TINJAUAN TEORI MAQASID ASY-SYARI’AH DAN TEORI KEADILAN DISTRIBUTIF DALAM PEMBAGIAN HARTA BERSAMA (KAJIAN PUTUSAN NOMOR 388/PDT.G/2019/PA.YK)

Sabina Fitriani, NIM.: 20103050078 (2024) TINJAUAN TEORI MAQASID ASY-SYARI’AH DAN TEORI KEADILAN DISTRIBUTIF DALAM PEMBAGIAN HARTA BERSAMA (KAJIAN PUTUSAN NOMOR 388/PDT.G/2019/PA.YK). Skripsi thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Provisions regarding the division of joint property in the marriage legal system in Indonesia are regulated in Article 97 of the Compilation of Islamic Law (KHI) which divides half of the joint property as long as it is not specified otherwise in the marriage agreement. However, in judicial practice, these provisions are not as easy and simple as the article says, there are several things that influence the acquisition of joint property and also the distribution of joint property in court due to legal developments and social conditions that change along with the times. In this case, the judge's expertise and skills are needed to analyze joint property issues with distribution by the principles of justice. The phenomenon of joint property disputes occurred in the decision of the judge at the Yogyakarta Religious Court in case number 388/Pdt.G/2019/Pa.Yk, in this decision the panel of judges divided joint property outside the provisions stipulated by Article 97 of the KHI. The division is ⅓ share for the husband (plaintiff) and ⅔ share for the wife (defendant). So this research aims to find out philosophically and sociologically the judge's considerations regarding the decision. In addition, the study also analyzed reviews of Maqāṣid asy-Syarī’ah and distributive justice regarding the decision. This research is field research which is descriptive analytical with a normative philosophic juridical approach. The data source used is a primary data source, using data analysis techniques in the form of qualitative techniques which are then presented descriptively, namely by collecting and describing the data obtained in the form of words and images. The results of this research show that the panel of judges decided on the division of joint assets in the amount of ⅓ for the plaintiff and ⅔ for the defendant. This division was carried out by the panel of judges based on facts while the trial was in progress which showed that the defendant contributed more to the acquisition, maintenance and upkeep of the joint assets from his work as director of an educational institution, while the plaintiff did not contribute to the acquisition of the joint assets. The decision of the panel of judges who dared to make a legal breakthrough by deviating from statutory provisions in order to achieve justice for the parties proves that the panel of judges has implemented substantial justice based on sociological and philosophical interpretations. Apart from that analysismaqāṣid sayarī'ahThis decision includes maintaining assets in terms of ḍarūriyāt and ḥājiyāt. And analyzing the distributive justice review of this decision, the panel of judges based their opinion by dividing each person based on their contribution.

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