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JURIDICAL STUDY ON UNREGISTERED DIVORCE PERSPECTIVE

ACCORDING TO ISLAMIC LAW AND POSITIVE LAW

Submitted by:

Nur Asiah*)

Rusydi Ali Muhammad**)

Muzakkir Abubakar***)

ABSTRACT

Domestic problems sometimes can be resolved properly and wisely, but

there are often many difficulties faced until it becomes a massive problem and

eventually lead to a divorce. Divorce in Islam is a lawful act but hated by Allah. Itshows the divorce is a last solution in solving domestic conflict. So far, in the

constitutional law No. 1 year 1974 chapter 39 paragraph (1) states that divorce can

be done only at the trial court after it concerns and does not stop trying to reconcile

the two sides. However, divorce is often conducted out of the religion and

legislation law so as it does not bring any benefit after the divorce for the parties

dispute in the family or for those who are involved in it.

This study discusses the concept of unregistered divorce; legal

consequences that may come up due to the divorce, and forms of legal protection of

this divorce according to Islamic and positive laws. This research is descriptive

analysis.

The methods used in this study are library research and as well as field

research. The samples were taken from a few cases of unregistered divorce and

conducted interviews on the topic discussed. In addition, the normative juridical

and juridical approach methods are used. This study uses a normative juridical

approach and empirical juridical approach. Normative juridical approach is a

research that refers to the legal norms contained in Islamic law and regulations.

Meanwhile, the empirical juridical approach is a study conducted by examining the

regulation and legislation and then tying to data or social life related to the research.

The sources of data are primary legal sources, secondary and tertiary sources of

law.

So far, divorce is a legal act that has certain rules either in religion and thelaw. Legal action such as a divorce has an impact for individuals life. In the

marriages law, a divorce should be undertaken before the trial so that it is

registered in the state administration whose purpose is to protect the rights and

obligations of the parties involved, especially for children. It can be achieved if the

Government socialize continually the constitutional law No. 22 year 1946

concerning Marriage registration, Law No. 1 year 1974 on Marriage, Government

Regulation No. 9 year 1975 concerning the Implementation of Law No. 1 year

1974, and so forth.

Even though there is no clear discussion about registration of divorce in

Islam, but it must be done in front ofulil amri (the leader) and some witnesses, so

that both of husband and wife will get legal law. The concept of unregistered

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divorce in Islam, as well as in positive law is meant same as to avoid any harm that

may come up after the divorce. A divorce undertaken according to the procedure

that has been regulated by law may minimize the negative impact of it.

Key words: Unregistered divorce, Islamic law, Positive law

*) Post graduate student of Syiah Kuala University

**) Supervising Commission Chairman***) Supervising Committee Members

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