Islamic Family Research Articles

RECONSTRUCTING CHILD CUSTODY POST-DIVORCE IN ISLAMIC FAMILY LAW: A BEST INTEREST OF THE CHILD-BASED APPROACH IN THE CONTEMPORARY ERA

The concept of child custody post-divorce has been a critical issue in Islamic family law, particularly in light of contemporary debates surrounding children’s rights and welfare. In recent decades, there has been a growing emphasis on the Best Interest of the Child (BIC) standard, which has shaped custody decisions in Western legal systems. This article explores the integration of the BIC principle within Islamic family law, specifically addressing how it can be reconstructed to align with modern child welfare needs. Through a comprehensive literature review, the paper examines Islamic legal sources, including the Qur’an, Hadith, and classical fiqh, to evaluate the traditional understanding of child custody in divorce cases. It further investigates the compatibility of Islamic principles with international human rights frameworks that advocate for the child's best interest. The article highlights the challenges and opportunities in adapting Islamic family law to contemporary child custody norms, considering cultural, legal, and societal factors. It also compares the Islamic approach with Western legal perspectives on child welfare, identifying areas for potential reform. The findings suggest that while Islamic law provides a strong foundation for protecting children's rights, it requires contextual adaptation to ensure the child’s best interests are consistently prioritized. This research calls for a balanced and progressive approach to reforming child custody practices within Islamic family law. Ultimately, it aims to contribute to a more child-centered framework in Islamic legal systems, offering insights for policymakers and legal practitioners.

Islamic Family Law Perspective on Marrying Pregnant Women

Background. Sexual intercourse between a man and a woman without a valid marriage contract is called zina. Zina does not differentiate between a girl, a man, a husband or a widow, a wife or a widower. Islamic law strictly forbids zina, never even approaching zina. One of the consequences of zina is pregnancy outside of marriage.. Aims. This article examines pregnant marriage from the perspective of Islamic law in the four imams of the school of thought, and the Compilation of Islamic Law. Method. The study uses a normative legal approach. Results. Pregnant marriage is a marriage with a woman who is pregnant outside of marriage, either married to the man who impregnated her or to the man who did not impregnate her. The Marriage Law only implicitly regulates the marriage of pregnant women, namely in Article 2 paragraph (1). The Compilation of Islamic Law regulates the marriage of pregnant women in Article 53. The differences of opinion among scholars regarding the marriage of pregnant women due to adultery do not bring blessings to the community. The Compilation of Islamic Law states that children resulting from adultery legally do not have a kinship relationship with their father, even though the father formally acknowledges and legitimizes that the child is his own child. They do not have the intended relationship, be it family relationships, guardianship in marriage or inheritance issues. The child only has a bloodline relationship with his mother.

A Study on Hadith Authenticity Concerning the Abrogation of Bequests for Iddah Maintenance by Heirs and Its Relevance to Islamic Family Law in Indonesia

Although Islamic jurists (fiqh scholars) have reached a consensus on the elimination of the provision for iddah maintenance (post-divorce or mourning period support) through inheritance shares upon a husband�s death, the hadith cited as the basis for this elimination remains a subject of debate. This consensus carries sociological, legal, and theological implications that may disadvantage wives, particularly in the aftermath of their husbands' deaths. The purpose of this study is to reassess the authenticity of the hadith concerning the elimination of iddah maintenance via inheritance distribution. This paper employs Abou El Fadl's hermeneutic negotiation approach to scrutinize the authenticity of the hadith regarding the elimination of iddah maintenance and to contextualize it within the Indonesian framework. The findings indicate that the hadith serving as the foundation for this issue is an attributed to a companion rather than the Prophet (mauquf hadith), whose chain of narration (sanad) is contested. Certain narrators are considered unreliable, and there are discrepancies within its text (matn), with multiple versions existing. Consequently, this paper refrains from relying on the doctrine of abrogation (naskh) and supports the view that iddah maintenance following a husband�s death is an option that need not conflict with the wife�s inheritance share. Both iddah maintenance and the wife�s inheritance share can thus be implemented concurrently. The paper posits that, in the Indonesian context, iddah maintenance upon the husband�s death should be regarded as a form of joint property that can be allocated without reducing the wife�s inheritance share. The implementation of both joint property distribution and inheritance safeguards the rights of the wife and her children following the husband's death.

