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All Journal Al-Ulum JUDGE: Jurnal Hukum Al Fuadiy: Jurnal Hukum Keluarga Islam
Pagar
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Religion Humanities Economics, Econometrics & Finance Law, Crime, Criminology & Criminal Justice

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Rekonstruksi Hadanah dengan Konsep Shared Parenting di Pengadilan Agama Fuji Sunu, Handika; Pagar; Adly, M. Amar
Al-Ulum Vol. 23 No. 2 (2023): Al-ULum
Publisher : Institut Agama Islam Negeri (IAIN) Sultan Amai Gorontalo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30603/au.v23i2.4303

Abstract

This study aims to introduce the concept of shared parenting as a solution to child custody disputes in religious courts. This research is a normative legal research, by analyzing the decision of Tarempa Religious Court Number 27/Pdt.G/2023/PA.Trp, the decision of Tarakan Religious Court Number 408/Pdt.G/2019/PA. Tar, and decision of Syar'iyah Kualasimpang Court Number 50/Pdt.G/2021/MS.Ksg. The results of this study show that the concept of shared parenting is one of the right choices to resolve child custody cases, this pattern is taken to break up situations when both parents fight each other for the right to hadanah. With this concept of co-parenting, it is hoped that after divorce, the relationship between parents and children will continue to be good and harmonious. The implementation of the concept of shared parenting in disputes in religious courts can be found in two products, namely rulings and peace deeds. The peace deed is also in the form of a ruling, but more specifically related to the legitimacy of the peace agreement that occurs in the mediation process, both within the court and outside the court.
DILEMA NIKAH SIRI: ANTARA HUKUM ISLAM DAN HUKUM POSITIF Harry Permana; M. Iqbal Irham; Pagar
Judge : Jurnal Hukum Vol. 6 No. 07 (2026): Judge : Jurnal Hukum
Publisher : Cattleya Darmaya Fortuna

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.54209/judge.v6i07.2119

Abstract

The phenomenon of unregistered marriages is a social reality that still occurs frequently in Indonesia, especially among communities that adhere strongly to religious values. According to Islamic jurisprudence, unregistered marriages are considered valid as long as they fulfill the pillars and requirements, namely a guardian, two witnesses, and a marriage contract (ijab kabul). However, from the perspective of Indonesian positive law, specifically Marriage Law No. 1/1974 and the Compilation of Islamic Law (KHI), the validity of a marriage must be proven by official registration before a Marriage Registrar. This difference creates a legal dilemma: on the one hand, unregistered marriages are recognized religiously, but on the other hand, they have no legal force in the eyes of the state. This gives rise to various social and legal problems such as the lack of legal protection for wives and children, as well as difficulties in obtaining inheritance rights and family legal status. The purpose of this study is to analyze the relationship between unregistered marriages and their validity according to Islamic law and legal certainty according to Indonesian laws and regulations. This study uses a normative-juridical approach with a descriptive-comparative analysis method, namely comparing the provisions of Islamic law with positive law and analyzing their implications. The research results show that unregistered marriages fulfill the requirements for a valid marriage, but they do not guarantee legal certainty and protection because they are not officially registered. This situation creates potential injustice, especially for women and children born from unregistered marriages. Therefore, harmonization of Islamic law and positive law is necessary to ensure legal enforcement without neglecting the legality of the state. Marriage registration is not merely an administrative matter, but an instrument of legal protection that aligns with the principle of benefit in Islamic law.
Rekonstruksi Hak Keperdataan Anak Luar Kawin: dari Perlindungan Nasab ke Perlindungan Hak Anak Husein Hasibuan, Hamka; Pagar; Hasan Matsum; Fauziah Lubis
Al Fuadiy Jurnal Hukum Keluarga Islam Vol. 8 No. 1 (2026): January-June, Al Fuadiy : Journal of Islamic Family Law (in Press)
Publisher : Nurul Qarnain College of Sharia Studies, Jember

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.55606/af.v8i1.1859

Abstract

Children born out of wedlock constitute a complex legal and social issue, particularly in relation to the fulfillment of civil rights within plural legal systems. In Indonesia, the regulation of such rights reflects an ongoing tension between positive law, which increasingly emphasizes child protection, and Islamic law, which prioritizes the preservation of lineage (nasab). This article examines the construction of civil rights of children born out of wedlock under Indonesian positive law and Islamic law, with particular attention to lineage, guardianship, inheritance, and maintenance. Using a normative legal method with statutory, conceptual, and comparative approaches, the discussion highlights the impact of Constitutional Court Decision No. 46/PUU-VIII/2010 in reshaping the legal relationship between children born out of wedlock and their biological fathers. The findings indicate that positive law has shifted toward a child-centered paradigm by allowing civil relations based on scientific proof, while Islamic law maintains normative restrictions rooted in the sanctity of lawful marriage. Despite these differences, both legal systems share a common commitment to safeguarding the welfare and dignity of children. The article contributes to legal discourse by mapping points of convergence and divergence between the two systems and offering a balanced understanding of how child protection and moral-legal principles interact within Indonesia’s family law framework.
Co-Authors Adly, M. Amar Fauziah Lubis Fuji Sunu, Handika Harry Permana Hasan Matsum Husein Hasibuan, Hamka M. Iqbal Irham