Family Law Reform Research Articles

Dinamika Penjatuhan Talak Melalui Whatsapp dalam Paradigma Pembaharuan Hukum Keluarga Islam

This article aims to describe the paradigm of Islamic family law reform against the dynamics of the imposition of divorce through WhatsApp media, one of the problems often faced in various divorce cases. This paper is classified as a qualitative type, with the approach used being library research. Data analysis was carried out using descriptive-analytical techniques. The results of this article indicate that the adoption of divorce via WhatsApp according to most legal scholars is valid with the qiyas approach as the delivery of divorce through writing in the form of a letter. Meanwhile, in the paradigm of reforming Islamic family law in Indonesia, the imposition of divorce via WhatsApp is considered invalid, considering that the validity of the divorce is only recognized when it is sworn in before the court. This paradigm is based on various efforts to achieve the benefit, especially to avoid arbitrary actions by the husband against his wife unilaterally in terms of imposing divorce and obtaining legal legality.

Impact of family law reform on adolescent reproductive health in Ethiopia: A quasi-experimental study

• Ethiopia passed the Revised Family Code in 2000, which set the minimum age of marriage for girls at 18 and strengthened women’s rights within marriage. • Analysis using synthetic control method and difference-in-differences helps to overcome empirical challenges of identifying impact of the law. • Implementation of the law was associated with large reductions in rates of adolescent birth, child marriage, and early sexual initiation. • Reductions were similar in rural and urban areas. • Findings indicate that strong legal frameworks for gender equality may be effective catalysts in facilitating social change on child marriage. In sub-Saharan Africa, nearly 2 in 5 girls are married before the age of 18. Child marriage has adverse consequences for women’s physical, emotional, and social wellbeing and development. Emerging evidence has identified the importance of gender equality as a social context for shaping adolescent sexual and reproductive health norms. In 2000, Ethiopia’s government passed the Revised Family Code, increasing the minimum age of marriage from 15 to 18 for girls without exceptions, and strengthening women’s rights within marriage regarding marital property, divorce, and employment. I evaluated the impact of the law on adolescent reproductive health indicators and newborn mortality rates. I used difference-in-differences (DID) and synthetic control methods (SCM) to compare cohort trends in Ethiopia to those in comparison countries. I show that implementation of the law was associated with a 9-percentage-point reduction in risk of adolescent birth for exposed cohorts, an 8-percentage-point reduction in child marriage, and a 10-percentage-point reduction in sexual initiation before age 18 in SCM models. There was no association of the law with changes in risk of termination of pregnancy, unmet need for contraception, infant mortality rates, or neonatal mortality rates. Results were consistent across SCM and DID models, although DID estimates were slightly attenuated. I discuss mechanisms and policy implications. The results of this study provide evidence that strong legal frameworks for gender equality may be effective catalysts in facilitating social change around child marriage.

Family Law Reform in Lebanon: A Strategic Role for Transnational Islamic Feminism

Lebanon, like most Arab countries, delegates authority in matters relating to what is referred to as “personal status” to religious courts. Almost all of the over four million Lebanese residing in Lebanon are officially affiliated to one of eighteen religious sects recognized by the state and are thus subject to one of fifteen personal status laws (PSLs, often also referred to as family laws). These laws underpin issues related to marriage and its consequences, such as divorce and custody and, in the case of Muslim communities, inheritance. By defining the roles, responsibilities, and rights of men and women entering into marriage, PSLs and the religious courts that adjudicate on all matters related to them have the power to greatly influence the gender dynamics of a country. Lebanon’s patriarchal and discriminatory laws, both civil and personal status, have been described as contributing to violence against women and positioning them as second–class citizens.

