%A NIM.: 22203011032 Hermansyah, S.H.
%O Pembimbing: Dr. M. Misbahul Mujib, S.Ag., M.Hum
%T DISPARITAS PUTUSAN HAKIM DALAM SENGKETA HARTA BERSAMA (STUDI PUTUSAN PENGADILAN AGAMA DAN PENGADILAN TINGGI AGAMA SEMARANG)
%X In the process of examining and deciding cases, judges are often confronted with the fact that the applicable regulations cannot always accurately address and resolve the disputes at hand. Therefore, in deciding cases, it is not uncommon for judges to deviate from existing rules, which often leads to disparities. The author found differences in the settlement of a joint property case in the decision of the Semarang Religious Court (PA) No. 3214/Pdt.G/2019/PA.Smg and the same case at the appeal level, namely the decision of the Semarang High Religious Court (PTA) No. 348/Pdt.G/2020/PTA.Smg, which addressed the division of joint property. The judges of PA and PTA Semarang had different perspectives on Article 97 of the Compilation of Islamic Law (KHI); the PA judge decided to divide the property equally (½ for each party), while the PTA judge decided on a ¾ share for the former husband and ¼ for the former wife. From this background, it is interesting to study the differing paradigms of judges in making decisions in the same case and the implications of these decisions.
This research is a library-based study. To analyze the problem, the author uses a case approach. The case approach is conducted by examining cases related to the research material that have been decided by courts with final rulings. The theory of judicial power and the theory of legal discovery are employed to identify the causes of disparity, and the theory of legal objectives is used to assess the impact of the decisions on the parties involved.
The results of the analysis of the decisions from PA Semarang and PTA Semarang are as follows: First, the judges of PA Semarang applied heteronomous legal discovery theory (where judges are bound by existing rules) with grammatical interpretation. The PA judges argued that the provisions regarding the division of joint property are not connected to the issue of a spouse being in a state of nusyuz (marital disobedience). On the other hand, the judges of PTA Semarang applied autonomous legal discovery theory (where judges create new laws based on their interpretations) using teleological or sociological interpretation. The PTA judges considered that the division of joint property is closely related to the fulfillment of the rights and obligations of both husband and wife. Second, the decision of PA Semarang divided the property equally, thus ensuring legal certainty and reflecting commutative justice. Conversely, the decision of PTA Semarang, though it did not provide the same level of legal certainty, offered a sense of justice for the parties, particularly as one party did not file an appeal. This is because the joint property was divided proportionally, which reflects distributive justice. In terms of the benefits, the decision of the Semarang High Religious Court may serve as a warning or consequence for spouses who do not fulfill their obligations within the household, as they may receive a smaller share of the joint property.
%K Disparitas Putusan, Sengketa Harta Bersama, Pengadilan Agama
%D 2024
%I UIN SUNAN KALIJAGA YOGYAKARTA
%L digilib68764