Islamic Family Law In Indonesia Research Articles

History of Development and Reform of Family Law in Indonesia and Malaysia

This study aims to determine the history of the development and reform of Islamic family law in Indonesia and Malaysia. The writing method of this article uses a comparison. It compares the history of the development and reform of Islamic family law in Indonesia and Malaysia. As a result, Indonesia and Malaysia have experienced dynamic developments and reforms in the Islamic family law pre and post-independence. Both countries are Muslim-majority countries, so Islamic law, especially the Islamic family, will develop over time. As for the difference, in Indonesia, even though the Muslim majority is more than 85%, discussion of the draft law on Muslim marriage or family always becomes an issue. It is related to establishing the State Foundation of Pancasila, which accommodates all religions. After the 1998 reform, democracy was broadly applicable. It causes the desire to formalize Islamic teachings into a positive legal system to become increasingly stronger. In Indonesia, there is some difficulty in reforming family law regarding the issue between Islamists, nationalists, Muslims, and followers of other religions. It differs from Malaysia, which established Islam as the official state religion. Malaysia is a Muslim-majority country in Southeast Asia and became the most dynamic in reviewing its Muslim family law provisions.
 Keywords: Islam, family law, history, Indonesia, Malaysia

PEMBATALAN PERKAWINAN KARENA KAWIN PAKSA MENURUT HUKUM KELUARGA ISLAM DI INDONESIA

The Tangerang Religious Court has decided to cancel marriage due to forced marriage with Number 2801/Pdt.G/2018/PA.Tng where the husband requests to cancel the marriage because the marriage was carried out by force. The 2 (two) main issues raised are whether forced marriages can be used as a reason for annulment of marriages based on Islamic family law in Indonesia and whether the decision of the Tangerang Religious Court is in accordance with Islamic family law in Indonesia or not. The research was conducted normatively with the nature of descriptive-analytical research and drawing conclusions using deductive logic methods. Forced marriage causes disputes in the household, so it can be a reason for filing an annulment of marriage. Tangerang Religious Court Decision No. 2801/Pdt.G.2018/PA.Tng states that the marriage annulment is granted so that, in this case, the marriage annulment has fulfilled the reasons according to the provisions of Article 71 letter (f) Compilation of Islamic Law which was caused by coercion. Thus, the decision is appropriate based on a review of Islamic family law in Indonesia.

Violation of Women's Rights on Divorce: Study on Religious Court Decision

Objective: This study aimed to show the causes of post-divorce vio-lations of women's rights and the implications of religious court de-cisions on women which violate their rights. This objective is based on the fact that various problems in marriage cause women to some-times file for legal divorce from their husbands. However, religious court decisions on divorce have violated women's rights, both the right to maintenance and mut'ah.
  
 Theoretical Framework: Divorce and its settlement in religious courts in Indonesia have problems that sometimes disadvantage women.
  
 Method: The research was conducted with a qualitative approach, this is based on the data studied which are facts and documents re-lated to religious courts on divorce. This study used two data collec-tion methods, namely documentation of Religious Court decisions through directories and interviews.
  
 Results and Conclusion: The decision was confirmed to inform-ants through interviews with a number of judges and women as plaintiffs. Based on the results, the Religious Court decision on di-vorce violating women's rights produces poverty and life stress for women. Women do not get justice because the Religious Court de-cision creates gender bias. Therefore, it takes courage from judges in deciding divorce cases to realize 3 legal objectives and a legisla-tive review of several articles in Law on Marriage for the reformula-tion of Islamic Family Law in Indonesia.
  
 Research Implications: The results of the study have implications for changes in religious court decisions on divorce, so that they are no longer detrimental to divorced wives.
  
 Originality/value: Changes in the religious court system towards the problem of divorce are urgently needed, the fulfillment of the rights of wives who are victims of divorce must be the main aspect to be considered by judges.