Analysis of Interfaith Marriage Arrangements in Islamic Family Law: Multiculturalism and Social Harmony Perspectives

This research aims to understand the analysis of Interfaith Marriage Arrangements in Islamic Family Law: Multiculturalism and Social Harmony Perspectives.Normative research is legal research that places law as a system of norms. The norm system itself is related to the principles, norms, rules of the legislation itself. The approach of examining statutory regulations aims to find out how consistent and appropriate the laws are with the legal problem or case being studied. Data collection techniques are a way of recording events or information, characteristics and all forms of information that describe the object of research. The results of research on interfaith marriages according to Islamic law as contained in the Word of Allah, Surah al-Baqarah verse 221, have confirmed that interfaith marriages are absolutely forbidden, apart from that, if you continue to carry out an interfaith marriage, many disputes will arise in the household because both partners have different opinions and beliefs. Interfaith marriage in Indonesia is a reality that continues to occur even though state law and religious law expressly prohibit it. In fact, if you look closely, Law no. 39 of 1999 concerning Human Rights in Indonesia does not explicitly regulate interfaith marriages. On the issue of more detailed marriage regulations, including the issue of interfaith marriages, Human Rights still returns it to the applicable laws and regulations, which in this case the Marriage Law in Indonesia is Law no. 1 in 1974.

Konsep, Batasan dan Implementasi Penalaran Istislahi dalam Penerapan Hukum Keluarga Islam di Indonesia

New issues and phenomena that require legal certainty also develop along with the development of the times and the social context. The Qur'an and Sunnah, which only contain legal issues implicitly, require mujtahids to dig up the law with several methods, one of which is maslahah mursalah or istislah. This research tries to explore matters related to istislahi reasoning, starting from the concept, and limitations, to its implementation in the application of Islamic family law in Indonesia. This research uses a descriptive method with a critical review. The research results show that maslahah mursalah is basically based on preserving the purpose of syariah by taking benefits and rejecting harm (mafsadah). The limitations of this maslahah are: it is not merely conjectural so that it must produce benefits and reject harm (mafsadah), it is general, and it does not conflict with the principal rules of syara'. Thus, the application of the istislahi method in the formation of law is very necessary to face new problems and phenomena that require legal certainty.

Child custody after a divorce in Islam and in Russian legislation (comparative analysis)

The article describes the negative consequences that result from the lack of a competent approach to solving the problem associated with determining the right to care for minor children after parental divorce. The main focus is on explaining the most important norms of Islamic family law, and Russian legislation in matters of the right to care for the children in the event of parental divorce. A comparative analysis is carried out between these norms, indicating points of contact and differences. The purpose of the study is to reveal the problem related to the right to care for the minor children that Muslims in the Russian Federation face during the divorce proceedings. The author, in this article, draws attention to the fact that due to some differences in these legal norms, Muslims may have difficulties associated with the desire to simultaneously comply with the rules of their religion in the legal field and not violate the provisions of Russian law. The author also discloses the ways out of the current situation, combining, where possible, the rules of law of the both approaches. The scientific novelty of the paper lies in the very study of the key problems that Muslims in Russia face in the matters related to the divorce process, in particular, regarding the right to care for the children after their parents’ divorce. The research provides the comparative analysis between the norms of Islam and the rules of the Family Code of the Russian Federation on the matter. As a result, it was determined that the Muslim community needs to know and study both the norms of Islamic Law regarding the right to care for the minor children after a divorce, and the position of Russian legislation. It is very important to learn how to combine these norms. Also, in case of a dispute, such issues should be addressed to the qadi. It will help you avoid mistakes and determine who has the priority right to care for the children.

ISLAMIC FAMILY LAW ON POLYGAMOUS MARRIAGE IN MALAYSIA: BETWEEN ROSES AND THORNS

Marriage is a way of gaining a peaceful mind and soul, be it monogamous or polygamous marriage. This is the sweetness of marriage as enshrined by Islam. To achieve this wisdom, conditions laid down by the religion and legal requirements must be observed. Otherwise, a marriage may turn into a miserable and thorny life for couples, especially in polygamy. Thus, the purpose of this paper is to disseminate legal knowledge and refine the understanding about polygamous law in Malaysia. The central arguments of this study are two-pronged: (1) to deliberate on the Malaysian legal framework for polygamous marriage and (2) to discuss a crucial legal issue related to polygamy, namely cross-border marriage and its effects. The qualitative method of doctrinal legal research was employed to obtain and analyse primary and secondary data from various sources. It included examining the statutes and decided cases of the Syariah Courts, including reported and unreported cases. The relevant statutes studied were the Islamic Family Law (Federal Territories) Act 1984 and the Enactment of Islamic Family Law (Kedah Darul Aman) 2008. In substantiating arguments, data from e-Syariah Version 3 (ESV3) was used together with existing literature. The findings revealed that refusal or failure to comply with legal requirements pertaining to polygamous marriage may lead to cross-border marriage and its aftermath effects on the legality of the marriage, jurisdiction of the court, and the rights of wives and children in the context of law. Hence, the enforcement of existing laws on polygamy should be emphasised to control any abuse of power by a man to contract a polygamous marriage. More importantly, the laws and enforcement should be strengthened to protect the rights of the wives and children. Future research may focus on issues involving the rights of the wives and children of a polygamous marriage upon the death of the husband or father according to Islamic family law in Malaysia and its implementation.

