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All Journal Hukum Islam Riwayat: Educational Journal of History and Humanities
Nurul Fikri Ilham Pratama
UIN SUNAN KALIJAGA YOGYAKARTA
Humanities Education Law, Crime, Criminology & Criminal Justice Social Sciences

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Historical Study: The Dialectic Between Islamic Law And Positive Law In The Model Of Formal And Informal Marriage In Indonesia Nurul Fikri Ilham Pratama
Riwayat: Educational Journal of History and Humanities Vol 6, No 3 (2023): Social, Political, and Economic History
Publisher : Universitas Syiah Kuala

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24815/jr.v6i3.33960

Abstract

The history of marriage law in Indonesia has a long-standing legacy, with legal scholars continuously working to amend old laws into modern ones that possess strong legal foundations and clear legal certainty. However, written law often differs from the law observed in society, especially in civil cases, including marriage. The dualism of laws in Indonesia has led to disparities in the practice of marriage. In Islamic law, marriage is generally considered valid when the conditions and requirements of marriage are met without the need for marriage registration. Many people in Indonesia still consider Islamic law as the standard for the validity of marriage, making marriage registration seem unnecessary. Meanwhile, positive law on marriage is often viewed as a secondary option, despite the Marriage Law in Indonesia being in effect since 1974. The prevalence of Islamic law, which has been established earlier, has perpetuated the practice of unofficial marriages (sirri). This qualitative research aims to reconcile the asynchrony between these two legal systems, with the hope of raising collective awareness. This includes a critique of positive law, urging its amendment to make marriage registration mandatory for every couple, with sanctions for violators.
Historical Study: The Dialectic Between Islamic Law And Positive Law In The Model Of Formal And Informal Marriage In Indonesia Nurul Fikri Ilham Pratama
Riwayat: Educational Journal of History and Humanities Vol 6, No 3 (2023): Social, Political, and Economic History
Publisher : Universitas Syiah Kuala

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24815/jr.v6i3.33960

Abstract

The history of marriage law in Indonesia has a long-standing legacy, with legal scholars continuously working to amend old laws into modern ones that possess strong legal foundations and clear legal certainty. However, written law often differs from the law observed in society, especially in civil cases, including marriage. The dualism of laws in Indonesia has led to disparities in the practice of marriage. In Islamic law, marriage is generally considered valid when the conditions and requirements of marriage are met without the need for marriage registration. Many people in Indonesia still consider Islamic law as the standard for the validity of marriage, making marriage registration seem unnecessary. Meanwhile, positive law on marriage is often viewed as a secondary option, despite the Marriage Law in Indonesia being in effect since 1974. The prevalence of Islamic law, which has been established earlier, has perpetuated the practice of unofficial marriages (sirri). This qualitative research aims to reconcile the asynchrony between these two legal systems, with the hope of raising collective awareness. This includes a critique of positive law, urging its amendment to make marriage registration mandatory for every couple, with sanctions for violators.
EXPLORING THE INFLUENCE OF SHAFI'I SCHOOL AND ITS CORRELATION IN THE PRACTICE OF TAHLIL MARRIAGE IN INDONESIA Nurul Fikri Ilham Pratama
Hukum Islam Vol 24 No 2 (2024): Islamic Family and Economic Law
Publisher : Universitas Islam Negeri Sultan Syarif Kasim Riau

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24014/hi.v24i2.24088

Abstract

Tahlil marriage, a legal practice rooted in the Shafi’i school of jurisprudence, has been assimilated into customary law across several regions in Indonesia, including Aceh, Jambi, Bengkulu, and Lombok. The enduring influence of the Shafi’i school in Indonesia is attributed to its early introduction during the initial spread of Islam in the archipelago by Shafi’i scholars and preachers. This influence persists today, as seen in the prevalence of Islamic boarding schools that rely on classical Shafi’i fiqh texts as their core references. Among traditionalist communities, classical fiqh continues to guide societal practices such as worship, transactions, and marriage. Although tahlil marriage is not recognized as valid under Indonesia’s positive law, some customary laws influenced by Islamic principles uphold it as a solution to reconcile couples following the pronouncement of triple divorce (talak tiga) outside the formal judicial system. Using a qualitative, literature-based approach, this study examines the concentration of the Shafi’i school in Indonesia as a key factor contributing to the persistence of tahlil marriage practices in various regions.Key words:Tahlil marriage, Shafi’ijurisprudence, customary law, Indonesia.
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