scholarly journals Interpretation of The Phrase “Coercion” in The Compilation of Islamic Law as Reasons for Cancellation of Marriage

2021 ◽  
Vol 15 (2) ◽  
pp. 271-288
Author(s):  
Neng Widya Millyuner ◽  
Adi Nur Rohman ◽  
Elfirda Ade Putri
Keyword(s):  
Islamic Law ◽  
Legal Issues ◽  
Third Party ◽  
Legal Research ◽  
Conceptual Approach ◽  
Sociological Approach ◽  
Legal Implications ◽  
Legal Consequence ◽  
Religious Courts

Marriage is a common thing in society with ubudiyyah elements in it. However, legal issues often accompany the sanctity of the marriage bond itself, such as the cancellation of a marriage due to an element of coercion from a third party. Article 71 Compilation of Islamic Law (KHI) states that one of the reasons for being able to apply for a marriage cancellation is because of coercion when the marriage took place. The purpose of this study is to analyze the meaning of the phrase "coercion" as a reason for annulment of marriage and its accompanying legal implications. This type of research is classified as normative-empirical legal research using a statutory approach and a conceptual approach plus a sociological approach as a tool. This research refers to a variety of primary, secondary and tertiary legal materials compiled and traced through literature studies and interviews with judges of the Religious Courts. The legal materials that have been collected are then analyzed descriptively and analytically. The results showed that what is meant by coercion in marriage is a marriage that occurs not because of one's own will or feels that he is under threat. As a form of legal consequence, annulment of a marriage by force is different from divorce, where the marriage bond that occurred before the breakup of the marriage is considered never to have occurred.

scholarly journals Perbedaan Pemahaman Konsep Ikrar Talak Menurut Putusan Pengadilan Agama dengan Syariat Islam

Wajah Hukum ◽  
2019 ◽  
Vol 3 (1) ◽  
pp. 20
Author(s):  
Nourma Dewi ◽  
Femmy Silaswaty
Keyword(s):  
Islamic Law ◽  
Research Approach ◽  
Legal Research ◽  
Conceptual Approach ◽  
Islamic Period ◽  
Legal Remedies ◽  
Religious Courts

This study aims to determine the differences in understanding the concept of talaq pledges according to the decisions of religious courts with Islamic Shari'a. This research is normative legal research. The research approach used in this study is the legislative approach and the conceptual approach. Based on the results of the research and discussion it can be concluded that there is a concept inconsistency between the religious courts that adhere to the Compilation of Islamic law with Islamic Shari'a which includes the fall of divorce, legal remedies, and the enactment of the Islamic period.

scholarly journals JUSTICE IN MANY ROOMS IN SHARIA BANKING DISPUTE RESOLUTION TO ACHIEVE JUSTICE

2018 ◽  
Vol 3 (1) ◽  
pp. 43
Author(s):  
Nita Triana
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Islamic Law ◽  
Third Party ◽  
Second Step ◽  
Legal Research ◽  
Long Time ◽  
The Cost ◽  
Religious Courts

This paper examines the dispute resolution of Sharia Banking. The method is a non-doctrinal legal research using qualitative research  and Socio Legal approach. Sharia banking cannot be separated from the problems between the banking and the Customer. This problem is calledproblematic financing. The resolution  of problematic financing of sharia banks in litigation is now the absolute authority of the Religious Courts. The downside of litigation settlement usually takes a long time, the need for proof, the cost is quite expensive and the result is winningor lost. Therefore, the settlement of sharia banking is very rarely resolved through litigation. Alternative Dispute Resolution is a choice of dispute settlement chosen by Sharia Banking. The first stage isto carry out negotiation between all parties, namely Banking (lender) and The Customer (Debtor) in the form of warning and guidance. If it does not succeed, there will bedebt restructuration. The second step is mediation, in the form of consultation with third party as a mediator.  The mediation determines the rescue process of debt by Banks when a debtor is still unable to return his debt, executed by the bank. According to Marc Galanter these various dispute resolutionsis called justice in many rooms. In Islamic Law it is known as Sulh (peace). However, to a large extent this non-litigation settlement is more satisfactory to both parties in resolving the dispute because it senses fairness and a win-win solution.

scholarly journals JUSTICE IN MANY ROOMS IN SHARIA BANKING DISPUTE RESOLUTION TO ACHIEVE JUSTICE