The Reflections of the CEDAW Convention on the Legal status of Women in Algerian Family Code

Even though the Convention on the Elimination of All Forms of Discrimination Against Women is the first international document that guarantees all rights for women in all areas of life and ensures all effective means to eliminate discrimination against them, the latter has come with a set of positive and negative effects on the Arab Islamic family and the Algerian family. After Algeria ratified the CEDAW convention to eliminate all forms of discrimination againstwomen and uphold the principle of equalitybetweenwomen and men, the family legislator found itself amending numerous legal provisions in line with the principles of the Committee on the Elimination of Discrimination against Women. This resulted in granting mature women the right to conclude their marriage contracts themselves, making their consent in the marriage contract equal to that of men. Additionally, it imposed restrictions on men’s right to polygamy as a safeguard for women while also bolstering their position in terminating marital relationships by granting them the right to seek divorce through khula and granting them guardianship rights.

LEGAL STATUS AND CONSEQUENCES OF UNILATERAL DIVORCE: COMPARATIVE STUDIES BETWEEN EGYPT, JORDAN, TUNISIA AND INDONESIA

Unilateral divorce by the husband outside the court requires attention for the protection of affected women and children. This literature study was conducted to find out how the development of traditional family law implementation into modern family law in four countries, namely Egypt, Jordan, Tunisia, and Indonesia. This article is classified as literature research with a qualitative approach. The methodology used is normative and comparative legal studies. The results of this study showed that there are differences in laws and regulations in the Islamic family law environment in those countries. Divorce that is imposed by the husband is unilaterally recognized as valid in Egypt, Jordan, and Tunisia, while in Indonesia the wife can appeal or cassation against the divorce. Egypt and Tunisia impose criminal sanctions on husbands who do not meet the obligation to pay their living and home to their ex-wives, while Indonesia and Jordan do not impose any criminal sanctions. Criminal sanctions imposed in Egypt and Tunisia are the payment of a certain number of fines or confinement during a certain time. However, divorce proceedings without reporting to relevant officials in Jordan can be charged with criminal law. Therefore, the best implementation of family law related to unilateral divorce is in Tunisia. The scholarly contribution of this research to family law globally is that it offers the most ideal concept in protecting the often neglected rights of wives and children.

Islamic Family Law: The Legality of Interfaith Marriage the Perspective of Islamic Law and Law No. 16 of 2019 Concerning Marriage

Islamic Family Law: The Legality of Interfaith Marriage the Perspective of Islamic Law and Law No. 16 of 2019 Concerning Marriage

Komparasi Penerapan Al-Wasiah Al-Wajibah Mesir Dan Indonesia

Islamic Family Law underwent reform in the 20th century. One of the reform phenomena that developed in the ijtihad of the scholars, namely Al-Wasiah Al-Wajibah, is part of the legal reform efforts in the Islamic world, which has now been implemented, especially in Indonesia. However, the results of this reform effort are still far from perfect, because there are still many problems in the distribution of inheritance through mandatory wills. As a result, Indonesian scholars have agreed to implement mandatory wills in the Compilation of Islamic Law (KHI), following and developing Egyptian law No. 71 of 1946. This research uses a comparative descriptive method and collects data through a literature review, referring to fiqh sources from both classical and contemporary sources, as well as articles in the Compilation of Islamic Law (KHI) on the issue of compulsory probate. Compulsory probate is a new rule introduced by Middle Eastern scholars, especially in Indonesia and Egypt, followed by other Middle Eastern Islamic countries.