Regulation of the Director General of Islamic Guidance on Marriage of Husband during Wife's Iddah Period: An Effort to Develop Family Law in Indonesia

This article examines the marriage of a husband during his wife's iddah period at the Office of Religious Affairs in Lampung Province, and analyzes the practice based on the Circular Letter of the Director General of Islamic Guidance. The purpose of this article is to review the reasons for considering the Circular Letter of the Directorate General of Islamic Guidance towards women's rights, and what relevance the Circular Letter of the Directorate General of Islamic Guidance towards the development of Islamic family law in Indonesia. The method used is qualitative, this type of research is field research, which is conducted at the KUA in Lampung Province, as a sample of Bandar Lampung City, Metro City and East Lampung Regency. Data sources in this research are primary and secondary data sources. Data analysis techniques using inductive framework, analysis using mashlahah theory. The result of the research is that the Circular Letter of the Director General of Islamic Guidance Number P-005/DJ.III/HK.00.7/10/2021 concerning Marriage of Husband in Wife's Iddah Period, is a regulation that regulates the prevention of husbands who want to marry during their wife's iddah period. The existence of this prevention is an effort to create balance between men and women in iddah arrangements, this will have an impact on the value of gender justice and create benefits between couples as an effort to protect the rights of women/wives. The Circular Letter of the Director General of Islamic Guidance on Marriage in the Iddah Period of the Wife should become the status of a law, which can be binding in general and broadly, and has legal force, this is important as the development of Islamic family law in Indonesia.Keywords: Regulation of the Director General of Bimas Islam, Iddah Period, Islamic Family Law

State Attorney Law Enforcement in Marriage Annulment and its Contribution to the Development of Family Law in Indonesia

This articleexamines the optimization of law enforcement by prosecutors in annulling marriages and its contribution to the development of Islamic family law in Indonesia. This research is library research, analyzed by descriptive analysis, which is done by describing the existing facts, the method of analysis used is qualitative method, using Gustav Redbruch's theory of legal objectives. The result of this study is that the optimization of law enforcement by prosecutors in annulling marriage is relevant to Gustav Redbrudh's theory of purpose, that the purpose of law is to provide justice, legal certainty and legal benefits. With the prosecutor being given regulatory rules that support his role in enforcing the law in the field of marriage annulment for someone who violates the legislation, legal justice, legal certainty and legal benefits will be created in the community. The researcher's contribution to the development of family law in Indonesia is in the form of a proposal to policy holders, so that regulations are legislated that specifically regulate the technical guidelines that prosecutors are allowed to act directly in marriage annulment applications.Keyword: Optimization, Law Enforcement, Prosecutor; Marriage Cancellation

The Nyikok Tradition of Lampung Pepadun Indigenous People as a Fulfillment of Children's Rights and its Relevance to Indonesian Islamic Family Law

This research examines the implications of the nyikok tradition in Lampung Pepadun customary society on the fulfillment of children's rights and its relevance to the development of Islamic family law in Indonesia. This type of research is field research, which is conducted in the Lampung Pepadun indigenous community in Lampung Province. This type of research is field research, which is conducted in the Lampung Pepadun Customary Society in Lampung Province. Data sources in this research are primary and secondary data sources. Data analysis in this research uses qualitative methods. Analyzed inductive thinking approach. The results of the study that Nyikok in Lampung Pepadun cultural customs has a good purpose. Based on the Receptio A Contrario analysis, nyikok has compatibility with Islamic law, so that its practice can be applied by the indigenous people of Lampung Pepadun, because it has positive implications in fulfilling children's rights, on the other hand, it is also to protect the inherited property of the deceased father, to continue the breed so that the balance is not broken and to maintain the kinship system that has been established. The nyikok tradition has relevance to Islamic family law in Indonesia, which is relevant to KHI Article 14, Article 2 (1) of Law No. 1 of 1974 concerning Marriage and then the existence of nyikok in the context of child protection and care is relevant to Article 45 of Law No. 1 of 1974 concerning Marriage, that parents have an obligation to maintain and educate children.Keyword: Nyikok; Lampung Pepadun; Children's Rights; Indonesian Family Law.

