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All Journal Hukum Islam MAHAKIM: Journal of Islamic Family Law
Ahmad Faiz Shobir Alfikri
Universitas Islam Negeri Maulana Malik Ibrahim Malang
Law, Crime, Criminology & Criminal Justice Social Sciences

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THE LEGAL STATUS OF CHILDREN OUTSIDE MARRIAGE: A COMPARATIVE STUDY OF CIVIL LAW IN INDONESIA AND MALAYSIA Yusril Mahendra; Ahmad Izzuddin; Ahmad Faiz Shobir Alfikri; M. Azam Rahmatullah
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.v24i2.27669

Abstract

The legal status of children's validity raises conflicts between das sein and das sollen, especially about religious values, children's interests, and legal developments in Indonesia and Malaysia. This research aims to analyze and compare the Decision of the Constitutional Court of the Republic of Indonesia No. 46/PUU-VIII/2010 and the Decision of the Rayuan Sivil Court of Malaysia No. W-01 (A) - 365-09/2016 regarding the legal status of children out of wedlock so that similarities and differences can be identified in terms of legal substance, legal considerations, and legal implications for the protection of the rights of children out of wedlock in Indonesia and Malaysia. The method used in this research is normative legal research with a comparative legal approach. The result of this research is that the validity of the status of children out of wedlock is legally recognized in Indonesia and Malaysia.  The Decision of the Constitutional Court of the Republic of Indonesia No.46/PUU-VIII/2010 explains that children out of wedlock have a civil relationship not only with their mother and mother's family but also with the man who is the father, provided that the relationship can be proven through science and technology or other evidence that is valid according to law. In Malaysia, based on the Rayuan Sivil Court Decision No W-01 (A) - 365-09/2016, children of Muslim couples born out of wedlock can now be attributed to their biological father. Although the two decisions have the same legal substance, the reasons underlying the birth of the two decisions are different. The Constitutional Court of the Republic of Indonesia made social justice, legal certainty, and protection of children's rights as citizens guaranteed by the constitution (UUD 1945) legal considerations. However, the Court of Civil Procedure is oriented towards administrative regulations based on the 1957 BDRA Deed Seksyen 13
Kepastian Hukum Perkawinan Beda Agama dalam Surat Edaran Mahkamah Agung Nomor 2 Tahun 2023 Ahmad Faiz Shobir Alfikri; Ahmad Izzuddin
MAHAKIM Journal of Islamic Family Law Vol 8 No 2 (2024): July 2024
Publisher : Institut Agama Islam Negeri (IAIN) Kediri

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30762/mahakim.v8i2.351

Abstract

Supreme Court Circular Letter (SEMA) No. 2 of 2023 contains the latest regulation on interfaith marriage. This study examines the legal position of SEMA No. 2 of 2023 from juridical, sociological, and philosophical perspectives. In addition, this study also analyzes the application of SEMA No. 2 of 2023 based on the principle of legal certainty according to Gustav Radbruch. This research uses normative legal research methods with statutory and conceptual approaches. Data collection was conducted through a documentation study. The results showed that SEMA No. 2 Year 2023 is juridically recognized and has binding legal force based on Article 8 paragraph (1) of Law 12/2011 and Article 79 of the Supreme Court Law. Sociologically, SEMA No. 2 Year 2023 is following the social reality in the community. Philosophically, establishing SEMA No. 2 Year 2023 aims to create legal unity and certainty. However, the implementation of SEMA No. 2 Year 2023 is considered not optimal because it does not fulfill all aspects of the principle of legal certainty according to Gustav Radbruch. The aspects of legal certainty that are fulfilled in SEMA No. 2 Year 2023 include laws formulated based on facts and clarity in formulation. Meanwhile, the positive law aspect has been partially fulfilled, but the legal stability aspect, which requires the law not to be easily changed, has not been fulfilled. This research is expected to contribute to legal development in Indonesia, especially regarding interfaith marriages.
Co-Authors Ahmad Izzuddin M. Azam Rahmatullah Yusril Mahendra