The impact of the CEO’s Islamic religiosity on tax aggressive behavior in family firms

Purpose The authors investigate the influence of CEOs’ Islamic religiosity on the level of tax aggressiveness within private family firms. In addition, this study aims to explore the moderating role of the CEO's ownership stake in the firm and the payment of Zakat. Design/methodology/approach The authors gathered data through surveys completed by 199 CEOs of Jordanian Islamic family firms. These survey results, along with financial statements, were used for multiple ordinary least squares regression analyses. Findings The results of this study reveal a negative relation between the extent of Islamic religiosity of the CEO and the level of tax aggressive behavior. Furthermore, the results suggest that an increase in the CEO’s ownership stake strengthens the negative association between the CEO’s religiosity and the extent of tax aggressive behavior. Finally, the CEO’s involvement in Zakat payments is shown to mitigate the negative association between the CEO’s religiosity and the extent of tax aggressive behavior. Originality/value In contrast to prior research that examines the relationship between religiosity and tax aggressiveness within the context of other religions, particularly Christianity, in listed firms, and primarily considers the religiosity of the overall firm environment, the study centers on the CEO’s religiosity in private Islamic family firms. The Islamic context further enables us to investigate whether the fulfillment of Zakat diminishes the moral obligation experienced by religious CEOs to fulfill their tax responsibilities.

Polygamy and Nikah Sirri Culture of Agen Thrifting Families in Teluk Nibung: An Islamic Family Law Perspective

Ideally, Islamic family law regulates polygamy with clear provisions to ensure justice and the welfare of all parties involved. In reality, within the culture of Agen Thrifting families in Teluk Nibung, Tanjung Balai, polygamy and nikah sirri (unregistered marriages) are often adopted as strategies to circumvent stringent legal regulations, creating issues related to legal status and family rights. This study aims to examine the practices of polygamy and nikah sirri in the context of Agen Thrifting families, focusing on how these practices interact with Islamic family law provisions. This article is categorized as qualitative field research. The methodology employed is a juridical-empirical approach, combining legal analysis with direct field observations. The research findings indicate that the culture of polygamy among Agen Thrifting families is often accompanied by nikah sirri as an effort to evade strict legal regulations. This results in negative impacts, including family separation and unclear status of children. Such practices undermine the principles of Islamic family law, particularly the assurance of family rights protection and legal recognition in accordance with justice principles.

Qira’at Diversity in Islamic Family Law Verses: Implications for Indonesian Marriage Law

Qira’at Diversity in Islamic Family Law Verses: Implications for Indonesian Marriage Law

Strategi Pengelolaan Keuangan Keluarga Secara Islami dalam Mewujudkan Keluarga yang Sakinah

This research was conducted among the people of Suka Makmur Village, Muaro Jambi Regency, among whom work as farmers and traders. In the lean season, they still have to fulfill their daily needs, such as clothing, food and shelter. Apart from that, they also have to save and invest to meet future needs. This research aims to: (1) find out strategies for managing family finances in an Islamic way in creating a sakinah family. (2) knowing the supporting and inhibiting factors faced by the people of Suka Makmur Village, Muaro Jambi Regency in managing family finances in an Islamic manner in creating a sakinah family. This research uses a qualitative approach with the type of field research. Determining the research subjects was purposive and used data collection techniques through observation, interviews and documentation. The results of this research show that the Islamic family financial management strategy in creating a sakinah family in the Suka Makmur Village community, Muaro Jambi Regency has carried out financial planning such as managing family finances, savings, investment and zakat. Meanwhile, the supporting and inhibiting factors faced by the people of Suka Makmur Village, Muaro Jambi Regency in managing family finances in an Islamic manner in creating a sakinah family. Supporting factors are faced such as instilling mutual respect, providing support to your partner or family, and having a good personality such as being frugal. Meanwhile, factors such as wasteful nature, lack of communication, and economic problems.

Mediation as an Alternative Solution for The Islamic Family in Indonesia

Mediation as an Alternative Solution for The Islamic Family in Indonesia

STRATEGI DINAS PENGENDALIAN PENDUDUK DAN KELUARGA BERENCANA KOTA BEKASI DALAM MEMBANGUN KETAHANAN DAN KESEJAHTERAAN KELUARGA PERSPEKTIF HUKUM KELUARGA ISLAM

This study aims to identify the strategies for building family resilience and welfare by the Population Control and Family Planning Agency (DPPKB) of Bekasi City and to understand these strategies from the perspective of Islamic Family Law. This research employs a qualitative method with a socio-juridical approach and descriptive analysis techniques. The study reveals that family resilience and welfare are among the objectives of family formation in Islamic Family Law. In Islamic Family Law, family welfare is depicted in the concepts of Sakīnah, Mawaddah, and Raḥmah, generally referring to conditions of tranquillity, love, and compassion. Family resilience is also strongly emphasized with provisions regarding the rights and obligations of each family member, including the stipulations on divorce, which underscore the sanctity and strength of marital bonds. Divorce is considered highly undesirable in Islam, and guidelines for family life are provided, ranging from preparation for marriage to raising better future generations. The strategies employed by the DPPKB of Bekasi City in building family resilience and welfare align significantly with the values of Islamic Family Law, particularly in general aspects. However, in detail, these strategies do not fully encompass the comprehensive concepts of family formation and development as outlined in Islamic Family Law.

