The 2nd Proceeding “Indonesia Clean of Corruption in 2020”

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The 2nd Proceeding

“Indonesia Clean of Corruption in 2020”

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viii “Comparative Law System of Procurement of Goods and Services around Countries in Asia, Australia and Europe”

viii Conference And Call Paper Faculty of Law 2016 Sultan Agung Islamic University

RECONSTRUCTION OF CRIMINAL SANCTIONS AGAINST CRIME OF ACTORS AND MURDER MURDER IN PLAN BASED ON VALUE OF JUSTICE CRIMINAL CODE

Maria Marghareta Titiek Pudji Angesti Rahayu Teguh Anindito ... 579

IMPLEMENTATION OF PENAL MEDIATION IN CRIMINAL LAW

Aji Sudarmaji ... 587

FAIR SETTLEMENT RECONSTRUCTION OF PROBLEMATIC CREDIT DISPUTE AT BANK RAKYAT INDONESIA (STUDY CASE AT MEDAN-SINGAMANGARAJA BRI BRANCH OFFICE)

Bachtiar Simatupang ... 594

RECONSTRUCTION OF THE WASTE MANAGEMENT LAW BASED ON WELFARE VALUE

M. Hasyim Muallim ... 616

RECONSTRUCTION LAW OF PUNISHMENT AGAINST CHILDREN NARCOTICS ABUSE-BASED PROGRESSIVE LAW

Salomo Ginting ... 625

LEGAL PROTECTION PROBLEM OF WIFE AND CHILDREN OF POLYGAMY SIRRI IN INDONESIA

Muhlas ... 639

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“Indonesia Clean of Corruption in 2020” xiii

IDEAL RECONSTRUCTION OF REHABILITATION PUNISHMENT FOR NARCOTICS ADDICTS AND ABUSER'S VICTIMS JUSTIFIED BASED ON

THE LAW OF THE REPUBLIC OF INDONESIA NO. 35 YEAR 2009 (CASE STUDY IN SUMATERA UTARA PROVINCE)

Ahmad Zaini ... 648

IMPLEMENTATION OF ACCELERATION SYSTEMATIC LAND REGISTRATION FULL IN HUMBANG HASUNDUTAN DISTRICT

Ruslan ... 658

RECONSTRUCTION OF STATUS AND AUTHORITY OF THE SHARIA COURT IN THE NATIONAL JUDICIAL SYSTEM BASED ON JUSTICE

Jufri Ghalib ... 667

RECONSTRUCTION OF LIABILITY NOTARY PUBLIC OFFICERS TO ACT AS A VALUE-BASED JUSTICE

Elpina ... 679

RECONSTRUCTION OF CONSUMER PROTECTION LAW IN MAKING THE BALANCE BUSINESS BASED BUSINESS AND CONSUMER

VALUE OF JUSTICE

Ramon Nofrial ... 693

RECONSTRUCTION OF LAND USED RIGHT EIGENDOM VALUES BASED ON JUSTICE AND LEGAL CERTAINTY

Hakim Tua Harahap ... 706

RECONSTRUCTION OF DIVERSION CONCEPT IN CHILD PROTECTION OF CONFLICT WITH THE LAWS BASED ON THE VALUE OF JUSTICE

Ulina Marbun ... 726

RECONSTRUCTION OF PARATE EXECUTION

MORTGAGE RIGHTS TO LAND BASED ON THE VALUE OF JUSTICE

Zaenal Arifin ... 740

THE RECONSTRUCTION OF DIVORCE DUE TO MARITAL STATUS UNDER THE UNAUTHORIZED GUARDIAN AS VALUE OF JUSTICE

Abdul Kholiq ... 751

THE RECONSTRUCTION OF LEGAL AID LAW FOR CHILDREN WHO GET CONFLICT WITH LAW IN PROCESS OF JUSTIFICATION FOR CHILDREN

BASED ON THE VALUE OF PANCASILA

Adi Mansar ... 767

MEDIATION RECONSTRUCTION AS ONE OF THE ALTERNATIVE

SETTLEMENT OF DECLINE IN THE COURTS BASED ON THE VALUE OF JUSTICE (Study at the Simalungun District Court)

