Divorce Research Articles

PROTECTION OF WIFE’S RIGHTS AFTER A CONTESTED DIVORCE (Analysis of Judge's Decision Number: 143/Pdt.G/2014/PA.Sgm)

The research discusses the considerations of judges at the Sungguminasa Religious Court regarding fulfilling the rights of wives after divorce, decision Number: 143 /Pdt.G/2014/PA.Sgm. It is generally accepted that in contested divorce cases, there are no rights to the wife after the divorce. The judge's decision that was accepted usually only granted the divorce petition. Judges usually did not grant it if there were claims for their rights and the rights of children post-divorce in the lawsuit. This research question is: What is the progressive legal analysis of the judge's considerations in case Number: 143 /Pdt.G/2014/PA.Sgm? This research was a literature study related to the considerations of judges' decisions in case number: 143/Pdt.G/2014/PA.Sgm. The primary data of this research was the decision of case number: 143/Pdt.G/2014/PA.Sgm. The judge's considerations in the decision were analyzed using Progressive Law theory to conclude. After collecting data through interviews, the findings of this research are that the Judge's considerations in Decision Number: 143 /Pdt.G/2014/PA.Sgm in fulfilling the wife's rights after a divorce from her husband, is progressive. The panel of judges granted the wife's civil rights after the divorce based on the defendant's capabilities. This decision benefits and provides financial protection for the ex-wife in continuing her life.

JUDICIAL CONSIDERATION OF CHILD CUSTODY TO FATHER UNDER ARTICLE 105 OF INDONESIAN COMPILATION OF LAWS

This research explores the regulation of child custody for minors under Indonesian law following divorce, based on Decision Number 3208/pdt.G/2020/PA.Krw. Divorce entails the allocation of custody to one of the separating partners, either the mother or the father. Additionally, parents are obliged to educate their children until they reach the age of 18 or marry. The study adopts a normative juridical method, finding that the regulation of child custody for minors is outlined in Article 105 of the Compilation of Islamic Law, granting a mother the right to raise a child who is not yet mature (mumayyiz) or under 12 years old, while a mature child is returned to them. However, in divorce cases, these rules may not apply, and judges have the discretion to consider the child's interests under Law Number 1, Article 41, with custody potentially revoked under Law Number 1 of 1975, Article 45(1). Custody of minors under Islamic Law is governed by Law Number 23 of 2002 concerning Child Protection, amended by Law Number 35 of 2014, Article 105, which assigns custody of children under 12 to their mothers, yet court rulings may favor fathers.

Marriage without Love, Love outside Marriage: A Woman in the Eighteenth-century Noble Family

This article refers to a set of documents revealing the relations within the noble family of the Ural industrialist A. F. Turchaninov and one of his daughters, Natalia Koltovskaya, in the eighteenth century. The author considers general problems of the private life of people of a privileged Russian class, namely, marital relations, possibilities, and conditions of dissolution of marriage, the position of women in the family and their rights, and the attitude to extramarital affairs in secular society. The article examines the reasons for the emergence and development of a provincial woman’s sense of independence and inner freedom, the origins of her rebellion against patriarchal family structures, for the right to decide for herself, and the extent to which such manifestations of “freedom” could be considered typical of Russia at that time, or whether they should be considered an exception to the general norm of behaviour. The story of N. A. Koltovskaya’s escape from her family, her relations with Emperor Paul I and Senator G. R. Derzhavin, shows the conformism of the supreme power, which manifested itself, on the one hand, in the awareness of the latter of the importance of its role in protecting the family and the moral foundations of the upper class, and, on the other hand, in the possibility of the upper class to take advantage of the opportunities offered by the situation and, if necessary, of circumventing the existing rules of law, of influencing government bodies (the Senate) in one’s own interests and, in general, in the interference of the supreme power in the family life of its subjects. The appendix to the article contains four documents: two “women’s” letters – one from the mother to Catherine II and the other from the daughter to Paul I, as well as letters from her lover (translated from French) and her husband.

