Marriage Consent Research Articles

Persetujuan Perkawinan Atas Sukut (Diam) Perempuan Ketika Peminangan Dalam Pandangan Hukum Di Indonesia

Engagement is the first step taken by someone when they are about to get marriage. In this engagement, individuals are encourage to get to know each other (ta’aruf). This statement emphasize the emportance of transparency and communication between individuals during the engagement process to facilitate a smooth relationship in the future family life. This research examines the concept of “sukut” (silence) as a form concent for women in marriage proposals in Indonesia, particularly under Islamic law. It critiques the legal framework that interprets a woman’s silence as consent, which can perpetuate gender inequality and marginalize women’s voice in marital decisions. The study emphasizes the necessity of mutual consent in marriage, as mandated by Indonesian laws and Islamic law (fiqh), and highlights the risk of coercion when a woman’s silence is misinterpreted. The research employs a literature review methodology to analize these issues and suggests improvements for legal protections of women’s rights in marriage. The conclusion of this research is that marriage conducted without the explicit consent of each party, especially the bride, can lead to forced marriages. And forced marriage is fundamentally contrary to the principles of marriage in Islam and the legal regulations regarding sexual violence.

ANALYSIS OF ISLAMIC LAW REGARDING THE ISSUANCE OF MARRIAGE DISPENSATION IN INDONESIA

Marriage dispensation is a legal solution for those who mostly do not yet have formal legal authority to marry. By taking the step of marriage dispensation, they are trying to ensure that their marriage can be legally recognized. This study analyzes differences of opinion among fiqh experts in determining age limits (baligh, ihtilam, rushd) which have implications for the right to consent in marriage. Marriage is prescribed in the Qur'an to realize the process of human regeneration. The desired generation is a generation of quality so that the task of living life is carried out based on the goals set by the Koran. This research aims to find out how the age limit for marriage in Islam is then analyzed by Islamic school scholars. Islam itself does not limit the ideal age for marriage. The jurists have different opinions regarding the age limit for marriage. The Shafi'i and Hanbali schools believe that the ideal age for marriage is 15 years, while Abu Hanifa believes that the age of maturity comes at 19 years for women and 17 years for men. Meanwhile, Imam Malik believes that the ideal age of maturity is 18 years for both men and women.

DOWRY PRACTICES IN LAMPUNG PESISIR TRADITIONAL MARRIAGES: AN ISLAMIC LEGAL PERSPECTIVE

In Indonesia, Islamic law requires that the giving of a dowry in marriage involves mutual agreement between the prospective groom and bride. In Padang Ratu Village, the practice of dowry does not deviate from Islamic principles. Instead, the dowry amount is agreed upon by both parties, influenced by the prospective bride's family's demands for specific amounts and forms of dowry, which may include money and goods. If the prospective groom’s family agrees to these terms, the marriage can proceed. This research explores two main questions: the implementation of traditional dowry practices in Lampung Pesisir, Padang Ratu Village, Wonosobo District, Tanggamus Regency, and the Islamic legal perspective on these practices. The research employs normative legal research with a descriptive approach, utilizing historical and legislative methods. Secondary data are analyzed qualitatively. The findings indicate that while only half of the dowry amount is explicitly mentioned during the marriage consent process classifying it as musamma dowry the practice of providing dowry in the form of goods does not contravene Islamic law.

Tradition of the forced marriage of couples who return late at night perspective of Islamic law: Case study of the tradition of the Lekuk Lima Puluh Tumbi Lempur Society, Jambi

Islam upholds the principle of willing consent in marriage, prohibiting coercion, yet in the Lekuk Lima Puluh Tumbi Lempur Jambi community, forced marriages occur due to local customs, leading to negative consequences. The research method used was field research focusing on the Lekuk Lima Puluh Tumbi Lempur community, Jambi, Indonesia. The data obtained were analyzed and studied with Islamic law. The findings first show that the forced marriage occurs when a man and a woman return to the village after a late night. Second, factors behind these customary sanctions include religious, social and customary ones. Third, the impact of these customary sanctions is the occurrence of underage marriage and the resultant divorce. Fourthly, the marriage is contrary to Islamic law, because it involves coercion, even though the pillars of marriage are fulfilled, but the conditions of marriage are not fulfilled, so the law of marriage becomes fasid (broken). Therefore, as a consideration, if the sanction of forced marriage is carried out without regard to the cause, whether chronological or consensual, and age, but only based on customary coercion, then the customary sanction can cause more significant harm than benefit, so the custom must be abandoned.

