SIKAP HAKIM DALAM PENYELESAIAN DISPENSASI KAWIN PASCA PERMA NO 5 TAHUN 2019 DI PENGADILAN AGAMA SURABAYA

Riha Nadhifah Minnuril Jannah, S.H., NIM.: 19203012066 (2022) SIKAP HAKIM DALAM PENYELESAIAN DISPENSASI KAWIN PASCA PERMA NO 5 TAHUN 2019 DI PENGADILAN AGAMA SURABAYA. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

After the issuance of PERMA No. 5 of 2019 concerning Guidelines for Adjudicating Cases for Application for Marriage Dispensation, cases of underage marriages continue to increase every year. This is a big question regarding the position and role of PERMA No. 5 of 2019 in minimizing underage marriages that occur in Indonesia. With the change in the age limit for marriage, it is one of the efforts to prevent early marriage, but there is a marriage dispensation clause in article 7 paragraph (2), which states that, "if there is a deviation from the age provision, the parents of both men and women are allowed to apply for a marriage dispensation to the court for urgent reasons and accompanied by supporting evidence,” seems to be a gap for some people to legalize child marriage by filing a marriage dispensation in court. For this reason, the judge's consideration in determining the "urgent reason" clause has an important role in resolving cases of marriage dispensation applications. This requires the judges to be more thorough and careful in interpreting the reasons put forward by the applicant. Judges must be able to use their independence in legal discovery (rechtsvinding) properly with what has been mandated in Law Number 48 of 2009 concerning judicial power. Based on this problem, the authors formulate problems, namely 1) Does the judge's interpretation of the urgency situation pay attention to the principle of the best interests of the child? 2) What is the practice of dispensation for marriage after PERMA No. 5 of 2019?. This type of research is a type of field research, using an empirical juridical approach, and to obtain primary data, direct interviews with related parties are carried out, namely judges in the Religious Courts, while secondary data is PERMA No. 5 of 2019 concerning guidelines for adjudicating cases of marriage dispensation applications. , as well as existing and relevant previous research that has a close theme with the researcher. The theory used in this research is the theory of the Effectiveness of Friedman's Law. The results of this study are that first, the interpretation of the urgent situation by the judge in considering the marriage dispensation, namely the pregnancy of the party or prospective woman, and the parents' concerns if they are not married immediately. The judge's consideration took into account the testimonies of the witnesses to confirm the fulfillment of the conditions and reasons for the application for underage marriage and the elements related to the willingness of both parties. Second, the judge's trial procedure is also in accordance with PERMA No. 5 of 2019 which provides the best advice and decisions for children.

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