EKSAMINASI PENETAPAN DISPENSASI KAWIN STUDI KASUS PERKARA No. 2085/PDT.P/2020/PA.KAB.MLG

Fitri Maulina Alviani, NIM.: 23203011121 (2025) EKSAMINASI PENETAPAN DISPENSASI KAWIN STUDI KASUS PERKARA No. 2085/PDT.P/2020/PA.KAB.MLG. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

Applications for marriage dispensation permits in religious courts today appear relatively easy to obtain, even though the regulation was originally intended to minimize underage marriages. In reality, child marriages have increased due to the ease with which dispensation requests are granted, often on the grounds of concerns about committing zina (premarital sex) or avoiding social stigma. This study examines court decisions granting marriage dispensations based on such reasons through an exmination method. The object of examination in this research is the application of formal and material law, analyzed using the theory of legal purposes. The aim is to provide evaluative input for judges handling similar cases, considering that such rulings may potentially serve as jurisprudence to be followed by other judges. This research is normative legal research that studies the application of legal norms in marriage dispensation rulings. It employs a descriptive-explanatory character with a statutory approach and data collection through literature study. The analytical techniques used are legal interpretation and legal content analysis. The results show that in deciding marriage dispensation cases, judges have applied both formal and material law. However, several important notes arise regarding its application. From the perspective of formal law, although procedures have been followed, their implementation has not fully accommodated the principle of the best interests of the child. This is particularly evident in cases involving significant age differences between the child seeking dispensation and their prospective spouse. The evidentiary process is also considered less optimal, as judges tend to rely only on witness statements from parties such as the applicants, the child, the prospective husband, and the prospective husband’s parents to establish the element of “urgent reasons.” Furthermore, in terms of consistency with Gustav Radbruch’s legal theory of justice, certainty, and utility, the research concludes that these rulings have not fully embodied all three legal objectives.Thus, the study emphasizes that granting marriage dispensations on the grounds of fear of zina, as seen in the examined case, is not in line with the spirit of child protection and the ideal purposes of law. A more progressive legal interpretation is required so that each dispensation truly ensures the best interests of the child and realizes substantive justice. This conclusion directly answers the research problem by showing that the application of formal and material law in such cases has not fully aligned with the aims of law, especially in the context of child protection.

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