows that the Soreang Religious Court uses mediation as the final step to resolve divorce cases in Bandung Regency. Most divorce cases have been successfully resolved through this mediation approach. In addition, there are several factors that influence the success of mediation at the Soreang Religious Court, such as the willingness of both parties to follow the mediation process, the mediator's ability to understand and resolve the problems faced by the parties, and also the support of various related parties such as judges, clerks, and other parties involved in the mediation process.

The Position of Deaf Witnesses in Proving Divorce (Syiqaq) Cases in Religious Courts

<table border="0" cellspacing="0" cellpadding="0"><tbody><tr><td valign="top" width="388"><p class="TableParagraph"><strong><em><span style="text-decoration: underline;"> Abstract </span></em></strong><strong><em></em></strong></p></td></tr><tr><td valign="top" width="388"><p class="TableParagraph"><em>Based on article 22 of PP Number 9 of 1975, article 76 of Law Number 7 of 1989 and article 134 of Presidential Instruction Number 1 of 1991, Divorce (syiqaq) where disputes and quarrels are continuous must be proven by witness testimony, so The position of the witness is an important thing in deciding a divorce case. Witnesses who are present in court must materially see, hear and experience directly the legal events that occur, this must be in accordance with article 172 HIR/308 Rbg in conjunction with article 76 Law Number 7 of 1989. Meanwhile, in Islamic law, the position of deaf witnesses is that the majority of ulama seemed to have absolutely no tolerance for their opportunity to be witnesses. They agreed that hearing what the parties said and understanding what they meant was an absolute requirement for witnesses. The argument is because something that is the object of the witness is words. Law No.19/2011 about concerning ratification of the CRPD and the principle of Equality Before the Law also states the same thing, which does not differentiate between people in person. trial, while formally a deaf witness is not a mentally disabled witness, he just lacks hearing but can <span style="text-decoration: underline;">see and judge events well.</span></em><em><span style="text-decoration: underline;">_________________________</span></em></p></td></tr></tbody></table>

Joint custody after divorse

The concept of custody is an important legal principle that expresses the rights and responsibilities exercised jointly by parents during marital union. This principle emphasizes attention to the physical, emotional, and financial well-being of minors and the principle of the best interests of the child. According to the Turkish Civil Code, as a rule, minors are considered to be under the joint custody of their parents. However, in the event of the death of a spouse or divorce, the issue of custody is resolved by a legal arrangement or a court decision. Furthermore, custody is usually awarded to the mother if the parents are unmarried, although this may be subject to certain exceptions. Courts may appoint a guardian or award custody to the father to protect and support the child's physical, mental, and moral development. This ensures that the best interests of the child are safeguarded. Joint custody refers to the joint exercise of the child's right to custody by the parents during the marital union. This concept aims to ensure that responsibilities for the child's care, education, and supervision are shared between the spouses. However, in the event of dissolution of marriage or separation, the issue of how custody will be organized is subject to a vague regulation; the court determines it. If custody is awarded to only one spouse, that spouse can make decisions unilaterally, while the other spouse only has the right to have personal contact with the child. However, if joint custody continues, the rights and responsibilities of the child are shared in the same way despite the dissolution of the marriage. Custody and joint custody are intended to protect the child's physical, emotional, social, legal, financial, and moral development. They also provide for the representation and protection of children in a manner appropriate to their needs. Both concepts are based on the best interests of the child and are supported by legal regulations. Therefore, custody and joint custody constitute an important legal framework for children's healthy and safe upbringing.

Cerai Gugat dalam Putusan Pengadilan Agama Stabat Nomor 2119/ Pdt.G/ 2023/ PA. Stb.( Ditinjau dalam Perspektif Undang-Undang Nomor 23 Tahun 2004 tentang Penghapusan Kekerasan dalam Rumah Tangga dan Pasal 116 Kompilasi Hukum Islam)

The panel of judges as representatives of the state has the authority and power to decide cases, whether to reject the divorce lawsuit or grant the divorce lawsuit. A divorce that occurs will certainly have legal consequences for husband and wife and children. Many divorce cases are not granted by the panel of judges, one of which is the Stabat Religious Court Decision Number 2119/ Pdt.G/ 2023/ PA. Stb. This research aims to further examine the judge's decision from the perspective of Law No. 23 of 2004 and the Compilation of Islamic Law. This research uses a statutory approach. The findings of this research are that the results of the lawsuit are rejected by arguing that the plaintiff and defendant's households have not entered the broken marriage stage, taking into account the length of the marriage period, the minimum period of separation between the plaintiff and the defendant, which in this consideration is contrary to Article 116 of the Compilation Islamic law, the divorce lawsuit is rejected.

