Harmonization of positive law and Islamic jurisprudence

Oct 13, 2025 by recoveryshake.com 63 views

The Cancellation of Marriage Based on Law Number 1 of 1974 and Islamic Fiqh: A Comparative Analysis

Introduction

Marriage cancellation is a complex issue in marriage law in Indonesia, governed by Law Number 1 of 1974. This law provides a framework for the cancellation of marriage, but its implementation and regulation are often shrouded in uncertainty. The provisions of the law are not only influenced by religious provisions but also by the provisions regulated by the law. However, it is essential to note that dissatisfaction with these conditions does not automatically make the marriage invalid in the view of religious law, including Islamic jurisprudence. Therefore, research is necessary to understand the reasons behind the marriage cancellation and the legal impact caused afterwards.

Background

Marriage Law Number 1 of 1974 is the primary legislation governing marriage in Indonesia. The law provides a framework for the registration of marriage, the rights and obligations of spouses, and the procedures for the cancellation of marriage. However, the law has been criticized for its ambiguity and lack of clarity, particularly in relation to the cancellation of marriage. The law provides that marriage can be canceled by the court if certain conditions are not met, but these conditions are not clearly defined.

Methodology

This study uses an analytical descriptive approach with a data collection method that prioritizes document studies for secondary data and interviews for primary data. The interview was conducted with an uncreacing and directed approach to obtaining in-depth information from respondents. The data obtained is then analyzed qualitatively with a juridical comparison approach. The study focuses on the Medan City, particularly the Medan Class I-A Religious Court, as the study location.

Results

The results of this study show that the provisions regarding the cancellation of marriage in the Marriage Law have not been fully able to provide legal certainty. There is a fundamental difference between the conditions set by the law and the conditions stipulated in the Islamic jurisprudence. This can cause legal uncertainty, where marriages that are considered to be canceled based on the law do not necessarily make the husband and wife relations prohibited in the Islamic context. In other words, a married couple who feels their marriage is legitimate according to the Islamic jurisprudence still has the right to live a life together even though positively legal is considered invalid.

Discussion

The cancellation of marriage does not automatically result in the breakup of legal relations between parents and their children. Children born from marriages that are canceled still have the right to the livelihood and legacy of both parents, as long as the couple believes that their marriage is legal. However, if the couple has realized that their marriage is invalid and continues the relationship, the children born afterwards will be the status of invalid children according to law.

The implications of the marriage cancellation decision are very significant, especially related to inheritance and living rights. After the cancellation decision applies, each former married couple does not have the right to inherit each other, and the wife is no longer entitled to the livelihood of her ex-husband. This raises the urgent need to harmonize the provisions of positive law and religious law to avoid uncertainty and conflicts that can harm the relevant parties.

Conclusion

In conclusion, even though the marriage law provides a legal framework for marriage cancellation, its implementation and regulation needs to be considered further in order to provide better legal certainty. Harmonization between positive law and Islamic jurisprudence is needed to maintain justice and legal certainty for the community. This research is expected to be a positive contribution to the development of law in Indonesia and become a reference in dealing with problems related to the cancellation of marriage in the future.

Recommendations

Based on the findings of this study, the following recommendations are made:

Harmonization of positive law and Islamic jurisprudence: The government should take steps to harmonize the provisions of positive law and Islamic jurisprudence to avoid uncertainty and conflicts that can harm the relevant parties.
Clearer provisions for marriage cancellation: The Marriage Law should be revised to provide clearer provisions for the cancellation of marriage, including the conditions that must be met for a marriage to be canceled.
Improved education and awareness: The government should take steps to educate and raise awareness among the public about the provisions of the Marriage Law and the implications of marriage cancellation.
Support for affected families: The government should provide support for families affected by marriage cancellation, including counseling and other forms of assistance.

Limitations of the Study

This study has several limitations, including:

Limited scope: The study focuses on the Medan City, particularly the Medan Class I-A Religious Court, as the study location.
Limited data: The study relies on secondary data and interviews, which may not be comprehensive or representative of the broader population.
Limited analysis: The study only analyzes the provisions of the Marriage Law and Islamic jurisprudence, and does not consider other relevant factors that may influence the cancellation of marriage.

Future Research Directions

Future research should focus on the following areas:

Comparative analysis: A comparative analysis of the provisions of the Marriage Law and Islamic jurisprudence in different countries or regions.
Empirical study: An empirical study of the impact of marriage cancellation on families and individuals.
Policy analysis: A policy analysis of the implications of marriage cancellation for the government and the community.

References

Marriage Law Number 1 of 1974: The primary legislation governing marriage in Indonesia.
Islamic Fiqh: The Islamic jurisprudence that governs marriage and family law in Indonesia.
Medan Class I-A Religious Court: The study location for this research.
Document studies: The data collection method used in this study.
Interviews: The primary data collection method used in this study.