Dissolution of Customary and Statutory Marriages with a Single "Stroke"

Dissolution of Customary and Statutory Marriages with a Single "Stroke"

Failure of Good Faith in Mediating Divorce Cases in Religious Court

Failure of Good Faith in Mediating Divorce Cases in Religious Court

Penyelesaian Kumulasi Perkara Isbat Nikah dan Cerai Talak dalam Putusan Nomor 0307/Pdt.G/2018/PA.Sby

In the practice of proceedings in the Religious Courts, judges generally immediately apply Article 7 Paragraphs (2) and (3) of the Compilation of Islamic Law (KHI) without testing the strength of its enforceability before the law. Thus, even though these provisions are difficult to understand, the majority of Religious Court judges, with their interpretation, understand the provisions in Paragraph (3) letter a, as if it is mandatory to accept the application for itsbat marriage if it is submitted in combination with the application for talak divorce, even though the marriage was carried out after its entry into force. Law no. 1 of 1974. The consideration of the marriage isbat law itself is still a matter of polemic. Bearing in mind that the position of KHI which is the basic reference for legal considerations by judges is not included in the statutory hierarchy. This happened in the divorce divorce case Decision Number 0307/Pdt.G/2018/PA.Sbg. Several issues can be raised that become a polemic regarding the marriage isbat law, namely how the essence of the marriage isbat law is related to the essence of the marriage isbat law in the marriage legal system in Indonesia. Then what is the legal position of marriage isbat in the Religious Courts which was implemented after Law Number 1 of 1974. The provisions for marriage isbat in Indonesia only came into existence after the birth of Law Number 1 of 1974 concerning Marriage. In addition, the law has given legitimacy to judges to further explore the values ??and sense of justice in society.

Implementasi Hak Nafkah ‘Iddah Istri Dalam Perkara Cerai Gugat berdasarkan PERMA No. 3 Tahun 2017

The purpose of this study is to find out how the implementation of PERMA No. 3 of 2017 in divorce cases at the Curup Religious Court and to find out the considerations of the Curup Religious Court judges in the decision of case number 383/Pdt.G/2022/PA.Crp. This research is a field research with a type of Case study. The results of the study are as follows: First, the implementation of PERMA No. 3 of 2017 is applied by judges in every case related to women absolutely and is used as a reference during trials; The implication of PERMA for divorce cases is that the wife's 'iddah right can be fulfilled if the wife asks for her 'iddah right in the lawsuit and the fulfillment of the 'iddah right creates a sense of justice for the wife. Second, the judge's consideration in deciding case 383/Pdt.G/2022/PA. Crp is: the evidence presented by the plaintiff in his suit which is corroborated by witness statements and the absence of the defendant during the trial; consideration that case 383/Pdt.G/2022/PA. CRP occurred because the husband did something bad to the plaintiff, the defendant cheated, committed domestic violence and did not provide for 7 years; Based on the facts of the trial, the panel of judges held that the wife was not proven to be nusyuz so that the wife was entitled to her 'iddah rights in accordance with what was mandated in SEMA No. 3 of 2018.

The Limits of Analogy in Establishing the Legal Consequences of a Fictitious Divorce

In the Russian and foreign family legal reality, the practice of inappropriate use of divorces has become widespread. With the general attention of law to fictitious legally significant phenomena in the context of normative uncertainty of the concept, signs and consequences of fictitious divorce, it is necessary to check and take into account the possibilities of analogy as a traditional means of filling legal gaps in private law regulation in relation to the problem of the lack of legislative regulation of the legal consequences of fictitious divorces. At the same time, the method of analogy can and should act not only as one of the objects of study, but also as a means of achieving a scientific result. The study raises and rejects the scientific hypothesis about the similarity of the normatively undefined consequences of the depravity of the causa of a fictitious divorce and the regulated consequences of a fictitious marriage. At the same time, the author shows the positive role of the analogy of law as part of the means of settlement and family law disputes and methods of countering unfair behavior in marriage dissolution without the purpose of its termination. The significance of the work is manifested in its ability to doctrinally support the legislator’s abstinence from direct normative consolidation of the criteria of fictitious divorce and its invalidity. At the same time, the article indicates the way to situationally overcome the uncertainty of the concept under consideration using the analogy of law.

