Volume 8, Number 2, 2023
P-ISSN: 2502-8006 E-ISSN: 2549-8274 DOI: https://doi.org/10.22373/petita.v8i2.196 Indexed by Scopus:
https://suggestor.step.scopus.com/progressTracker/?trackingID=6104E7D47B535213
A LEGAL ANALYSIS OF UNREGISTERED MARRIAGES FROM ULAMAS’ PERSPECTIVES IN ACEH PROVINCE
IMAN JAUHARI
Universitas Syiah Kuala, Banda Aceh, Indonesia Email: [email protected]
AZHARI YAHYA
Universitas Syiah Kuala, Banda Aceh, Indonesia Email: [email protected]
DARMAWAN DARMAWAN
Universitas Syiah Kuala, Banda Aceh, Indonesia Email: [email protected]
DAHLAN DAHLAN
Universitas Syiah Kuala, Banda Aceh, Indonesia Email: [email protected]
MUHAMMAD NASIR
Institut Agama Islam Negeri Langsa, Indonesia Email: [email protected]
Abstract: This study aims to scrutinize the legal analysis of unregistered marriages, identify the factors that cause unregistered marriages, and analyze the views of ulama surrounding unregistered marriages in Aceh. The method used in this research is an empirical juridical method with a qualitative approach. This research was conducted in Aceh and data collection was carried out through field research supported by library research. The results show that marriage registration has been regulated by the Marriage Law and the Islamic Compilation Law alongside a set of implemented regulations in the field of marriage registration. The factors that cause unregistered marriage in Aceh, among others, are economic factors, unintended pregnancy, lack of understanding and awareness about marriage law, prolonged affairs, not having a guardian, avoiding administrative procedures, and avoiding adultery. The Acehnese Ulama says that generally, they accept marriage registration because it has benefits for the family such as registration of children’s birth certificates and family cards, which are used as administrative requirements under Indonesian law. However, they refuse to register the marriage if it is related to other provisions such as the age of marriage, polygamy permits, and disputes involving the family.
Keywords: Legal, Unregistered Marriage, Ulama, Aceh
Abstrak: Tujuan dari penelitian ini adalah untuk mengetahui analisis hukum nikah sirri, mengidentifikasi faktor-faktor penyebab nikah siri, dan menganalisis pandangan ulama
tentang nikah siri di Aceh. Metode yang digunakan dalam penelitian ini adalah metode yuridis empiris dengan pendekatan kualitatif. Penelitian ini dilakukan di Aceh dan pengumpulan data dilakukan melalui penelitian lapangan yang didukung oleh penelitian kepustakaan. Hasil penelitian menunjukkan bahwa pencatatan perkawinan telah diatur dalam Undang-undang Perkawinan dan dalam Kompilasi Hukum Islam serta seperangkat peraturan pelaksanaan lainnya di bidang pencatatan perkawinan. Faktor-faktor yang menyebabkan perkawinan tidak tercatat di Aceh antara lain adalah faktor ekonomi, kehamilan yang tidak sah, kurangnya pemahaman dan kesadaran tentang hukum perkawinan, perselingkuhan yang berkepanjangan, tidak memiliki wali, menghindari prosedur administrasi, dan menghindari zina. Ulama Aceh menerima pencatatan pernikahan karena memiliki manfaat bagi keluarga seperti pencatatan akte kelahiran anak, dan kartu keluarga sebagai syarat administrasi dalam perbuatan hukum lainnya.
Namun, mereka menolak pencatatan perkawinan jika dikaitkan dengan ketentuan lain seperti usia perkawinan, izin poligami, dan perselisihan yang melibatkan keluarga.
Kata Kunci: Hukum, Pernikahan sirri, Ulama, Aceh, Pandangan.
Introduction
Marriage, according to Islamic concepts, results in the establishment of rights and obligations between husband and wife, but also has other legal consequences regarding the status of children, joint property, inheritance issues, and other family relationship problems. Marriage must also be able to provide role models for the surrounding community; in a harmonious family, honor, tolerance, and mutual consideration are the main focus, as is the joined support of the shortcomings of both the husband and wife.1 Islam theorizes that those who are married are considered perfect as human beings in religion. Because married people are considered perfect human beings in religion, the rights and obligations of a household must be respected.2
To achieve this noble goal of marriage, efforts to reform marriage law continue in Muslim countries, including Indonesia. This includes the enacting of marriage law legislation into Law No. 1 of 1974 concerning marriage, into the Law of Justice, and through shifting legal contexts. Munakahat specifically formed the Compilation of Islamic Law to regulate marriage in Indonesia.3 However, there are still legal practices regarding marriage among Muslims that refer to the classical fiqh view, resulting in many tensions between fiqh and statutory regulations in the legal reality in Indonesian society.4
As a result, the term ‘illegal marriage’ was born as a construction of marriage unto the law. The term was introduced in the study of Islamic law in Indonesia and is thought to have emerged after the enactment of the law on marriage. The term is a development of the term ‘nikah sirri’ which is the opposite of the term ‘registered marriage’, based on Indonesian laws and regulations.5
1 B Sendy and Tarigan, ‘A Study of Children’s Rights from Illegal Marriage’ (2020) 7 International Journal of Research and Review. See also Armia, Muhammad Siddiq, et al. “Post Amendment of Judicial Review in Indonesia: Has Judicial Power Distributed Fairly?.” JILS 7 (2022): 525.
