non-Muslim Heirs Research Articles

Legal Discovery Method for Non-Muslim Heirs as Recipients of Wasiat Wajibah

Legal Discovery Method for Non-Muslim Heirs as Recipients of Wasiat Wajibah

Judicial reasoning of religious court judges in compulsory bequests to non-muslim heirs

Judicial reasoning of religious court judges in compulsory bequests to non-muslim heirs

PENGEMBANGAN KONSEP WAJIB WASIAT DI MAHKAMAH AGUNG DAN IMPLIKASINYA TERHADAP PEMBAHARUAN HUKUM DI INDONESIA

This research reveals the development of the concept of mandatory wills in the Supreme Court. Even though there is already a concept of mandatory wills regulated in article 209 of the Compilation of Islamic Law, the Supreme Court has reformed Islamic law by expanding the scope of granting mandatory wills to non-Muslim heirs, stepchildren and siblings' children. This research is classified as library research by examining various reading literature that is related to the issue being studied. This research found that the development of giving mandatory wills to non-Muslim heirs, stepchildren and siblings' children at the Supreme Court was a product of judges' ijtihad through new ijtihad methodology reforms and revolutionary thinking so that Islamic law could truly be a solution to current developments increasingly modern and complex. The panel of judges, in granting mandatory wills to non-Muslim heirs, stepchildren and siblings' children, prioritizes the principle of benefit which is oriented towards maqasid al-syari'ah to preserve religion, soul, mind, lineage and property in the distribution of inherited assets. The presence of this decision also provides a new color and concrete evidence that there has been a reform of the Islamic inheritance law system in Indonesia which is adapted to the characteristics of Indonesian society which is diverse in terms of ethnicity, social, culture, politics and religion.

Disparity in Supreme Court Decisions and Medan Religious Court Decisions Regarding the Determination of Heirs

The Supreme Court, through Decision Number 485 K/Ag/2013, issued a decision regarding determining the inheritance rights of non-Muslim heirs through the 'aṣabah sababiyah route. The legal basis regarding 'aṣabah sababiyah is not contained in the marriage law or the compilation of Islamic law. In its decision, the Supreme Court referred to the 'aṣabah sababiyah theory of Egyptian inheritance law. This decision is a legal effort based on the decision of the Medan Religious Court Number 751/Pdt.G/2011/PA.MDN, which stated that, in inheritance law, the number of ulama agreed to require that heirs and heirs must have the same religion, namely Islam. This problem is interesting to study in more depth through the views of the Medan Religious Court judges and analyze based on a progressive legal perspective. This research is empirical legal research with a qualitative approach, and data collection in this research uses observation, interview techniques, and then analysis. This research found that 'aṣabah sababiyah is an asabah in the class of heirs, which occurs because of freeing both male and female slaves. The views of the Medan Religious Court judges regarding Supreme Court decision Number 485 K/AG/2013 concerning the Determination of the Heirs of 'Ashabah Sababiyah are in two groups, namely accepting the decision and rejecting the decision. If the disparity in the decisions of the Supreme Court and the Medan Religious Court in determining heirs of different religions is viewed based on progressive law, then Supreme Court Decision Number 485 K/AG/2013 is closer to the value of legal progressivity because one form of application of progressive law by judges is to realize social justice through the method of legal discovery by placing social justice in society above statutory regulations.

Pandangan Hakim PA Dan Ulama MUI Tentang Wasiat Wajibah Dalam Pewarisan Beda Agama

This study aims to determine the chronology of the contents of Jurisprudence Number 1/Yur/Ag/2018 which allows non-Muslim heirs to inherit by means of a mandatory will and the views of the judges of the Kisaran Religious Court and the Management of the Indonesian Ulema Council (MUI) of Asahan Regency. besides that, to describe it in the theory of Maqashid Asy-Syari'ah. This type of research is doctrinal research or juridical-normative research, using a case approach and a statute approach. The granting of obligatory wills to non-adopted children and adoptive parents has been consistently applied by the Supreme Court from 1998 to at least 2016. The views of the Religious Court judges and the Indonesian Ulema Council regarding non-Muslim heirs obtaining inheritance through the obligatory will are contradictory or mutually contradictory. each other. However, jurisprudence Number 1/Yur/Ag/2018 is a legal product that is decided for the benefit of humanity with legal justice.

