AKIBAT HUKUM KEPAILITAN TERHADAP HARTA BERSAMA PASCA PERCERAIAN

FITRIZAL WIDYA PANGESTI, SHI, NIM. 1320312064 (2017) AKIBAT HUKUM KEPAILITAN TERHADAP HARTA BERSAMA PASCA PERCERAIAN. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

One of the results of a divorce is division of joint property of a couple. Division of joint property is based on the provision in Article 97 of KHI which mentions that each divorced woman or man is entitled to get half of their joint property as long as it isn’t determined otherwise in nuptial agreement. However, the regulation in Article 97 of KHI isn’t always applied in division of joint property in the society. Sometimes, joint property is controlled by one party, whether the divorced woman or man. In fact, the control over joint property has a great opportunity of being used as collateral in debt agreements. Debt agreement where the obligation isn’t fulfilled may lead to the bankruptcy of a debtor. Debtor’s bankruptcy makes division of joint property difficult. Therefore, the author reviewed the effect of bankruptcy law on joint property post-divorce using legislative approach. This is a library research which reviewed literature sources related with joint property and bankruptcy. This study was descriptive-analytical which presented regulations and legal facts which were then analyzed by theory of law discovery using legal construction method which consists of analogical argument and argumentum a contrario, to get in depth result to draw conclusion. The research result showed that debt agreements which use joint properties which haven’t been divided as collaterals caused bankruptcy, so joint properties which haven’t been divided are boedel pailit. The author used analogical argument on the Jurisprudence of the Supreme Court of RI No. 803 K/Sip/1970 dated 5 Mei 1970, so that debt which occurs after divorce in which joint property is involved in it (as collateral) will be attached as joint debt, thus boedel pailit is undivided joint property and personal property of bankrupt debtor. The former spouse of bankrupt debtor may volunteer to be concurrent creditor to get their rights over the joint property which hasn’t been divided. Consequently, the received portion may be smaller than the amount of division of joint property which should be received. Essentially, any legal action to be performed by bankrupt debtor is actually allowed, including division of joint property, as long as the action doesn’t disadvantage boedel pailit.

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