2 N Nurmila, ‘Polygamous Marriages in Indonesia and Their Impacts On Women’s Access To Income and Property’ (2016) 54 Al-Jāmi‘ah: Journal of Islamic Studies.
3 Murdan, ‘Hukum Islam Dalam Kerangka Sistem Hukum Masyarakat Modern’ (2016) 1 PETITA: Jurnal Kajian Ilmu Hukum dan Syari’ah.
4 H Boonstra, ‘Islam, Women and Family Planning: A Primer’ (2001) 4 The Guttmacher Report on Public Policy; Ratno Lukito, ‘Shariah and the Politics of Pluralism in Indonesia: Understanding State’s Rational Approach to Adat and Islamic Law’ (2019) 4 Petita : Jurnal Kajian Ilmu Hukum dan Syariah 14 <http://petita.ar-raniry.ac.id/index.php/petita/article/view/8>.
5 N Aziz, ‘The Great Phenomenon of Online Sirri Marriage for Male And Female’ (2018) 1 BIRCI-Journal:
Budapest International Research and Critics Institute-Journal; Muhammad Habibi, ‘Legalitas Hukum Islam Dalam Sistem Peradilan Indonesia’ (2021) 22 Media Syari’ah : Wahana Kajian Hukum Islam
In practice, there are many Indonesian citizens who do not register their marriages with Marriage Registration Officers. Their marriages only fulfill the demands of their religion without fulfilling the administrative demands of the state. One reason for this is the lack of law enforcement regarding marriage registration.6 As a result, unregistered spouses do not get a marriage certificate, meaning that the husband or wife cannot take civil legal action related to their household. The children born to them are recognized by the state as illegitimate, with only a civil relationship with the mother and the mother’s family. The implication is that if a wife and child are neglected by their husband or biological father, then they cannot carry out lawsuits, either for the fulfillment of economic rights or joint property. Marriage events like this have developed rapidly in various regions in Indonesia, including in Aceh.7
In the context of the Acehnese Ulama, there was resistance to the provisions of marriage as regulated by these statutory regulations. There are three types of illegal marriages that are the focus of this research. First,a marriage conducted without notification by the official, listed according to the legislation by an officer assigned by the government. Second, a marriage conducted without a note to meet in harmony and maintain the requirements of marriage under the provisions of classical fiqh. Third,marriages with the Muhakkam path through the unofficial Qadhi of certain scholars.
Initial research reached a strong understanding among ulama that the provisions of the marriage law contained in classical jurisprudence were adequate, meaning that government regulations related to marriage were no longer needed and could even cause new problems for society.8 In fact, many hope that the government does not question what has been going on in society so far, and to stay strict or organized, the government should legalize marriages that are carried out “sirri” when the community registers them.9
This is in accordance with the fatwa of the Consultative Assembly of Acehnese Ulama, an institution of clerics in Aceh.10 The views of the scholars mostly are contrary to the provisions of the laws and regulations which require that every marriage be recorded based on the law before the marriage is carried out, despite isbat nikah. The phenomenon of illegal marriages has a negative impact on efforts to create peaceful households, because they create many problems, such as legal uncertainty between husband, wife, and children, uncertain legal status of children, and neglected civil rights for the parties concerned.
Illegal marriages therefore contradict the desired values of the marriage requirements in Islam, namely to create fortune and harmony for those who marry and society in general.
The benefit of marriage, which is the core of maqasid al-syariah, includes the maintenance and realization of the goals of syara’ in the form of preserving religion, soul, mind, descent, honor, and assets.11
dan Pranata Sosial.
6 AG Anshari, ‘The Practice of Marriage Under Hand and the Opportunities for Legalization in the Special Region of Yogyakarta’ (Universitas Gajah Mada 2003).