Heritance Rights of Non-Muslim Heirs in Islamic Law: An Analysis of Case Study Decision No. 1578 / Pdt.G / 2010 / PA. JT

This article examines the barriers to inheritance in the context of the science of roses, with a specific focus on the impact of religious differences between heirs. Utilizing a normative juridical approach and employing library research, the study analyzes Islamic law's position on non-Muslim heirs' right to inherit property from Muslim heirs. The research findings reveal that Islamic law emphasizes the principle that non-Muslim heirs are generally excluded from inheriting assets as outlined in the Qur'an, Hadith, and Compilation of Islamic Law. Furthermore, the article explores a case study decision by the East Jakarta Religious Court (case number 1578/PDT.G/2010/PA. JT) that upheld the exclusion of non-Muslim heirs based on formal legal provisions, including the principle of Islamic personality and the nebis in idem case. The judge's decision has raised normative concerns as it appears to contradict the rules stated in the religious texts. The implications of this study shed light on the intersection of religious differences and inheritance rights within the Islamic legal framework.

Yurisprudensi MA No.1/Yur/Ag/2018 Tentang Pemberian Wasiat Wajibah Kepada Ahli Waris Non Muslim Perspektif Hukum Islam

Al-Qur'an, Hadith, and KHI have determined that religious differences are a barrier to inheritance. Along with the development of the era, the phenomenon of religious differences between heirs and heirs is increasingly found, so it is necessary to have a permanent law that regulates it. Therefore, the Supreme Court established Supreme Court Jurisprudence Number 1/Yur/Ag of 2018 concerning the granting of obligatory wills to non-Muslim heirs. On the other hand, if this law is not examined more deeply, it will seem to be at odds with the regulations in Islamic inheritance law. The purpose of this study is to analyze the Supreme Court Jurisprudence Number 1/Yur/Ag of 2018 from the perspective of Islamic fiqh law. Researchers used a qualitative approach with normative Islamic law research methods, namely legal clinical and data collection methods, namely literature studies and processed using content analysis methods. The result of this research is MA Juridprudence No. 1/Yur/Ag 2018 does not conflict with Islamic inheritance law because these non-Muslims do not become heirs but receive a mandatory will because a mandatory will can be given to anyone regardless of their religion

Wasiat Wajibah bagi Ahli Waris Non-Muslim di Indonesia Perspektif Najmuddin At-Thufi

This article attempts to uncover, explore, and explain that the obligatory will for non-Muslim heirs is a contemporary issue that is not found in the texts of the Qur'an and Hadith. Departing from the dualism of the view that an ikhtiariyah will is a will given voluntarily and an obligatory will, namely a will that is obligatory in accordance with the law, the researcher wants to describe the Compulsory Will for Non-Muslim Heirs in Indonesia Through the Concept of Maslahah Mursalah Najmuddin At-Thufi. The method in this research is included in the category of library research in which the data and data sources of the researchers are obtained from various literatures (books, journals, internet, and other relevant data sources). This research proves that the obligatory will for non-Muslim heirs has a positive and equitable impact on family heirs. In addition to providing a sense of justice, obligatory wills to non-Muslim heirs through Supreme Court decisions have also filled the legal void in Indonesia

Penafsiran Hukum Waris Beda Agama di Indonesia

In classical fiqh studies, most scholars agree that Muslims and non-Muslims do not inherit from each other. Jumhur's opinion is stated implicitly in KHI, which says that heirs must be Muslim. After the 1995 Supreme Court decision regarding obligatory wills for heirs of different religions, differences of opinion began to occur over inheritance from different religions. Some follow this jurisprudence, while others still hold the jumhur opinion in classical fiqh. This article attempts to analyze the different interpretations of the regulations regarding heirs of different religions by using the theory of legal interpretation. This article is qualitative research with a normative juridical approach. The research data was obtained from various literature relevant to the object of this study. This article concludes that, in reading the regulations regarding heirs of different religions, there are three methods of legal interpretation, namely: first, a grammatical interpretation which results in the conclusion that non-Muslim heirs have no rights over the heir's assets; second, an analogical interpretation that can be used to make an analogy of a mandatory will for children or adoptive parents with the status of non-Muslim heirs; third, a sociological or teleological interpretation that functions more flexibly because it can be adapted to the context of social values that grow and develop in society.

