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All Journal AHKAM : Jurnal Hukum Islam dan Humaniora JUDGE: Jurnal Hukum
Harry Permana
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Humanities Law, Crime, Criminology & Criminal Justice Social Sciences

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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.
Perlindungan Harta Bersama dalam Perkawinan Campuran: Analisis Hukum Perdata dalam Perspektif Van zaken Harry Permana; Fauziah Lubis; Mhd. Yadi Harahap
AHKAM Vol 5 No 1 (2026): MARET
Publisher : Lembaga Yasin AlSys

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.58578/ahkam.v5i1.8825

Abstract

Although mixed marriages have increased in line with population mobility and intensified cross-border interactions, the regulation of the protection of spouses’ community property within differing legal systems continues to raise complex private-law issues. Under Indonesian civil law, the regulation of community property is influenced by principles of Western civil law, including the concept of van zaken, which conceives property as an object of law with specific civil consequences and thus has implications for the status, ownership, and restrictions on certain assets when the spouses hold different nationalities. This study aimed to analyze the protection of community property in mixed marriages under Indonesian civil law using the van zaken perspective. A normative legal research method was employed with juridical-normative and conceptual approaches through a review of legislation, civil law doctrine, and relevant court decisions. The findings show that the protection of community property in mixed marriages largely depends on the existence and formulation of a prenuptial agreement and on a clear separation of assets between husband and wife, thereby clarifying each party’s ownership status over both community property and original (separate) property. The concept of van zaken underscores the importance of clearly determining the legal status of property as an object of law in order to guarantee legal certainty and protection for the parties in mixed marriages. Therefore, there is a need to strengthen regulation, legal practice, and legal understanding concerning community property in mixed marriages so that legal certainty, justice, and protection of the parties’ civil rights can be realized optimally.
Co-Authors Fauziah Lubis M. Iqbal Irham Mhd. Yadi Harahap Pagar