7 Husni Mubarrak, ‘Penalaran Istiṣlāḥī Dalam Kajian Fikih Kontemporer: Studi Kasus Fatwa Hukum Imunisasi Di Aceh’ (2017) 17 AHKAM : Jurnal Ilmu Syariah; See also Nawir Yuslem, ‘Sharia Contextualisation To Establish the Indonesian Fiqh’ (2020) 5 Petita : Jurnal Kajian Ilmu Hukum dan Syariah.
8 M Jamil, ‘The Quran on Marriage: Indonesian Interpreters Perspectives on Marriage of Muslim with Polytheist’ (2017) 6 International Journal of Humanities and Social Science Invention.
9 Mukhlis Mukhlis, ‘Pembaharuan Hukum Perkawinan Di Indonesia’ (2019) 11 ADLIYA: Jurnal Hukum dan Kemanusiaan.
10 Nurmasyithah Ziauddin, ‘Tinjauan Hukum Islam Terhadap Perlindungan Konsumen Pada Transaksi Jual Beli Online’ (2017) 2 PETITA: Jurnal Kajian Ilmu Hukum dan Syariah.
11 A Shomad, Islamic Law: Normalizing Sharia Principles in Indonesian Law (Kencana Prenada Media Group 2012).
Based on the background mentioned above, the problems of this study can be formulated as follows:
(a) what are the factors causing illegal marriages in Aceh?
(b) what are the views of the Ulama in Aceh surrounding illegal marriages?
This article analytically describes the issues raised surrounding the legal registration of marriage. I combine legal and sociological research and primary and secondary data sources.
This research is based on an in-depth analysis of people’s attitudes from various perspectives. The value of the information from these findings is not quantitative, but is instead taken from various viewpoints.12 This is a descriptive study that aims to accurately describe the characteristics of an individual, condition, phenomenon, or group, to determine the spread of a phenomenon, or to determine whether there is a relationship between multiple phenomena in society.13
This research uses a socio-legalapproach, which places law as a social phenomenon, with the law only viewed from the outside legal perspective. Therefore, in this kind of study, the law is associated with social problems that emphasize the behaviors of individuals or society in relation to the law.14 These socio-legal research topics are usually related to legal effectiveness and compliance with legal rules.15
Methods
This research was carried out in Aceh by interviewing Islamic scholars known as Ulama.
Field data collection was carried out by using interview techniques, namely in-depth interviews by means of face-to-face question and answer sessions between the interviewer and the informant.16 To make it easier to conduct interviews, the questions were arranged in such a way that they could be used as a guide when conducting interviews.
This research is focused on the views of Acehnese Ulama regarding marriage registration.
The data sources in this study can be classified into two categories: 1) Primary data obtained from field research in the form of opinions and views of Acehnese Ulama regarding marriage registration; and, 2) secondary data traced from books, research results that discuss marriage registration, and laws/regulations related to marriage law.
I used a data analysis method with non-statistical descriptive techniques. This method is used for non-numerical data. The analysis used non-statistical analysis and the deductive method.
Results
The theory used in this research to analyze the existing problems is maqasid al-syari’ah. In applying the maqasid al-syari’ah theory, this research analyzes virtues acquired by existing legal provisions, both the provisions contained in the formulation of jurisprudence and in the law. It is understood that the law of marriage is one of the laws contained in shari’a. It is intended from an Islamic perspective to provide benefits to humans and prevent them from damage (mafsadah). In the study of Islamic law, the maqasid theory is an appropriate
12 Muhammad Siddiq Armia, Penentuan Metode Dan Pendekatan Penelitian Hukum (Chairul Fahmi ed, LKKI 2022).
13 Amiruddin and Z Asikin, Introduction to Legal Research Methods (Raja Grafindo Persada 2003).
14 B Sunggono, Legal Research Methodology (Rajawali Press 2006); B Waluyo, Legal Research in Practice (Sinar Grafika 2008).
15 Mahmud Marzuki, Legal Research (Golden 2008).
16 B Bugin, Research Ku Litatif: Communication, Economics, Public Policy and Other Social Sciences (Golden 2007).
tool to analyze the findings of this study.
Jaser Ouda said that there are several well-known figures from the 5th to the 8th century of Hijriah (Islamic calendar) which was the origin period of the Maqasid theory. These figures are Imam al-Juwaini, Imam al-Ghazali, Al-’Izz ‘Abd al-Salam, Imam al-Qarafi, Imam ibn al-Qayyim, and Imam al-Shatibi.17
Hammadi al-Ubaydi explained that the specific analysis of maqasid al-syari’ah was written by Asy-Syatibi in his book al-Muwafaqat in Juz II (a section of the Qur’an). Al-Syatibi expanded his discussion with new themes that were directly connected to the Qur’an, and his studies were not found in the works of previous scholars. These themes include mashlahat and its limitations, the theory of qasd (goal) in action, intention in law and maqasid, maqasid and reason, maqasid and ijtihad, and the general purpose of maqasid.18 Maqasid al-Syari’ah consists of two parts, namely maqasid and al-syari’ah. In Arabic, maqasid is the plural of the word maqshid, which means the difficulty of what is intended.
