RECONSTRUCTION OF APPLICATION FOR MARRIAGE DISPENSATION REGULATION IN RELIGIOUS COURT BASED ON ISLAMIC JUSTICE

Abstract

Marriage dispensation is the granting of a marriage license by a court to prospective husbands and wives who are not yet 19 years old to come into a marriage and must be based on the agreement of both prospective bride and groom. The application for dispensation from marriage for those who have not reached the age of 19 for the prospective husband and wife is submitted by both male and female parents to the Religious Court in the area where they live. After the issuance of Law Number 16 of 2019 and Supreme Court Regulation Number 5 of 2019, the marriage age limit was changed to 19 years for both parties from 16 years to 19 years. However, after the increase in the age limit for dispensation for marriage, the number of applications for dispensation for marriage has increased. This of course raises differences of opinion among law enforcers. The focus of this research is 1). Why is the regulation on requests for marriage dispensation in religious courts not based on Islamic justice? 2). What are the current weaknesses in the Marriage Dispensation Application Regulations in the Religious Courts? 3). How is the Reconstruction of Marriage Dispensation Application Regulations in Religious Courts Based on Islamic Justice? The aims of this research are (1). to analyze and find regulations on requests for dispensation from marriage in religious courts that do not yet have the value of Islamic justice. (2). to analyze and find weaknesses in the regulation of requests for marriage dispensation in the current religious courts (3). to find the reconstruction of regulations on requests for dispensation from marriage to religious courts that do not yet have the value of Islamic justice. Paradigm This research uses a constructivism paradigm, with a social legal research approach that uses primary data. Methods of data collection using interviews, observation, and field systems. The legal theory used in this dissertation is the theory of Islamic justice as a Grand Theory, Middle Theory of legal system theory and Applied theory of Progressive legal theory. The results of this dissertation research found that the regulation on requests for dispensation from marriage in the religious courts has not yet had the value of Islamic justice, namely the normalization of the marriage law Article 7 and Perma No. 5 of 2019 Article 2 and Article 14 have not provided the values of justice that are able to realize the nature of marriage, namely forming a family that is Sakinah, mawadah, wa rahmah, or eternal based on the orders of Allah SWT. The current weaknesses in the regulation on requests for dispensation from marriage in the religious courts are weaknesses in legal substance, legal structure and legal culture. Therefore, with regulations on requests for dispensation from marriage in religious courts that do not yet have the value of Islamic justice, it is necessary to reconstruct the provisions in Article 7 of Law Number 16 of 2019 and Supreme Court Regulation Number 5 of 2019 Article 2 and Article 14.

Keywords: Marriage Dispensation; Reconstruction; Justice; Petition; Court

DOI: 10.7176/JLPG/132-07

Publication date:May 31^st 2023