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All Journal Jurnal Akta International Journal of Nusantara Islam
Larasati, Rindiana
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Religion Humanities Law, Crime, Criminology & Criminal Justice Social Sciences

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Customary Marriage and Child Protection in Islamic Family Law: A Comparative Study of Indonesia and South Africa Febrianty, Yenny; Jayawinangun, Roni; Cusa, Jonathan Rey; Larasati, Rindiana; Ahmad, Asmida
International Journal of Nusantara Islam Vol 14 No 1 (2026): International Journal of Nusantara Islam
Publisher : UIN Sunan Gunung Djati Bandung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15575/ijni.v14i1.54491

Abstract

Customary marriage functions as a social institution under numerous legal systems; yet, its implementation often poses significant obstacles to the safeguarding of children's rights, especially when performed without official registration or involving minors. This paper investigates the normative boundaries of customary marriage within the context of Islamic family law, emphasizing child protection via a comparative examination of Indonesia and South Africa. This study uses normative legal research methods—integrating legislative, conceptual, and comparative approaches—to analyse customary marital patterns, child protection norms, and judicial reactions in both countries. The findings indicate that Islamic family law acknowledges custom (‘urf) only under the condition that it aligns with the objectives of Sharīʿah (maqāṣid al-sharīʿah), specifically the safeguarding of progeny (ḥifẓ al-nasl), the mitigation of harm (dar’ al-mafāsid), and the attainment of justice (‘adl). The prevalence of unregistered traditional marriages and lenient marriage dispensation norms in Indonesia compromises children's legal identification, parental responsibility, and access to civil rights. Conversely, South Africa enforces more stringent normative regulations via compulsory registration and judicial measures to amend customary behaviors detrimental to children. This paper normatively asserts that child safety is an essential requirement for the legality of customary marriage and illustrates how Islamic family law serves as an internal corrective mechanism within diverse legal systems.
The Urgency of the Problem of Customary Criminal Execution in the Architecture of the Integrated Criminal Justice System after Law No. 1 of 2023 Febrianty, Yenny; Ryendra, Nadya Restu; Larasati, Rindiana
JURNAL AKTA Vol 12, No 4 (2025): December 2025
Publisher : Program Magister (S2) Kenotariatan, Fakultas Hukum, Universitas Islam Sultan Agung

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30659/akta.v12i4.51288

Abstract

The New Indonesian Criminal Code (Law No. 1 of 2023) formally recognizes customary criminal law (living law), yet this development generates a fundamental paradox between legal formalization and the absence of procedural mechanisms. The urgency of this issue arises from the inconsistency between the recognition of customary sanctions and the Criminal Procedure Code (KUHAP), which designates the Prosecutor as the sole authority responsible for executing criminal judgments. In practice, the Prosecutor lacks the cultural competence and institutional capacity to implement spiritual and restorative customary sanctions, which traditionally fall under the authority of Customary Leaders. This misalignment between legal authority and practical competence creates an executorial crisis, rendering sentences in the form of “fulfillment of customary obligations” potentially non-executable. Using normative legal research methods and analysis of primary and secondary legal materials, this study finds that the absence of KUHAP reform accompanying the New KUHP exacerbates legal uncertainty. As a result, non-executable judgments are likely to increase, undermining judicial authority and weakening the functional position of customary law within the national criminal justice system.
Co-Authors Ahmad, Asmida Cusa, Jonathan Rey Roni Jayawinangun Ryendra, Nadya Restu Yenny Febrianty