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IMPLEMENTATION NATIONAL AGREEMENTS IN THE DIVISION OF COLLECTIVE PROPERTY IN THE TIME OF DIVORCE
Yulius Oktaber
Polda Lampung, Indonesia, E-mail: oktaberyulius@gmail.com
Submitted:March 06, 2023; Reviewed:March 13, 2023; Accepted: March 27, 2023 DOI: 10.2504/iplr.v4i1.2945
Abstract
This research was conducted to find out the agreement made by the husband and wife before the marriage takes place which is called the marriage agreement or prenuptial agreement which regulates the separation of assets. The joint assets that are formed in marriage are from the time the marriage takes place until the date the marriage bond is broken. Furthermore, based on Article 38 of Law no. 16 of 2019 stipulates that marriages can be dissolved due to: death; divorce; and by court decision. This study uses the Normative Juridical legal research method, whose approach is carried out by examining statutory regulations that can be used as a legal reference in the application of Prenuptial agreements and analyzing the judge's decision at the Bandar Lampung Religious High Court Number:
0004/Pdt.G/2021/PTA.Bdl dated January 27, 2021 as a guideline for sharing joint assets after divorce.
The results of this study are that there is a legal position in the settlement of the distribution of joint assets after divorce and shows that the legal position in the settlement of the distribution of joint assets after marriage has been regulated in marriage law and the compilation of Islamic law. Furthermore, the judge's consideration regarding the distribution of joint assets in the Religious Court Decision No.0004/Pdt.G/2021/PTA.Bdl. regarding the divorce decision.
Keywords: Joint Property, Marriage, Divorce
A. Introduction
Article 1 of the Law of the Republic of Indonesia Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 concerning Marriage hereinafter referred to as Law No. 16 of 2019 explained that: "Marriage is a physical and spiritual bond between a man and a person women as husband and wife with the aim of forming a family (home ladder) who are happy and eternal based on Belief in the One and Only God.1
Marriage is a very important legal event in people's lives in Indonesia. The legal consequences of marriage are not only concerns the legal relationship between the prospective husband and wife, but also with the parents both sides, brothers, even the families of both sides.
At the time of marriage, the husband and wife were bound by a family so it often happens between husband and wife looking for joint gain so wealth arose in the family.2
Wealth that exists in marriage can in the form of assets that have been obtained by the wife or obtained from the husband at the time of marriage. Based on Article 35 paragraph (1) Law no. 16 of 2019 stipulates that "Property acquired during marriage becomes joint property” jo.
1Rahman, Sufirman, Nurul Qamar, and Muhammad Kamran. "Efektivitas Pembagian Harta Bersama Pasca Perceraian: Studi Kasus Perkawinan Poligami." SIGn Jurnal Hukum 1, no. 2 (2020): 104-118. https://doi.org/10.37276/sjh.v1i2.60
2 Hasanah, Uswatun, and Latiffani Chitra. "Kajian Pembagian Harta Gono Gini Menurut Kompilasi Hukum Islam." Journal of Science and Social Research 1, no. 2 (2018): 137-140. https://doi.org/10.54314/jssr.v1i2.220
Faculty of Law, Universitas Lampung, Bandar Lampung, Indonesia.
P-ISSN: 2723-259X E-ISSN: 2745-9284 https://jurnal.fh.unila.ac.id/index.php/iplr
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Article 1 letter f Instructions The President of the Republic of Indonesia Number 1 of 1991 concerning the Dissemination of the Compilation of Islamic Law (hereinafter referred to as Presidential Instruction No. 1 of 1991) means that: “Wealth in marriage or Syirkah is property acquired either individually or together with husband and wife during the marriage bond hereinafter referred to as joint property, without questioning it registered in anyone's name.
Based on the provisions above, it can be seen that joint assets formed in Marriage are from the time the marriage took place until the bond date the marriage broke up. Furthermore, based on Article 38 of Law no. 16 of 2019 stipulates that marriage may break up because of death;
divorce, and court decisions.