Examining the problem of joint custody in Japan: State familialism and family law reform

AbstractJapan's principle of granting sole child custody after divorce has been challenged by both the public and intellectuals. The country's ratification of the Hague Child Abduction Convention in 2014 and the Ministry of Justice's subsequent statement in 2019 regarding a possible inclusion of joint custody into the future family law are expected to lead to a move towards establishing shared parenting after divorce. Nonetheless, some activists and intellectuals in Japan have raised concerns that joint custody exposes the child and mother to the risk of violence by husband. Taking these debates into consideration, this article uses a social constructionist approach to analyse the records of the legislative committee and voices of activists to show the ways in which a challenge to the law and policy reform to shared parenting after divorce has been brought to a standstill in contemporary Japan.

Gendering Citizenship and Decolonizing Justice in 1960s Ghana: Revisiting the Struggle for Family Law Reform

Abstract This article revisits the debates over family law reform in the years surrounding the independence of Ghana from British colonial rule. It builds upon social historical studies of marriage and child-rearing, and puts these into dialogue with the scholarship on legal pluralism, in order to examine the postcolonial implications of gendered legal struggles over social reproduction that arose during the colonial era. Drawing on key court cases, the report of a commission of inquiry, parliamentary debates, and the papers of a voluntary association, the article explores how different groups of women established their authority to speak on these issues, and why they were able to legitimate some reforms but not others. Whilst historians have pointed to the constraints that single-party socialism imposed on feminist mobilization in Ghana, this article explores further the ‘form, scale and scope’ of women’s agency. In the context of republican attempts to tackle colonial legacies of ‘deep legal pluralism’, and a programme of socialist development, women reformers framed their arguments in terms of a balance between the preservation of ‘custom’ and ‘advancement’ to modernity, and claimed their authority as mothers. By working creatively with the contradictions arising between legal, political, and sociological discourses, women parliamentarians secured a child maintenance law in 1965, even though earlier attempts to reform the marriage, divorce, and inheritance laws had ended in failure.

The Discourse and Practice of Islamic Family Law in Indonesia

Family law is the most powerful law practiced in Islamic history, but this does not mean that it avoids the demands of changing times. Today, there are no less than thirteen problems related to family law that have arisen in the Muslim world. This problem arises not only because of demands for changing times, but also because of efforts to unify, codify and legislate Islamic law in a number of Muslim countries. This problem requires not only solutions but also reforms. This study aims to examine the model of understanding, practicing, reforming and transforming Islamic law in Indonesia and its impact on the position of standard classical fiqh books and the independence of judges in the Religious Courts. This research is a non-doctrinal normative qualitative research type. This study found a variety of models in the exploration, practice and reform of family law in Indonesia. The impact of the reform and transformation of family law in Indonesia is that classical fiqh books are no longer used as the main reference and the Religious Court System is closer to the civil law system. However, the reform and transformation of family law in Indonesia did not reduce the independence of religious judges in exploring and discovering more contextual Islamic law.

EFFICIENCY OF IMPLEMENTING SANCTIONS IN CASE OF POLYGAMY IN THE MODERN ISLAMIC WORLD

Reform of family law is necessary, and this has become a trend in the renewal of Islamic family law in the modern world. One of the themes studied is the application of legal sanctions (criminalization). Criminalization is a product of modern law, which is very different from the fiqh law, which refers to society. In this study, polygamy is the theme that will be discussed. How is the implementation of criminal sanctions in cases of polygamy in some modern Muslim countries? The country objects that are the focus of the study are Indonesia, Malaysia, and Tunisia. The study approach uses a comparative approach, including vertical comparison (state law-classical legal doctrine), horizontal comparison (Law between countries), diagonal comparison (level of legal dynamics). Results in two conclusions that polygamy as a study of Islamic family law is a private matter and a public issue, so it requires firmness of sanctions. There are two views that polygamy law is prohibited and allowed with conditions, as for those who prohibit it, Tunisia by imposing criminal sanctions and those who allow it on condition that Indonesia and Malaysia, by imposing light sanctions.
 

