PERTIMBANGAN HUKUM OLEH HAKIM DALAM MENENTUKAN NAFKAH PASCA PUTUSAN PERCERAIAN (STUDI BEBERAPA PUTUSAN DI MAHKAMAH AGUNG)

Alfina Sauqi Anwar, NIM.: 19203010006 (2023) PERTIMBANGAN HUKUM OLEH HAKIM DALAM MENENTUKAN NAFKAH PASCA PUTUSAN PERCERAIAN (STUDI BEBERAPA PUTUSAN DI MAHKAMAH AGUNG). Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Basically the law regarding post-divorce support has been regulated in Law Number 1 of 1974 Article 41 letter c, although the law has not explicitly regulated the amount in detail regarding post-divorce support. However, in reality, not all wives who are divorced by their husbands earn a living after the divorce. This is due to the fact that there is no claim from the wife that is submitted to the husband to obtain his rights as a divorced wife. On the other hand, the reality on the ground also shows that not all judges use their authority to oblige their husbands to provide maintenance after the divorce decision to their wives. This situation is due to the rule of passive judges in civil cases and judges may not decide more than what is demanded, so that not all divorced wives get their rights as divorced wives. The form of realization of fulfilling a living after the divorce for ex-wives has been exemplified by the Supreme Court Justices in decisions number 688K/Ag/2018, 45K/Ag/2019, 557K/Ag/2018, and 195K/Ag/2020. The author divides two main issues, namely: First, the way the Supreme Court Judge determines post-divorce living. Second, the consideration of the Supreme Court Judge in changing the amount of living after the divorce decision. The analytical knife in this problem is by using Gustav Radbruch’s legal theory. This research is a descriptive-analytic literature research using a case approach because the authors see how the legal considerations of judges are set forth in the Supreme Court decisions No. 688K/Ag/2018, 45K/Ag/2019, 557K/Ag/2018, and 195K/Ag/ 2020 supported by interviews with Supreme Court Judicial Judges. The results of this study indicate that the Supreme Court judges in determining the livelihood after the divorce decision is not only based on formal and material law, but also based on the principles of fiqh. In the view of Islamic fiqh, the obligations of an ex-husband due to divorce to his ex-wife are limited to iddah, mut'ah and past maintenance that have not been paid to his ex-wife while still married to him. Furthermore, in changing the amount of living after a divorce decision, the Supreme Court Judge does not have a standard formula. Judges are based on Islamic fiqh which provides guidelines that must be ma'rif. This means that the provision of iddah, past (madhiyyah) and mut'ah maintenance is returned to the appropriateness, propriety and appropriateness of local traditions. Besides that, it is also adjusted to the husband's economic ability and the normal basic needs of a wife. Apart from being guided by fiqh, judges also pay attention to certainty, fairness and benefits for the parties, in line with Gustav Radbruch’s legal theory.

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