From the explanation above, it provides a legal consequence that the termination of a marriage relationship often presents a dispute which causes legal impact affecting the rights and obligations between former husbands and ex-wives as well as children born from legal marriages. This also applies to shared assets/agony and so on obtained during the marital bond lasts as well as the inheritance of each husband and the wife.3
Joint property is a legal consequence of divorce from marriage. When divorce occurs, women are often in a position that has a weak position, including in the distribution of joint assets (gono-gini). If there is bad faith from one of the partners. The position of joint assets of the ter divorce is regulated according to their respective laws, in accordance with the provisions of Article 37 of the Law on Marriage.
One example of conflicts regarding Disputes over Joint Assets as a result of Divorce in a Marriage is found in the Tanjungkarang Religious Court Decision No.0182/Pdt.G/2020/PA dated 22 October 2020 and strengthened by the High Court's decision at the appeal level No.0004 /Pdt.G/2021/PTA.Bdl. This happened in the case between AO and FAK. In this case, the plaintiff, who is the wife, filed a lawsuit against the ex-husband for the joint assets acquired during the marriage, which were then used as collateral for credit collateral at the bank by the ex-husband. The joint assets that had been decided by the Tanjungkarang Religious Court were pledged as collateral in the bank by the ex-husband without the ex-wife's knowledge. Therefore, the attorney for the ex-wife reported the embezzlement by the ex-husband to the authorities.
Seeing the embezzlement of joint property objects committed by ex-husbands in the case mentioned above, in which the assets were obtained during the marriage, this raises separate problems for the parties whose rights are being ignored due to the actions of one of the ex- husbands who has made credit in the Bank with the guarantee of land certificates obtained during the marriage.
A prenuptial agreement when a marriage is to be carried out is one of the solutions to be able to protect the rights of children from the first marriage when a husband or wife who has been divorced, whether divorced or widowed, will remarry, for example, a widower who has children from a previous marriage will remarry to the second time with a woman who is not rich and the widower happens to be a wealthy person, and he also does not make a prenuptial agreement regarding the separation of assets, then the children from the first marriage will be harmed 4 If later the marriage is not successful, then the wife gets a part of the common property, which actually only consists of the assets of the husband, namely the father of the children, except if the opposite applies, the one who will be married is the one who has the most assets.
Children from the first marriage are not harmed.5 The contents of the prenuptial agreement clause before the marriage is carried out freely as long as it does not conflict with decency and order and does not violate religious norms.
3 Rahman, Sufirman, Nurul Qamar, and Muhammad Kamran. "Efektivitas Pembagian Harta Bersama Pasca Perceraian: Studi Kasus Perkawinan Poligami." SIGn Jurnal Hukum 1, no. 2 (2020): 104-118. https://doi.org/10.37276/sjh.v1i2.60
4 Suhendri, Haqkida Kancana. "RELEVANSI PERJANJIAN PRANIKAH ANTARA HUKUM NEGARA DAN HUKUM AGAMA." Muhammadiyah Law Review 4, no. 1 (2020): 45-54. http://dx.doi.org/10.24127/lr.v4i1.1271
5 Ibid.
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Problems will arise if there is a divorce, then the distribution of inherited assets that have been mixed with joint assets. If the parties before the marriage entered into a Prenuptial Agreement, could the assets be divided, bearing in mind that the inherited assets have been mixed.
The formulation of the problem that the author uses is what is the legal position in solving the distribution of joint assets after a divorce? What are the Judges' Considerations regarding the Distribution of Joint Assets in the Religious Court Decision No.0004/Pdt.G/2021/PTA. Bdl.
regarding the divorce decision? Is a pe-nuptial agreement necessary to minimize disputes over the division of joint assets? Which has a goal The purpose of writing this scientific paper is to find out the legal position in the sein settlement contribution of joint assets after a divorce, and to find out what the judge's considerations are in deciding a joint property dispute case and whether the existence of a pre-nuptial agreement is a solution to minimize disputes in the division joint property.
This study uses the Normative Juridical legal research method in which the approach is taken by examining laws and regulations that can be used as legal references in the application of Pre-Marriage agreements and analyzing the decision of the judge at the Bandar Lampung religious high court Number: 0004/Pdt.G/2021/ PTA.Bdl dated January 27 2021 as a guideline for sharing joint assets after divorce.