Divorce Factor Classification Uses The C4.5 Algorithm Based On Particle Swarm Optimization

Cases of household divorce increased in the West Java area during the Covid-19 pandemic. The pandemic has increased personal relationships and interactions between family members, and some families are using this opportunity to strengthen their relationships. However, increased family interaction can also result in increased conflict, leading to divorce. The author classifies divorce factors that have increased during the pandemic using the C4.5 Algorithm based on Particle Swarm Optimization (PSO). The main factors for divorce are economic factors that have hit during the pandemic coupled with unstable mental conditions resulting in poor communication and continuous fighting. So that the husband/wife leaves one of the parties, infidelity, and adultery, then domestic violence and ending in divorce. The dataset was taken from the West Java BPS website, and the author split the data, namely 80% training data and 20% testing data, to avoid overfitting. Research results on the classification of divorce factors during the pandemic using the C4.5 algorithm based on particle swarm optimization are an accuracy value of 87.50% and an AUC (Area Under Curve) value of 0.807, which is included in the good classification category.

Al-Fatani's Perspectives on Islamic Family Law: Insights from Hidayah Al-Muta’allim Wa’Umdah Al-Muta’alim

The evolution of Islamic Family Law in Malaysia is a nuanced amalgamation of Malay customs, cultural influences, and Islamic jurisprudence. Rooted in the history of Malaya, the formation of current Islamic Family Law reflects the fusion of these elements. This study delves into Daud Abdullah Al-Fatani's seminal work Hidayah Al-Muta’allim Wa’Umdah Al-Muta’alim, a pivotal contribution to Malaysian Islamic jurisprudence. Comparing Al-Fatani's insights with those of scholars from diverse schools of thought and contemporary Islamic Family Law enactments, the focus remains on key issues such as Zihār, Khiyar, and Nusyuz. The study reveals that Al-Fatani's perspectives transcend strict adherence to the Al-Shafi‘i school, while aligning with the Islamic Family Law (Federal Territories) Act 1984. His views on marriage dissolution and wife’s disobedience are influenced by Malay culture, while maintaining fidelity to the Qur’ān and Sunnah exemplified by his stance on Zihār. This resonates in Malaysia's current Islamic Family Law which is not rigidly bound to the Al-Shafi‘i school but intricately considers cultural conditions.

Fulfillment of Women's Rights After Divorce: Dynamics and Transformation in the Legal Journey

The Supreme Court has ruled that in contested divorce cases, women are entitled to receive nafkah iddah, mut'ah, and nafkah madhiyah, provided they do not act nusyuz. However, this provision is not being effectively implemented. This study examines the fulfilment of women's rights post-contested divorce in the Malang Regency Religious Court. The goal is to identify shortcomings in implementing these regulations and propose solutions for more effective enforcement. The research employs an empirical-juridical method, using secondary data from interviews and documentation with key personnel at the Malang District Religious Court. The qualitative analysis refers to Soekanto's theory. The Findings indicate that the fulfilment of women's rights in contested divorces at the Malang Regency Religious Court is ineffective. The law is clear and understandable, and officers, judges, and staff are accountable. Furthermore, the Malang District Religious Court provides sufficient infrastructure and support. However, the unmet factors—community awareness and cultural attitudes—pose significant barriers. Low legal awareness and compliance, coupled with cultural tendencies in Malang District to avoid legal processes and seek quick resolutions, hinder effective implementation. Addressing these issues is crucial for the regulations to achieve their intended impact on women's rights post-divorce.

Dispute Resolution Through Online Mediation Based on Supreme Court Regulations

This article is motivated by the need for mediation to be carried out optimally to resolve cases in court. The purpose of this article is to explain the substance of mediation in the process of resolving divorce cases and the importance of mediation in resolving household disputes. The method used in this paper is the Normative method with a conceptual approach to analyze problem-solving from the aspects of legal concepts and values contained in norms. The data collection technique used in this paper is a documentation technique and the results are analyzed qualitatively. The research results show that the mediation regulations contained in PERMA which regulate mediation contain important substances that must be understood by the mediator and both parties. Mediation is important to carry out directly to minimize the occurrence of divorce and minimize disputes that may arise after the divorce occurs.

