HAK WARIS ANAK DI LUAR NIKAH (STUDI KOMPARASI KOMPILASI HUKUM ISLAM DAN COUNTER LEGAL DRAFT-KOMPILASI HUKUM ISLAM TENTANG KEWARISAN)

Abu Rizal bakrie Lubis, NIM.: 19103060064 (2023) HAK WARIS ANAK DI LUAR NIKAH (STUDI KOMPARASI KOMPILASI HUKUM ISLAM DAN COUNTER LEGAL DRAFT-KOMPILASI HUKUM ISLAM TENTANG KEWARISAN). Skripsi thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

The Compilation of Islamic Law (KHI) is the only Indonesian-language fiqh material that has received state justification or has become positive law. The implementation of KHI has not been without criticism from Indonesian society, including the Counter Legal Draft-Compilation of Islamic Law (CLD-KHI) formed by the Gender Mainstreaming Team of the Indonesian Ministry of Religious Affairs in 2004. This draft contains updates to several articles in the Compilation of Islamic Law. One of the draft's substances concerns the inheritance rights of children born out of wedlock, where CLD-KHI evaluates the rules in KHI as biased and discriminatory against children born out of wedlock. The main problem in this research is to explore the factors behind the differences of opinion between KHI and CLD-KHI in determining the rules regarding the inheritance rights of children born out of wedlock and how KHI and CLD-KHI respond to the phenomenon of inheritance rights of children born out of wedlock in Indonesia. The research method used is a qualitative method of literature research, using a normative juridical approach based on the legislation used. Therefore, the primary data sources used in this research are Presidential Instruction No. 1 of 1991 regarding the Compilation of Islamic Law (KHI) and the Counter Legal Draft-Compilation of Islamic Law (CLD-KHI) prepared by the Research Team of Gender Mainstreaming (PUG) of the Indonesian Ministry of Religious Affairs. Secondary data sources are taken from scholarly works related to the research issue. The theory used in this research is the theory of Islamic inheritance justice and Hazairin's bilateral inheritance. Based on the findings of this research, the factor that causes the difference of opinion between KHI and CLD-KHI in determining the inheritance rights acquired by children born out of wedlock is the differing reasoning and methodology in viewing children born out of wedlock. KHI considers children born out of wedlock to have no lineage relationship with their biological father. In contrast, CLD-KHI considers children born out of wedlock to have a lineage relationship with their biological father. Furthermore, based on Hazairin's bilateral justice, children born out of wedlock cannot inherit from their father because there is an unfulfilled condition, namely that the child is not born from a lawful marriage according to Islamic law. Although Mawali (relatives through the maternal line) try to elevate the status of grandchildren and women in inheritance, these provisions only apply when they are in a valid Islamic marriage.

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