The results of this study are that there is a legal position in the settlement of the distribution of joint assets after divorce and shows that the legal position in the settlement of the distribution of joint assets after marriage has been regulated in marriage law and the compilation of Islamic law.
B. Discussion
1. The Legal Position In The Settlement Of The Distribution Of Joint Assets After The Divorce
Joint assets are assets acquired as long as the marriage lasts from the time the marriage takes place until the marriage ends or the marriage is broken due to divorce, death or a court decision. 6 Shared assets include:
a. Assets acquired during the marriage
b. Assets obtained as a gift, gift or inheritance if not specified as such
c. Debts that arise during the marriage except for those which are the personal property of each husband and wife.
According to Article 35 paragraph (1) of Law Number 1 of 1974 concerning Marriage that joint property of husband and wife only includes assets acquired by husband and wife throughout the marriage, so that what includes joint property is the results and income of the husband, the results and income of the wife.7 Following are the various scopes of definition of joint assets from various viewpoints as follows:
a. Common property based on customary law;
b. Joint assets based on the provisions of laws and regulations;
Article 119 of the Civil Code stipulates that, starting from the moment the marriage takes place, by law a unanimous union between the husband and wife's assets applies , just regarding that the marriage agreement is not made with other provisions. The union of assets is as long as the marriage is carried out and may not be abolished or changed by any agreement between the husband and wife. If you intend to deviate from this provision, the husband and wife must take
6 Pradoto, Muhammad Tigas. "Aspek Yuridis Pembagian Harta Bersama Dalam Perkawinan (Tinjauan Hukum Islam Dan Hukum Perdata)." Jurnal Jurisprudence 4, no. 2 (2017): 85-91. https://doi.org/10.23917/jurisprudence.v4i2.4208
7 Putri, Elfirda Ade, and Windy Sri Wahyuni. "Penyelesaian Sengketa Harta Bersama setelah Perceraian dalam Hukum Positif di Indonesia." Jurnal Mercatoria 14, no. 2 (2021): 94-106. 10.31289/mercatoria.v14i2.5692
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the path of the marriage agreement stipulated in Articles 139 to 154 of the Civil Code.8 Articles 128 to 129 of the Civil Code stipulate that if the marital relationship between husband and wife is broken, then the joint property is divided in half between the husband and wife regardless of which party the wealth was previously obtained from.9
Regarding marriage the marriage agreement it is justified by Legislation as long as it does not violate the morals and general order that apply in people's lives. Article 36 paragraph (2) Law Number 1 of 1974 concerning Marriage jo. Article 87 paragraph (2) of the Compilation of Islamic Law which explains that, "Wives have the full right to carry out legal actions against each other's private property ". They are free to determine the property without the husband or wife interfering to sell it, donate it, or use it as collateral.10 This provision can be seen in Article 86 of the Legal Compilation Islam, which emphasizes that there is no mixing between the personal assets of the husband and wife because marriage and the assets of the wife remain absolutely the rights of the wife and are fully controlled by her, as well as the personal assets of the husband are absolute rights and are fully controlled by her. Regarding the form of personal property, it is in line with what has been explained in Article 35 paragraph (2) of the Marriage Law. This provision is as long as the husband and wife do not specify otherwise in the marriage agreement (hewelijksevoorwaarden) before the marriage contract is carried out.
As for the assets that are privately owned by the husband or wife are (1) inherited assets, namely assets that existed before their marriage was carried out, (2) assets acquired by each during the marriage but limited to acquisitions in the form of gifts, grants, and inheritance.11 Outside of this type, all property immediately enters into the joint property in marriage. All assets acquired by the husband and wife during their marriage bond become joint property, whether the assets are acquired separately or jointly. Likewise, assets purchased during the marriage bond are joint property, it doesn't matter whether the wife or husband buys it, it doesn't matter whether the wife or husband knows at the time of the purchase or it doesn't matter in whose name the assets are registered.12
2. Joint property according to Islamic Law
In the books of fiqh, joint property is defined as wealth generated by husband and wife as long as they are bound by marital ties, or in other words it is stated that joint property is property generated by way of syirkah between husband and wife so that there is a mix of one's assets.
with another and can no longer be distinguished. The legal basis is Al-Qur'an Surah An-Nisa' verse (32), that for all men there is a share of what they earn and for all women from what they earn too. Some of the opinions of Islamic law experts say that Islam does not regulate community property in the Qur'an.