The Development of Family Law Materials in Bahtsul Masail Nadhlatul Ulama


 
 
 Family law has a very important position in Islam. Its position as the core of sharia is related to the assumption that family law is a gateway to understanding more about Islam. The reform of Islamic family law in Indonesia has gone through a long and long process. In the process of its formation, the material for family law in Indonesia was taken from various sources, such as fiqh books, fatwas, and other sources of Islamic law. Nahdatul Ulama (NU) is one of the Islamic organizations in Indonesia that has contributed to the development of Islamic family law material. One of NU's real contributions in enriching material on Islamic family law in Indonesia is through the Lajnah Bahtsul Masail (LBM) forum. This paper will discuss the development of family law materials through the Lajnah Bahtsul Masail forum. This paper is the result of qualitative research. Sources of data in this study consisted of primary and secondary data. Analysis of the data in this study using content analysis method. Bahtsul masail as the collective ijtihad of NU members has made a real contribution to the development of Islamic family law material in Indonesia. Various new phenomena that arise both due to technology and cultural differences have received fiqh answers through bahtsul masail. This is indicated at least by the similarities between several legal decisions and the marriage law in Indonesia.

Personal Freedom in Estonian Marriage Law between 1918 and 1940

Although Estonia started to develop its own legal system after gaining independence in 1918, many of the old laws from the Russian Empire remained in force in the interim. Soon, Estonia started to develop its own civil code. The old Baltic Private Law Code was highly patriarchal, and various aspects of family law reform were extensively discussed throughout the 1920s and 1930s. While the need for reform was widely accepted, opinions as to its extent varied considerably: female lawyers, inspired by Scandinavian laws, fought for the greatest possible degree of freedom and equality between spouses, while conservative politicians preferred more moderate changes. The article examines two main questions connected with the developments of those times – how much freedom the state gave to spouses for regulating their personal and proprietary relations and how much personal freedom the wife had in comparison to the husband. The norms regulating personal relations, the statutory matrimonial property regime, and the contract related to marital property are analysed in connection with efforts to identify the merits and reasonable limits of personal freedom in marriage. The family law in force in the 1920s and 1930s is compared with draft forms of the Estonian Civil Code, for uncovering how the compilers of the new version achieved balance between modern liberal ideas of personal freedom and traditional concerns about upholding stability of marriage.

WASIAT WAJIBAH DAN IMPLEMENTASINYA TERHADAP HUKUM KELUARGA DI INDONESIA

Wasiat wajibah is a study in family law in Indonesia that provides opportunities for the adopted children and adoptive parents to inherit. This is stated in Kompilasi Hukum Islam (KHI) in Article 209. Although Indonesia has only recently carried out a family law reforms regarding Wasiat Wajibah compared to other Muslim countries, reform of family law in Indonesia cannot be separated from the meaning and nuances of Islamic law. This article reviews the concept of Wasiat Wajibah in Indonesia, then it is implemented with issues that occur around the community to obtain the relevance in accordance with the changing times.

Turkish State Family Law: History Reform, Legislation, and Legal Materials

Historically, efforts to reform Family Law in parts of the Islamic world began to be realized in the late 19th century AD. The reality of Islamic legal reforms carried out in Islamic countries in North Africa, the Middle East, Central Asia, and Southeast Asia gave rise to unprecedented changes in the last century. These changes occur both in the justice system and in the system applied. Changes to family law were first carried out by Turkey, then followed by Lebanon in 1919, Jordan in 1951, and Syria in 1953. Muslim countries in the world, in their context with the renewal of family law, are divided into three categories. First, an Islamic state that does not carry out any renewal and still enforces family law as stipulated in the books of fiqh. Secondly, an Islamic state that has completely abandoned Islamic family law and adopted European civil law. Third, countries that are trying to enforce Islamic family law but after making reforms here and there. This paper tries to discuss one of the reforms carried out by one Muslim country, namely Turkey, which is related to the reformation (reform) of family law that starts from the history of reform, legislation, renewal, and legal material. The author chose Turkey because it is the first Muslim country to make changes to family law.

