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A COMPREHENSIVE ANALYSIS OF MARRIAGE AND INHERITANCE LAW IN THE LEGAL SYSTEM OF BRUNEI DARUSSALAM Agus Gandara; Oyo Sunaryo; Aden Rosadi
SINERGI : Jurnal Riset Ilmiah Vol. 3 No. 6 (2026): SINERGI : Jurnal Riset Ilmiah, Juni 2026
Publisher : Lembaga Pendidikan dan Penelitian Manggala Institute

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62335/sinergi.v3i6.2683

Abstract

This study analyzes the marriage and inheritance legal systems in Brunei Darussalam and compares them with those of Indonesia. Brunei, as an absolute monarchy guided by the Melayu Islam Beraja (MIB) ideology, comprehensively integrates Islamic Sharia into its national legal framework based on the Shafi'i school. Using a juridical-normative and comparative approach, this research finds that Brunei’s Islamic Family Law Act (Cap. 217) strictly regulates marriage, divorce, and post-divorce rights, including polygamy regulations that require the Sultan’s permission. In matters of inheritance, the faraidh system is implemented literally without significant modifications. Unlike Brunei, Indonesia—through the Compilation of Islamic Law (KHI)—has developed progressive innovations such as mandatory wills for adopted children and substitute heirs. These differences reflect the divergence between Brunei’s conservative-centralistic model and Indonesia’s progressive-pluralistic model, demonstrating that the implementation of Islamic law is largely determined by each country’s sociopolitical context
The Evolution Of Grounds For Divorce in Islamic Family Law: an Analysis of The Theory of Legal Change and The Practice of Religious Courts in Indonesia Roli Wilpa; Isep Rijal Muharom; Agus Gandara; Beni Ahmad Saebani
Journal of Law, Politic and Humanities Vol. 6 No. 4 (2026): (JLPH) Journal of Law, Politic and Humanities
Publisher : Dinasti Research

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.38035/jlph.v6i4.3213

Abstract

This study aims to analyze the transformation of grounds for divorce in Islamic family law in Indonesia through an integrative approach combining legal change theory, maqāṣid al-syarī‘ah, and the practices of religious courts. The main issues addressed include the normative construction of grounds for divorce in Islamic law, the development of grounds for divorce in Indonesian positive law, and the relevance of legal change theory in explaining such dynamics. This research employs a normative juridical method with conceptual, statutory, and socio-legal approaches. The findings reveal that, normatively, grounds for divorce in Islamic law are derived from the Qur’an, Hadith, and classical fiqh, which position divorce as a last resort (ultimum remedium) with limited justifications, such as failure to provide maintenance, physical defects, and severe marital discord (shiqāq). However, in Indonesian positive law, particularly through the Marriage Law and the Compilation of Islamic Law, there has been an expansion and codification of grounds for divorce in a more flexible manner. In judicial practice, religious court judges actively engage in contextual interpretation, whereby the category of “continuous disputes and quarrels” evolves into an umbrella clause encompassing psychological conflict, emotional abuse, and even digital-related issues. This transformation can be explained through legal change theory, which views law as a dynamic system responsive to social change. The maqāṣid al-syarī‘ah approach provides normative legitimacy for such flexibility by emphasizing the protection of welfare (maṣlaḥah) and the prevention of harm (mafsadah). Accordingly, Islamic family law in Indonesia demonstrates characteristics of a progressive, contextual, and substantively just legal system, with judges acting as agents of legal transformation.
Waris Lintas Negara: Problematika Dan Solusi Pembagian Harta Lintas Negara Dalam Perspektif Hukum Islam Dan Hukum Positif Dewa Sukma Kelana; Agus Gandara; Siah Khosyi’ah; Ahmad Fathonih
Jurnal Pustaka Cendekia Hukum dan Ilmu Sosial Vol. 4 No. 1 (2026): Jurnal Pustaka Cendekia Hukum dan Ilmu Sosial Volume 4 Nomor 1 February - May 2
Publisher : PT PUSTAKA CENDEKIA GROUP

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.70292/pchukumsosial.v4i1.359

Abstract

The phenomenon of globalization has significantly increased the mobility of individuals and assets across national borders, giving rise to complex transnational inheritance cases. This article critically analyzes the problems and solutions of cross-border asset distribution from the perspectives of Islamic Law and Indonesian Positive Law. Using a normative juridical approach with comparative and conceptual methods, this study reveals that transnational inheritance is fraught with conflicts of laws, primarily due to the differing connecting factors in Private International Law, such as lex rei sitae, lex patriae, and lex domicilii. Furthermore, the fundamental differences between the rigid, divinely ordained shares in Islamic inheritance law and the testamentary freedom in Western civil law systems exacerbate legal uncertainty. The findings indicate that the absence of a comprehensive Private International Law codification in Indonesia and the territorial limitations of religious courts create significant hurdles in executing cross-border inheritance. To resolve these issues, this article proposes a dual-track solution: the strategic application of Private International Law principles through international wills, and the utilization of flexible Islamic legal mechanisms such as hibah (inter vivos gifts), wasiat wajibah (mandatory wills), and takharuj (compensatory withdrawal). These solutions aim to provide legal certainty and achieve substantive justice in transnational succession..
Co-Authors Aden Rosadi Ahmad Fathonih, Ahmad Dewa Sukma Kelana Isep Rijal Muharom Oyo Sunaryo Roli Wilpa Saebani, Beni Ahmad Siah Khosyi’ah