Islamic law provides for each spouse, whether husband or wife, to own property individually which cannot be disturbed by either party. 13The husband who receives gifts, inheritance, and so on has the right to fully control the assets he receives without any
8 Supandi, Christian. "Pembagian Harta Bersama Akibat Perceraian Menurut Undang-Undang Nomor 1 Tahun 1974." Lex Privatum 7, no. 3 (2019).
9 Dwisana, I. Made Arya, and M. G. S. K. Resen. "Pembuktian Harta Bersama dalam Perceraian Perkawinan Campuran tanpa Perjanjian Kawin di Indonesia." Acta Comitas: Jurnal Hukum Kenotariatan 6, no. 3 (2021): 561-577.
10 Ariani, Inda, Muhammad Yahya Selma, and Sri Suatmiati. "PENEGAKAN HUKUM TERHADAP PELAKU TINDAK PIDANA PENGGELAPAN HARTA GONO GINI SETELAH PERCERAIAN (Studi Kasus No. 2230k/Pdt/2019 Di Pengadilan Tinggi Bangka Belitung)." Doctrinal 7, no. 1 (2022): 73-93.
11 Limbong, Panal Herbet, Syawal Amry Siregar, and Muhammad Yasid. "Pengaturan Hukum dalam Pembagian Harta Bersama Perkawinan menurut Hukum Perdata yang Berlaku saat ini di Indonesia." Jurnal Retentum 3, no. 1 (2022): 213-229.
12 Lumalente YP William, Joint property is a material right as an object of collateral for debt repayment according to Law Number 1 of 1974 concerning marriage, Journal of Lex Privatum, Vol.VI/No.1/Jan-March/2018, p.103.
13 Karim, Kairuddin, and Muhammad Akbar Fhad Syahril. "Simplifikasi Pembagian Harta Gono-Gini Akibat Perceraian." Jurnal Litigasi Amsir 9, no. 1 (2021): 1-12.
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interference from the wife. This also applies vice versa. Thus, the inheritance they owned before the marriage became the property of each husband and wife.
3. Inherited Property
Congenital assets are assets that are controlled by their respective owners, namely husband or wife. Each wife or wife has the full right to take legal action regarding their property (Article 36 paragraph (2) of Law Number 1 of 1974 concerning Marriage. In this case both the Civil Code and the Marriage Law No.1 of 1974 equally applies to anyone. In other words, subject to both laws. Meanwhile, joint property according to the Civil Code and joint property according to the Marriage Law are only to compare or clarify their meanings.
If the assets currently owned are a house, a car and deposits into one known as joint property, then before or at the time the marriage is carried out, the two parties by mutual agreement can enter into a marriage agreement regarding the separation of assets in writing which is legalized by the Marriage Registrar which contents also apply to third parties involved
14(Article 29 paragraph (1) of Law No. 1 of 1974 concerning Marriage). If there is a divorce if there is no marriage agreement regarding the separation of assets, in practice it is usually difficult to prove it, so for more details regarding "each part", a marriage agreement regarding the separation of assets is made.
Inherited assets are assets that are controlled by their respective owners, namely husband or wife. Each wife or wife has the full right to take legal action regarding their property (Article 36 paragraph (2) of the Marriage Law). Inherited assets are inherited assets that are fully controlled by the husband or wife so that the inherited property cannot be contested by the husband or wife. If there is a divorce, the inheritance (from the parents) remains under the authority of each (cannot be divided).
