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Status Anak Pasca Perceraian Nikah Siri dalam Hukum Positif dan Hukum Islam : Studi Kasus di Desa Burujukulon Kabupaten Majalengka Eka; Rahayu, Hilma
El 'Ailaah Vol 3 No 1 (2024): El 'Aailah: Jurnal Kajian Hukum Keluarga
Publisher : Program Studi Hukum Keluarga (Ahwal Syakhshiyah)

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59270/aailah.v3i1.224

A child's status will greatly influence their future, both in terms of income, guardianship, inheritance, and so on. In positive law, children resulting from unregistered marriages, if their parents divorce, cannot claim rights because they do not have legal legal protection. Meanwhile, in Islamic law, children have rights that must be fulfilled in all aspects, even if the child is the result of a registered marriage or the result of an unregistered unregistered marriage. This research aims to determine cases regarding the status of children after divorce in unregistered marriages in Burujulkulon village, Majalengka district, and to find out the comparison/comparison of reviews of Positive Law and Islamic Law regarding this matter. The research method used by researchers is qualitative research by combining two types of data, namely data obtained from field research in the form of observations, interviews and documentation in Burujulkulon village, Majalengka district. The basis/basis of legal sources used by researchers in the comparison process is positive law from the Law, Civil Code, and Government Regulations. Meanwhile, the Islamic law used comes from the Al-Qur'an, hadith, translated books and the opinions of the jurists. The data that researchers obtained was then reduced, presented and concluded using descriptive - comparative analysis techniques. Based on the research conducted, several conclusions were obtained including: (1) The status of the child which includes four things (recognition, education, livelihood and love, and lineage), in terms of livelihood and education in case A, the child from the unregistered marriage was not getting support from the father to the child, but in terms of recognition, the father admits that the child is his son. In contrast to case B, the child resulting from the unregistered marriage received support, education and recognition from his father; (2) in terms of recognition, education, living and affection in cases A and B, both of them fulfill and are sufficient for children's rights, this shows that there is conformity between the legal regulations that have been established, namely positive law and Islamic law; (3) there are differences in cases A and B, namely differences in registering the child's birth certificate, case A only lists the mother's name, and case B lists the names of both parents. This shows that there is a discrepancy between the legal regulations that have been established, namely positive law and Islamic law in terms of the child's lineage or population status.

TINJAUAN MAQASHID SYARI'AH TERHADAP FATWA PENGHARAMAN NIKAH SIRRI OLEH PCNU CIREBON Eka; Sofiyah, Siti
El 'Ailaah Vol 3 No 2 (2024): El 'Aailah: Jurnal Kajian Hukum Keluarga
Publisher : Program Studi Hukum Keluarga (Ahwal Syakhshiyah)

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59270/aailah.v3i2.251

The prohibition of unregistered marriage is the formulation of Bahtsul Masail Fatwa of the PCNU Cirebon District. According to the Bahtsul Masail Nahdlatul Ulama Institute (LBMNU), unregistered marriages are marriages that occur without any notification and registration at the Religious Affairs Office (KUA) and it occurs because there is a problem. This research aims to find out the contents of the fatwa formulating the prohibition of unregistered marriages and to find out the Maqosid Sharia review of the fatwa prohibiting unregistered marriages in the Bahtsul Masail of PCNU Cirebon Regency. This research uses qualitative research methods, with the type of field research. There are two types of data sources in this research, namely primary data and secondary data as supporting data. Then, this research uses two types of data collection techniques, namely semi-structured interviews and documentation. The results of this research, based on the results of the Bahtsul Masail of PCNU Cirebon Regency, state that unregistered marriages are prohibited based on the reasons of the parents/guardians who disapprove the marriage, economics, not being old enough, pregnancy out of wedlock, unclear status of divorce, difficulty in polygamy regulations and contract marriage. Then, the fatwa on the prohibition of unregistered marriages based on a review of Maqosid Sharia is that the marriage that is not in accordance with the principles of Maqosid Sharia Hifzh al-Din (protecting religion), namely the issue of the marriage guardian's disagreement. Then, there are economic issues and not being old enough, if someone continues to carry out the marriage according to the rules then it is valid, and this is in accordance with the Maqosid Sharia principles of Hifzh al-Din (protecting religion), Hifzhal-Nasl (protecting offspring) and Hifzh al-Nafs (protecting soul/honor). Then the issue of pregnancy out of wedlock, if the marriage is by the aim of getting protection from the state, then it is in accordance with Hifzh al-Din (protecting religion), hifzh al-Nafs (protecting soul/honor), and hifzh al-Nasl (protecting offspring). Then, the issue of the difficulty of polygamy regulations is in accordance with the Maqosid Sharia principles of Hifzh al-Nasl (protecting offspring) for children, Hifzh al-Mal (protecting assets) for living and Hifzh al-Nafs (protecting the soul/honor) for one's wife. And the last one is a contract marriage. Contract marriage is not permitted because it is not in accordance with the Maqosid Sharia principles of Hifzh al-Din (protecting religion), Hifzh al-Nasl (protecting offspring), and Hifzh al-Nafs (protecting soul/honor).