Mariah S.M. Purba ... 778

POLYGAMIC POLICY IN INDONESIA

(Analysis of Polygamic Arrangements and Practices 1959-2015)

Warman ... 790

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xiv “Comparative Law System of Procurement of Goods and Services around Countries in Asia, Australia and Europe”

LAW ENFORCEMENT AGAINST CORRUPTION IN PERSPECTIVE OF HUMAN RIGHTS IN INDONESIA

Sekhroni ... 798 THE PRINCIPLE OF NATURAL JUSTICE AND HUMAN’S RIGHT PROTECTION FOR

CITIZENS IN ERADICATION OF CORRUPTION IN INDONESIA

Indriyana Dwi Mustikarini ... 809

PREVENTING LAND MAFIA USING POSITIVE LAND REGISTRY SYSTEM

Bambang Sulistyo Widjanarko ... 816

UNRULY PASSENGER IN AVIATION:

THE REGULATIONS AND CASES IN INDONESIA

Adya Paramita Prabandari ... 826

EDUCATION ANTI-CORRUPTION IN INDONESIA: PROBLEMS, CHALLENGES AND SOLUTIONS

Alwan Hadiyanto ... 839

SPIRITUAL URGENCY OF RELIGIOUS AND EXPENSES OF EVIDENCE IN COMBATING CORRUPTION IN INDONESIA

Sulistyowati ... 852

SUE FOR THE STATE ADMINISTRATION OF JUSTICE IN INDONESIA

Sarjiyati ... 863

CONSISTENCY MODEL OF COURT DESIGNATION TO FOSTER PARENT RIGHTS AUTHORITY

DUE TO DIVORCE ON CHILDREN

Erna Trimartini ... 873

AN INVESTIGATION AUTHORITY OF CRIMINAL ACT ON CORRUPTION IN CRIMINAL JUSTICE SYSTEM IN INDONESIA

Sukmareni ... 885

PRO CONS THE EXISTENCE OF DEATH PENALTY IN CORRUPTION ACT OF 1999 IN INDONESIA

Anis Rifai ... 903

PENAL MEDIATION IN SOLVING MEDICAL MALPRACTICE CASES AS AN ALTERNATIVE OF PENAL SANCTIONS BASED ON LOCAL WISDOM

Sri Setiawati ... 913

SPECIAL PROTECTION OF CHILDREN IN CRIMINAL JUSTICE SYSTEM

Achmad Sulchan ... 922

MORAL REFORM BUREAUCRACY AS PREVENTION OF ILLEGAL PAYMENTS TO INDONESIA CLEAN OF CORRUPTION

Herwin Sulistyowati ... 932 STANCE AND AUTHORITY OF PEOPLE’S CONSULTATIVE ASSEMBLY DURING

REFORMATION ERA 1945

Ahmad Mujib Rohmat ... 944

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“Indonesia Clean of Corruption in 2020” xv

TAXES AND ALMS SEEN FROM ISLAMIC LAW

Mohammad Solekhan ... 954

DIVERSION IN COURT (Case Studies in Karanganyar District Court)

Anita Zulfiani ... 964 International Seminar

Photos... 971

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78 “Comparative Law System of Procurement of Goods and Services around Countries in Asia, Australia and Europe”

THE PROBLEMS OF DIVORCE IN CUMULATION AT THE RELIGIOUS COURTS BASED ON THE PRINCIPLES OF SIMPLE, FAST AND LOW COST

Elis Rahmahwati

Students of the Doctoral Law Program, Sebelas Maret University, Surakarta [email protected]

ABSTRACT

Religious Courts is a special Court and its specialization lies on the principles of Islamic personality. One of its absolute authorities is on the marriage, which also includes divorce cases.

Divorce cases in the Religious Courts can be combined with the child custody matter, children living cost, wife living cost, and joint property, with the aim to establish the principles of simple, fast, and low cost.

But in reality, it cannot be fulfilled because it would hold up the divorce process itself, which at the beginning the parties have no objection to divorce, but then become objected to the unification, such as joint property lawsuit. Thus on those kinds of cases, a legal efforts will be conduct altogether with the divorce process that included the main claim, and it took years on the process.