Dilemmas faced by judges when granting marriage dispensations for child marriages in West Java, Indonesia

Abstract Child marriage remains common in Indonesia, particularly in West Java. The highest number of child marriages is seen in the Tasikmalaya and Indramayu regencies. We argue that although the Marriage Law has been amended and the age of marriage consent increased to 19 years to prevent child marriage, the law fails to eliminate child marriages as it allows for a marriage dispensation under emergency conditions, such as a minor’s premarital pregnancy. This article is based on empirical research that employs sociolegal approaches to examine the grounds adopted by judges when deciding whether to grant or reject marriage dispensation applications in these two regencies. It was found that judges face dilemmas in examining the applications because they must prioritize the best interests of the children. As a result, their decisions are made by considering emergency and non-emergency conditions related to the child. Legal instruments are found to be more comprehensive in Tasikmalaya than in Indramayu. However, their implementation continues to be ineffective in eliminating child marriage.

The Research Activity of Rev. Prof. Remigiusz Sobański in the Field of Substantive Canon Law

Remigiusz Sobański (1930–2010), a long-time professor at the Faculty of Canon Law of the Academy of Catholic Theology in Warsaw, and then at Cardinal Stefan Wyszyński University in Warsaw. Although his research focused mainly on the theory of canon law, he also published several dozen works in the field of canonical matrimonial law. These works cover four main research areas: marriage law (general rules), marriage consent, form of marriage, mixed marriages. Moreover, as a judicial vicar, he prepared and published several dozen sentences in the cases of nullitatis matrimonii.

Problematyka niezdolności konsensualnej do zawarcia małżeństwa w pracach Papieskiej Komisji do Rewizji KPK w fazie wypracowywania nowych kanonów (1966-1973)

Commenced after the end of the Second Vatican Council, the reform of canon law included, inter alia, matrimonial law. A particularly important area of codification in this respect was the marriage consent, which is the cause of marriage. The lack of regulations on consensual capacity in the 1917 KPK and the development of psychological and psychiatric sciences prompted the doctrine and jurisprudence to fill this gap. No wonder that in the process of reforming and codifying canon law, the Pontifical Commission for the Revision of the CIC, supported by the consultors, attempted to define more precisely the consensual incapacity. The intensive work of the consultants of the De matrimonio team of the Pontifical Commission in this regard (in the first phase of codification: 1966-1973) resulted in the preparation of a draft of new canons, which became the basis for further work. The jurisprudence of the Tribunal of the Roman Rota played a significant role in the process of revision and codification. The subject of this study is the process of shaping the future can. 1095, ff. 1-3 of the Code of Criminal Procedure in the first of the above-mentioned phases (1966-1973) of the complex process of the post-conciliar revision and codification of canon law. In the first part, the author discusses the works carried out in the years 1966-1970, and in the second part, the works lasting in the years 1970-1973.

Associated factors of legal child marriage in Turkey: pregnancy and below-average intelligence.

Turkish civil code permits child marriages at 16-17 years of age, but if a child is 16 years old judicial consent is needed. Before making a final decision on marriage consent, the judges refer these children to the doctor, and ask whether they are psychologically and physically ready for marriage. While the literature on child marriage in Turkey is rich, little is known about the underlying factors leading 16-year-old girls to request legal child marriage. This study examined the socio-demographic and clinical characteristics of girls applying to the courts for judicial marriage consent. Hospital records of girls admitted to a hospital in the Istanbul province of Turkey between January 2015 and December 2018 for the assessment of their physical and mental readiness for marriage were scanned. Of the 122 girls admitted to hospital for this purpose, eight were excluded as they had incomplete data, leaving 114 participating girls. All girls were Turkish citizens and had been referred from the law courts. Being pregnant/having a child (54.4%), having had a religious (non-legal) marriage (49.1%) and having an intelligence score of less than 90 (91.2%) were common among the participants. Among those who had a religious marriage, 78.6% were pregnant/had a child at the time of evaluation and 32.1% reported that they were pregnant before their religious marriage took place. None of the participants reported being forced to marry, but many had run away from home to marry (33.3%). Among those running away to marry, the major reason for deciding to do this was being pregnant (63.2%). Running away from home to marry was found to be related to lower parental educational levels (p<0.05). Contrary to the literature, the findings indicate that girls who request judicial consent for legal child marriage in Turkey are not being forced to marry. However, lower educational level seems to be an important factor. Below-average intelligence of the girl and her parents, running away from home to marry and early unsafe sexual intercourse, leading to child pregnancy, were found to be closely associated with legal child marriage in Turkey.