Analisis Praksis Pengangkatan Wali Hakim dalam Fikih Munakahat Madzhab Syafi’i dan Hukum Positif Eka; Amrullah, Muhammad Ikhsan
El 'Ailaah Vol 4 No 2 (2025): Settings Vol. 4 No. 2 (2025): El 'Aailah: Jurnal Kajian Hukum Keluarga
Publisher : Program Studi Hukum Keluarga (Ahwal Syakhshiyah)

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59270/aailah.v4i02.306

Marriage n the view of slam and the state s a sacred bond that s the foundation of the formation of the family and society. One of the mportant elements n the marriage contract s the existence of a marriage guardian, whose validity s a condition for the validity of marriage according to the majority of scholars and the state. However, n practice, t s not uncommon for cases where the guardian of the nasab s unknown, reluctant to marry without sharia reasons, or s unable to carry out his function, so the role of the guardian judge as a replacement s needed. This study aims to examine and compare the provisions for the appointment of guardian judges according to the fiqh munakahat madzhab Shafi'i and positive law. Using qualitative methods and literature review research types, this study examines the legal basics, procedures, and principles used n each legal system. The results of the study show that the two have similarities n terms of the urgency of guardian judges to maintain the validity of marriage and protect women's rights. However, there s a fundamental difference n the mechanism of mplementation: Shafi'i jurisprudence tends to be normative, and flexible, while positive law emphasizes formal procedures through state nstitutions. This study concludes that these different approaches need to be harmonized n practice so as not to cause legal doubts and to ensure protection for all parties n the mplementation of the marriage contract.

Status Anak Pasca Perceraian Nikah Siri dalam Hukum Positif dan Hukum Islam : Studi Kasus di Desa Burujukulon Kabupaten Majalengka Eka; Rahayu, Hilma
El 'Ailaah Vol 3 No 1 (2024): El 'Aailah: Jurnal Kajian Hukum Keluarga
Publisher : Program Studi Hukum Keluarga (Ahwal Syakhshiyah)

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59270/aailah.v3i1.224

A child's status will greatly influence their future, both in terms of income, guardianship, inheritance, and so on. In positive law, children resulting from unregistered marriages, if their parents divorce, cannot claim rights because they do not have legal legal protection. Meanwhile, in Islamic law, children have rights that must be fulfilled in all aspects, even if the child is the result of a registered marriage or the result of an unregistered unregistered marriage. This research aims to determine cases regarding the status of children after divorce in unregistered marriages in Burujulkulon village, Majalengka district, and to find out the comparison/comparison of reviews of Positive Law and Islamic Law regarding this matter. The research method used by researchers is qualitative research by combining two types of data, namely data obtained from field research in the form of observations, interviews and documentation in Burujulkulon village, Majalengka district. The basis/basis of legal sources used by researchers in the comparison process is positive law from the Law, Civil Code, and Government Regulations. Meanwhile, the Islamic law used comes from the Al-Qur'an, hadith, translated books and the opinions of the jurists. The data that researchers obtained was then reduced, presented and concluded using descriptive - comparative analysis techniques. Based on the research conducted, several conclusions were obtained including: (1) The status of the child which includes four things (recognition, education, livelihood and love, and lineage), in terms of livelihood and education in case A, the child from the unregistered marriage was not getting support from the father to the child, but in terms of recognition, the father admits that the child is his son. In contrast to case B, the child resulting from the unregistered marriage received support, education and recognition from his father; (2) in terms of recognition, education, living and affection in cases A and B, both of them fulfill and are sufficient for children's rights, this shows that there is conformity between the legal regulations that have been established, namely positive law and Islamic law; (3) there are differences in cases A and B, namely differences in registering the child's birth certificate, case A only lists the mother's name, and case B lists the names of both parents. This shows that there is a discrepancy between the legal regulations that have been established, namely positive law and Islamic law in terms of the child's lineage or population status.

TINJAUAN MAQASHID SYARI'AH TERHADAP FATWA PENGHARAMAN NIKAH SIRRI OLEH PCNU CIREBON Eka; Sofiyah, Siti
El 'Ailaah Vol 3 No 2 (2024): El 'Aailah: Jurnal Kajian Hukum Keluarga
Publisher : Program Studi Hukum Keluarga (Ahwal Syakhshiyah)