The Concept of Qiwamah and Its Implications for Gender Justice in Islamic Family Law in Indonesia

Family is the most important element in the formation of a society. Islam has a very fair concept in family leadership. In Islam, rights and duties are always regulated in balance. This balance results in the establishment of a harmonious relationship between husband and wife in the family. This paper uses an analytical descriptive method that examines Qiwamah issues related to women's leadership in the household. And the aim of this research is to find out how the concept of Qiwamah and gender justice in Islamic family law against the concept of Qiwamah in its implications for gender justice. This paper uses analytical descriptive method. The results of this study found that Islam gives leadership in the family to husband and wife, if both have the qualifications to be leaders. Leadership is not only given to men (husbands) only. Leadership is given to both parties if both have leadership qualifications, be it wives or husbands. In Islam, leadership/ Qiwamah in the family aims to create harmonious conditions so that the family can achieve happiness both in this world and in the Hereafter.

Dwangsom: Investigate the Conceptual Basis of Religious Court on Child Custody Rulings

This study aims to investigate the philosophical underpinnings of the law regarding the issue of religious court judges' decisions regarding the right to control and care for children. Various Religious Court decisions cannot be obeyed voluntarily by the party controlling the child (the Defendant) because the mother provides the finest care for children under 12. Based on the decision of the party entitled to care for the child (Plaintiff), and according to the survey, several respondents found the decision to be hollow (illusion). It is a normative study with a conceptual approach that is then descriptively and qualitatively analyzed. Initially, the application of Dwangsom in child support cases was psychological pressure on the Defendant to voluntarily carry out the provisions of the decision and psychological protection for the child, according to the results. Despite this, Dwangsom must be provided upon request. Second, a court decision grants a Dwangsom petition, effectively legalizing the practice in cases of religious child-rearing. Thirdly, the Judge's approval of the Plaintiff's request to establish Dwangsom positively affects the renewal of Islamic family law in Indonesia because numerous decisions regarding child support are not made voluntarily.

Understanding of Legal Reform on Sociology of Islamic Law: Its Relevance to Islamic Family Law in Indonesia

Understanding of Legal Reform on Sociology of Islamic Law: Its Relevance to Islamic Family Law in Indonesia

Violation of Women's Rights on Divorce: Study on Religious Court Decision

Objective: This study aimed to show the causes of post-divorce violations of women's rights and the implications of religious court decisions on women which violate their rights. This objective is based on the fact that various problems in marriage cause women to sometimes file for legal divorce from their husbands. However, religious court decisions on divorce have violated women's rights, both the right to maintenance and mut'ah.
  
 Theoretical Framework: Divorce and its settlement in religious courts in Indonesia have problems that sometimes disadvantage women.
  
 Method: The research was conducted with a qualitative approach, this is based on the data studied which are facts and documents related to religious courts on divorce. This study used two data collection methods, namely documentation of Religious Court decisions through directories and interviews.
  
 Results and Conclusion: The decision was confirmed to informants through interviews with a number of judges and women as plaintiffs. Based on the results, the Religious Court decision on divorce violating women's rights produces poverty and life stress for women. Women do not get justice because the Religious Court decision creates gender bias. Therefore, it takes courage from judges in deciding divorce cases to realize 3 legal objectives and a legislative review of several articles in Law on Marriage for the reformulation of Islamic Family Law in Indonesia.
  
 Research Implications: The results of the study have implications for changes in religious court decisions on divorce, so that they are no longer detrimental to divorced wives.
  
 Originality/value: Changes in the religious court system towards the problem of divorce are urgently needed, the fulfillment of the rights of wives who are victims of divorce must be the main aspect to be considered by judges.