2018 ◽  
Vol 3 (1) ◽  
pp. 43
Author(s):  
Nita Triana
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Islamic Law ◽  
Third Party ◽  
Second Step ◽  
Legal Research ◽  
Long Time ◽  
The Cost ◽  
Religious Courts

This paper examines the dispute resolution of Sharia Banking. The method is a non-doctrinal legal research using qualitative research  and Socio Legal approach. Sharia banking cannot be separated from the problems between the banking and the Customer. This problem is calledproblematic financing. The resolution  of problematic financing of sharia banks in litigation is now the absolute authority of the Religious Courts. The downside of litigation settlement usually takes a long time, the need for proof, the cost is quite expensive and the result is winningor lost. Therefore, the settlement of sharia banking is very rarely resolved through litigation. Alternative Dispute Resolution is a choice of dispute settlement chosen by Sharia Banking. The first stage isto carry out negotiation between all parties, namely Banking (lender) and The Customer (Debtor) in the form of warning and guidance. If it does not succeed, there will bedebt restructuration. The second step is mediation, in the form of consultation with third party as a mediator.  The mediation determines the rescue process of debt by Banks when a debtor is still unable to return his debt, executed by the bank. According to Marc Galanter these various dispute resolutionsis called justice in many rooms. In Islamic Law it is known as Sulh (peace). However, to a large extent this non-litigation settlement is more satisfactory to both parties in resolving the dispute because it senses fairness and a win-win solution.

scholarly journals The Out of Court Divorce Model and Its Legal Implications: A Juridical Study in Babelan District Bekasi

2020 ◽  
Vol 20 (2) ◽  
pp. 159
Author(s):  
Nursaidah Nursaidah ◽  
Adi Nur Rohman ◽  
Panti Rahayu
Keyword(s):  
Islamic Law ◽  
Legal Issues ◽  
Sociological Approach ◽  
Legal Implications ◽  
Legal Perspective ◽  
Legal Position ◽  
The Right ◽  
Legal Consequences

Abstract:Divorce in Indonesia, legally positive, must be carried out before a panel of judges at trial in accordance with the mandate of Law Number 1 of 1974 concerning Marriage and the Compilation of Islamic Law. However, out-of-court divorce is still common in several areas including Babelan district Bekasi where some of the community still practice out-of-court divorce. Out-of-court divorce even though it is considered religiously valid, leaves various legal issues such as neglect of the rights of children and wives who are divorced to the legality of the divorce itself. This study aims to find models of out-of-court divorce that are conducted by the community. Besides that, the study of the consequences and legal efforts to overcome this phenomenon are very important to be analyzed. This research is classified as a normative-empirical juridical study using a statutory approach assisted by a sociological approach. The results showed that research outside the court was carried out by: (1) kinship, and (2) through amil. From a positive legal perspective, divorce outside the court does not have a strong legal position, resulting in neglect of the right to support, distribution of assets and subsequent marriage.Keywords:divorce, Religious Court, legal consequences Abstrak:Perceraian di Indonesia secara hukum positif harus dilakukan dihadapan majelis hakim di persidangan sesuai dengan amanat Undang-Undang Nomor 1 Tahun 1974 Tentang Perkawinan dan Kompilasi Hukum Islam. Namun demikian, perceraian di luar pengadilan masih banyak ditemui di beberapa daerah termasuk di kecamatan Babelan Bekasi dimana sebagian masyarakatnya masih mempraktikkan perceraian di luar pengadilan. Perceraian di luar pengadilan meskipun dianggap sah secara agama, tetapi menyisakan berbagai persoalan hukum seperti pengabaian hak anak dan istri yang diceraikan hingga legalitas perceraian itu sendiri.Penelitian ini bertujuan untuk menemukan model-model perceraian di luar pengadilan yang dilakukan masyarakat. Disamping itu, kajian tentang akibat serta upaya hukum menanggulangi fenomena tersebut menjadi sangat penting untuk dianalisis. Penelitian ini tergolong penelitian yuridis normative-empiris dengan menggunakan pendekatan perundang-undangan dibantu dengan pendekatan sosiologis. Hasil penelitian menunjukkan bahwa penelitian di luar pengadilan dilakukan dengan cara: (1) secara kekeluargaan, dan (2) melalui amil. Dalam perspektif hukum positif, perceraian di luar pengadilan tidak memiliki kedudukan hukum yang kuat sehingga berakibat kepada pengabaian terhadap hak nafkah, pembagian harta serta pernikahan selanjutnya.Kata Kunci: akibat hukum, luar pengadilan, perceraian, Pengadilan Agama 

scholarly journals Konstruksi Nalar Rechtvinding Hakim dalam Pemberian Izin Poligami yang Berkeadilan Gender dalam Putusan Pengadilan Agama Jombang No. 0899/Pdt.G/2016/PA.Jbg