Appendix

The appendix includes additional information and data that support the findings of this study, including:

List of interviewees: The list of individuals who were interviewed for this study.
Interview schedule: The schedule of questions that were asked during the interviews.
Data analysis: The data analysis that was conducted for this study.
Conclusion: The conclusion of this study.
Frequently Asked Questions (FAQs) about Marriage Cancellation Based on Law Number 1 of 1974 and Islamic Fiqh

Q: What is marriage cancellation?

A: Marriage cancellation is the process of ending a marriage that has been registered with the authorities. It can be initiated by either spouse or by the court, and it involves the cancellation of the marriage certificate and the termination of the rights and obligations of the spouses.

Q: What are the grounds for marriage cancellation?

A: The grounds for marriage cancellation are specified in the Marriage Law Number 1 of 1974 and Islamic Fiqh. These grounds include:

Mutual consent: Both spouses must agree to the cancellation of the marriage.
Irreconcilable differences: The spouses have irreconcilable differences that make it impossible for them to continue living together.
Abandonment: One spouse has abandoned the other for a period of time.
Impotence: One spouse is impotent and unable to fulfill their marital obligations.
Adultery: One spouse has committed adultery.
Other grounds: Other grounds for marriage cancellation may include cruelty, abuse, or other serious issues that make it impossible for the spouses to continue living together.

Q: How is marriage cancellation initiated?

A: Marriage cancellation can be initiated by either spouse or by the court. The process typically involves:

Filing a petition: One spouse files a petition with the court requesting the cancellation of the marriage.
Service of process: The other spouse is served with a copy of the petition and given an opportunity to respond.
Hearing: The court holds a hearing to consider the petition and determine whether the marriage should be canceled.
Order: If the court grants the petition, it issues an order canceling the marriage.

Q: What are the implications of marriage cancellation?

A: The implications of marriage cancellation can be significant and far-reaching. These may include:

Loss of rights and obligations: The spouses lose their rights and obligations to each other, including the right to inherit from each other.
Impact on children: Children born during the marriage may be affected by the cancellation of the marriage, particularly if the parents are not able to agree on custody or visitation arrangements.
Impact on property: The cancellation of the marriage may also affect the ownership and distribution of property, including real estate and other assets.

Q: Can marriage cancellation be appealed?

A: Yes, marriage cancellation can be appealed. If one spouse is dissatisfied with the court's decision, they may appeal the decision to a higher court.

Q: What is the role of Islamic Fiqh in marriage cancellation?

A: Islamic Fiqh plays a significant role in marriage cancellation in Indonesia. Islamic Fiqh provides guidance on the grounds for marriage cancellation, the process of initiating a petition, and the implications of marriage cancellation.

Q: How can I obtain a copy of my marriage certificate?

A: You can obtain a copy of your marriage certificate from the office of the marriage registrar where your marriage was registered.

Q: How can I initiate a marriage cancellation?

A: To initiate a marriage cancellation, you should consult with a lawyer or other qualified professional who can guide you through the process.

Q: What are the costs associated with marriage cancellation?

A: The costs associated with marriage cancellation can vary depending on the complexity of the case and the fees charged by the lawyer or other professionals involved.

Q: Can I cancel my marriage if I am not a Muslim?

A: Yes, you can cancel your marriage even if you are not a Muslim. However, the process and implications of marriage cancellation may be different depending on your religious affiliation.

Q: Can I cancel my marriage if I am still living with my spouse?

A: Yes, you can cancel your marriage even if you are still living with your spouse. However, the process and implications of marriage cancellation may be different depending on the circumstances of your case.

Q: What are the consequences of canceling my marriage?

A: The consequences of canceling your marriage can be significant and far-reaching. These may include:

Loss of rights and obligations: You lose your rights and obligations to your spouse, including the right to inherit from each other.
Impact on children: Children born during the marriage may be affected by the cancellation of the marriage, particularly if the parents are not able to agree on custody or visitation arrangements.
Impact on property: The cancellation of the marriage may also affect the ownership and distribution of property, including real estate and other assets.

Q: Can I cancel my marriage if I am pregnant?

A: Yes, you can cancel your marriage even if you are pregnant. However, the process and implications of marriage cancellation may be different depending on the circumstances of your case.

Q: Can I cancel my marriage if I am still in love with my spouse?

A: Yes, you can cancel your marriage even if you are still in love with your spouse. However, the process and implications of marriage cancellation may be different depending on the circumstances of your case.

Q: What are the next steps after canceling my marriage?

A: After canceling your marriage, you may need to take the following steps:

Update your identification documents: You may need to update your identification documents, such as your passport or driver's license, to reflect your new marital status.
Notify your employer: You may need to notify your employer of your new marital status and any changes to your benefits or other employment-related matters.
Notify your bank and other financial institutions: You may need to notify your bank and other financial institutions of your new marital status and any changes to your accounts or other financial arrangements.
Seek counseling or other support: You may want to seek counseling or other support to help you cope with the emotional and practical implications of canceling your marriage.