Juridical Review of Early Marriage in Tangerang District Based on Islamic Family Law in Indonesia

Indonesia sets the age for marriage regulated in Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 concerning Marriage, in this regulation, there is a change in the age of marriage for women, namely from 16 years to 19 years. Article 15 paragraph (1) of the Compilation of Islamic Law (KHI) also regulates the age of marriage, namely 19 years for men and 16 years for women. The limitation on the age of marriage aims to make the prospective bride and groom more ready to live in the household. In Indonesia, the practice of early marriage is still rife, therefore researchers are interested in studying early marriage in Tangerang District. In this study, there are two main issues, namely: How to regulate early marriage according to Islamic family law in Indonesia and what factors are causing early marriage in Tangerang Regency. This study uses normative legal research methods supported by empirical data, using secondary data which is then analyzed qualitatively. The results of the study describe the regulation of early marriage according to Islamic family law in Indonesia that in matters related to early marriage, it is not permissible to ignore the Compilation of Islamic Law (KHI) and the Marriage Law No. 1 of 1974, even though on the grounds that early marriage in a legal view Islam is not prohibited directly or textually. Because it is the main source in the implementation of marriage law, especially in Islamic family law in Indonesia. And the factors that cause early marriage in Tangerang Regency are parents' will, promiscuity, custom and culture, economics, religion, and education. However, the dominating factors are promiscuity factors and economic factors

Modernisation of Islamic Family Law in Indonesia (Analysis of Counter Legal Draft- Compilation of Islamic Law in Inheritance Law)

This article explains the construction of inheritance law built by the Counter Legal Draft-Compilation of Islamic Law (CLD-KHI) and how it is relevant to the challenges and agenda of reforming Islamic family law in Indonesia in the future. For data collection, a literature review in the form of primary, secondary and tertiary legal materials is used. The specification of this research is descriptive analytical, which aims to provide a description carried out using qualitative methods from legal theories and legal doctrines as well as the opinions of Islamic law experts. It can be concluded that the concepts and ideas of CLD-KHI thinking in inheritance law have the spirit of legal liberalisation. The method used is to capture the spirit of a Qur'anic text or prophet's hadith so as to obtain the universal message of the text, namely the public good and the purpose of the sharia, not the literal meaning contained in the text of the verse. So it is very natural that since its inception in 2004 until now, the ideas and thoughts of CLD-KHI have not only caused prolonged polemics, but also tremendous rejection from various groups.

Reconstruction of Marriage and Divorce Law for Civil Servants

This article analyzes Government Regulation Number 45 of 1990, this regulation contains gaps in polygamy arrangements between men and women who are civil servants.  The focus of this article is to describe the construction of polygamy regulations for the State Civil Apparatus (ASN) which seems gender biased, then how efforts to reconstruct polygamy rules for the State Civil Apparatus (ASN) and then analyze its contribution to the reform of Islamic family law in Indonesia. This library research article is descriptive analytical. The primary data sources in writing this article are the Qur'an, Hadith, and positive laws in Indonesia that regulate marriage and divorce for Civil Servants. The analysis uses the theory of Mashlahah Mursalah, Gender and Feminist Amina Wadud and Gustav Redbruch's theory of legal objectives. The result of the analysis is Government Regulation Number 45 of 1990 concerning Marriage and Divorce Permits for Civil Servants which regulates polygamy for Civil Servants, must be rejected because it contains legal content that is not fair to women as legal subjects. It should be reconstructed by providing equitable regulations, no discrimination, and equalizing the position of men and women before the law. Keyword: Reconstruction, Marriage and Divorce Law, Civil Servants

Judges' Ijtihad on Women's Rights after Divorce and its Contribution to Family Law Reform in Indonesia

Women's rights in divorce cases are not regulated explicitly in the Compilation of Islamic Law. This, however, has an impact on the inequality that is adhered to in the principle of marriage law. The purpose of this article is how the ijtihad of judges regarding women's rights after divorce is contested and their contribution to family law reform in Indonesia. The method of analysis is carried out qualitatively, with a normative approach. Data analysis techniques use the theory of mubilah and mashlahat. The results of the study show that the consideration of the Panel of Judges ex officio punishing husbands for providing iddah and mut'ah maintenance, or other rights, departs from a new interpretation of the nusyuz concept which applies to both parties (men and women). Another consideration is based on Supreme Court Jurisprudence Number 137 K/AG/2007. The Panel of Judges is also based on the Supreme Court Circular Number 3 of 2017. Such a decision is a legal breakthrough. In the reading of mubilah, such a decision is in accordance with the principles of interdependence, especially in the concept of nusyuz. Such a decision is also in accordance with the principle of benefit. In the end, the renewal of Islamic family law in Indonesia is a necessity.