Etymologically, maqasid comes from the words qasada, yaqsidu, and qasdan, which mean a strong desire, clinging firmly, and deliberately, respectively. However, it can also be interpreted intentionally or meant to mean qasada ilaihi. “Wa’alallahi Qasdussabili” means
“Allah is the one who explains the straight path.” The word al-syari’ah comes from the word syara’a as-shayi, which means to explain something, and al-syar’ah and al-syari’ah, which mean a place of uninterrupted water sources and where people gather.
Wahbah al-Zuhaili said that maqasid al-syari’ah are the values and goals of syara which are implied in all or the largest part of shari’a law. These values and goals are seen as the aims and secrets of shari’a, which are stipulated by al-shari’ in every legal provision.19 Thus, Maqasid al-syari’ah is defined as the purpose or objective of shari’a law in Islam.
Imam al-Syatibi divides maqasid al-Shari’ah into three categories:
1) dharuriyyah;
2) hajiyat; and 3) tahsiniyyah.
These contain five principles of Islamic Shari’a:
(a) maintaining the religion/hifzh al-din;
(b) maintaining the soul/hifzh al-nafs;
(c) maintaining descendants/hizh al-nasl;
(d) maintaining reason/hifzh al-aql; and (e) maintaining the property/hifzh al-maal.20
In line with Ash-Syatibi, Abdullah Darraz, in his introduction to al-Muawafaqat by Ash- Syatibi, argued that maqasid basically aims to maintain natural harmony by realizing the continuity of benefit and eliminating mafasid (jalb al-mashalih wa dar al-mafasid). This benefit is then used as the basis for determining maqasid.
Maqasid or maslahat, in Ash-Syatibi’s view, is divided into three parts:
1) al-Masalih al-dharuriyyah; 2) al-Masalih al-Hajiyyah; and 3) al-Masalih at-tahsiniyah.
17 Jasser Audah, Al-Maqasid For Beginners (‘Ali’ Abdelmon’im ed, Like Press 2013); See also Ali Abubakar,
‘The Chance on Islamic Family Law in Indonesia’ (2019) 4 Petita : Jurnal Kajian Ilmu Hukum dan Syariah 42.
18 Al-’Ubaydi, Al-Shatibi Wa Maqasid Al-Shari`ah (Dar Qutaybah 1992).
19 Al-Zuhaili Wahbah, Al-Wajiz Ushul Fiqh Al-Islami (Dar al-Fikr 1986).
20 A Asy-Syatibi & Ishaq, Al-Muwafaqat Fi ’Ushul Al-Syari’ah (al-Maktabah at-Tijariyyah al-Kubra 1993).
The first Maslahat (or al-Mashalih al-dharuriyyah) contains several parts:
(a) maintaining religion (hifz ad-din);
(b) guarding the soul (hifz an-nafs );
(c) maintaining reason (hifz ‘aql);
(d) maintaining offspring (hifz an-nasl); and (e) maintaining property (hifz al-mal).
The five al-maslahat are hereafter referred to as al-kulliyyat al-khamsah (Al-Buthi, 1977).
Ash-Syatibi also stated that the original purpose of the shari’a was to uphold these five basic maqasid and maintain their continuity.21
The fifth order of al-daruriyyat is ijtihadi, this means that it is arranged based on the scholars ‘understanding of the texts taken by the istiqra’ way. 22
Furthermore, Asy-Syatibi constructed the three maqasid al-syari’ah into three main patterns, namely maqasid asliyyah (original/main/main), maqasid tabi’ah (followers) and mukammilah (completion). The main purpose of marriage is to maintain the continuity of the offspring and therefore enliven the world, while the ultimate goal is to obtain happiness and affection by pairing and acquiring offspring. Therefore, the role of al- maqasid mukammilah is to determine the main purpose contained in the maqasid itself. 23 In relation to human knowledge of the laws of Allah, there are two parts:laws that cannot be digested by reason (ta’abbudi) and laws that can be digested by reason (ta’aqquli). The laws that can be digested by reason are the laws associated with maqasid. If a law can be found in its illat (reason), then the mashlahat that is found shows that is the purpose of the law. Even so, laws that can be understood by a sense of purpose do not automatically find the real purpose, for example punishment for adulterers. The question is why the punishment for adulterers must be to be stoned a hundred times or until death, rather than using the death penalty in any other form or another kind of punishment unto God’s laws.24
In relation to maqasid al-syariah, Asyur argues that a person can find out in three ways:
first, from the text of an order and prohibition, second, through illat, which is contained in an order and prohibition, and third, byfully surrendering itto Allah because it is not found from the text or ‘illat.25
Understanding maqasid al-syari’ah means opening the door to the horizon of ijtihad because it is the true invention of the shari’a. With the maqasid al-syari’ah we can know that ijtihad includes obedience, immorality, harmony, and circumcision. Therefore, if someone wants to do ijtihad, they should not only be fixated on the linguistic approach but need to shift to the maqasid al-syari’ah approach.