Kaidah المشقه تجلب التيسير dan Penerapannya dalam Hukum Keluarga

Because Islamic law is not mentioned directly in the Qur'an and Hadith, interpretation and contextualization through ijtihad are often necessary. To achieve this, Islamic jurisprudence must be integrated with current conditions and societal demands. This must be done in accordance with maqasid al-syariah, namely the aim of overcoming legal problems faced by individuals (mukallaf). Sharia guarantees the welfare of every person and is adapted to their abilities. It is stated in a hadith in the hadith of the Prophet narrated by Bukhari which means: "Religion makes things easy, the religion that Allah loves is the true and easy religion" (HR. Bukhari from Abu Hurairah) shows that Islam emphasizes the importance of ease in fulfilling religious obligations. According to the principle of المشقه تجلب التيسير, which means that difficulty brings ease, Islamic law is flexible to deal with the difficulties people face in worship and transactions. The concept of المشقه تجلب التيسير in the application of Islamic family law is explained in this paper using qualitative descriptive methodology and literature review techniques. Sources for this research include the Al-Qur'an, Hadith, tafsir, fiqh literature, and Qawaidul Fiqiyyah. To see how this principle is applied, this paper conducts a case study on Islamic family law. The aim of Al-Masyaqqah Tajlibut Taysir is to alleviate difficulties in the application of Islamic family law so that people can fulfill their obligations without experiencing due difficulties. This study identified seven categories of hardship (masyaqqah) that require relief (rukhsah), such as travel, illness, compulsion, forgetfulness, ignorance, general hardship, and deprivation. These categories guide legal experts in issuing fatwas and legal decisions to accommodate individual needs while upholding Islamic principles. In conclusion, المشقه تجلب التيسير serves as a basic principle in Islamic jurisprudence, facilitating the harmonization of Sharia with individual circumstances and societal needs, particularly in family law matters such as marriage contracts. Its application underscores the adaptability and compassion inherent in the principles of Islamic law, which promote justice and well-being for all individuals.

Pelanggaran Hak Asasi dalam Rumah Tangga Perspektif Hukum Keluarga Islam dan Kitab Undang-Undang Hukum Positif Indonesia

This study aims to analyze violations of human rights within the household from the perspectives of Islamic family law and the Positive Law of Indonesia. The research methodology employed is a descriptive-analytical approach, involving data collection from various sources such as literature, legal documents, and case studies. The findings indicate that violations of human rights within the household often occur in various forms, including physical, psychological, and sexual violence, and neglect. In the context of Islamic family law, principles of justice, equality, and family welfare serve as guidelines for addressing cases of human rights violations within the household. On the other hand, the Positive Law of Indonesia provides a strong legal framework for protecting individual rights within the household, although its implementation may require further improvement. Therefore, collaborative efforts among legal institutions, civil society, and religious organizations are necessary to enhance awareness, protection, and enforcement of human rights within the context of the household.

Social Cohesion in Islam and the Role of Family in Enhancing it among its Children (An Analytical Study)

The study aimed to discuss social cohesion in Islam and the role of family in educating its children about its mechanisms “an analytical study”. The study used the descriptive method. It consists of a general framework, which included the study introduction, problem, questions, objectives, importance, methodology, terminology, previous studies with comment on it, and three themes. The first theme is the conceptual framework of social cohesion in Islam, it discussed the concept of social cohesion in Islam, the objectives of social cohesion in Islam, the importance of social cohesion in Islam, the main roles of social cohesion in Islam, the basic rules for building the required social relations for social cohesion. The second theme is the concept of the family in Islam and its importance in achieving social cohesion, and included the concept of family in Islam, the importance of family in achieving social cohesion. The third theme is the role of family in educating its children about mechanisms of social cohesion, and it included the following: First: activating the elements of social cohesion, second: educating its children on citizenship and belonging to enhance their social cohesion, and third: Educating its children on social solidarity, and Fourth: activating the Islamic approach in family relations. Finally, it is a conclusion with the most prominent results, recommendations and suggestions of the study.