Keabsahan Pengucapan Ijab Kabul Menurut Pandangan Ulama Aceh Singkil

The pronunciation of Ijab Kabul is a phenomenon that the Aceh Singkil Ulama respond to in contradiction, so that it becomes an interesting material to be discussed according to the Aceh Singkil Ulama. The research question in this thesis is, How is the legal consent in marriage according to the views of the Aceh Singkil Ulama. And what is the legal basis used by the Aceh Singkil Ulama against the conditions for the validity of the consent and acceptance in the marriage contract. In the discussion of this thesis using (Field research). The data sources are primary data sources and secondary data sources. Based on the research results obtained show that; First, the pronunciation of Ijab Kabul is something that is easy to pronounce, not to be complicated for men and the Aceh Singkil Ulama make it easier to pronounce the Ijab Kabul for those who carry out this marriage, namely being able to use their own language (regional language), the most important thing is not to deviate from the meaning of marriage. (al-zawaj). Second, the legal basis regarding the pronunciation of consent and consent in Surah Az-Zariyat verse 49 "And we created everything in pairs so that you remember the greatness of Allah", that Allah has indeed promised in the Qur'an every creature on this earth was created. by God in pairs. And marriage is a job that is recommended for men who are able to get married so hasten to get married. And in the Qur'an it is also explained in Surah Al-Maidah verse 1 "O you who believe! Fulfill promises. Livestock is lawful for you, except what will be mentioned to you, by not making hunting lawful when you are in ihram (Hajj or Umrah). Verily, Allah sets the law according to what He wills." From the explanation above, it can be concluded that the pronunciation of marriage is something that is easy to say and a job that is recommended by Allah SWT.

Male Perception on Sexual Consent and Coercion in Heterosexual Marriages: The Case of Benue State, Nigeria

The issue of sexual consent in marriage which is deeply problematic due to the persistence of socio-cultural constraints on women’s sexual agency and sexual decision-making has received less attention. Emerging evidence suggests that coerced, pressured and unwanted sexual activities are generally still common experiences of women. Research concerning male’s opinions on women’s consent to sex in marriage remains scarce. In this article, we explored men’s perceptions on sexual consent seeking and receiving within the context of marriage in order to expose the traditional gender imbalances, and interrogate the male-privileging ideals. Deploying a qualitative research approach, 8 Focus Group Discussions (FGD) with men aged 25-55years and in-depth interviews (IDI) with 12 key Informants were conducted to elicit data. Transcripts of each FGD and IDI were analyzed and major themes were developed. The study adopted the scripting and radical feminism as theoretical underpinnings. The findings revealed that the prevailing socio-cultural context in which men live has tremendous impact on their perceptions on women’s sexual rights and consent in marriage. Most men in the study understand sex in marriage as just one of the duties of a wife. Results also suggest that token resistance beliefs and alcohol consumption among men encourage forced sex. This study clearly shows that the issue of sexual coercion in marriage is fuelled by patriarchal control over women’s sexuality and requires serious attention in the study area. We therefore recommend cultural reorientation and enactment of laws to deal with the issue of non-consensual sex in marriage.

KONSTRUKSI SINTAKSIS KAIFIATUL IKHBAR DALAM AKAD IJAB KABUL PERNIKAHAN

In the context of composing Arabic sentences, the rules of kaifiatul ikhbar are included in the rules which are basic and foundation. The kaifiatul ikhbar rules are formed from the composition of the mubtada and khobar and are used in various forms of sentences, including the sentence structure of the marriage consent. Accuracy in pronouncing the kabul marriage license sentence including the arrangement of the preacher and khobar becomes important considering this kabul consent will be a legal requirement or cancellation of a marriage contract. This study attempts to analyze and present several forms of kabul mariage agreement and syntactic analysis, especially in the kaida of kaifiatul ikhbar. By using a library approach and linguistic analysis from its syntactic aspects, the results of this study indicate that there are 11 forms of kaifiyatul ikhbar with various syntactic analysis specifications. This shows that the form of kaifiatul ikhbar in the marriage contract is actually not only one forms, but with a variety of sentence forms