In article 86 paragraph 1 it is explained that basically there is no mixing of the husband's assets and wife's assets due to marriage. For this reason, the next verse it is emphasized that the value of money assets owned by a husband or wife remains theirs and they have the right to handle it. Such assets can be in the form of gifts or inheritance which each husband and wife receive before or at the time of marriage. Such assets are called innate assets and assets of this kind cannot be included in the scope of joint assets unless the husband and wife have arranged this in a marriage agreement.15
Lawsuit Number 0040/Pdt.G/2021/PTA.Bdl dated 22 October 2020 and strengthened the decision at the appeal level of the Bandar Lampung Religious Court No.0004/Pdt.G/2021/PTA.Bdl. This happened in the case between AO and FAK. In this case, the plaintiff, who is the wife, filed a lawsuit against her ex-husband for the joint assets acquired during the marriage, which were then used as collateral for credit collateral at the Bank. In the contents of this lawsuit, the Plaintiff is:
1. The Petitioner has filed a divorce application for Divorce 3 (three) times against the Respondent at the Gunung Sugih Religious Court and prior to this case, case Number 1109/Pdt.G/2019 was then revoked as described in the decision of the Gunung Sugih Religious Court on page 15 and between the Petitioner and The Respondent still cannot get along;
2. The Petitioner as a Civil Servant has applied for a divorce permit to the Authorized Official to obtain a divorce permit since May 8 2019, but was rejected and in the end in the process of filing for Divorce Divorce at the Gunung Sugih Religious Court in the a quo case the
14 Putri, Lizah Niara. "ANALISIS PUTUSAN MAHKAMAH AGUNG NO 948 K/Pdt/2017 YANG MENENTUKAN HARTA PRIBADI MENJADI HARTA BERSAMA." Kumpulan Karya Ilmiah Mahasiswa Fakultas Sosial Sains 1, no. 01 (2019).
15 Djuniarti, Evi. "Hukum Harta Bersama Ditinjau dari Perspektif Undang-Undang Perkawinan dan KUH Perdata (The Law of Joint Property Reviewed from The Perspective of Marriage Law and Civil Code)." Jurnal Penelitian Hukum p-ISSN 1410 (2017): 5632.
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Petitioner made a statement that he is willing to bear risk as evidence P.3 which has been assessed and considered by the Panel of Judges of First Instance .
According to KHI (Compilation of Islamic Law) there are two types of basis for consideration of judges in deciding a case in the realm of sharing of joint assets, namely deliberation and justice. The judge's considerations in deciding a case for sharing joint assets according to the Civil Code are based on evidence, namely in the form of statements and documentary evidence. Evidence is very important to provide confidence for judges in giving legal considerations and decisions to decide whether or not to include in the group of joint assets. If the sharing of joint assets cannot be done in kind, then the distribution of joint assets can be done by sale at a price that has been determined and agreed upon by both parties. or use the help of the State Auction Agency and the money from the auction is divided in half between the plaintiff and the defendant. But if both parties do not want to carry out the contents of the decision regarding the distribution of the joint property, then the relevant Religious Court will carry out execution, namely the implementation of the decision by force with the help of the Police.
Legal consequences of the decision:
1. Giving permission to the Petitioner (Appeal) to impose one raj'i divorce against the Respondent (Appellant) before the Gunung Sugih Religious Court;
2. Punish the Petitioner/Appellant to pay the Respondent/Appellant before pronouncing the divorce vow in the form of:
a. Iddah income during the iddah period in the amount of IDR 3,000,000.00 (three million rupiahs);
b. Mut'ah in the form of money in the amount of Rp. 12,000,000.00 (twelve million rupiahs);
3. Charge court costs at the first level to the Petitioner in the amount of Rp. 570,000.00 (five hundred and seventy thousand rupiah) and at the appeal level to the Respondent/Appellant in the amount of Rp. 150,000.00 (one hundred and fifty thousand rupiah)
4. Judge's Considerations regarding the Distribution of Joint Assets in the Religious Court Decision No.0004/Pdt.G/2021/PTA.Bdl. regarding divorce decisions
Issues regarding the distribution of joint assets in this study focus on issues regarding the distribution of joint assets in this study focusing on the case of AO (Plaintiff) and FAK (defendant) ex-husbands who pledge joint assets that have not been divided (object of dispute) to the Bank, namely in a way without permission or the approval of his ex-wife, is an act of Default because his action is against the law which results in a defect in the agreement. In this case, the plaintiff, who is the wife, filed a lawsuit against her ex-husband for the joint assets acquired during the marriage, which were then used as collateral for credit collateral at the Bank.