IMPLIKASI HUKUM ADAT TERHADAP PEMBAGIAN WARISAN ANAK PEREMPUAN PERSPEKTIF HUKUM KELUARGA ISLAM

Lampung's indigenous peoples have a tribal culture divided into two large customary groups, namely the Saibatin and Pepadun indigenous peoples, and the majority of community members embrace Islam in terms of marital affairs, which will be passed down through the family. Indigenous peoples, in general, continue to follow the procedures outlined in their customary law. The purpose of this study is to examine the position of women in inheritance distribution in Lampung customary law in the districts of Way Kanan and Pesisir Barat through the lens of Islamic Family Law in Indonesia. This research is a field study that describes and describes the situation and phenomena that occurred in greater detail. This study investigated the role of women in inheritance distribution in depth. A qualitative descriptive research method is one in which only situations and events are described. This study does not seek or explain relationships, nor does it test hypotheses or make predictions; instead, it simply describes variables one by one. A purposive sample was used in this study. The following people participated in this study as informants: Key informants included four traditional leaders, four women who were heirs, and four indigenous people. Data was gathered through interviews, observations, and documentation, as well as primary and secondary sources. Data collection activities are carried out after the research has been completed or compiled. Data collection is one of the processes in research that can aid in the resolution of the problems being studied; thus, the data collected must be adequate. Data analysis begins with data collection and ends with data reduction, data presentation, and conclusions. 

PERLINDUNGAN HUKUM KELUARGA ISLAM DI INDONSIA TERHADAP KORBAN KEKERASAN SEKSUAL

Sexual violence is a type of crime that greatly affects the victim. In general, sexual violence occurs within the family. Islamic family law in Indonesia has special rules, but it is not enough to provide a solution for victims. This phenomenological study aims to prove the protection of Islamic family law in Indonesia and to find forms of protection for victims of sexual violence. This study uses qualitative methods, collects library data and analyzes it analytically descriptively. This study proves the protection of Islamic family law in Indonesia against victims of domestic sexual violence. The forms of legal protection are preventive and repressive. Preventively, article 80 number (2) of the KHI stipulates that the husband is obliged to protect, fulfill the needs of his wife and the provisions for ta'lik talak as the best way and anticipate if the husband commits violence in the future, including acts of sexual violence. In a repressive manner, the wife has the right to sue her husband for divorce (Article 19 letter d of Law Number 1 of 1974 and Article 116 letter d of the KHI) for reasons of nusyuz. This study concludes that although the KHI and the Law do not explain the law of a nusyuz husband, the norms of Islamic family law explicitly stipulate that women's rights to protect themselves from sexual violence are not only limited to personal authority but have become the authority of religious and state law (in this case the court) at a time.

Pemikiran Imām al-Shāfi’i tentang Talak Tafwi̅ḍ dan Relevansinya dengan Teori Kesetaraan Gender dalam Praktik Pengembangan Hukum Keluarga Islam di Indonesia

This thesis is the result of a literature study entitled “Imām al-Shāfi’i Thoughts on Talak Tafwi̅ḍ and Its Relevance to the Theory of Gender Equality in The Practice of Developing Islamic Family Law in Indonesia”. Academic problems are felt by the author so do this research, because there are still many people who consider that the absolute right of divorce belongs to a husband. This study aims to answer the question of what is the opinion and legal basis of Imām al-Shāfi’i thinking about the ability of the practice of divorce tafwi̅ḍ?. And how is the relevance of talak tafwi̅ḍ with the theory of gender equality in the practice of developing Islamic Family Law in Indonesia?. The results of the study concluded, Imām al-Shāfi’i argued that divorce tafwi̅ḍ the law is permissible, because of the surrender of the authority of divorce to his wife was once done by Rasullah saw. which is based on naṣ al-Qur'an surah al-Aḥzāb verses 28-29, and hadith ṣahih narration muttafaq ‘alaih from Aishah r.a. The relevance of tafwi̅ḍ divorce with the theory of gender equality, that with the practice of divorce tafwi̅ḍ this can help to lift the status/gender of women, especially in relation to divorce. When a husband submits his right to divorce authority to his wife, then surely a husband has raised his wife degree in the concept of gender equality.
  