Consent in Marriage: A Radical Feminist Analysis of Pakistani Law

Marital rape is not a recognized offense in the Islamic Republic of Pakistan. The legal definition of rape, as amended in 2006, defines the victim of rape as a woman, thereby opening room for judicial interpretation to criminalize rape within marriage. Despite this, there have been no reported cases of marital rape in Pakistan. Using the radical feminist lens, it is argued this is because the current law fails to comprehend the unreality of a wife’s ‘consent’ to sex in marriage. Under Shariah, a wife has an obligation to sexually submit to her husband, whereas the legal, social and economic inequalities prevalent within marriage also oblige her to have sex. Neither precludes legally valid consent. A reconception of marital rape based on sex inequality is required.

Podstępne wprowadzenie w błąd (kan. 1098 KPK) w opublikowanych orzeczeniach Roty Rzymskiej z lat 2010-2012

The subject of this study is the jurisprudence of the Roman Rota Court regarding deceptive misleading (canon 1098 CIC) from 2010-2012, contained in Decisione seu sententiae. During this period, the title of marriage annulment was included in twelve judgments; ten of them have been published.&#x0D; The analysis of rotating sentences was presented in the following thematic areas: deceptive misleading as a factor protecting marriage consent; deceptive action; error as a result of deception; the attribute of a person as an object of deceptive action (in genere and in individual judgments); deceptio dolosa prove. &#x0D; Undoubtedly, the jurisprudence of the Roman Rota also provides for the area of ​​deceptive misleading, the appropriate point of reference in the resolution of nullitatis matrimonii cases by church tribunals of lower degrees of jurisdiction.

Aquinas on Mixed Actions

Little attention has recently been paid to Aquinas's analyses of mixed actions, which constitute a significant sort of border line cases between the and the involuntary. A textual inconsistency can be found in Aquinas's accounts in different contexts: actions like throwing cargos overbroad are involuntary without qualification (involuntarum simpliciter) as well as voluntary without qualification (voluntarium simpliciter). This paper focuses on Aquinas's analysis of oaths under compulsion and compulsory consent in marriage, where he first introduced the topic of mixed actions. By examining the moral obligations relating to these actions, it argues that Aquinas is reluctant to identify these actions as fully in terms of the will's absolute controls over one's moral activities, because this would make some agents in his scenarios either to be stuck in moral dilemmas or to be blamed for actions out of insuperable fear. The unrealistic conception of the will's power presents a more formidable challenge than the textual discrepancy to the plausibility of a Thomistic theory of voluntariness and moral agency.

Warunek co do przyszłości (kan. 1102 § 1 KPK) w wyroku Roty Rzymskiej c. Alwan z dnia 18 kwietnia 2008 roku

The rotal sentence c. Alwan, concerning marriage between Edmund and Emma, concluded on April 23, 1985, was passed. Marriage was not a happy one from the beginning and the wife, after serious misunderstandings and conflicts, definitely left home, taking a six-month-old child with her (July 3, 1986). On May 29, 1989 the man asked the Ecclesiastical Court in Radom to declare his marriage null and void on the basis of simulation of marriage consent by the woman. On September 25, 1990, a negative sentence was passed. On February 9, 1993, Edmund initiated a new case (in the same court) on the basis of de future condition made by him in relation to the defendant (that she would move to his family home to help his elderly parents on their farm), which she did not met. On January 28, 1995, a sentence declaring the marriage null and void was passed. It was revoked by the Court of Appeals in Częstochowa. The case was taken to the Roman Rota (in the third instance) where, on April 18, 2008, a positive sentence, declaring the marriage null and void, was passed. The author provides a commentary on the rotal sentence highlighting the thoroughness of auditors when assessing the condition which was not met by the defendant.

John Donne and Early Modern Legal Culture: The End of Equity in the Satyres. Gregory Kneidel. Pittsburgh: Duquesne University Press, 2015. Pp. vii+245.

<i>John Donne and Early Modern Legal Culture: The End of Equity in the Satyres</i>. Gregory Kneidel. Pittsburgh: Duquesne University Press, 2015. Pp. vii+245.

