ANALISIS YURIDIS PUTUSAN HAKIM PA YOGYAKARTA NOMOR: 61/Pdt.P/2020/PA.YK TENTANG DISPENSASI NIKAH

Ainun Hany Triyoni, NIM.: 17103040035 (2021) ANALISIS YURIDIS PUTUSAN HAKIM PA YOGYAKARTA NOMOR: 61/Pdt.P/2020/PA.YK TENTANG DISPENSASI NIKAH. Skripsi thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Underage marriage is still a common thing in the society and even the amount is increases in every year. Underage marriages can be carried out by having a marriage dispensation through a court process. Underage marriage with a marriage dispensation is very influential on the lives of children and adolescents as the nation's next-generation in contributing and doing their role in society. The Convention on the Rights of the Child stipulates that the best interests of the child are the main interest in every action involving the child. The sentence of the Yogyakarta Religious Court against case Number: 61/Pdt.P/2020/PA.YK provides a marriage dispensation proposed by the applicant for a 16-year-old girl and a 24year-old man. In the sentence, there is an unconformity between the legal considerations by the judge and the evidence given during the trial. This thesis wants to know what are the legal basis and legal considerations used by judges in the sentence, why the judges using pregnancy as one of the legal considerations and whether the legal considerations used by judges have provided justice and are in accordance with the concept of the best interests of the child. The method being used in this thesis is empirical juridical that based on the statute approach, case approach, and conceptual approach. Those approach uses the theory of legal reasoning and the theory of the best interests of the child as the basis for analysis. The data that being used was collected through library research and interviews. From the research that has been done, the result is conclude that the judge uses a formal legal basis in the process for carrying out procedural law at the trial which includes the trial process, assessment of evidence, determining court fees, and also the format of the decision. Meanwhile, the material legal basis includes the basis for filing a marriage dispensation, determining the competent court, the prohibition of marriage and the reasons for the dispensation of marriage. The judge considered that the facts that occurred during the trial could prove the entire allegations of the Applicant. The facts that occur during the trial are the refusal to register marriage from KUA, the absence of marriage barriers, the love feeling towards each other, the act of sexual intercourse before marriage, the readiness of a living from the prospective husband and the readiness of parents to support materially. The judge used pregnancy as one of legal considerations in the sentence because the judge believed that the applicant's child was pregnant at the time of the trial. According to the judge, even if a pregnancy is not carried out without a medical examination, it will still come into sight and cannot be hidden. As seen from the indicators contained in Article 16 PERMA Num. 5 of 2019, the sentence has already applied to the best interests of the child. The judge did not fully apply the best interests of the child as contained in article 16 but it was replaced by article 17 for the goodness of the child to be born.

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