Undoing Patrilineality: New Maternal Families and the Politics of Naming in Turkey

Abstract Based on the topical life stories of fifteen single mothers from Turkey, this article traces the act of naming as a practice of social and legal boundary making and as a means of undoing patrilineality and to seek acknowledgement for a new maternal family. Analyzing the politics of naming in the stories of these single mothers, this contribution first discusses the stigmatizing aspects of conventional patrilineal and marital family naming in Turkey. It traces changes in the registration of family names, how single mothers decide on the registration of the father’s first name, and their concerns and strategies during these legal, bureaucratic procedures. Whereas family law reform has given more rights to single biological and adoptive mothers, they still remain affected by the emotional aspects of a stigmatized practice. Strategically planning their future and that of their children, one solution is to use naming to merge their maternal families with their own paternal families.

PERKEMBANGAN PERUNDANG-UNDANGAN HUKUM KELUARGA MUSLIM DI MESIR ( STUDI WASIAT WAJIBAH DI MESIR)

The long history of reforming Islamic Family Law in the Muslim world began in the 20th century when Turkey became the first Muslim country to pioneer this reform. These reforms greatly influenced the reform of Islamic family law in Egypt and provided a more forward-looking color compared to what was previously done, the impetus for reform and reform of Islamic law in Egypt came from within the Islamic tradition itself and from outside the Islamic tradition. In addition to reforming family law in general, Egypt has also reformed the concept of inheritance law regarding wajibat for orphan grandchildren, which actually does not discuss this matter in classical books. Egypt regulates the issue of compulsory wills in the Egyptian Law, namely Law no. 71 of 1946 concerning inheritance, Egypt introduced a new concept in terms of inheritance for orphaned grandchildren who are usually considered as dzawil arham who are prevented from obtaining inheritance, so they are now entitled to inheritance by using the mandatory will. The concept of wills, mandatory, for inheritance for orphaned grandchildren does not exist in classical jurisprudence, and it appears that Egypt is trying to reform the law by inventing new laws or rechtsvinding, in order to find a solution to the inheritance problems that occur in Egypt.

Divorce on grounds of discord: Did the Moroccan family law reform bring the guarantee of divorce for women? An ethnographic perspective on the changing landscape of divorce. The Mudawwana a decade on

Abstract This article discusses the new divorce on grounds of discord procedure (taṭlīq li-š-šiqāq) within the context of the Moroccan family law reform of 2004. Literature available in English and French has, so far, focused primarily on the improvements the Moroccan family law reform has brought in regard to women’s rights. The reform is considered one of the most progressive legislative projects in the MENA region and a milestone for gender equality, notably the reform of divorce law. Divorce on grounds of discord was seen as the long-awaited divorce guarantee for women. However, legal scholars maintained that case law jeopardised the divorce guarantee. This legal-anthropological study is informed by fieldwork at the family court in Rabat, as well as official statistics, case law and the standard legal commentary. It aims to scrutinise how divorce on grounds of divorce is put into practice by the judiciary, how Moroccan men and women make use of it and how changes on a procedural and institutional level affect the implementation of the new divorce procedure. My empirical findings show that divorce on grounds of discord effectively guarantees Moroccan women’s right to divorce. Well beyond the discussion on women’s rights in divorce, I will demonstrate that, within a decade, divorce on grounds of discord developed into a standard divorce procedure for both men and women across socio-economical milieus and age groups.