In finding qasd al-syari contained in holy texts, the language approach focuses on deepening linguistic principles, while the maqasid al-syari’ah approach focuses more on the values in the form of human benefit in each taklif derived from Allah. This kind of approach needs to be completed, because the number of legal verses in the Quran is limited while society’s problems are becoming more complex. In dealing with the various problems that arise,
21 ibid.
22 ibid.
23 ibid.
24 D Candraningrum, ‘Pernikahan Anak: Status Anak Perempuan? Status of Girls in Child-Marriage’
(2016) 21 Jurnal Perempuan; See also A Hamid Sarong & Nur A Fadhil Lubis, ‘The Child Rights In Islamic Law With A Special Focus On Aceh’ (2019) Volume 4 Petita : Jurnal Kajian Ilmu Hukum dan Syariah.
25 MT Ashur, Maqasid Al-Shari’ah Al-Islamiah (Dar al-Salam).
through knowledge of the objectives of law, legal development can be carried out.
Discussion
Factors that cause illegal marriages in Aceh
In connection with the discovery of marriages that were not registered at the Office of Religious Affairs and illegal marriages in Aceh, data from the community was collected from community members, charismatic persons, perpetrators, and Ulama in Aceh. They found that these marriages were caused by several factors, including the high cost of registration burdening the community, the lack of availability of a divorce permit due to an unregistered marriage, polygamy’s illegality in court causing issues in service from the staff of the Office of Religious Affairs, and marriages that do not receive a blessing from parents.
So far, illegal marriages are considered by couples to be easy and cheap as a means to avoid adultery. This Qadhi is thought to exist because of demand. The actors in illegal marriages are no longer limited to ordinary people but have involved a number of public figures and community leaders from the upper middle class in practicing polygamy because one’s wife would not offer permission for divorce.
In some cases, this is essentially the partner initiating illegal marriage and does not meet the requirements for marriage or follow the mechanism set by the Office for Religious Affairs. Conditions that are not completed, such as the absence of a blessing from the parents, polygamy, and so on, do not meet the requirements of marriage. The factors in the occurrence of illegal marriages include the following:
First, economic factors include the administrative costs for registration of marriage, namely for those in the middle to lower class who feel that they are unable to pay for registration which can be double the official cost. Getting married using the services of illegal qadhi (illegal marriage) is cost-effective.
Second, pregnancy outside of marriage as an effect of promiscuity can lead to illegal marriage. The result of promiscuity between men and women, which disrespects religious norms and principles, can be pregnancy outside of marriage. Pregnancy that occurs outside of marriage is a disgrace for the family and will invite ridicule from the community. From there, the woman’s parents may force their child to marry the man who impregnated her on the grounds of saving the good name of the family, and in order to avoid involving the officers of the Marriage Registration Office, leading to an illegal qadhi with no records.
Third, there is a lack of understanding and public awareness about marriage registration.
With the very minimal understanding held by the community surrounding the importance of marriage registration, marriages continue to be carried out illegally. There is a belief that marriages that are recorded and not recorded are of the same validity. In fact, marriages using the services of qadhi are illegal because the guardian is unclear; the guardian is one of the pillars of marriage, explained in the Marriage Law: “every marriage is recorded according to the applicable regulations (Article 2 paragraph (1) Law No. 1 of 1974).” For those who are married according to the Islamic religion, the registration is carried out through the Office of Religious Affairs.
Fourth, it is difficult to get permission from one’s wife to allow her husband to marry a mistress using the services of illegal qadhi. his act would damage the household that has been built with the first wife, and the second wife who illegally marries due to the invalid marriage. The marriage will be considered adultery because one of the pillars is not fulfilled.
Fifth, husbands do not usually get permission to practice polygamy. Husbands then take a shortcut to get married by using the services of illegal qadhi. Community members do not understand that marriage through qadhi is illegitimate and different from betel marriage.
Betel marriages are legal according to religion, but they are not registered.
