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All Journal Syariah: Jurnal Hukum dan Pemikiran Priviet Social Sciences Journal
Novy Listiana
Universitas Islam Negeri Antasari Banjarmasin
Humanities Economics, Econometrics & Finance Education Environmental Science Law, Crime, Criminology & Criminal Justice Social Sciences

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Legal protection for wives in the encumbrance of joint marital property as collateral in sharia financing: Toward a substantive consent–notarial or PPAT prudence model Ahmad Mubarak; Novy Listiana; Nisa Adelia; Habibah Lestari
Priviet Social Sciences Journal Vol. 6 No. 7 (2026): July 2026
Publisher : Privietlab

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.55942/pssj.v6i7.1941

Abstract

This article examines the legal protection of wives in the encumbrance of joint marital property as collateral in sharia financing agreements executed before a notary. In practice, collateral objects used in sharia financing, especially land or houses, are often registered under the husband’s name, although they were acquired during marriage and therefore constitute joint marital property. This situation may place the wife in a vulnerable position when her consent is treated merely as a formal administrative requirement. This research uses normative legal research with statutory and conceptual approaches. The legal materials consist of primary legal materials, including marriage law, notarial law, sharia banking law, mortgage law, and the Compilation of Sharia Economic Law, as well as secondary legal materials from books and legal journals. The study finds that the wife’s consent in the encumbrance of joint property must not be reduced to a mere signature in the notarial deed. Such consent must be understood as a substantive legal protection mechanism based on awareness, voluntariness, and adequate legal understanding. Notaries have a preventive role in ensuring the legal status of the collateral object, the capacity and free will of the parties, and the conformity of the deed with the principles of justice and prudence in sharia financing. Therefore, the notary’s role is essential in protecting the wife’s economic rights and preventing future disputes.
Rezim Harta Perkawinan dalam Hukum Islam: Analisis Perbandingan Mazhab dan Integrasinya ke dalam Tata Kelola Ekonomi Islam Modern Ahmad Mubarak; Nahdia Nazmi; Muhamad Rahmani Abduh; Nurul Azkia; Novy Listiana; Iqnaul Umam Ashidiqi
Syariah: Jurnal Hukum dan Pemikiran Vol 26 No 1 (2026)
Publisher : Universitas Islam Negeri Antasari Banjarmasin

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.18592/sjhp.v26i1.20553

Abstract

The economic transformation of contemporary Muslim families has significantly reshaped the ownership, management, and distribution of property within marriage. This development has generated legal tension where classical fiqh, which generally upholds separate ownership between spouses, confronts the realities of dual-income households, women’s economic contribution, and increasing state intervention in the pursuit of family justice. Marital property must therefore be understood not merely as a matter of private law, but as an issue located at the intersection of Islamic family law, Islamic economic law, comparative madhhab analysis, and state legal governance. This article aims to analyse the normative construction of marital property regimes across the Sunni madhhabs, examine their integration into modern state law, and formulate a more just and context-sensitive conceptual model. The study employs a qualitative legal research design based on a doctrinal-comparative approach, complemented by a limited socio-legal perspective. Data were collected through systematic library research and documentary legal research, and analysed through qualitative content analysis, comparative legal analysis, and normative-constructive analysis. The findings show that classical Islamic law does not recognise the automatic fusion of property by virtue of marriage, yet it provides normative resources through milkiyyah, shirkah, ‘urf, nafaqah, and maqāṣid al-sharīʿah to acknowledge entitlements arising from both direct and indirect contribution. The central problem lies not in the absence of Islamic norms, but in the weak translation of those norms into fair adjudicative methods and state policy. This article proposes a maqāṣid-based relational marital property regime that balances individual ownership, economic and domestic contribution, the social function of family assets, and equitable adjustment. It concludes that reform of marital property law should move towards interpretations that are more responsive to contribution, child protection, and the economic governance of modern Muslim families.
Co-Authors Ahmad Mubarak Ahmad Mubarak Habibah Lestari Iqnaul Umam Ashidiqi Muhamad Rahmani Abduh Nahdia Nazmi Nisa Adelia Nurul Azkia