Bitna svojstva ženidbe - jednost i nerazrješivost

Članak se bavi problematikom vezanom za bitna svojstva ženidbe, jednost i nerazrješivost. Crkva je oduvijek promatrala ženidbu kao naravni bračni savez koji je među krštenima i sakrament, odnosno naravna stvarnost ženidbenog saveza uzdignuta je u nadnaravni red, u djelotvorni znak milosti. Bitna svojstva, jednost i nerazrješivost, koja su vlastita ženidbi kao naravnom savezu u kršćanskoj ženidbi zadobivaju posebnu čvrstoću. Ova svojstva bitna su i za kršćansku i nekršćansku ženidbu jer proizlaze iz same naravi i bitnih svrha ženidbe. Kršćanska tradicija i nauk svetoga Pavla naučavaju da su ova dva svojstva slika jedinstvene i nerazrješive veze Krista i Crkve. U članku je obrađeno i pitanje isključivanja bitnih svojstava iz ženidbene privole, odnosno dokazivanje ništavosti ženidbe zbog isključenja jednosti i nerazrješivosti pozitivnim činom volje.

Matrimonium per procura w Kodeksie Prawa Kanonicznego z 1917 i 1983 roku – zarys prawnoporównawczy

Being an act of will through which a man and a woman offer themselves to each other and accept each other to make an irrevocable union, the marriage consent in the Catholic Church has to be expressed in a canonical form and in a proper manner. Such a consent is expressed by both nupturients at the same time and place and – in princi­ple – expressed personally by the two people entering the matrimony. However, as hi­story shows, marriage vows have been made by proxy “since forever”. Contracting a marriage between two absent people ( inter absentes ), i.e. between prospective spou­ses who – for some reason – could not take part in the ceremony in person – has a long tradition, although its reception has varied from one society and religion to another and has undergone various modifications over time. In the Catholic Church, matrimo­nium per procura was codified by the 1917 Code of Canon Law and then in the 1983 Code of Canon Law.

Wykluczenie nierozerwalności małżeństwa i potomstwa przez pozwaną w świetle wyroku Roty Rzymskiej c. Monier z 6 marca 2015 roku

The presented sentence of the Roman Rota, to which the author provides a comment, concerns nullitatis matrimonii, which was heard by the turnus c. Monier on the grounds of exclusion by the female defendant of the indissolubility of marriage and offspring. This sentence was passed by another instance, after obtaining by the male claimant nova proposition causae (in the first and third instance the sentence was negative, in the second instance it was positive); the defendant failed to attend all three instances. However, her testimony given in c. Monier instance, fully confirmed by the claimant and witnesses, unequivocally demonstrated that she simulated marriage consent – both in reference to bonum sacamenti and bonum prolis (the reason for both simulations were her beliefs concerning marriage and its procreative purpose, which deviated from the teaching of the Church). The sentence of the Roman Rota c. Monier is an example of an in-depth assessment of means of proof, which enabled to convincingly declare the nullity of marriage.

Błąd co do nierozerwalności małżeństwa (kan. 1099 KPK) w świetle wyroku Roty Rzymskiej c. Erlebach z dnia 9 lipca 1999 r.

The case concerns the marriage between Marcin and Maria, who, after a three-year-long relationship, entered into marriage on 24 July 2984, after being granted a dispensation from an impediment to marriage (the bridegroom-to-be was not christened). At first marriage, the fruit of which was a child, was happy, but in August 1992 it was broken by wife. Marcin brought the case before the Tribunal C. to have the marriage declared null and void, citing numerous reasons for nullity. The Tribunal determined the matter on 24 March 1995 concerning two reasons: Maria’s total simulation of marriage consent and Marcin’s error regarding the indissolubility of marriage. The parties, complainant’s three witnesses and one witness called ex officio (a priest who prepared the parties for marriage) were examined during evidentiary instruction and then, on 30 I 1996, the Tribunal passed a negative sentence regarding both reasons for nullity.After the complainant appealed to K. Tribunal (Tribunal of Second Instance) on 3 September 1997, a negative sentence was passed regarding simulation, but a positive sentence was passed regarding the indissolubility of marriage.Pursuant to canon 1682 § 1 of the Code of Canon Law, the matter was transmitted to the third instance, namely the Roman Rota, where a negative sentence was passed on 9 July 1999. In the commentary on Rotal sentence, the author highlights the fact that the judges were able to demonstrate skillfully that Marcin’s error did not determine his will.