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59270/aailah.v3i2.251

The prohibition of unregistered marriage is the formulation of Bahtsul Masail Fatwa of the PCNU Cirebon District. According to the Bahtsul Masail Nahdlatul Ulama Institute (LBMNU), unregistered marriages are marriages that occur without any notification and registration at the Religious Affairs Office (KUA) and it occurs because there is a problem. This research aims to find out the contents of the fatwa formulating the prohibition of unregistered marriages and to find out the Maqosid Sharia review of the fatwa prohibiting unregistered marriages in the Bahtsul Masail of PCNU Cirebon Regency. This research uses qualitative research methods, with the type of field research. There are two types of data sources in this research, namely primary data and secondary data as supporting data. Then, this research uses two types of data collection techniques, namely semi-structured interviews and documentation. The results of this research, based on the results of the Bahtsul Masail of PCNU Cirebon Regency, state that unregistered marriages are prohibited based on the reasons of the parents/guardians who disapprove the marriage, economics, not being old enough, pregnancy out of wedlock, unclear status of divorce, difficulty in polygamy regulations and contract marriage. Then, the fatwa on the prohibition of unregistered marriages based on a review of Maqosid Sharia is that the marriage that is not in accordance with the principles of Maqosid Sharia Hifzh al-Din (protecting religion), namely the issue of the marriage guardian's disagreement. Then, there are economic issues and not being old enough, if someone continues to carry out the marriage according to the rules then it is valid, and this is in accordance with the Maqosid Sharia principles of Hifzh al-Din (protecting religion), Hifzhal-Nasl (protecting offspring) and Hifzh al-Nafs (protecting soul/honor). Then the issue of pregnancy out of wedlock, if the marriage is by the aim of getting protection from the state, then it is in accordance with Hifzh al-Din (protecting religion), hifzh al-Nafs (protecting soul/honor), and hifzh al-Nasl (protecting offspring). Then, the issue of the difficulty of polygamy regulations is in accordance with the Maqosid Sharia principles of Hifzh al-Nasl (protecting offspring) for children, Hifzh al-Mal (protecting assets) for living and Hifzh al-Nafs (protecting the soul/honor) for one's wife. And the last one is a contract marriage. Contract marriage is not permitted because it is not in accordance with the Maqosid Sharia principles of Hifzh al-Din (protecting religion), Hifzh al-Nasl (protecting offspring), and Hifzh al-Nafs (protecting soul/honor).

Analisis Praksis Pengangkatan Wali Hakim dalam Fikih Munakahat Madzhab Syafi’i dan Hukum Positif Eka; Amrullah, Muhammad Ikhsan
El 'Ailaah Vol 4 No 2 (2025): Settings Vol. 4 No. 2 (2025): El 'Aailah: Jurnal Kajian Hukum Keluarga
Publisher : Program Studi Hukum Keluarga (Ahwal Syakhshiyah)

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59270/aailah.v4i02.306

Marriage n the view of slam and the state s a sacred bond that s the foundation of the formation of the family and society. One of the mportant elements n the marriage contract s the existence of a marriage guardian, whose validity s a condition for the validity of marriage according to the majority of scholars and the state. However, n practice, t s not uncommon for cases where the guardian of the nasab s unknown, reluctant to marry without sharia reasons, or s unable to carry out his function, so the role of the guardian judge as a replacement s needed. This study aims to examine and compare the provisions for the appointment of guardian judges according to the fiqh munakahat madzhab Shafi'i and positive law. Using qualitative methods and literature review research types, this study examines the legal basics, procedures, and principles used n each legal system. The results of the study show that the two have similarities n terms of the urgency of guardian judges to maintain the validity of marriage and protect women's rights. However, there s a fundamental difference n the mechanism of mplementation: Shafi'i jurisprudence tends to be normative, and flexible, while positive law emphasizes formal procedures through state nstitutions. This study concludes that these different approaches need to be harmonized n practice so as not to cause legal doubts and to ensure protection for all parties n the mplementation of the marriage contract.

Pemberian Hak Asuh Anak Belum Mumayiz Kepada Ayah Pasca Perceraian dalam Perspektif Hukum Islam Zakiyyah, Nisrina Maitsa; Eka; Hendra Karunia Agustine
El 'Ailaah Vol 5 No 1 (2026): El 'Aailah: Jurnal Kajian Hukum Keluarga
Publisher : Program Studi Hukum Keluarga (Ahwal Syakhshiyah)

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59270/aailah.v5i1.364

Custody of a child who has not yet reached the age of discernment (mumayyiz) after divorce is not always granted to the mother if the judge of the Religious Court has a different opinion. In some cases, the father can obtain custody even though the mother is still present. Such is the case in the Religious Court of Sumber Decree Number 2083/Pdt.G/2023/PA.Sbr, where the panel of judges granted custody of the first child, aged 11, to the father, despite no specific reasons being found during the trial to indicate that the mother was unfit to hold custody. The purpose of this research is to find out why custody of a non-mumayyiz child after divorce was granted to the father in the Religious Court of Sumber Decree Number 2083/Pdt.G/2023/PA.Sbr, as well as to analyze it from the perspective of Islamic law. This study uses a qualitative method with a descriptive approach and a case study design. The analysis was conducted by reducing data, presenting data, and drawing conclusions. The results of the study show that the granting of custody of a non-mumayyiz child to the father after divorce in the Religious Court of Sumber Decree Number 2083/Pdt.G/2023/PA.Sbr was due to the child’s closer emotional bond with the father, as the child had been cared for by the father for some time. In Islamic law, as long as the mother is still alive and fit to care for the child, she is more entitled to custody. However, in this case, the judge considered the specific circumstances, so granting custody to the father was deemed in line with the primary goal of hadlanah, which is to uphold the child’s best interests and welfare.

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