Sixth, sometimes marriages do not have a guardian. The reasons for not having a guardian include if the guardian does not agree with the marriage, for example if the husband already has a wife and children. In addition, the guardian might not agree with the partnership for various reasons and is reluctant. This usually occurs among young couples.
Seventh, couples try to avoid administrative procedures. This is due to convoluted administration and a long wait times. Though this is a very important step to obtain legal certainty so that there are no legal problems, couples are still deterred.
Eighth, couples enter illegal marriages to try to avoid adultery. This reason is the most common. Marriage using the services of illegal qadhi is illegitimate. Adultery cannot be used as an excuse for qadhi to marry a couple who are having an affair. This can contribute to prolonged adultery.
When viewed from the perspective of the benefits obtained from the registration of marriages and the losses incurred for illegal marriages, in general almost all Acehnese scholars agree to record marriages outside of the provisions of the school of jurisprudence.
Scholars believe marriage should be recorded to benefit family administrative matters in the future. Even though in religious law recording is not obligatory, and unrecorded marriage is still legal, recordings can be beneficial in many cases.
Illegal Marriage in the View of Acehnese Ulama
Illegal marriage in this study has two definitions, namely; marriages that are not registered by officials, and marriages carried out using the Tahkim method by Ulama/mujtahid who are not appointed by the government.26 According to Acehnese Ulama, this term is not suitable to be associated with marriage in Islam: “The term illegal marriage is the term nikah sirri, because illegal marriage is not suitable for marriage.”27 If it’s illegal, it is not considered marriage. The actor is considered a “thief” or “savage.” This marriage is sunnah, and said to be an “unregistered marriage”. “unregistered marriage” refers to the uncontrolled nature of illegal marriages that do not correspond with the law, outside of the realm of sharia. Sirri is a secret marriage that is not in jurisprudence, outside of the Quran’s hadith.28
Apart from differences in opinion about the legality of marriage, the terms “illegal marriage” and “sirri marriage” can be found in the fatwa of the Aceh Ulama Consultative Assembly Number 2 year 2009, stating that unregistered marriage is a marriage that is not registered by a religious office. Illegal marriage includes marriages conducted by a woman through the Tahkim route by a muhakkam to someone who is not a judge appointed by the government (Decree of the Aceh Ulama council number 02 of 2009 fatwa concerning the
26 A San’ani, Subul Al-Salam (Dahlan Multazam al-Tab’i wa al-Nasr 1994).
27 E Saria, ‘The Reposition of the Ulama Aceh Institution’s Role in Socio-Legal Studies’ (2020) 12 International Journal of Innovation, Creativity and Change; Saifuddin Dhuhri, ‘Social Engineering Through Education Law A Comparative Analysis of Cultural Policies between the Dutch and Indonesian Central Government’ (2019) 4 Petita : Jurnal Kajian Ilmu Hukum dan Syariah 86 <http://
petita.ar-raniry.ac.id/index.php/petita/article/view/12>.
28 DH Ma’u, ‘Nikah Sirri Dan Perlindungan Hak-Hak Wanita Dan Anak (Analisis Dan Solusi Dalam Bingkai Syari’ah)’ (2016) 1 Jurnal Ilmu Syari’ah dan Hukum; Siti Maimunah Binti Mohd Rijal and Rukiah Muhammad Ali, ‘Efektivitas Pelaksanaan Sanksi Talak Di Luar Mahkamah Rendah Syariah’
(2018) 3 Petita : Jurnal Kajian Ilmu Hukum dan Syariah <http://petita.ar-raniry.ac.id/index.php/
petita/article/view/41>.
law of illegal marriage).
Observing the data collected through interviews with Acehnese Ulama shows that their views on the registration of marriage regulated by the Islamic Law Compilation and legislation in Indonesia can be divided into those who accept unrecorded marriage and those who reject it or do not agree with the provisions.
Tgk AB Tanjung asserted that a marriage that is not registered and is not legalized by a marriage registrar at the Office of Religious Affairs is called nikah sirri. He continued that in Islam, there are only two marriages, legal marriage and immoral marriage. A sirri marriage could be valid or invalid. According to the Compilation of Islamic Laws, a legal marriage must be recorded in a state document, in the state administration sheet, or generally recorded by the state. Yet in the mu’tabarah shafi’i fiqh, marriage is valid if it meets the conditions of harmony. If the conditions are fulfilled and harmonious, or the conditions are not harmonious or not fulfilled but the marriage continues, it is considered a spiritual marriage.
