Hidayat, Rakhmat (2023) Rekonstruksi Pasal 39 Undang-Undang Nomor 1 Tahun 1974 (Analisis Yuridis Perceraian di Luar Sidang Pengadilan dalam Studi Empiris di Wilayah Kalimantan Selatan). Disertasi, Pascasarjana.

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ABSTRAK

This study examines the Reconstruction of Article 39 of Law Number 1 of 1974 (Juridical Analysis of Divorce Outside the Court Session in Empirical Studies in the South Kalimantan Region). This study uses the formulation of the problem, particularly: Why Article 39 is included in Law Number 1 of 1974 concerning Marriage and The urgency of Article 39 of Law Number 1 of 1974 in the implementation of divorce. The provisions in Article 39 mean that a divorce is only considered legally valid if it is carried out before a court. Therefore, juridically, it does not provide another way of getting a divorce other than through the court process, but throughout its development, many people in South Kalimantan get a divorce outside the court session regardless. This then creates legal disharmony between the laws that exist in the society and the national laws, and hence at the level of application, it creates various problems in people's lives. This research is further analyzed using several theories which include: first, the Legal Objective Theory which is oriented towards legal certainty, legal justice and legal expediency to provide guarantees and protection against the divorce that has been carried out outside the court session. Second, the Analogy a Contrario theory is used to emphasize legal certainty and thus it does not raise any doubts in its application. Third, the Maqasid Sharia Theory in this regard is used to analyze the aspect of eliminating all harm and bringing benefits. Fourth, The Living Law Theory is used to accommodate the laws that adhere to and exist or apply in society. Therefore, these theories are greatly appropriate to be used as an analysis tool regarding the prevalence of divorces that are carried out outside the court session in South Kalimantan. The phenomenon of out-of-court divorce in South Kalimantan Province was then observed in Banjar Regency, Tapin Regency, and Hulu Sungai Tengah Regency. The facts of out-of-court divorce from the observations that have been made show that the number of out-of-court divorces that occur in Banjar Regency based on the number of cases listed at the Martapura Religious Court with a percentage of 55%, the number of out-of-court divorces that occur in Tapin Regency based on the number of cases listed at the Rantau Religious Court with a percentage of 45%, while the number of out-of-court divorces that occur in Hulu Sungai Tengah Regency based on the number of cases listed at the Barabai Religious Court with a percentage of 45%. Thus, it can be assured that approximately 50% of the population of South Kalimantan Province have divorced outside the court session. The factors causing the prevalence of divorces outside the court session in South ix Kalimantan include: that it is faster and more practical, the distance or terrain conditions, the time problems, the cost of the case that must be incurred, that it has become a legal custom, and following the opinion of the Muslim scholars or ulama. Considering these various problems, in the context of legal certainty and protection in Indonesia, the reformulation of the Istbat Talak (Istbat Divorce) norm plays a pivotal role. Istbat Talak can be one of the tools to provide legal protection for citizens in the field of family law, especially regarding the legal protection of women's rights after divorce. In addition, regarding legal administration, Istbat Talak can be acknowledged in Indonesian marriage law. Therefore, the judges in the court can approve the application for Istbat Talak for couples who have gotten a divorce outside the court after examining and proving that the divorce is in accordance with the provisions of Fikih (Islamic jurisprudence). In this context, the judge can use the construction method of Istbat Nikah (Istbat Marriage) and consider the aspect of its benefits. This research utilizes a mixed type of legal research, which is normative and empirical legal research. Normative legal research uses a statutory approach and a case approach. Whereas empirical legal research uses a socio-legal approach to describe the reality in accordance with the phenomenon that exists in society. The results showed that the formation of Article 39 of Law No. 1 of 1974 concerning marriage has not accommodated the needs and dynamics of marriage that are in line with the times, especially in providing certainty and protection for couples who have gotten a divorce outside the court session. Considering that there is a contradiction between the marriage provisions stipulated in Article 2 of the Marriage Law, and the divorce provisions stipulated in Article 39 of the Marriage Law. For this reason, it is necessary to reconstruct the provisions of Article 39 of the Marriage Law, which states that divorce is valid based on their respective religions and beliefs, while the court is the administrator.

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