The joint assets that had been decided by the Tanjungkarang Religious Court were pledged as collateral in the bank by the ex-husband without the ex-wife's knowledge. Therefore, the attorney for the ex-wife reported the embezzlement by the ex-husband to the authorities. even though the ex-husband at the time of guaranteeing the object of the dispute to the bank was divorced, but because there was no fact that the joint property had been divided and was still a complete unit of the object of dispute, the status of the object of dispute guaranteed by the bank was still a joint property between ex-wife with ex-husband. This is because before the division of joint assets (gono gini) occurs, the ownership status of the disputed object remains as joint property even though it has been divorced.
The credit agreement made is suspected of being invalid because it has actually been prohibited and has been regulated in the law. Article 16 paragraph (1) of the Marriage Law stipulates that "Regarding joint property, the husband or wife can act upon the agreement of both parties". That is a fact anyway, Bank as the Creditor, agreed to abolish and not carry out surveys, clarifications and verifications of land and building ownership rights as collateral, so
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according to the statement of the ex-wife (plaintiff) in the contents of the decision that it should be stated that he had violated the precautionary principle.
In article 29 paragraph (1) of the same law, "A pre-nuptial agreement or marriage agreement is an agreement on the separation of assets between husband and wife made before carrying out the marriage contract. At the time before the marriage took place, the two parties with mutual consent could enter into a written agreement which was legalized by the marriage official, after which the contents also apply to third parties as long as the third party is involved.16
Because the delivery of collateral in the form of an object of dispute which still has the status of joint property is proven not to have been followed by the agreement of the ex-wife where the legality principle of the party said to be the owner of the collateral object for credit collateral also belongs to another person in accordance with the provisions stipulated in the Law Marriage by strengthening the decision of the Tanjungkarang Religious Court No.0182/Pdt.G/2020/PA dated 22 October 2020 and strengthening the decision at the appeal level No.0004/Pdt.G/2021/PTA.Bdl.
The legal consequence of imposing collateral on joint assets obtained during marriage without the approval of one of the parties on credit is the cancellation (voidable/ vermetig) of the guarantee agreement , where the provisions are regulated in Article 1320 of the Civil Code concerning the legal requirements of a The agreements stipulated in the contract are:
1. There is an agreement between the parties that binds himself, 2. The competence of the Parties who are bound,
3. a certain thing,
4. A lawful reason. If the principles of the agreement are not fulfilled, as the example set out in article 1337 of the Civil Code.
The judge's considerations in this decision are:
The Petitioner is no longer able to maintain his household and because of this it is impossible for a husband to be able to maintain his household life, if there is no sharp dispute going on, the Panel of Judges at the Appellate Level believes that their household has experienced a broken marriage and if the marriage If the marriage has broken, then the hearts of both have broken, thus the purpose of marriage is to form a happy and eternal family (household) based on the belief in One God and a household that is sakinah, mawaddah and wa rahmah as desired in the Al-Qur'an Surah Ar -Rum paragraph 21 and Article 1 of Law Number 1 of 1974 concerning Marriage jo. Article 3 Compilation of Islamic Law, can no longer be realized in the households of the Petitioner/Appellant and the Respondent/Appellant;
In the marriage bond, husband and wife are required to have a movement and step that is mutualistic, including mutual respect , mutual help, mutual cooperation, mutual inter- dependency and mutual understanding (mutual understanding), but in a marriage between the Petitioner/Appellant and the Respondent/Appellant this matter no longer exists; Considering that maintaining such a household is a waste of time, because it will only cause prolonged harm to the Petitioner/Appellant and the Respondent/Appellant, while if the two of them are divorced there will be more choices for both of them to achieve a better condition
The ex-wife during the iddah period is obliged to take care of herself, not to accept proposals and not to marry another man” (vide Article 151 of the Compilation of Islamic Law).