Historicity of Islamic Inheritance Law in Indonesia and Turkey

This article talks about renewal in the field of Islamic family law regarding inheritance. Islamic inheritance law is a law that regulates the inheritance of the assets of someone who has died and is given to those who are entitled. Islamic inheritance law in Indonesia is regulated in KHI Articles 176-191, this rule is also influenced by the school of thought that is developing in Indonesia, namely the Shafi'i. The basis for the renewal of Islamic Inheritance Law is the obligatory will, in which according to some Islamic thinkers, non-Muslim heirs can receive a share of the heir's assets through the obligatory will. Meanwhile, inheritance law in Turkish civil regulations has been regulated in the third book. The third book contains regulations on an inheritance without a will and these regulations are adopted from Swiss civil regulations. The Swiss civil code replaces Turkish law with the Hanafi school. Inheritance law in Turkey has the principle of equality between men and women so that they get the same distribution of inheritance.

Pemberian Wasiat Wajibah pada Ahli Waris Non-Muslim Perspektif Hukum Progresif

Arresting heirs is crucial because the relationship between humans who have died requires management from their families through inheritance or wills. In Indonesia there has been a dynamic of progress related to the issue of non-Muslim inheritance. Through progressive law it can be seen that statutory regulations have limitations, so that the need for human participation in progressive law. The legal vacuum in Indonesia regarding the inheritance of different religions requires judges as state officials to innovate in order to adapt to the times with the complexities of Indonesian society. This paper aims to analyze the correlation of progressive law in presenting obligatory wills to non-Muslim heirs. This research is a library research with a normative approach. From the results of the study found the implementation of several progressive legal concepts that are aligned with the granting of obligatory wills for non-Muslim heirs. The expansion of obligatory will arrangements in Indonesia can be seen from the MUI Fatwa regarding heirs of different religions or non-Muslims and variations in the results of the Supreme Court's decision regarding the arrangement of obligatory wills. The renewal of the rules regarding the obligatory will is a form of implementation of progressive legal values. The Supreme Court in carrying out its decision regarding the application of the obligatory will is guided by justice and humanity which is in line with the nature of progressive law which has the mission of guiding people towards prosperity and happiness.

Study of Living Hadith; the Phenomenon of Different Religious Inheritance through Wasiat Wajibah

The Compilation of Islamic Law specifies that wills are only required for adopted children and their adoptive parents. The parties involved may petition the courts, even though these regulations are less binding. This research uses the type of normative legal research because what is examined in this research is the norm contained in the hadith texts related to the inheritance law above. The case approach is used as an approach in research because the case of inheritance of different religions that are discussed in a separate case within the family sphere, where there is no legal argument or norm that can answer the case above, so the case approach. The research results show that in Article 209 of the Kompilasi Hukum Islam (KHI), describe the law of Wasiat Wajibah. It cannot, therefore, be regarded contrary to Islamic law. Because leaving a bequest to an adopted kid or adoptive parent does not conflict with the general requirements of the Qur'an and the Prophet's Sunnah. The Cassation Decision No. 368 K/Ag/1995, issued 16 July 1998, marked the beginning of the practice of non-Muslim heirs obtaining a portion of the inheritance from Muslim heirs via Wasiat Wajibahs, which created a body of law within the Religious Courts. Non-Muslims inherit the same proportion of their Muslim parents' required bequests as other Muslim heirs. This necessary will is intended to preserve the integrity of the family and accommodate the multicultural, multiethnic, and multireligious nature of Indonesian society. In addition, implementing a sense of fairness is an advantage of this decision. Giving wills to non-Muslim spouses, children, parents, and relatives has contributed to the revival of Islamic law in Indonesia, demonstrating a sense of social fairness.

KONSTRUKSI HUKUM WARIS DALAM HAL MENGALIHKAN HARTA KEKAYAAN MELALUI WASIAT WAJIBAH

This journal writing was conducted to discuss the topic of Islamic Inheritance Law, especially in terms of transferring assets through a mandatory will. This study uses normative juridical and empirical juridical methods with data in the form of secondary data. This research has the result that KHI (Compilation of Islamic Law), as a rational formulation of Islamic Inheritance Law, has practically explained the rules of Obligatory wills. Obligatory wills in KHI are an alternative in giving inheritance to adopted children. Then in the development of inheritance law in court institutions, in this case the Supreme Court of the Republic of Indonesia, actually made the Obligatory will as a way to provide inheritance shares for heirs of different religions. The obligatory testament rules as an alternative to the transfer of rights to the wealth of non-Muslim heirs must still pay attention to the principles. The Supreme Court of the Republic of Indonesia has expanded Article 209 KHI by adding parties that can receive a mandatory will, including heirs who are prevented from inheriting because they are non-Muslims.