A similar view was also expressed by Tgk Zulkarnain: “There are still a lot of people engaging in Sirri marriage, because in Islamic religious law, this is legitimate and legally valid if the terms are met such as if consent is received from the prospective groom, bride, guardian, two witnesses, and a qabul. If the marriage is not registered by the Office of Religious Affairs, this means that it is not recorded under state law, but the marriage is legitimate under Islamic law.” (Zulkarnain, 2019).
Tgk Zulkarnain added that “if sufficient requirements are met for that marriage, the marriage is valid. If it ends up unrecognized by the government, they should have applied first to the Office of Religious Affairs before the wedding day. If there are no rules regarding illegal marriage, what does marriage matter? If marriage is recognized by law, then it is legally and administratively noted.”
Marriage registration is useful as a means to uphold marriage according to Islamic law, and the benefit derived from the registration of marriage does not seem to influence the terms of the Islamic Compilation Law on Marriage Registration (Idrus, 2003). Fiqh schools are valid according to the pillars and the terms of marriage, so that the rules set by Islamic Compilation Law are no longer required, and the record by Fiqhs is legitimate as long as it does not cause the rejection of a marriage that is carried out without registration.29 Registration of marriage among scholars of Aceh has a variety of views. In general, scholars accept marriage registration because it has benefits for the family such as codifying the child’s birth certificate, family card as an administrative requirement, and other legal acts.
However, they refuse to register a marriage if it is not in accordance with other provisions such as age of marriage, polygamy permits, and disputes involving family.30
In principle, Acehnese scholars agree with marriage registration, and they even understand that the purpose of registering a marriage is the benefit of protection, especially for children and wives. However, when the consequences of registration of marriage in Islamic Compilation Law result in an administrative investigation, such as examining marital age,
29 Muhammad Bin Idris Asy-Syafi’i, Al-Umm (Dar al-Fikr 2001).
30 Mansari Mansari and others, ‘Hak Asuh Anak Pasca Terjadinya Perceraian Orangtua Dalam Putusan Hakim Mahkamah Sya’Iyah Banda Aceh’ (2018) 4 Gender Equality: International Journal of Child and Gender Studies 103. See also Armia, Muhammad Siddiq, et al. “Criticizing the Verdict of 18/
JN/2016/MS. MBO of Mahkamah Syar’iyah Meulaboh Aceh on Sexual Abuse against Children from the Perspective of Restorative Justice.” AL-IHKAM: Jurnal Hukum & Pranata Sosial 17.1 (2022): 113- 135..
marital status, the provisions of polygamy, and so forth, then the scholars give a mixed response. There are those who accept it, but most dispute it or reject the provisions of the listing.
For Acehnese scholars, the provisions regarding the age of marriage are not qat’i stipulated, but rather based on maslahat considerations in line with the Shafi’i school; a person can carry out a marriage once they are an adult. According to the Shafi’i school, the age of adolescence for males is 14 years while for females is 12 years or measured according to community habits.31 In other words, in the views of the Acehnese Ulama, if marriage registration is a protection of the rights of children and women, there is no need to limit the age of marriage as a requirement for marriage registration.
There are two types of marriage registration systems. The first involves notifying the Village Head and proceeding to the Office of Religious Affairs to fulfill the requirements for obtaining a marriage certificate. The sirri marriage system fulfills the pillars and conditions of marriage, and the marriage is reported to the Syar’iyah Court to obtain a ruling (Zulkarnain, 2019). The pattern of the first model occurs as intended by Islamic Compilation Law and regulations in Indonesia, but the pattern of the second is done in a Sirri community way - Syar’iyyah - or reported to the Supreme Court of Religion to do an isbat marriage.32 The second model causes no issues with the statutory provisions.
However, if Sirri marriage was conducted in a manner in violation of the provisions of Islamic Compilation Law or legislation, then the confirmation of marriage cannot be done.
Scholars in Aceh want marriages completed by the community through Sirri recognized by the state as long as the marriage complies with the terms of marriage defined in the Islamic school of thought.33
Judging from the theories maqasid al-Shari’ah and al-maslahah, marriage registration provides benefits. In this matter, Nasution & Muzhar34 explain that there are at least three objectives of marriage legislation reformation: First, to unify the law and create marital order in society. Second, to protect the sanctity of marriage and to promote and protect the status of women in domestic life. Third, to respond to the developments and demands of the times, because the concept of traditional fiqh does not address modern problems.
Marriage conducted without registration is known as Sirri marriage. According to Islamic law, Sirri marriage does not have legal power and the marriages are categorized as unlawful.35 Even if the marriage is viewed as legitimate, the couples’ rights are not guaranteed by statutory regulations.36 This illustrates how much harm can be caused as a result of unrecorded marriage.
