Analisis Yuridis terhadap Perceraian Diluar Pengadilan Menurut Kompilasi Hukum Islam dan Fiqih Islam

Rezeki, Siti Sri
Artikel jurnal Premise Law Journal • 2015


A wedlock is the main element in establishing a harmonious family with full of love and affection so that legal norm which regulates it is needed in marriage. It is needed to arrange the right, obligation, and responsibility of each family member in order to set up happy and prosperous family. However, there are, of course, many problems which occur in a family life which might about a divorce. A divorce can be claimed by a husband or a wife to Religious Court although there are also divorces which are claimed out of court which will do harm to the wife and the children since it is illegal according to law and KHI (Compilation of the Islamic law). The problems of the research were as follows: how about the regulation on a divorce which was claimed out of court, how about the legal consequence of a divorce which was claimed out of court according to KHI and the Islamic Fiqh, and how about a divorced claimed out of court could have its legality according to KHI and Law No. 1/1974. An out of court divorce is never regulated in KHI which requires a divorce to be claimed in court, as it is stipulated in Article 115, while in the Islamic Fiqh, there is no explanation about it in the Koran and Hadist so that it can be made a law through ijtihad (interpretation through reasoning and judgement of the Koranic code) in the form of ijma' (consensus of opinion) and qiyas (analogy). Thus, a divorce which is claimed out of court, according to KHI, is valid only in the religious law, but it is illegal in the State law because it is not claimed in the Religious Court. Here, both wife and husband do not have certificates of divorce which have legal force. Therefore, the divorce is valid in the Islamic law, and the relation between husband and wife is broken off. A divorced wife can still have mut'ah (enjoyment) from her ex-husband, and she can be remarried afte her iddah (period during which a divorced woman is not allowed to remarry) is over. According to four Imam Mahzabs, the mother has the right to take care of the under-age child, and the allocation of joint property depends on the agreement between the couples. KHI do not legalize an out of court divorce since it brings about disadvantage to the wife and her children and hampers the administration of residential affairs.


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