Hasmawati, Hasmawati (2018) Study of Case Analysis Number: 0222/Pdt.G/2016/PA.Plh And Number: 0472/Pdt.G/2011/PA.Plh About Livelihood Liability for CIvil Servants Post-Divorce. Tesis, Pascasarjana.

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ABSTRAK

Hasmawati: Study of Case Analysis Number: 0222/Pdt.G/2016/PA.Plh And Number: 0472/Pdt.G/2011/PA.Plh About Livelihood Liability for CIvil Servants Post-Divorce under the guidance of advisor I: Prof. Dr. H. AhmadiHasan, M.H and II: Dr. Budi Rahmat Hakim, S.Ag. MH, on Graduate UIN Antasari Banjarmasin, 2018. Keywords: Case Analysis, Livelihood Liability, Civil Servants, Post-Divorce. Divorce raises the existence of a certain law for the former husband to his former wife and children. This applies when judicially obtaining legal certainty from a court decision. In terms of livelihood obligations, this has been regulated in the rules of Islamic law as well as the Positive Law. In the rule of positive law, this rule applies to all citizens of Indonesia, but there is a specificity of the rules applied for citizens of Indonesia with the status of Civil Servants (PNS). The regulation is contained in Government Regulation No. 45 of 1990. Government Regulation No. 10 of 1983 concerning marriage and divorce for civil servants in Article 8. The balance of the judges' decision does not grant the wife's counter-claim concerning the application of the article, this became the case analyzed in the case number: 0472/Pdt.G/2011/PA.Plh and number : 0222/Pdt.G/2016/PA.Plh. This research is a normative research. This research was conducted with two approaches namely state aprroach and case approach. The object of his research is the legal reason (ratio decidendi or reasoning). The focus of the research is the legal considerations in the case to be analyzed by considering the relevance of the application of legal principles. The result of this research is that the judges do not have the power and freedom to apply the law, because the judges are bound by the provisions of jurisprudence of MARI No. 11 K/AG/2001 dated July 10, 2003 rather than Government Regulation No. 45 of 1990 jo. Government Regulation No. 10 of 1983. This creates a lack of legal certainty. The panel of judges is also inconsistent in applying the law and has no independence in settling the case in hand. As for the relevance of the application of legal principles by judges to a decision, the panel of judges has not fulfilled the application of legal principles namely the principle of freedom/ independence of judges, and the principle of legality. The judges seem to ignore the principle of hierarchy of legislation that law No. 12 of 2011, because the Government Regulation has a higher position than jurisprudence.

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