The walimah al-’ursh tradition, in addition to the shar’i tradition, deem registration unimportant.37 I’lanal-nikah, in the early days of Islam, was something that was highly recommended by the Prophet (San’ani, n.d.). Muzhar stated that registration must
31 Asy-Syafi’i (n 29).
32 Jamaluddin et al, ‘The Registration of Marriages and Urgency after the Tsunami in Aceh’ (2019) 9 , International Journal of Innovation, Creativity and Change.
33 E. Nisa, ‘The Bureaucratization Of Muslim Marriage In Indonesia’ (2018) 33 Journal of Law and Religion.
34 A Muzhar, Reading the Waves of Ijtihad; Between Tradition and Liberation (Titian Ilahi Press 2000); See also Alexander Thurston, ‘Clerical Independence and the Religious Field in Post- Colonial Mauritania’ (2023) 34 Journal of Islamic Studies 212 <https://academic.oup.com/jis/
article/34/2/212/6936672>.
35 E Gordon, ‘Irregular Marriage: Myth and Reality’ (2013) 47 Journal of Social History.
36 Ma’u (n 28).
37 A Nuruddin, Islamic Civil Law in Indonesia: A Critical Study of the Development of Islamic Law from Jurisprudence: Law Number 1 Year 1974 to KHI (Kharisma Putra Utama 2014).
be seen as a new form of announcing maslahah, especially for women and children.38 Thus, although the provisions for the registration of marriage are only an administrative requirement, they have considerable influence on other legal provisions.
Legal marriage certificates play a very important role, including protecting one’s rights and proving that a legal event has occurred, especially in settlement cases in courts that use written evidence39. In addition, marriage certificates are valid forever, unless the certificate is destroyed. This is different from testimony, which is valid as long as the person concerned is still alive. As a means of evidence, the absence of a marriage certificate impacts of the validity of Islamic law, especially family laws related to wife’s support, child support, children’s education, inheritance, and marriage barriers. Based on these problematic considerations, marriage registration is necessary.
Conclusion
Marriage registration provisions set out in Kompilsi Hukum Islam should be improved, as there are still legal dilemmas. Legal experts hold different interpretations of the regulation of registration since the advent of Law No. 1 Year 1974 concerning marriage.
The presence of Islamic Compilation Law also adds to the complexity of the legal status of marriage registration because the Islamic Compilation Law does not rank in the hierarchy of law in Indonesia. Articles 4 and 5 paragraph 1 of Islamic Compilation Law contribute to the differences in interpretation surrounding requirements of marriage registration for Muslims. However, Article 6 of the Islamic Compilation Law embraces a comprehensive interpretation. Islamic Compilation Law is inconsistent, as Article 4 maintains and reinforces these differences, while Article 6 paragraph 2 agrees on a comprehensive interpretation.40
Islamic Compilation Law reconciles interpretations relating to the legal status of marriage registration in the constellation of national marriage law. But the “peace” created by the Islamic Compilation Law textually turns out to be chaotic, especially for Muslims who marry through informal procedures. The legal implication is that a marriage, in civil terms, can only be proven by an authentic deed, namely the Marriage Deed. Because an authentic deed contains a perfect evidentiary function, marriage “under the table,” however legal according to religion, is seen by civil law as having no standing. Therefore, unrecorded marriage is invisible in the eyes of the law because its existence is not proven. Marriage outside of the law is the same as an absence of marriage.
It is recommended to the national and the Aceh governments that legislation surrounding marriage and other civil matters based on Islamic law be urgently implemented in Aceh.
In order to establish ethical laws and regulations, philosophical, sociological, and juridical studies must be enacted and involve a wide range of actors, including academics, dayah ulama, and the government, so that regulations can truly benefit the community.
38 Muzhar (n 34).
39 M Grijns and H Horii, ‘Child Marriage in a Village in West Java (Indonesia): Compromises between Legal Obligations and Religious Concerns’ (2018) 5 Asian Journal of Law and Society; Zendy Wulan Ayu Widhi Prameswari and Erni Agustin, ‘Indonesian Marriage Law Reform: The Way To Strengthen The Protection of Children’s Rights Against Child Marriage’ (2018) 2 Journal of Southeast Asian Human Rights 286 <https://jurnal.unej.ac.id/index.php/JSEAHR/article/view/5353>.
40 Muhammad Habibi, Syahrizal Abbas and Sitti Mawar, ‘Fasakh Nikah Dengan Alasan Sumai Miskin (Studi Perbandingan Antara Ulama Syafi’iyyah Dan Hukum Positif Di Indonesia)’ (2018) 8 Dusturiyah:
Jurnal Hukum Islam, Perundang-undangan dan Pranata Sosial 148.
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