Kewarisan Beda Agama dalam Putusan-Putusan Hakim di Indonesia

This study aims to examine cases of inheritance from different religions that have been decided by the Religious Courts, High Religious Courts, and the Supreme Court in Indonesia. Inheritance from different religions can be classified into inheritance from Muslim heirs to non-Muslim heirs and inheritance from non-Muslim heirs to Muslim heirs. This study uses a judicial case study approach by examining five decisions, consisting of two religious court decisions, two cassation decisions, and one Supreme Court jurisprudence. This study shows that in cases of inheritance from non-Muslim heirs to Muslim heirs, religious court judges allow Muslim heirs to receive inheritance. This is in line with the opinion of some fiqh scholars who allow such provisions. Meanwhile, in cases of inheritance of Muslim heirs to non-Muslim heirs, judges at the religious court, high court, and the Supreme Court did not decide this case as an inheritance, but as a mandatory wasiat, so that the provisions prohibiting a Muslim from inheriting a non-Muslim were still obeyed by these judges. while the relationship between the heir and the heir is maintained because the heir still receives the heir's inheritance. The formulation of this obligatory will does not conflict with the opinion of the clergy, because there are no religious requirements in wasiat.

Conflicts occurring due to the application of different legal inheritance systems in Indonesia

The Republic of Indonesia applies three legal systems on inheritance, namely the Islamic law, the Civil Code, and the Indigenous law. Conflicts occur when families use different legal systems in splitting inheritance. This paper aims to analyze: (1) The considerations of the judge in deciding the right of heirs with different religions to obtain inheritance; (2) Whether or not using wasiat wajibah in distributing inheritance to non-Muslim heirs violates Islamic laws; and (3) The legal efforts which may be taken if heirs who follow a different religion from the decedent do not obtain an inheritance. This is normative prescriptive legal research employing a comparative approach. Primary and secondary data were collected from the literature review. Results showed that the Supreme Court judge decided that a non-Muslim widow has the right to obtain an inheritance from her deceased Muslim husband based on the wasiat wajibah stipulations, considering that the widow had been married to the deceased for 18 years. Referring to wasiat wajibah to give inheritance to non-Muslim heirs does not violate Islamic law, in which the maximum amount is a third of the inheritance. This paper suggests two ways to resolve conflicts on inheritance: (1) Let the inheritance laws be plural. If there are legal conflicts, they can be resolved in court, (2) Unify the laws by creating new inheritance national laws to achieve national unity. This research provides novelty, recalling that there has not been any previous research on the same theme in Ternate City.

Pergeseran Hukum Kewarisan Islam di Indonesia dengan Pemberian Wasiat Wajibah kepada Ahli Waris Non Muslim:Studi Kasus Putusan Mahkamah Agung No. 16K/Ag/2010

The existence of non-Muslim heirs in one family will cause problems when dividing the inheritance of the heirs. Islamic law firmly states that non-Muslim heirs are an obstacle to getting a share of the inheritance of the Muslim heirs. The research results obtained are that the ulama and jurists agree that religious differences between the Heir and the heir are one of the factors that hinder them from obtaining the right to be an heir, Muslims cannot accept infidels and vice versa. Non-Muslim heirs in the Islamic inheritance system in Indonesia can receive the heir's inheritance through a mandatory will based on a court decision, although the court decision is not binding on all Indonesian citizens, but only as a guide for future judges in deciding similar cases. However, there were pros and cons regarding this decision among fiqh experts and Islamic law academics. The ideal reconstruction model for distribution of inheritance for non-Muslim heirs in the Islamic inheritance system in Indonesia, namely by means of a mandatory will but given on the basis of expanding the meaning of Article 209 KHI, a mandatory will is given to non-Muslim heirs not from the inheritance but from the inheritance of the heir, and granting mandatory wills to non-Muslim heirs based on benefit, expediency and justice and given to non-Muslim heirs who are in dire need from an economic perspective.