AL-HUKAMA ◽  
2019 ◽  
Vol 9 (2) ◽  
pp. 496-517
Author(s):  
Abdullah Taufik ◽  
Ilham Tohari
Keyword(s):  
Content Analysis ◽  
Research Method ◽  
Islamic Law ◽  
Gender Justice ◽  
Legal Research ◽  
Analysis Techniques ◽  
Positive Law ◽  
The One ◽  
Legal Discovery ◽  
Religious Courts

The practice of polygamy in Indonesia until now has drawn criticism from some feminists who did not agree. But on the one hand, both Islamic law and positive law permit various conditions. In this case, the Religious Court (PA) becomes the last fence which becomes the determining point for a man to be able to polygamy. For this reason, researchers conducted a study of PA decisions on polygamy, namely Jombang PA Decision No. No. 0899 / Pdt.G / 2018 / PA.Jbg . The focus of the problem is (1) the value of gender justice in the decision and (2) reasoning rechtvinding(legal discovery) judge. The method used in this study is a normative-qualitative legal research method with content analysis techniques from Charles Purse. The results showed that the practice of polygamy licensing in the Religious Courts had actually gone through processes that reflected gender justice. This is reflected in the obligation of the Religious Court to summon the longest wife of the applicant for polygamy to be asked for willingness and information. The results of subsequent studies show that PA Jombang judges used hermeneutic techniques in making legal discovery efforts. Because, they not only focus on aspects of legality, but also consider the contextualization.

scholarly journals Menakar Tujuan Hukum dibalik Putusan MA No. 46 P/HUM/2018 Yang Pro Koruptor

2019 ◽  
Vol 4 (2) ◽  
pp. 99-134
Author(s):  
Nurlindah Nurlindah ◽  
A. Sugirman ◽  
Rosita Rosita
Keyword(s):  
Islamic Law ◽  
Supreme Court Decision ◽  
Vice President ◽  
Legal Certainty ◽  
Legal Research ◽  
Conceptual Approach ◽  
Track Record ◽  
General Elections ◽  
Election Commission ◽  
Executive Body

In welcoming 2019 concurrent general elections, the General Election Commission issued PKPU No. 20 of 2018, one of which banned former convicts of corruption from becoming legislative candidates on the grounds that corruption is an extraordinary offense that is commonly practiced by legislators both individually and in congregation. The regulation is stated in Article 4 paragraph (3) PKPU No. 20 of 2018 concerning Nominations for Members of DPR, Provincial DPRD and Regency / City DPRD. However, the regulation was canceled with the issuance of Supreme Court decision No. 46 P / HUM / 2018. Based on this, the limitation of the problem of this research is how to measure the aspects of the legal objectives behind the decision No. 46 P / HUM / 2018 which are more pro-corrupt so that they can understand the judge's decidendi ratio in canceling the prohibition of ex-convicts from becoming legislators. This type of research is normative legal research with a statutory approach and conceptual approach. The theoretical basis in the presentation of research results is the theory of legal goals by Gustav Radbruch namely justice, certainty and usefulness which is compared with Islamic law. The results of this study indicate that the Supreme Court's consideration overturned PKPU No. 20 of 2018 because it is considered contrary to Article 240 of Law No. 7 of 2017 concerning General Elections and Article 12 of Law No. 12 of 2011 concerning Formation of Laws and Regulations. The Supreme Court's considerations in the a quo ruling contain the three legal objectives. However, it is more inclined to legal certainty, so it does not reflect the value of justice that lives in the community. The cause of not achieving the values of justice that live in the community in the a quo decision is because the basis for testing the regulation is Law No. 7 of 2017 concerning General Elections does not prohibit such matters, even though the nomination rules on the executive body namely the President and Vice President require that they do not have a bad track record. Likewise when viewed from Islamic law which requires legislative candidates called ahlul ahli wal aqdi must have a fair way which means having integrity and a good image in the society.