The Role of Supreme Court Jurisprudence in Development of Islamic Family Law in Indonesia

The development of Islamic family law is carried out in all countries where the majority of the population is Muslim. New ideas in the field of Islamic family law are generally stated in the form of legislation. In Indonesia, the final court decision in the field of Islamic family law decided with the judges of Indonesian Supreme Court. The decision of Supreme Court judge will be jurisprudence. This study aims to examine the role of Supreme Court's jurisprudence in development of Islamic family law. The research conducted was library research. This study concluded: First, Judges of the Supreme Court in the Islamic civil field have a very important role in the development of Islamic family law in Indonesia. Judges can make breakthroughs or reform the thoughts of Islamic family law as outlined in the decisions they issued. Second, decisions of Supreme Court judges that have permanent legal, fixed and final will be used as jurisprudence or references by judges in the Religious Courts.

Long-Distance Relationship Family Resilience Strategy and Its Relevance to the Development of Islamic Family Law in Indonesia

Long-Distance Relationships (LDR) families have more complex challenges than families living under one roof (proximal romantic relationships). Interestingly, some LDR families in Ngawi, Indonesia, can maintain their family relationships to be harmonious. This article explores the strategies used by the LDR family in realizing a harmonious family and its relevance in the development of Islamic family law in Indonesia. This article focuses on the six LDR families in Ngawi and analyzes them using psychological approaches and family resilience theory. Using case study research, the authors found that LDR families have six strategies to realize harmony in their families. Commitment strategies, effective communication, inner comfort, economic fulfillment, spiritual improvement, and mutual understanding to realize harmony in their families. The psychological approach used to understand couples indicates an emotional connection in the family. Thus, the authors argue that the construction of family law needs to focus on aspects of psychology that are associated with aspects of economics and communication. The first aspect fulfills the right of birth in the family, while the latter fulfills the inner right of the mother. Both aspects are essential to the LDR family and require balance.

Analisis Putusan MK No. 46/PUU-VIII/2010 tentang Status Anak Hasil Nikah Siri Perspektif Maqāsid Syarī’ah Imām Al-Syātibī

The Constitutional Court's decision Number 46/PUU-VIII/2010 concerning the status of children born out of wedlock is a revolutionary decision made by the Constitutional Court. The decision stated that children born out of wedlock not only have a civil relationship with the mother and their mother's family, but also have a civil relationship with their biological father and biological father's family which can be proven based on the development of science and technology. The changes that occur in Article 43 paragraph (1) have implications for Islamic family law in Indonesia. The new law is interesting if reviewed using maqāṣid syarī'ah analysis with library research, with documentation data collection techniques, and uses two data sources, primary and secondary. The results showed that according to the maqāṣid syarī'ah analysis, the Constitutional Court's decision did not violate the the rules of syara', because it contained maṣlaḥah (goodness) and did not contain elements of ḍarar (damage) in the decision. This decision is also in line with the principles of maqāṣid syarī'ah, namely the principles of ḥifẓ al-dīn (protection of faith or religion), ḥifẓ al-nafs (protection of life), ḥifẓ al-‘aql (protection of intellect), ḥifẓ al-nasl (protection of lineage or ancestry) and ḥifẓ al-māl (protection of property or wealth). The implication of this decision is that children born out of wedlock have the same rights as children born from legal marriages, namely the right to lineage to their biological father, to earn a living, inheritance and equality before the law.