Then in the decision of the Gunung Sugih Religious Court, it did not turn out that the
16 Suprianto, Agus. "Mediasi Pembagian Harta Bersama dalam Putusan Pengadilan Agama Sleman Nomor 413/Pdt.
G/2015/PA. Smn." Asas Wa Tandhim: Jurnal Hukum, Pendidikan Dan Sosial Keagamaan 1, no. 2 (2022): 179-200.
https://doi.org/10.47200/awtjhpsa.v1i2.1291
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Respondent/Appellant was in a nusyuz state, therefore "The ex-wife has the right to receive iddah maintenance from her ex-husband, unless he is nusyuz" (vide Article 152 Compilation of Islamic Law).
Based on Article 149 letter (a) jo. Article 158 letter (b) Compilation of Islamic Law, if a marriage is broken up due to divorce, the ex-husband is obliged to give a proper mut'ah to his ex-wife either in the form of money or objects, this provision is in line with the Word of Allah SWT in the Qur'an Surah Al-Ahzab, verse 49 .
Mut'ah must be given by the ex-husband to his ex-wife who is divorced by divorce with the intention that the ex-wife is comforted from a very deep sadness, at least can reduce the pain of the Respondent/Appellant, this is in line with the opinion of Islamic law experts in the Book of AL FIQHU AL ISLAMIYYU WA ADILLLATUHU Juz VII page 321 which was taken over as the opinion of the Panel of Judges of the Bandarlampung Religious High Court in considering this decision, stated: "Giving mut'ah, so that the wife is comforted, can reduce the pain caused by divorce, and if not divorce bain kubro, it is possible that there will be a desire to get along again, as husband and wife as they were before.
With regard to the work of the Petitioner/Appellant as a Civil Servant (PNS) at the Ministry of Law and Human Rights, class II c Position of Guard of the House of State Confiscated Objects Storage, in this case the Panel of Judges at the Bandar Religious High Court Lampung by looking at the propriety and ability of the Petitioner/Appellant to pay the Respondent/Comparator a living during the iddah and mut'ah periods.
although in reality there is no real evidence that explains the income of the Petitioner as a Civil Servant Group II C with the Position of Officer of the State Storage House for Seized Objects, the Panel of Judges at the Bandarlampung Religious High Court based it on general payroll standards based on Government Regulation Number 15 of 2019 for Groups II c for 3 years of service and above in the amount of IDR 2,301,800.00 (two million three hundred and one thousand eight hundred rupiah) for 3 years of service and IDR 3,665,000.00 (three million six hundred and sixty five thousand rupiah) for 33 years of service years and performance allowances based on Regulation of the Minister of Law and Human Rights Number 48 of 2015 concerning Implementation of Giving Performance Allowances to employees within the Ministry of Law and Human Rights, for Watch Officers are given a performance allowance of IDR 2,531,250.00 (two million five hundred thirty one thousand two hundred and fifty rupiahs) whereas based on the salary regulations, the Petitioner is a civil servant of class II c the average monthly salary and performance allowance is approximately IDR 5,000,000.00 (five million rupiah).