Conducting Court Proceedings in Contested Divorce Cases for Persons with Disabilities at Class 1a Malang Religious Court

: People with disabilities often receive unequal treatment, especially in the justice process. People with disabilities have equal rights in everything, including the legal process. However, there are barriers for persons with disabilities in the Religious Court of Malang. The purpose of this writing is to find out the obstacles and efforts that occur to persons with disabilities during the legal process. The research method used is empirical juridical, by conducting interviews or observations at the Malang Class 1A Religious Court. In this study, it was found that the barriers to lawyering in the Malang Religious Court were insufficient facilities for persons with disabilities, such as the use of language in communication for persons with disabilities. The purpose of legal services for persons with disabilities when dealing with the law in the Religious Courts is to realize inclusive religious justice services. The obstacles in Religious Court of Malang continue to be pursued optimally and gradually by the Malang Religious Court through capacity building for human resources to understand disabilities within the scope of the court which is needed as part of excellent service, which aims to provide information and information to parties with disabilities without hesitation. Keywords: People with Disabilities; Judiciary; Religious Court of Malang.

"I don't want my marriage to end": a qualitative investigation of the sociocultural factors influencing contraceptive use among married Rohingya women residing in refugee camps in Bangladesh

BackgroundThe timely provision of comprehensive contraceptive services to Rohingya women is impeded due to a lack of clarity and understanding of their traditional beliefs and cultural frameworks. Recognizing this challenge, our paper aims to explore the socio-cultural factors influencing the utilization of contraceptives among married Rohingya women living in the refugee camps of Cox's Bazar, Bangladesh.MethodA qualitative study was conducted in two unregistered Rohingya camps (Camp 7&14) located in Ukhiya Upazila, Cox's Bazar from January 10th to 20th, 2022. A total of 14 In-Depth Interviews (IDIs) were conducted among married Rohingya women of reproductive age (15–49 years), along with 16 Key Informant Interviews (KIIs) involving stakeholders engaged in reproductive healthcare provision. Participants were selected using purposive sampling. All interviews were conducted in the local language, recorded, transcribed verbatim, and subsequently translated into English. The data were analyzed using NVivo (Version 11), and the analysis process followed Neuman’s three-phase coding system.ResultsFive broad themes were identified: Sociocultural expectations and values attached to births, power imbalances within marital relationships, the role of religious beliefs, fear of side effects, and misperceptions about contraception. Having a larger number of children is viewed positively as it is believed that children play a crucial role in preserving the lineage and contributing to the growth of the Islamic population. Despite expressing an inclination towards contraception, the disapproval of husbands becomes a significant barrier for women. Defying their husbands' wishes can result in instances of Intimate Partner Violence (IPV) and even marriage dissolution within the camps. Moreover, the fear of side effects, such as a particular method would cause infertility, discourages women from using contraception. Many of these fears stem from myths, misconceptions, and mistrust in the existing medical system.ConclusionAddressing the socio-cultural barriers that prevent women from using modern contraception will have important public health implications. These findings can support in crafting culturally sensitive programs and educational interventions. These initiatives can assist Rohingya refugee women in planning their pregnancies and reducing high-risk pregnancies, ultimately leading to a decrease in maternal mortality rates within the community.

The Legal Practices and Challenges of Parental Authority, Custody, and Child Welfare Protection in Divorce Cases Under German Family Law

This paper examines the intricacies and challenges inherent in the German legal system’s approach to parental authority, custody, and child welfare within the context of divorce proceedings. Grounded in the principles of the Bürgerliches Gesetzbuch (BGB), the review explores the commendable commitment of German family law to the welfare and best interests of children during the tumultuous process of divorce. Through a critical lens, it delves into the dynamic interplay between joint and sole custody arrangements, the pivotal role of children’s voices in judicial decisions, and the enforcement of custody and visitation rights. Additionally, the paper scrutinizes the complex landscape of international custody disputes, emphasizing the necessity for nuanced interpretation and application of the Hague Convention on the Civil Aspects of International Child Abduction. Comparative analysis with international norms, particularly the UN Convention on the Rights of the Child, unveils areas of alignment and divergence, spotlighting opportunities for enhancing cross-border cooperation and ensuring a child-centered approach in custody disputes. Proposals for reform are articulated, advocating for structured mechanisms to integrate children’s perspectives, standardized assessments of the child’s best interest, and strategies for the effective enforcement of custody orders. Emphasizing the importance of domestic reforms and international collaboration, the review argues for ongoing evaluation and adaptation of legal practices to better protect children’s interests amid evolving family dynamics and global challenges.

Peran Pemaafan terhadap Kepuasan Pernikahan

Divorce cases in Indonesia continue to increase every year with a variety of conflicting problems. Declining marital satisfaction is the cause of the increasing divorce rate. It is important to have an effective strategy to be able to maintain satisfaction in marriage, one of which is forgiveness. Forgiveness is an alternative solution that can help couples solve and prevent problems in the marriage relationship. This study aims to provide an overview of the relationship between forgiveness and marital satisfaction. This study is a literature review with search articles from the Google Scholar, ProQuest, PubMed and EBSCOHost databases. The search results obtained 15 articles that match the inclusion criteria. The results of this study reveal that forgiveness increases marital satisfaction in various cultural contexts. Marital satisfaction is also influenced by other factors such as gender and marriage length.

