KONSTRUKSI HUKUM PEMBAGIAN HARTA PERKAWINAN AKIBAT PERCERAIAN DALAM PERSPEKTIF HUKUM ISLAM

Munir, Munir (2020) KONSTRUKSI HUKUM PEMBAGIAN HARTA PERKAWINAN AKIBAT PERCERAIAN DALAM PERSPEKTIF HUKUM ISLAM. Doctoral thesis, Universitas 17Agustus 1945 Surabaya.

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Abstract

The study entitled "Legal Construction of Divinancing Assets Due to Divorce in the Perspective of Islamic Law", discusses the problem of the ambiguity of the distribution of marital property due to divorce and the concept of division of marital property due to divorce in the perspective of Islamic law. Research with a philosophical approach (philosophical approach), historical approach (historical approach), statutory approach (statute approach), conceptual approach (conceptual approach) and case approach (case approach) obtained a conclusion as follows: The concept that underlies the pattern of regulating marital property in Law No. 1 of 1974 according to Islamic law, regarding assets in a marriage are distinguished between assets obtained during a marriage and assets brought into a marriage. As long as these assets are not promised in a marriage agreement, then each has the right to take legal actions in the sense that if one party commits legal actions against joint property, then the other party's approval must be obtained. Regarding assets brought into marriage, if the owner of the object commits legal actions against the originating asset, it is not necessary to seek approval from the other party. Arrangement of assets in marriage as Article 35 and Article 36 of Law no. 1 of 1974 is to revoke the provisions of Article 119 of the Civil Code regarding the unity of property in a marriage, unless promised otherwise. The legal consequences of husband and wife divorce on their marital property according to Islamic law, that the property obtained during marriage if the marriage breaks up, the sharing of shared property will be regulated according to each law, namely religious law, customary law and other laws. Judging from the theory of legal certainty to restore the arrangement of the distribution of assets in marriages broken up due to divorce in the law of each religion or customary law can not be used as a basis for husband or wife in doing according to the law on shared property if on one party wants the distribution based on the religious law (Islam) each gets a half as Article 157 jo Article 97 KHI, on the other hand based on customary law which has an unequal distribution. In terms of legal protection, the handling of cases of asset distribution in marriage as Article 37 of Law no. 1 of 1974 applied casually. In terms of justice, according toxiii Islamic law, john Rawl's justice, the theory of togetherness (Egalitarianism) and KHI can be used as a reference to not distinguish between ex-husband and ex-wife parts of property in a balanced marriage. Keywords: Legal Construction, Treasury Treasures, Islamic Law

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