scholarly journals THE APPOINTMENT OF MEMBERS TO THE SHARIAH ADVISORY COUNCIL OF CENTRAL BANK OF MALAYSIA: LEGAL ISSUES

2017 ◽  
Author(s):  
Mohammad Azam Hussain ◽  
Rusni Hassan ◽  
Alias Azhar ◽  
Aznan Hasan
Keyword(s):  
Central Bank ◽  
Research Methodology ◽  
Analytical Method ◽  
Islamic Law ◽  
Legal Issues ◽  
Advisory Council ◽  
Islamic Finance ◽  
Legal Research ◽  
Statutory Requirement ◽  
The Future

Abstract: In Malaysia, the appointment of members to the Shariah Advisory Council (SAC) of the Central  Bank  of Malaysia (CBM) is prescribed by the Central Bank of Malaysia Act 2009 (Act 701). The Act stipulates the provisions pertaining to the eligible persons to be appointed to the SAC, procedures, terms and conditions of appointment and also remuneration and allowances for the members of the SAC. In this regard, the question arises whether the prescribed provisions are sufficient to regulate the appointment of members to the SAC and free from any shortcomings. Hence, this study sought to analyse the existing legislations governing the appointment of members to the SAC and to analyse the legal issues arising from the existing legislations. By using legal research methodology, this article analysed the entire provisions dealing with the appointment matter. Based on the data collected from statutes passed by the Parliament of and Malaysia published materials, the analytical method was used by scrutinizing the related provisions of the law pertaining to the appointment of members to the SAC. This study found that, several loopholes  exist  in  the  statutory requirement of the existing law which needs to be addressed by the respective authoritative body in order to avoid any legal conflict in the future. Hence this study is significant in order to strengthen the existing legislation governing the SAC especially related the appointment process.   Keywords: Shariah advisory council, Shariah advisor, Islamic finance, Islamic law, Central Bank of Malaysia Act 2009.   Abstrak: Di Malaysia, pelantikan anggota Majlis Penasihat Shariah (MPS) Bank Negara Malaysia (BNM) ditetapkan oleh Akta Bank Negara Malaysia 2009 (Akta 701). Akta menetapkan peruntukan-peruntukan berkaitan orang yang layak untuk dilantik menganggotai MPS, prosedur, terma dan syarat-syarat perlantikan dan juga saraan dan elaun anggota-anggota MPS. Dalam hal ini, persoalan timbul sama ada peruntukan yang ditetapkan memadai untuk mengawal selia pelantikan anggota MPS dan bebas daripada sebarang kekurangan. Kajian ini bertujuan untuk menganalisis undang-undang sedia ada yang mentadbir pelantikan anggota MPS dan untuk menganalisis isu-isu undang-undang yang timbul daripada undang-undang sedia ada. Dengan menggunakan metodologi penyelidikan undang-undang, artikel ini menganalisis keseluruhan peruntukan yang berkaitan urusan pelantikan anggota MPS. Berdasarkan data yang telah kumpul daripada statut-statut yang diluluskan oleh Parlimen Malaysia, kaedah analisis telah digunakan dengan meneliti peruntukan-peruntukan undang-undang yang berkaitan pelantikan anggota MPS. Kajian ini mendapati bahawa, beberapa kelemahan wujud dalam kehendak statut dalam undang-undang sedia ada yang perlu diberi perhatian oleh pihak berkuasa yang berkaitan dalam usaha mengelak daripada berlaku sebarang konflik undang-undang pada masa hadapan. Oleh itu, kajian ini adalah sangat penting untuk mengukuhkan undang- undang sedia ada yang mengawal selia MPS terutamanya berkaitan proses pelantikan.   Kata kunci: Majlis Penasihat Shariah, Penasihat Shariah, Kewangan Islam, Undang-undang Islam, Akta Bank Negara Malaysia 2009.

scholarly journals The Iddah Period as a Reason for Cancellation of Marriage

Lentera Hukum ◽  
2019 ◽  
Vol 6 (2) ◽  
pp. 233
Author(s):  
Rahayu Mulia Romadoni
Keyword(s):  
Islamic Law ◽  
Legal Issues ◽  
Judicial Decision ◽  
Legal Argument ◽  
Legal Research ◽  
Case Study Methodology ◽  
Waiting Period ◽  
Religious Law ◽  
Study Methodology