That the determination of iddah and mut'ah maintenance must be adjusted to a sense of justice and propriety adjusted to the economic capacity of the husband and the facts of the basic needs of the wife's life, as formulated in the Law of the Chamber of Religion number III, letter A, number 2, SEMA Number 3 of 2018, regarding the Enforcement of the Formula Results of the 2018 Supreme Court Chamber Plenary Meetings as Guidelines for the Implementation of Duties for the Judiciary;
Because the iddah maintenance has been determined in the amount of IDR 1,000,000.00 (one million rupiah) per month, the mut’ah money that must be paid by the Petitioner/Appellant to the Respondent/Appellant is an amount of 12 (twelve) months x IDR 1,000,000.00 (one million rupiah) = Rp. 12,000,000.00 (twelve million rupiah
The division of joint property by husband and wife after divorce must be based on a just decision. The Tanjung Karang Religious Court judge considered that the disputed object in the form of an immovable object was located in a different jurisdiction of the court. Based on the provisions of civil procedural law Article 118 Het Herziene Indonesisch Reglement (HIR) and Article 99 paragraph (9) Reglement op de Rechtsvordering (Rv) requires that the lawsuit be filed at the Religious Court according to the location of the object of dispute. The judge also
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considered that based on Article 49 letter a of Law Number 50 of 2009 concerning the Religious Courts, it was explained that the Religious Courts had the authority to examine, decide and resolve cases of distribution of joint assets during marriage at the first level for citizens who are Muslim. The judge considered that as long as the plaintiff and the defendant were married, they had assets that had not been divided according to the legal provisions after the divorce. The plaintiff has also tried to ask for understanding from the defendant regarding the distribution of object disputes in a fair manner but there has been no response. This shows that the plaintiff has legal standing to file a joint property lawsuit as stipulated in Article 49 letter a of Law Number 50 of 2009 juncto Article 88 of the Compilation of Islamic Law. Settlement of joint property disputes must be based on the provisions of Indonesian positive law. Settlement of joint property disputes is based on the principle of Islamic personality because the plaintiff and the defendant are Muslims. Norms in Islamic law both the Qur'an and As-Sunnah, legal principles, as well as Islamic legal doctrines in the articles of the Compilation of Islamic Law are used as the basis for resolving joint property disputes
Joint property in the fiqh of Islamic society is defined as wealth that is acquired jointly while in a marriage bond. The Panel of Judges considers it necessary to inform the parties about the definition of joint property according to Islamic legal doctrine. Joint property or gono gini in Islamic fiqh is never clearly defined and regulated, but it tends to be accepted by the Indonesian Islamic community.
The plaintiff and the defendant are both working hard trying to make ends meet and get wealth so that it can be passed on to their children. Husbands and wives who jointly accumulate wealth in Islamic law are categorized as a manifestation of syirkah abdan mufawadah or an unlimited sharing of labor and business partnerships.17 The principle of sharikah abdan mufawadah can be used as a binding legal provision as a rule of fiqh as long as the custom does not conflict with sharia18. The business partnership between husband and wife is basically unlimited, so that wealth acquired during marriage becomes joint property. Assets obtained by husband and wife from inheritance or grants during marriage are excluded from being joint property
C. Conclution
Whereas according to Law Number 1 of 1974 as amended in RI Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 concerning marriage that what is meant by joint assets in marital relations as meant in Article 35 paragraph (1) is "Properties acquired during marriage become joint property, which can be understood as husband and wife property acquired during marriage, whereas according to Article 119 of the Civil Code stipulates that starting from the time the marriage takes place legally, unanimous unity between the wealth of husband and wife applies, and settlement of disputes over the distribution of joint assets after the divorce can refer to articles 128 to 129 of the Civil Code "that if the marital ties between the husband and wife are broken, then the joint property is shared between the husband and wife regardless of which party the wealth was previously transferred to." get. But if it is seen from the point of view of Islamic law regarding the definition and settlement of the distribution of joint assets after a divorce, according to what is regulated in the Al-Quran Surah An-nisa verse (32) that for all men there is a share of what they earn and all women from what they earn anyway.” Islamic law regulates the system of separating husband and wife assets as long as the person concerned does not specify otherwise (not specified in the marriage agreement). This provision is explained in Article 86 to Article 97 CHAPTER XIII Compilation of Islamic Law.
17 Ramulyo, Mohd Idris. "Hukum Perkawinan, Hukum Kewarisan, Hukum Acara Peradilan Agama dan Zakat Menurut Hukum Islam." (2006).
18 Nurdiyanawati, Lisa Wage, and Siti Hamidah. "Batasan Perjanjian Perkawinan yang Tidak Melanggar Hukum, Agama, dan Kesusilaan." Jurnal Ilmiah Pendidikan Pancasila dan Kewarganegaraan 4, no. 1 (2019): 101-108.
http://dx.doi.org/10.17977/um019v4i1p101-108
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