The theory of justice based on expediency based on Mill’s opinion and a theory of the Islamic law is to bring the benefits and avoid madharat (damage). The divorce cases that being cumulated turned out bring more madharat. Stages of the trial, like mediation, can be the anticipation of the extended process. An agreement made by the parties will results in a divorce case that is simple, fast, and low cost, without any legal efforts made by the party which feel any disadvantages due to the decision given by the Judges.

Keywords: cumulation divorce, religious court, mediation.

I. Introduction

Religious Courts is one of the executors of judicial power for the Moslem people seeking justice regarding particular case (Article 2 of Law No. 7 of 1989 on the Religious Courts, amended by Law No. 3 of 2006 and Law No. 50 2009), conducted by the Religious Courts and the Religious High Courts culminating in the Supreme court as the country's highest court.

Religious Courts is one of the executors of Judicial Power (Judicial Power), based on Article 2 of Law No. 4 of 2004 jo Law No. 48 of 2009 on Judicial Power. The article mentions that the organizers of the judicial power is done by the Supreme Court and judicial bodies underneath in the public courts, religious courts, military courts, administrative courts and the state by a Constitutional Court. These four judicial bodies have their own competence and proceedings.

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THE PROBLEMS OF DIVORCE IN CUMULATION AT THE RELIGIOUS COURTS BASED ON THE PRINCIPLES OF SIMPLE, FAST AND LOW COST

Elis Rahmahwati

Students of the Doctoral Law Program, Sebelas Maret University, Surakarta [email protected]

ABSTRACT

Religious Courts is a special Court and its specialization lies on the principles of Islamic personality. One of its absolute authorities is on the marriage, which also includes divorce cases.

Divorce cases in the Religious Courts can be combined with the child custody matter, children living cost, wife living cost, and joint property, with the aim to establish the principles of simple, fast, and low cost.

But in reality, it cannot be fulfilled because it would hold up the divorce process itself, which at the beginning the parties have no objection to divorce, but then become objected to the unification, such as joint property lawsuit. Thus on those kinds of cases, a legal efforts will be conduct altogether with the divorce process that included the main claim, and it took years on the process.

The theory of justice based on expediency based on Mill’s opinion and a theory of the Islamic law is to bring the benefits and avoid madharat (damage). The divorce cases that being cumulated turned out bring more madharat. Stages of the trial, like mediation, can be the anticipation of the extended process. An agreement made by the parties will results in a divorce case that is simple, fast, and low cost, without any legal efforts made by the party which feel any disadvantages due to the decision given by the Judges.

Keywords: cumulation divorce, religious court, mediation.

I. Introduction

Religious Courts is one of the executors of judicial power for the Moslem people seeking justice regarding particular case (Article 2 of Law No. 7 of 1989 on the Religious Courts, amended by Law No. 3 of 2006 and Law No. 50 2009), conducted by the Religious Courts and the Religious High Courts culminating in the Supreme court as the country's highest court.

Religious Courts is one of the executors of Judicial Power (Judicial Power), based on Article 2 of Law No. 4 of 2004 jo Law No. 48 of 2009 on Judicial Power. The article mentions that the organizers of the judicial power is done by the Supreme Court and judicial bodies underneath in the public courts, religious courts, military courts, administrative courts and the state by a Constitutional Court. These four judicial bodies have their own competence and proceedings.

The Religious Courts as a legitimate state courts as well as a special court that the Islamic court in Indonesia, which is authorized by state legislation to create material Islamic law within the limits of its power.¹

As one of the executors of the judicial authorities, Religious Courts have absolute competence that examine, decide and finalize certain judge actions, as stipulated in Article 49 paragraph (1) of Law No. 7 of 1989. The article explains that: "the duty and authority of Religious Courts is to examine, disconnect and complete the first level cases among people who are Muslims in the field of:

a. Marriage² b. Inheritance c. Testament d. Grant e. Benefaction f. Alms g. Infaq

h. Sadaqah, and i. Economic Sharia.³

In theory, the existence of the court is an institution that serves to coordinate disputes that occur in the community, and is 'the home protection' for people seeking justice, who believe in the path of litigation, as well regarded as a 'company of justice' who are able to manage the dispute and issued a product of justice.⁴