Arrangement and Dynamication of Family Law Updating in Indonesia

In Indonesia, family law is well regulated in law or government regulations. In this case, with the increasingly complex family law issues supported by divorce rates, which reached 398,245 in 2015, then in 2017, it increased to 415,898, and with the development of science and technology, so many problems arise both in terms of muamalah or family law itself. For this reason, structuring is needed through legal reform that makes it follow what is needed by the wider community. Starting from this, this paper will discuss the arrangement of Islamic family law and the dynamics of family law reform in Indonesia. This study aims to provide an overview of the arrangement of Islamic families and Islamic family law reform in Indonesia. This paper uses qualitative research methods that are library researching. The data in this article was obtained from books, journals, articles, magazines related to the structure and dynamics of family law reforms in Indonesia. After the data is collected, the writer analyzes with data analysis techniques, namely data reduction, data presentation, and concluding. The results of the study show that the structure and dynamics of family law in Indonesia, when viewed in the context of Islamic law reform, reveal a unique and problematic portrait of reform. It is said so because Indonesia applies three legal systems, namely customary law, Islamic law, and Western law.

Men as Husbands and Fathers in Postwar Poland (1956–1975): Towards New Masculine Identities?

The aim of this paper is to explore the popular perception of men in family roles. In a broader perspective, it explores the effects of social changes under state-socialism on men’s identities and the perception of gender difference. I focus on popular understandings of masculinity, taking advantage of massive ego-documents (contest memoirs). I argue that in the 1960s and the 1970s, people in Poland negotiated gender roles in marriage, questioned traditional masculinity, and shaped new understandings of men’s roles based on ideas of companionship and partnership. These new understandings directed men towards assuming selected female tasks and rejecting some features of traditional masculinity. Major changes were occurring within the role and identity of the father, whereas household duties were still considered “unmanly.” State socialism encouraged these changes through ideology and policies (industrialization, low wages, and reform of family law).

JAVNOBILJEŽNIČKI RAZVOD BRAKA U REFORMIRANOM SLOVENSKOM PRAVU

Divorce before Latin-type notaries, as an alternative to court procedure, has been present on the European continent since the early 2000s. Forms of such divorce first appeared in Eastern European countries. However, since 2015 there has been a regulation of the powers of notaries for consensual divorce in the countries of Western and Southern Europe. The last among European countries to prescribe the consensual divorce before notaries is Slovenia, as part of the reform of family and non-contentious law and procedure. In this context, the paper discusses the novelties and basic principles of family court proceedings in the reformed Slovenian law. A special part of the paper contains an analysis of the consensual divorce before Slovenian notaries. The reason for choosing this legal system is the circumstance of the same starting point of development with Croatia, the similarity of these two legal systems, as well as the fact that in these Central European EU member states, reform efforts in one usually follow reforms and results in the other. Then follows an analysis and discussion of notarial divorce from a Croatian perspective, in particular on the circumstances that should be taken into account when considering its regulation, in order to reflect and achieve the prominent advantages. The concluding part of the paper contains some thoughts of the author and his de lege ferenda projections for the Croatian regulation, but also for the states in its neighborhood.

Islamic Family Law Reform: Early Marriage and Criminalization (A Comparative Study of Legal Law in Indonesia and Pakistan)

In this paper I want to compare of legal law in Indonesia and Pakistan about early marriage. In Indonesia, marriage law No. 1/ 1974 explained that the limit of age of marriage is sixteen (16) years for women and nineteen (19) years for men. In Pakistan, after the 1961 MFLO amendment, Pakistan established the minimum age of marriage under the Child Marriage Restraint Act, 1929, is eighteen (18) years for men and sixteen (16) years for women. In addition to Law No. 1 of 1974, in Indonesia, the KHI is clearly repeating Article 15 Paragraph (2), for candidates who have not reached the age of 21 years, they must obtain permission as provided in Article 6 Paragraph (2), (3), (4), and (5) of Law No. 1 year 1974. Otherwise, in Indonesia this regulation is slower than other perversions country that I mention. The questions in this paper are; first, why does the legislation of Indonesia provides dispensation of marriage in the Court for prospective couples under the age of marriage? Second, why does Pakistan's legislation give prison sanctions and penalties for married couples under the age of marriage? Thirdly, why does the legislation of Indonesia and Pakistan implement different determination of law for early marriage? The conclusion; if both prospective brides are still below the minimum age for marriage, the parents of the two brides-to-be may submit a marriage dispensation in a religious court. Dispensation of this marriage is regulated in Minister of Religious Affairs Regulation No. 3 year 1975, specifically for people who are Moslems. This matter the marriage law also provides an outlet as a solution if the minimum age requirement is not met. Otherwise, In Pakistan, Historically; the marriage of children is in conflict between those who feel established and those who want change by reforming their family law. So, MFLO 1961 came out of the outcome of the change of the Child Marriage Restraint Act 1929 to sanction marriage with fines and imprisonment for married couples who are married under the minimum age set for marriage. Even sanctions are given for parents, guardian, and marriage organizers as well as even more than the sanctions given to his son. Even if the renewal of Islamic law in the Indonesia have been done. Indonesia is somewhat late in doing Islamic law reform than Pakistan.

