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All Journal Hukum Islam al-Mawarid Jurnal Syariah dan Hukum (JSYH) Legitima : Jurnal Hukum Keluarga Islam
Elmiati, Nia
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Religion Humanities Astronomy Law, Crime, Criminology & Criminal Justice Social Sciences

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AKIBAT HUKUM TERHADAP PERUBAHAN PERJANJIAN PERKAWINAN DALAM PERATURAN MENTERI AGAMA NOMOR 19 TAHUN 2018 Hafis, Muhammad; Nelli, Jumni; Elmiati, Nia
Hukum Islam Vol 22, No 2 (2022): HUKUM KELUARGA SOSIOLOGIS-ANTROPOLOGIS
Publisher : Universitas Islam Negeri Sultan Syarif Kasim Riau

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24014/jhi.v22i2.19436

Abstract

Marriage agreements are usually made before or at the time the marriage takes place. This agreement is known as a prenuptial agreement. As contained in Law Number 1 of 1974 Article 29, it is stated that at the time before the marriage took place, both parties with mutual consent can enter into a written agreement which is legalized by the marriage registrar, after which the contents also apply to third parties as long as the third party is involved. However, with the issuance of the Constitutional Court's decision no. 69/PUU-XIII/2015 regarding a material review of Article 29 of Law Number 1 of 1974 concerning Marriage, which was then followed by Regulation of the Minister of Religion of the Republic of Indonesia Number 19 of 2018 concerning Marriage Registration, which in the end said that it is not permissible to make A marriage agreement after The marriage takes place is contrary to the 1945/ inconstitutional law, so the author feels it is very necessary to conduct a study of the arguments of the Constitutional Court and what legal consequences arise from the change in the marriage agreement.In this paper the author uses the normative legal method, using an empirical juridical approach. The empirical juridical approach is an approach used in research by examining theories, concepts, legal principles and legislation related to research. The result of this study is that the decision of the Constitutional Court no. 69/PUU-XIII/2015 creates legal consequences for joint assets, results in the distribution of inheritance, as a result of causing legal uncertainty, and with this decision it can also lead to disharmony in the relationship between husband and wife in the future.
THE DYNAMICS OF ISLAMIC FAMILY LAW IN THE MODERN ERA: AN ANALYSIS OF TAGHAYYUR AL-FATWĀ AND AL-MUḤĀFAẒAH IN THE CHANGING MARRIAGE AGREEMENT PROVISIONS IN INDONESIA Ulfazah, Yernati; Hafis, Muhammad; Elmiati, Nia; Zakariah, Asril Amirul
al-Mawarid Jurnal Syariah dan Hukum (JSYH) Vol. 7 No. 1 (2025): al-Mawarid Jurnal Syariah dan Hukum (JSYH)
Publisher : Universitas Islam Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.20885/mawarid.vol7.iss1.art5

Abstract

Purpose: This study analyzes the application of the fiqhiyyah rules taghayyur al-fatwā and al-muḥāfaẓah in the context of changing marriage agreement provisions in Indonesia, specifically in the Regulation of the Minister of Religious Affairs Number 19 of 2018 (PMA 19/2018). The taghayyur fatwa rule refers to the flexibility of the fatwas, which can change according to the needs of society. Al-muḥāfaẓah emphasizes the importance of maintaining good old values while adopting new opinions that are more relevant and contextual. These two principles became the primary analytical framework for evaluating the dynamics of changes in marriage agreements in PMA 19/2018. These changes are inseparable from the challenges of the modern era, such as issues of gender equality, the protection of women's rights, and legal certainty in marriage. Methods: The research used a normative juridical method with a legislative approach. Data sources were obtained from libraries through legislation, books, and related articles. Findings- This study shows that the application of the rules of taghayyur fatwa and al-muḥāfaẓah in PMA 19/2018 reflects an effort of ijtihad to balance between maintaining the fundamental values of Islamic law (al-muḥāfaẓah) and accommodating the changes and dynamics of modern society (taghayyur fatwa). This change can be seen in the flexibility of the time needed to make a marriage contract, which could only be done before or during the marriage but can now be done during the marriage. Contribution/Limitations- PMA 19/2018 is a form of legal response to the development of modern society while ensuring that marriage law remains relevant, fair, and follows the principles of justice in Islam. Thus, PMA 19/2018 is proof of the adaptation of Islamic family law to contemporary challenges. The limitations of this study lie in its normative focus, without an empirical field analysis. Originality/Value- This research offers a family law perspective on the dynamics of modern society in dealing with contemporary issues, which can be a reference for academics and legal practitioners.
Contemporary Issues of Islamic Family Law: The Waithood Phenomenon and the Impact of the Sex Recession in Indonesia in Review of Sadd al-dzari'ah Muhammad Hafis; Elmiati, Nia; Syafitri, Juliani
Legitima : Jurnal Hukum Keluarga Islam Vol. 7 No. 1 (2024): Legitima : Jurnal Hukum Keluarga Islam
Publisher : Universitas Islam Tribakti Lirboyo Kediri

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.33367/legitima.v7i1.6178

Abstract

Purpose – This research aims to examine the phenomena of waithood (delaying marriage) and sex recession as contemporary issues in Islamic family law in Indonesia. Both phenomena demonstrate complex social dynamics, which not only affect family structures but also have far-reaching impacts on social, cultural, religious and educational dimensions. Using the sadd al-dzari'ah approach, this research seeks to identify the root of the problem and offer solutions that are in accordance with the principles of Islamic family law. Methods - The research method used is juridical-normative with a philosophical and conceptual approach. The collection of legal materials uses document studies with prescriptive analysis techniques based on logic and deductive legal reasoning. The theory used is sadd al-dzari'ah. This theory was chosen because it is suitable to see the existing phenomenon. Sadd al-dzari'ah is a theory in Islamic law that prevents, prohibits, or closes the way of an act that is initially permitted but can cause damage. Findings - Based on this research, it can be concluded that Waithood is influenced by various factors, ranging from mental readiness, the feminism movement, social conditions, and the development of modernity to economic factors that are the impact of the contemporary era. Waithood has far-reaching potential impacts, including declining birth rates, demographic imbalances, and sex recessions. Sadd al-dzari'ah theory can be applied to prevent the negative impacts of Waithood and sex recession. Research implications - This study is expected to provide a new perspective in understanding the contemporary challenges faced by the younger generation and their implications for the sustainability of society and the state.
Co-Authors Hafis, Muhammad Jumni Nelli Muhammad Hafis Syafitri, Juliani Ulfazah, Yernati Zakariah, Asril Amirul