KEWAJIBAN NAFKAH VIS-A-VIS KEPEMILIKAN HARTA PERKAWINAN: KONSTRUKSI KESETARAAN DAN KEINDONESIAAN KOMPILASI HUKUM ISLAM

Reni Nur Aniroh, NIM.: 19300016027 (2024) KEWAJIBAN NAFKAH VIS-A-VIS KEPEMILIKAN HARTA PERKAWINAN: KONSTRUKSI KESETARAAN DAN KEINDONESIAAN KOMPILASI HUKUM ISLAM. Doctoral thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

This research is motivated by the diverse and contradictory opinions of experts regarding the provisions on nafkah (maintenance) obligations and ownership of marital assets in the Compilation of Islamic Law (KHI). By one party, KHI is considered to reflect the construction of Indonesian Islamic law and equality, but by another party, it is considered to ignore this idea. The problems answered in this research are the dynamics of social reality during the formation of KHI, where is the ambiguity of the two provisions and what caused it, and to what extent the legal reasoning of the two provisions synergizes with the concepts of equality and Indonesian context, and whether the two provisions are relevant to the reality of contemporary Indonesian law. This research uses a social sciences (interdisciplinary) approach that connects law with social reality to answer these questions. Article 1 letter f, Articles 80-97, Article 136, and Articles 149-152 of KHI are primary research materials supported by empirical documents in the form of judge decisions and determinations, jurisprudence, and other related regulations. Secondary material sources include books, articles, and other related works. This research finds that, first, there were various social realities related to maintenance obligations and ownership of marital assets during the formation of KHI, some of which were accommodated and others ignored in KHI. Second, the ambiguity of these two provisions lies in the distinction between personal property and joint property when faced with the burden of maintenance to the husband, who seems to be the husband’s personal responsibility but uses a clause that refers to joint assets. The ambiguity becomes even more apparent when these two provisions are linked to other provisions such as the tamkīn (obedience to husband) and nusyūz (disobedience to husband) of wives, heads of families and housewives, personal debts and family debts, ʻiddah (waiting period after divorce) maintenance, māḍiyah maintenance (past income), and the division of joint assets or inheritance. This ambiguity is caused by the dominance of patriarchy, the peripheral position of community participation, the imperfection of normative-deductive studies and empirical-inductive studies, as well as the inconsistency of approaches in forming KHI. Third, the legal reasoning of these two provisions normatively deviates from the principles of systematic reasoning and empirically displays contradictions in several ways, such as the family system that is followed, the nuances of Arabism that are imposed in the idea of Indonesian context, and the literalist-conservative paradigm which is shifted to the semi-progressive contextualist paradigm. Fourth, in their development, these two provisions have been interpreted in various ways, both at normative and empirical levels, which shows their irrelevance to the reality of contemporary Indonesian law. This condition implies the need for re-construction of these two provisions. By following the same path, the existence of joint property provisions should be followed by the burden of maintenance on joint assets, along with the obligation to take care of the household becoming a joint obligation with a flexible-conditional pattern of division of tasks.

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