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All Journal POSITA VRISPRAAK, International Journal of Law
Kaha, Humaidi
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Religion Law, Crime, Criminology & Criminal Justice Social Sciences

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Judges' Decisions as a Source of Family Law: Case Studies in Indonesia and Malaysia Kaha, Humaidi; Burhanudin, Achmad Asfi; Al Faruq, Muhammad
VRISPRAAK : International Journal of Law Vol 7 No 2 (2023): September 2023
Publisher : STAI Miftahul Ula Nganjuk

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59689/vris.v7i2.1149

Abstract

Judges' decisions play an important role in shaping family law in Indonesia and Malaysia, especially in cases of child custody, divorce procedures, and post-divorce maintenance. This article analyses how the differences between the civil law system in Indonesia and the common law system in Malaysia affect the role of judges in determining just decisions. In addition to discussing normative aspects, this research also explores the impact of judges' decisions on society, especially women and children after divorce. The results show that in Malaysia, stronger legal mechanisms such as the Family Support Division (FSD) help ensure compliance with judges' decisions, while in Indonesia, the execution of judgements often relies on individual initiatives, leading to difficulties in the enforcement of maintenance and childcare rights. In addition, the flexibility of judges in the common law system allows for more contextual considerations in custody disputes, whereas the civil law system in Indonesia tends to be more rigid in applying written legal norms. This article recommends strengthening the mechanism of judgement execution in Indonesia to improve protection for women and children, as well as improving the consistency of judgements in Malaysia to avoid legal uncertainty. Thus, the role of judges in shaping family law can be more responsive to the needs of society.
Judges' Decisions as a Source of Family Law: Case Studies in Indonesia and Malaysia Kaha, Humaidi; Burhanudin, Achmad Asfi; Al Faruq, Muhammad
VRISPRAAK : International Journal of Law Vol. 7 No. 2 (2023): September 2023
Publisher : STAI Miftahul Ula Nganjuk

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59689/vris.v7i2.1149

Abstract

Judges' decisions play an important role in shaping family law in Indonesia and Malaysia, especially in cases of child custody, divorce procedures, and post-divorce maintenance. This article analyses how the differences between the civil law system in Indonesia and the common law system in Malaysia affect the role of judges in determining just decisions. In addition to discussing normative aspects, this research also explores the impact of judges' decisions on society, especially women and children after divorce. The results show that in Malaysia, stronger legal mechanisms such as the Family Support Division (FSD) help ensure compliance with judges' decisions, while in Indonesia, the execution of judgements often relies on individual initiatives, leading to difficulties in the enforcement of maintenance and childcare rights. In addition, the flexibility of judges in the common law system allows for more contextual considerations in custody disputes, whereas the civil law system in Indonesia tends to be more rigid in applying written legal norms. This article recommends strengthening the mechanism of judgement execution in Indonesia to improve protection for women and children, as well as improving the consistency of judgements in Malaysia to avoid legal uncertainty. Thus, the role of judges in shaping family law can be more responsive to the needs of society.
Analisis Integratif Sistem Peradilan Nasional tentang Pelaksanaan Mediasi dalam Kasus Perceraian yang Diajukan oleh Istri di Pengadilan Agama Putra, Muhammad Zidan Arzaki; Kaha, Humaidi
Posita: Jurnal Hukum Keluarga Islam Vol. 3 No. 2 (2025)
Publisher : STIS Ummul Ayman, Pidie Jaya, Aceh, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.52029/pjhki.v3i2.376

Abstract

Divorce lawsuits filed by wives in Indonesia’s Religious Courts reflect evolving social dynamics and increasing legal awareness among women. Although mediation is mandated by PERMA No. 1 of 2016 and updated by PERMA No. 3 of 2022, its effectiveness in divorce cases remains questionable. This study aims to examine whether the current mediation system ensures substantive justice for women as plaintiffs and to identify the normative and structural challenges that hinder the integration of mediation into the national judicial system. Using a normative-empirical approach, this research analyzes legal norms, empirical data, and the socio-psychological context faced by women who file for divorce. Findings reveal that mediation is often reduced to a formalistic procedure, lacking sensitivity to gender dynamics and failing to provide a safe and equitable space for women. Normative barriers include the absence of gender-responsive regulations, while structural obstacles include insufficient training, lack of qualified mediators, and inadequate facilities. To overcome these challenges, an integrative approach is essential—one that combines legal, psychological, cultural, and gender perspectives. Reform strategies include regulatory revision, gender-based mediator training, multidisciplinary collaboration, and enhanced institutional support. Such reforms are expected to transform mediation into a more effective, fair, and human-centered mechanism for resolving marital disputes initiated by women.
Kontruksi dan Deskontruksi Hukum Talak dan Kompilasi Hukum Islam: Studi Kritis atas Praktik Yudisial di Pengadilan Agama Sofiyan, Mukhammad Afrizal; Kaha, Humaidi
Posita: Jurnal Hukum Keluarga Islam Vol. 3 No. 2 (2025)
Publisher : STIS Ummul Ayman, Pidie Jaya, Aceh, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.52029/pjhki.v3i2.378

Abstract

This study aims to critically examine the construction and deconstruction of divorce law (talak) within the Compilation of Islamic Law (KHI) and its judicial application in Religious Courts. As a source of positive law in Islamic judicial practice, KHI largely reflects the classical fiqh paradigm, which grants unilateral divorce rights to husbands. However, in practice, several judges have begun to reinterpret and deconstruct these norms to achieve substantive justice, especially for women. This research employs a normative-juridical and sociological approach, using data collected through document studies and in-depth interviews with judges and legal practitioners. The findings reveal a tension between the normative provisions of KHI and the social realities encountered in courtrooms. Judges tend to adopt a progressive, justice-oriented approach in divorce rulings, despite the constraints imposed by a conservative legal framework. These findings highlight the urgent need to reformulate divorce law in the KHI to better align with contemporary values of justice and gender equality.
Co-Authors Al Faruq, Muhammad Burhanudin, Achmad Asfi Putra, Muhammad Zidan Arzaki Sofiyan, Mukhammad Afrizal