The reform of family law and Family courts in the Republic of Cyprus

La riforma del diritto di famiglia e delle Family courts nella Repubblica di Cipro
 ABSTRACT: This essay addresses the 2023 amendments to Article 111 of the 1960 Constitution of the Republic of Cyprus, as well as family law reforms in the light of the religious or belief minority rights protection, promotion, and implementation. In doing so, the article relies on the findings of the Atlas of Religious or Belief minority Rights research project. The aim is to highlight how the legal system of Cyprus is slowly detaching itself from the millet logic inherited from the Ottoman past and it is further aligning with European and international standards on the protection of minority rights in different policy areas, including family law and marriage. However, religious affiliation and religious legal systems still bear significance on some issues pertaining to family law, marriage, and dissolution of marriage.
 SUMMARY: 1. Introduction - 2. Religious (and ethnic) affiliation in the “intractable” Constitution of the Republic of Cyprus - 3. Family courts: Article 111 of the Constitution and the Orthodox Church - 4. The Family Courts of the Religious Groups - 5. The Eighteenth Constitutional Amendment and the recent family law reforms - 6. Concluding remarks.

Exploring Efficacy

The rising global divorce rate is reshaping the landscape of family dispute resolution, moving away from the adversarial or litigation system toward an alternative dispute resolution known as mediation. This global trend is also observed in Indonesia where the Supreme Court has mandated the use of mediation in civil cases. "Everybody wins, nobody loses" as the primary slogan of mediation emphasizes a win-win outcome for all parties involved, avoiding any losers. However, assessing its efficacy in handling divorce cases in Indonesia becomes crucial. This is mainly because the settlement rate has been discovered to be low in Indonesia since the mandatory implementation of court-annexed mediation for almost two decades compared to other countries such as Australia and the United States. In both countries, settlement is not only based on agreements but also on the process that satisfies the parties. Therefore, this study aims to examine the conceptual issues underlying the low effectiveness of divorce mediation by questioning agreements as a measure of divorce mediation effectiveness. This study uses the sociolegal framework to critique the Supreme Court Regulation 1/2016 regarding Mediation in court and its dynamics in divorce cases. Moreover, courtroom study is applied to observe the mediation process. The results showed that the success of mediation revolves around the number of agreements reached by the parties and the process did not focus on the characteristics of divorce cases, thereby considered not suitable for all cases. Furthermore, the court-annexed mediation regulation creates ambiguity between the use of marital mediation to reconcile the parties and divorce mediation to proceed post-divorce agreement or both.

Shaming in Rabbinical Court Rulings in Israel: A Modern Commentary on Medieval Rabbinic Sanctions in Divorce Cases

Shaming in Rabbinical Court Rulings in Israel: A Modern Commentary on Medieval Rabbinic Sanctions in Divorce Cases

Rights of women in the establishment and dissolution of marriage in Oman: between CEDAW and sharia perspective

The Sultanate of Oman has acceded to CEDAW in 2005. However, Oman has reservations about a few articles of the said Convention because some of its provisions conflict with Islamic Sharia or Oman's national laws, including Article 16 of CEDAW. Therefore, the objective of this article is to critically analyse Article 16 of CEDAW and the extent to which Oman Personal Status Law addresses marriage and divorce-related issues is compatible or in conflict with the Convention. To accomplish this objective, the research employs doctrinal legal research and an analytical approach to examine the texts of the Convention and their Omani equivalents. The analysis revealed that the courts could enforce the articles of CEDAW to assert rights, except for the provisions that Oman expressed reservations about. Oman has reservations regarding several features outlined in Article 16 of the aforementioned Convention, as they conflict with Islamic Law. The study highlights that the Convention effectively governs certain areas that promote gender equality in family matters, including stipulating that a woman's permission is necessary for marriage and her entitlement to dissolve the marital union by divorce or khulu' under appropriate circumstances. In addition, Oman effectively implements certain provisions of the Convention to strengthen women's rights by modifying domestic legislation. In conclusion, the Oman National Law is consistent with the CEDAW, except for the State's reservations concerning the implementation of Article 16 of the aforementioned Convention.

The Phenomenon of Talak to A Deceased Wife in Nagari Silantai, Sumpur Kudus District, Sijunjung District, West Sumatra Province

Thesis entitled "The Phenomenon of Divorcing a Wife Who Has Died in Nagari Silantai, Sumpur Kudus District, Sijunjung Regency, West Sumatra Province". The aim of this research is to describe the types and implementation of talaq on deceased wives by husbands in Nagari Silantai, to be able to describe the impact on husbands if they do not perform talaq on their dead wives in Nagari Silantai, and the form of distribution of assets obtained during the marriage. The theory used in this thesis is the Phenomenological theory of Alfred Schutz. The method the author uses is a qualitative method, with data collection techniques namely observation, interviews and communication. In Nagari Silantai there are two divorce cases that are carried out on wives who have died, the first is divorce divorce, and the second, back divorce. Divorce is carried out by the husband when the wife's body is about to be washed, or even before the wife's body is buried. Talak back divorce is carried out when the wife's body leaves the house and goes to the cemetery. Talak back is a divorce that is facing away from each other, talak back is the separation of husband and wife, because they no longer have the same goal. In talak back, the husband will be taken home to his parents' house by his relatives. After the divorce divorce has been carried out, the next step is to divide the assets obtained during the marriage.