Islamic Family Law Reform: Early Marriage and Criminalization (A Comparative Study of Legal Law in Indonesia and Pakistan)

In this paper I want to compare of legal law in Indonesia and Pakistan about early marriage. In Indonesia, marriage law No. 1/ 1974 explained that the limit of age of marriage is sixteen (16) years for women and nineteen (19) years for men. In Pakistan, after the 1961 MFLO amendment, Pakistan established the minimum age of marriage under the Child Marriage Restraint Act, 1929, is eighteen (18) years for men and sixteen (16) years for women. In addition to Law No. 1 of 1974, in Indonesia, the KHI is clearly repeating Article 15 Paragraph (2), for candidates who have not reached the age of 21 years, they must obtain permission as provided in Article 6 Paragraph (2), (3), (4), and (5) of Law No. 1 year 1974. Otherwise, in Indonesia this regulation is slower than other perversions country that I mention. The questions in this paper are; first, why does the legislation of Indonesia provides dispensation of marriage in the Court for prospective couples under the age of marriage? Second, why does Pakistan's legislation give prison sanctions and penalties for married couples under the age of marriage? Thirdly, why does the legislation of Indonesia and Pakistan implement different determination of law for early marriage? The conclusion; if both prospective brides are still below the minimum age for marriage, the parents of the two brides-to-be may submit a marriage dispensation in a religious court. Dispensation of this marriage is regulated in Minister of Religious Affairs Regulation No. 3 year 1975, specifically for people who are Moslems. This matter the marriage law also provides an outlet as a solution if the minimum age requirement is not met. Otherwise, In Pakistan, Historically; the marriage of children is in conflict between those who feel established and those who want change by reforming their family law. So, MFLO 1961 came out of the outcome of the change of the Child Marriage Restraint Act 1929 to sanction marriage with fines and imprisonment for married couples who are married under the minimum age set for marriage. Even sanctions are given for parents, guardian, and marriage organizers as well as even more than the sanctions given to his son. Even if the renewal of Islamic law in the Indonesia have been done. Indonesia is somewhat late in doing Islamic law reform than Pakistan.

BATASAN USIA PERKAWINAN DALAM HUKUM KELUARGA ISLAM (Perbandingan Antar Negara Muslim: Turki, Pakistan, Maroko dan Indonesia)

Renewal of Islamic family law in the Islamic world is not a new thing, but it has been applied since the 19th century. The renewal was due to the rise of awareness of the community and scholars that the concepts of fiqh which had been used as references has been left behind from the times. The development of the situation and conditions of the community at that time was one of the causes of the reform of family law. This paper discussess about the family law that applies in several Muslim countries, namely the countries of Pakistan, Turkey, Morocco and Indonesia. Regulatory analysis carried out is by comparing family law that applied in each country regarding the age limit for marriage. The comparison analysis is vertical, horizontal, diagonal and the social conditions of these countries. Each country vertically has a different school handle, then horizontally these countries have provisions regarding the age limits of different marriages, both men and women due to the social conditions of the country itself. While diagonally related to the age limit of marriage, each country still adheres to the school they hold, although explicitly it is not determined how old the marriage is in the classical literature .