The procedural law applicable at the Courts of religion is the law applicable to the general courts. It is stated in Article 54 of Law No. 7 of 1989 that:

1 Raihan A.Rasyid, Hukum Acara Peradilan Agama, Raja Grafindo Persada, Jakarta, 2005, pp. 10.

2 In the explanation of Article 49 paragraph 1 of the Law of Religious Courts paragraph a concerning matters in marriage is mentioned: Permission to have more than one, Permit into marriage for those who have the age of 21 (twenty-one) years, in the case of parents guardians, or family in straight lines there are differences of opinion, dispensation of marriage, Prevention of marriage, refusal of marriage by Employees Registrar of marriage, cancellation of marriage, claim negligence on duty of the husband or the wife, divorce by husband, divorce by wife, joint property settlement, Mastery children, mother can bear the cost maintenance and education of children when the father should have the responsibility not to obey, determination of the obligation to give the cost of living by the husband to the former wife or determination of any liability for ex-wife, ruling on the legitimacy of a child, Decision on revocation of parental authority, revocation of a guardian's authority, appointment others as a guardian by the court in terms of the power of a guardian revoked, appointment of a guardian in the case of a child who is not old enough 18 (eighteen) years in living both parents, imposition of liability for damages on the child's assets which were under his control , determination of the origin of a child and establishment of adoption based on Islamic law, Decision about denial of information to perform mixed marriages, statements about the validity of marriages that occurred before the Act No. 1 of 1974 on marriage and executed according to other regulations.

3 As the latest authority of the Religious Courts after the enactment of Law No. 3 of 2006, although this rule states that there are choices of law which is the Religious Court or District Court. But after the second changes of Religious Courts Law with the enactment of Law No. 50 of 2009 to the absolute authority of the Religious Courts.

4 Adi Sulistiyono, Krisis Lembaga Peradilan di Indonesia, Lembaga Pengembangan Pendidikan (LPP) UNS dan UPT Penerbitan dan Percetakan UNS (UNS Press), Surakarta, 2006, pp. 3.

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"The procedural law applicable in the Religious Courts is the law applicable in the General Courts, except as specifically regulated in this law”.

In Article 66 Paragraph (5) of Law No. 7 of 1989 as amended by Law No. 3 of 2006 and Law No. 50 of 2009 states: "lawsuit on the child custody matter, children living cost, wife living cost, and joint property of husband and wife may be filed together with the application for divorce or after the divorce pronounced pledge. "

And Article 86 Paragraph (1) states: "Claims about the child custody matter, children living cost, wife living cost and joint property of husband and wife may be filed together with the suit after divorce or divorce judgment obtained permanent legal force."

Based on the article provides legal basis in terms of cumulative or merger lawsuit. In practice, the cumulation may occur when a person files a lawsuit or during the case investigation. The second way is in the civil procedure law with a “rekonvensi” lawsuit.

Cumulation lawsuit can provide a positive impact, on the other hand can also cause negative effects. The positive impact of a cumulation lawsuit is the proceedings can be simple, quick and low cost. The negative effects such as, the rules that granted a divorce can be blocked, if one of the parties take legal actions against others claims, so the case becomes longer.

Maia Estianty’s case on November 16, 2007 filed for divorce combined with thechild custody matter and children living cost of her husband Ahmad Dhani. The case was decided on September 23, 2008 by the South Jakarta Religious Court by granting the divorce and child custody granted to Maia, and Dhani are required to provide a living for their children Rp. 7.500.000, - / month for one child. Dhani appealed to the Jakarta Religious High Court, but was canceled and the appeal is still granted the child custody to Maia. The cassation decision was issued in January 2011. Then Dhani file a judicial review and was terminated on May 14, 2013.

It can be seen that divorce in cumulation would be a long process with their legal efforts, thus the divorce process become longer. In this case, it took about three years since the decision made by the court of first instance to appeal.

Regarding the impact of positive and negative impacts of litigation with the cumulation by Yahya Harahap,⁵ that combines a divorce case and joint property lawsuit is more beneficial, as well as it can solved two problems in an examination and judgment,

5 M. Yahya Harahap, Kedudukan dan Kewenangan dan Acara Peradilan Agama, Sinar Grafika, Jakarta, 1993, pp. 293.

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