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All Journal LEX FAMILIA: Journal of Islamic Family Law MUAMALAH: Journal of Islamic Economics and Business Law
Encum Sumirah
STIS As-Sa'adah Sukasari Sumedang

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Perbandingan Kedudukan Hukum Perceraian di Luar Pengadilan Indonesia dan Pakistan: Perspektif Fikih dan Hukum Positif Nandi Yosep Kustiwa; Ahmad Nurjaman; Muhamad Ramdhan; Sisca Lestari; Encum Sumirah
LEX FAMILIA: Journal of Islamic Family Law Vol. 1 No. 1 (2026): LEX FAMILIA: Journal of Islamic Family Law (Januari-Juni)
Publisher : Penerbit Lestari Sakha Pustaka

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This study provides a comparative analysis of the legal standing of extra-judicial divorce (talak) in Indonesia and Pakistan, examining the divergence between classical Islamic jurisprudence (fiqh) and modern positive law. While classical fiqh grants husbands a unilateral right to divorce effective upon pronouncement, the codification of family law in both nations has created a legal dualism. This phenomenon, where a divorce may be valid religiously but not legally, generates significant legal uncertainty and social vulnerability, particularly for women and children regarding their post-divorce rights. This research employs a normative-comparative legal approach, analyzing primary legal sources Indonesia's Law No. 1 of 1974 and Compilation of Islamic Law (KHI), and Pakistan's Muslim Family Laws Ordinance (MFLO) of 1961 alongside classical fiqh texts. The findings reveal two distinct regulatory philosophies. Indonesia adopts a judicial invalidation model, where any divorce outside the court is legally void and without legal effect, centralizing all authority within the judiciary to ensure absolute legal certainty. In contrast, Pakistan implements a sanction-based regulation model. The MFLO 1961 acknowledges the occurrence of extra-judicial talak but mandates a strict reporting procedure to an Arbitration Council and imposes criminal penalties, including imprisonment or fines, for non-compliance. This study concludes that Indonesia's approach provides superior formal legal certainty but struggles with social implementation, leading to limping marriages. Pakistan's pragmatic model offers stronger deterrents through sanctions but faces challenges with low compliance and conservative resistance. The comparison highlights the fundamental dilemma between juridical idealism and social pragmatism in modernizing Islamic family law.
Analisis Multi Akad (Al-Uqud al-Murakkabah) terhadap Penggabungan Akad Musyarakah Mutanaqisah dan Ijarah pada KPR Syariah Cucu Juhana; Encum Sumirah
MUAMALAH: Journal of Islamic Economics and Business Law Vol 1 No 1 (2026): MUAMALAH: Journal of Islamic Economics and Business Law (April)
Publisher : Penerbit Lestari Sakha Pustaka

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The Islamic banking industry in Indonesia is currently shifting its trend in Home Ownership Financing (KPR) products from the dominance of Murabahah contracts to the Musyarakah Mutanaqisah (MMQ) scheme, which is considered to better reflect the principle of equity-based financing. However, the implementation of MMQ presents juridical complexities as its structure is not a single contract, but rather an Al-Uqud al-Murakkabah (hybrid contract) construction combining Syirkah, Ijarah, and Bai’ into one scheme. This amalgamation triggers polemics regarding potential violations of the prohibition of Bai'atain fi Bai'ah (two transactions in one contract) and the existence of ta'alluq (interdependence) elements that could undermine the contract's validity. Another crucial issue is the potential for gharar (uncertainty) in fluctuating rental pricing and the risk of confusion between rental payments and principal repayment, leading to Riba Fadhl. This study aims to analyze the legal standing of contract amalgamation in MMQ and formulate sharia parameters distinguishing valid innovation from invalid manipulation. This is a juridical-normative research employing conceptual and comparative approaches. The analysis juxtaposes classical fiqh literature specifically Ibn Taimiyah's views on freedom of contract with the positive regulation of DSN-MUI Fatwa No. 73/DSN-MUI/XI/2008. The results conclude that the MMQ construction is categorized as Al-Uqud al-Murakkabah al-Jaizah (permissible). This validity stands because each constituent contract fulfills its pillars and conditions independently and shares harmonious objectives (muqtadha al-aqd). The ta'alluq issue is resolved through the Wa’ad (unilateral promise) mechanism, which bridges the separation between the lease contract and the purchase commitment, thereby preserving the principle of luzum. Nevertheless, this study recommends that Islamic banks reform transparency by explicitly separating the ujrah (benefit cost) portion and the buyu' (ownership transfer) portion in the customer's installment table. This transparency is absolute to ensure MMQ functions as a truly sharia-compliant asset ownership instrument, not merely a replication of conventional loan interest payments.
Co-Authors Ahmad Nurjaman Cucu Juhana Muhamad Ramdhan Nandi Yosep Kustiwa Sisca Lestari