Exploring the Legal and Socio-Cultural Dimensions of Marriage Dissolution: A Comparative Analysis of Hindu and Muslim Personal Laws

Exploring the Legal and Socio-Cultural Dimensions of Marriage Dissolution: A Comparative Analysis of Hindu and Muslim Personal Laws

Assessment of determinant factors responsible for divorce among divorcees in rural areas of Ibadan, Oyo State, Nigeria

The study assessed factors responsible for divorce among divorcees in rural areas of Ibadan by specifically focusing on sexual satisfaction, ethnicity/culture, and educational disparities. Divorce is related to marriage and family, and it has been used as an instrument to expose failure through marriage. In Nigeria, the high rate of divorce is mostly associated with urbanization and industrialization. The study employed a multi-stage sampling procedure using a well-structured and closed-ended questionnaire. Three out of six rural local government areas were randomly selected, representing 50%. 354 divorcees were randomly selected out of 3,064 divorce cases heard in the last 4 years using the Taro Yamane formula. The collected data were analysed through descriptive statistics (frequency and percentage) and inferential statistics (chi square). The study revealed that more than half of the respondents admitted that sexual intercourse brings peace to their family, while 52% disagreed that ethnicity has to do with divorce. Therefore, sexual activities between the couple must be set as a priority, with respect for one another's as well as unique cultural beliefs, customs, and communication preferences.

Magister Gratianus tanítása a házassági akadályokról

Many legal scholars have examined the question of how to reconcile Gratian’s willingness to use both the Justinianic and the pre-Justinianic Roman law that he found in his sources with his apparent unwillingness or inability to use Justinian’s Roman law books at first hand. This paper focuses on another root of European legal culture, the Judaeo-Christian legal heritage. It addresses the question to what extent Gratian’s concept of marriage, based on a contemporary interpretation of the marriage of Mary and Joseph based on the decision of the Council of Ephesus (431), contributed to the clarification of the system of marriage impediments in 12th century canon law, and to what extent the magister used arguments based on biblical passages to do so. The canon law from the early Middle Ages allowed a husband to divorce his unfaithful wife, while the Western Church of Gratian’s age opposed the dissolution of the marriage bond and only recognised the possibility of separating the spouses from bed and table. Therefore, the significance of the subject lies primarily in the fact that in the case of some impediments to marriage the magister saw the possibility of dissolution of the unconsummated union (a so-called initiated marriage) and, in a few, not common cases of the consummated marriage too. The principle of indissolubility, although annulment and dissolution of marriage are different legal instruments, was not necessarily applied in this period either. However, Gratian’s particular concept of marriage and his legal explanations of the impediments to marriage contributed significantly to the fact that the only ground for divorce mentioned in the Gospels, adultery, could not lead to the dissolution of the bond. In the 16th century, Protestant divorce law was primarily a reaction to this understanding, and also the Catholic teaching on the impediments to marriage continued to evolve, formally still adhering to the principle of indissolubility.

Masa Enam Bulan Berpisah Tempat Tinggal Sebagai Syarat Formil Pengajuan Perceraian dengan Alasan Pertengkaran: Studi Putusan Mahkamah Agung No 421 K/Ag/2023)

From a jurisprudence perspective, there is no requirement for a long period of separation between husband and wife to carry out a divorce for reasons of quarrels and disputes. This research aims to analyze the six month period of separation of residence between husband and wife as a formal requirement in filing for divorce on the grounds of quarrels and disputes as stated in the consideration of Supreme Court Decision No. 421 K/AG/2023. What is the real reason and aim of the judge in requiring the 6 month period, so that the Supreme Court's decision has canceled the decision of PA Tegal No. 312/Pdt.G/2022/PA.Tg and PTA Semarang decision no. 334/Pdt.G/2022/PTA. SMg. This research is normative legal research, using secondary data sourced from primary legal materials and secondary legal materials. Primary legal material was obtained from the Supreme Court Decision, PTA Semarang and PA Tegal Decisions, while secondary legal material was obtained from fiqh books and Supreme Court Circulars. The results of the research show that the judge's reasons for requiring a six-month period of separation between husband and wife as a formal condition for filing a divorce due to arguments are based on the new provisions contained in SEMA No. 1 of 2022 which confirms that divorce cases are based on ongoing disputes and quarrels. can be granted if it is proven that the husband/wife has had continuous disputes and quarrels or separated residences for at least 6 (six) months. This judge's decision is considered aimed at increasing family resilience and making it more difficult for divorce to occur in society, which is part of the principles of marriage.