The Construction of Inheritance Law Reform in Indonesia: Questioning the Transfer of Properties through Wasiat Wājibah to Non-Muslim Heirs

This article examines the construction of inheritance law reform in the transfer of properties through wasiat wājibah to non-Muslim heirs. Questioning the jurisprudence of the Supreme Court which makes wasiat wājibah as an alternative in giving inheritance rights to heirs who are prevented from getting an inheritance due to religious differences (non-Muslims). This study is an empirical legal study that examines the decisions of the Supreme Court relating to the transfer of inheritance to non-Muslims. The study concludes that in terms of inheritance law reform is an alternative in changing Islamic law that must be carried out in response to changes in community social conditions. The construction of inheritance law reform in judicial decisions has formulated inheritance law by giving inheritance rights to heirs of different religions (non-Muslims) by means of wasiat wājibah . The jurisprudence of the Supreme Court of the Republic of Indonesia has expanded Article 209 of the Compilation of Islamic Law by adding parties who can receive a wasiat wājibah, including heirs who are prevented from inheriting due to religious differences. The construction of inheritance law reform on the transfer of inheritance properties with wasiat wājibah in the jurisprudence of the Supreme Court of the Republic of Indonesia has exceeded the quantitative limit in granting wasiat wājibah. The impression does not pay attention to the signs in the application of wasiat wājibah by ignoring the maximum limit. Wasiat wājibah as a solution is not unacceptable as inheritance law reform but must still guide the legal media used by considering the basic rules that surround it.

TINJAUAN HUKUM PROGRESIF TERHADAP PEMBERIAN WASIAT WAJIBAH BAGI AHLI WARIS NON-MUSLIM

This study aims to describe the problem of determining compulsory wills for non-Muslim heirs, this will be studied using a progressive legal perspective. While the type of research used is qualitative research and is supported by literature research and uses a normative-juridical approach. The results of this study showed that the panel of judges of the Supreme Court considered that non-muslim heirs were entitled to a mandatory testamentary share of 1/4 or 25% of the property left by the testator. The reason is, heirs often accompany heirs both in good health, illness, and anything else entered when heirs seek treatment in China until heirs are willing to accompany them. Therefore, the practice of giving a compulsory will is a form of substantive justice to heirs as is characteristic of progressive law. Moreover, justice according to progressive law, it is not the state that asserts mechanisms but substantive justice.

Hibah as Alternative to Resolve Inheritance Issue among New Muslim Converts (Muallaf) in Malaysia: An Analysis

In Malaysia, Muslim converts (Muallaf) face certain difficulties including restrictions in inheritance. In this regard, Islam provides that the property of Muslims shall be inherited by Muslim heirs only. In other words, the general principle provides that non-Muslim heirs have no right in inheritance to property that belonging to Muslims. By taking into consideration the status and rights of family members of Muallaf in Malaysia, hibah is categorized as an alternative method of distribution, in addition to wasiat and other methods. In recent years, there has been an increasing interest in studying and promoting hibah (inter vivos gift) as one of the alternatives in distributing someone’s wealth, in addition to other methods. This paper applies a doctrinal legal research methodology where data collection involves primary and secondary sources which include Al-Quran, hadith, journal articles, constitution, statutes and case law. This study seeks to identify the extent hibah applies as an alternative to resolve the inheritance issue among the Muallaf and to provide some recommendations in proposing hibah law to be enacted in resolving this issue in Malaysia. To date, none of the authors has studied in detail drafting of hibah law to be enacted for resolving the inheritance issue concerning Muallaf in this country. This study discovers that a specific law on hibah could clarify its position and application in Malaysia where it can further be used as an alternative to resolve inheritance conflict affecting the heirs, especially non-Muslim, of Muallaf. Furthermore, it may also benefit various agencies such as religious departments, Shariah Court and other relevant agencies to preserve the rights of Muallaf in regard to their inheritance issues.

Distribution Of Different Religion Legacy According To Islamic Instruction Law (Case Study Of The Supreme Court Decision Number 368 K/Ag/1995)

The decision of the Supreme Court regarding the granting of wills to non-Muslim heirs is a breakthrough in relation to the inheritance of different religions. It is the consensus of scholars that religious differences (Muslims and non-Muslims) are one of the barrier factors for inheriting. With regard to religious differences, the mandatory will given by the Supreme Court is for non-Muslim siblings. The compulsory intention in KH1 is analogous to adopted children and adoptive parents. Religious differences are still barriers to inheriting each other by seeking a positive step by not limiting the understanding of inheritance law so far. This research method uses a normative juridical approach by reviewing various literature on granting wills to non-Muslim heirs. Data was collected through a literature study with relevant secondary legal materials sourced from statutory regulations, literature, both books, journal articles. Who are Muslim. It is the same with a Muslim who cannot inherit from a non-Muslim.