The iddah period is a waiting period that applies to a woman whose marriage is broken legally through a divorce or physically through the death of a husband. Any woman who has not had a prior marriage must observe the iddah period. As one of the legal conditions of marriage, failure to complete the iddah period can result in the cancellation of any secondary marriages. In this study, judges release a verdict in accordance with the laws and legislation of Indonesia, namely Law No. 1 of 1974 on Marriage and a compilation of Islamic law found in Al-Qur'an and Hadith. This article uses legal research based on positive laws including judicial decision. This study concluded that if a marriage is prohibited for a failure to satisfy the condition of iddah, that marriage must be canceled. This article employs statute and conceptual approaches to legal research, as well as case study methodology, with the aim of departing from the views and doctrines that develop in law in order to build a legal argument that addresses legal issues.  Analyzing the Decision of the Mojokerto Religious Court Number 1365/Pdt.G/2014/PA.Mr, this study argues that prospective spouses are responsible for awareness of their prospective partners’ marriage eligibility and fulfillment of all requirements, material and formal, clearly stipulated in state and religious law. Keywords: Iddah, Islamic Law, Marriage Cancellation

scholarly journals Kewenangan Notaris terhadap Pembuatan Covernote

2020 ◽  
Vol 1 (2) ◽  
pp. 421-425
Author(s):  
I Made Ari Nurjaya ◽  
I Nyoman Sumardhika ◽  
Ida Ayu Putu Widiati
Keyword(s):  
Research Method ◽  
Land Ownership ◽  
Criminal Code ◽  
Legal Research ◽  
Conceptual Approach ◽  
Legal Consequence ◽  
Legal Consequences ◽  
Legal Product ◽  
Laws And Regulations

One of the legal products made by notary as a part of their authorities is a deed, both authentic deeds and underhand-made deeds. In addition to these deeds, a notary also has the authority to issue a certificate which is commonly referred to as a covernote. A certificate or covernote is a statement or note in the form of information confirming that a land ownership deed is in the process of a certificate making that is due to a process of roya, transfer of name of land ownership and splitting of one certificate into two. This study examines two issues related to notary authority, namely the basis for the notary’s authority in issuing a covernote and the legal consequences of making the covernote. This study uses a normative legal research method and a conceptual approach as well as a statutory approach. The results showed that the covernote issued by a notary was actually an ordinary certificate, not a legal product of a notary. Covernote only contains an explanation of the deed that is in the process of certification which has not been completed and will be completed within a period determined by the notary itself, so the covernote is not legally binding. The notary is authorized to make a covernote, but it is not regulated in the laws and regulations so that, if it is concluded, the covernote is not a legal product of a notary. The legal consequences for the notary if they fail to carry out the covernote, they can be held liable to solve them immediately. The legal consequence of not fulfilling the contents of the covernote is a violation of Article 1366 of the Criminal Code because notaries are considered negligent in carrying out their duties and authorities.

scholarly journals Penguasaan Tanah Reklamasi tanpa Alas Hak atas Tanah: Studi Kasus di Desa Taddan, Kecamatan Camplong, Kabupaten Sampang

Lentera Hukum ◽  
2018 ◽  
Vol 5 (1) ◽  
pp. 144
Author(s):  
Amri Ubaidillah
Keyword(s):  
Law Enforcement ◽  
Preventive Measures ◽  
Land Rights ◽  
Legal Issues ◽  
Legal Research ◽  
Legal Subject ◽  
Legal Implications ◽  
Land Control ◽  
The Village

This study discuss legal issues concerning control of reclamation without possessing land rights as the result of the unregistered reclamation by communities in the Village of Tanddan, Sub-district Campling in the Sampang Regency. The aim of this study is to show legal implications and analyze effectivity of law enforcement on the accomplishment land control of reclamation without possession. By using empirical legal research with socio-juridical approach, the result of study shows that legal subject cannot control over and build houses over land of reclamation withou posession of land rights. In other words, houses built over land of reclamation without land rights can be evicted without any compensation. Therefore, such land of reclamation should be registered  as the governmental land to the National Agrarian Board or Badan Pertanahan nasional (BPN) in the Sampang regency. It also affirms that there is a problem of effeciency of law enforcement on the accomplishment of land control of reclamation without any repressive and preventive measures. Keywords:  Land Control, Reclamation, Sampang

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