Eksekusi Putusan Verstek Terhadap Pemenuhan Hak Istri Dan Anak Dalam Perkara Gugat Cerai

Abstract -- The aim of this research is to find out how the verstek decision is imposed on the defendant in a divorce case and to find out how the execution of the verstek decision affects the fulfillment of the rights of his wife and children in a divorce case. The method applied in this research is normative juridical through statutory and conceptual approaches. With primary and secondary sources of legal materials used. The results of this research are regarding the responsibility of the husband (defendant) for meeting the needs of his wife and children due to the verstek decision. The judge will give a verstek decision if a defendant does not come to court at all. The judge will give a penalty to the defendant regarding the claim for payment of maintenance, by adding "...which was paid before the defendant took the divorce certificate" to the posita and petitum of the lawsuit, if the husband in a divorce lawsuit is given the burden of maintenance and does not come, this is the same as SEMA Number 2 of 2019. With this, if the defendant wants to take the divorce certificate, he must pay for the execution first.

Implementation of European approaches in reforming the institution of separation in Ukraine

The article examines the possibility of introducing European approaches in the process of updating the institution of separate residence of spouses. The experience of European states regarding the regulation of the institution of separation (France, Portugal, Belgium, the Netherlands, Poland, etc.) is clarified in a comparative aspect. Three main approaches to the regulation of the legal regime of separate residence of spouses in foreign countries are singled out: an approach in which the independence of the institution of separation and termination of marriage is preserved; an approach in which the grounds for separation and divorce are the same, so the spouses can choose one of the specified two models; an approach in which dissolution of marriage depends on separation, which must precede termination of marriage. Two approaches in the world regarding the contractual method of establishing a regime of separate residence have been clarified, in particular. The common and distinctive features between separation and the actual termination of marital relations, as well as divorce, have been clarified. The judicial practice in cases of establishing the actual termination of marital relations, separation, as well as the termination of the regime of separate residence of spouses has been analyzed. The position of the Supreme Court regarding consideration of counterclaims for establishment of separation is noted. The need to settle the issue of the place of residence of spouses and children when the regime of separate residence of spouses is established, and the issue of child support, has been clarified. It is substantiated that in the process of Europeanization of the provisions of the Civil Code of Ukraine, it is necessary to provide norms that would provide that during the establishment of the regime of separate residence of the spouses, the rights of children are properly protected and the best interests of the child are taken into account. Other issues related to the rights and responsibilities of husband and wife as spouses can be settled by agreement if they wish. Corresponding changes to the Civil Code of Ukraine have been proposed to provide for a contractual procedure for establishing separation and proper protection of the best interests of the child.

Telaah kritis upaya peninjauan kembali dalam perkara perceraian di peradilan agama perspektif mashlahat al-mursalah

This paper aims to analyze the impact and legal consequences of extraordinary legal efforts for judicial review in the religious courts of divorce cases from the perspective of mashlahat al-mursalah. The method used is normative legal research using multiple approaches including legislation, cases, and a comparative approach with data analysis techniques using descriptive analysis methods. The conclusion of this study shows that legal remedies for judicial review of divorce cases that have permanent legal force (inkracht van gewijsde) create new problems (mafsadat) in society, so for the sake of legal certainty, it is better if legal remedies taken against divorce cases are sufficient to the level of appeal. or just appeal. The Compilation of Islamic Law (KHI) has a strategic position to regulate the provisions of the procedural law, considering that the position of KHI so far has not only played a role in regulating material law, it also regulates formal law against Muslim divorces in Indonesia.

Itsbat Nikah: Legalizing marriage outside the record in Indonesia

This study focuses on the legal impact of marriage registration in the context of itsbat marriages in religious courts, particularly for marriages that occurred after 1974 without an official certificate and were not registered in the compilation of Islamic law (KHI). It aims to evaluate the itsbat marriage as a legal mechanism for recognizing marriages that are not officially registered. Normative analysis, a philosophical and analytical approach, serves as the research method, reviewing the relevant legal framework and court practice in handling divorce cases. The results showed that unregistered marriages after 1974 can be legally recognised through the itsbat nikah procedure. The Article 7, Paragraph 3, letter KHI, outlines the necessary conditions. With this procedure, spouses can receive written evidence of their marriage’s legality in the form of a marriage certificate, which is then registered by the official Religious Affairs office. This study emphasizes the importance of marriage registration for legal certainty and protection of individual rights, and highlights how itsbat nikah plays a critical role in addressing the problem of marriage without official registration.