DISPARITAS PUTUSAN PENGADILAN AGAMA SLEMAN DALAM PEMBEBANAN NAFKAH ISTRI TERHADAP SUAMI PADA PERKARA CERAI TALAK

Mifta Zulfalah Azzahro, S.H., NIM.: 21203011064 (2024) DISPARITAS PUTUSAN PENGADILAN AGAMA SLEMAN DALAM PEMBEBANAN NAFKAH ISTRI TERHADAP SUAMI PADA PERKARA CERAI TALAK. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

'iddah and mut'ah support is the wife's right as a result of divorce which is imperative and inherent, as regulated in Article 149 letters (a) and (b) of the Compilation of Islamic Law. However, the author found disparities in decisions that occurred in decisions number 436, 1423, 326 and 483 for wives who did not claim their maintenance rights (not nusyuz). So in practice the Judges at the Sleman Religious Court make different decisions. This research wants to further analyze the considerations of the judges in resolving cases based on these decisions. This research is field research (Field Research) with qualitative research methods that are descriptive analytical in nature, the research approach used is empirical juridical with the theory of legal objectives according to Gustav Radbruch. The primary data source used is the decision of the Sleman Religious Court and the secondary data used is legislation which is primary legal material and related works. Data collection techniques in research consist of interviews and documentation, and the framework used in data analysis is the inductive method. The results of this research show that: first, the disparity in judges' decisions is because the judges found different facts in the trial, so the judges gave different decisions. The judge's consideration in decisions number 436 and 1423 in order to obtain justice, is seen from the perspective of the husband's economic capacity, so that with his authority (ex officio right) the husband is charged with 'iddah and mut'ah maintenance, then the wife gets legal protection. The judge did not impose the burden on maintenance in decisions number 326 and 483, because there were several considerations, namely that the husband was not able to be charged with the maintenance and according to the facts at the trial the wife had given up her rights. These four decisions are beneficial, because the judge has provided benefits for all parties and the principle of legal certainty has been achieved, because the legal sources used by the judge are based on formal and material legal sources. Second, the judge's considerations in decisions number 1423, 326 and 483 have realized the 3 aspects of legal objectives put forward by Gustav Radbruch, namely aspects of justice, benefit and certainty. In decision number 436 the judge's consideration applies fairly to the wife but does not yet apply to the husband, because the judge imposes a living burden that exceeds the husband's economic capacity.

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