PENOLAKAN HAKIM TERHADAP SITA MARITAL HARTA BERSAMA DALAM PERKARA PERCERAIAN: STUDI TERHADAP PUTUSAN NOMOR 322/PDT.G/2020/PA.RBG DAN NOMOR 269/PDT.G/2021/PA.RBG DI PA REMBANG

Sugiarti Khoirul Jannah, S.Ag., NIM.: 23203012085 (2025) PENOLAKAN HAKIM TERHADAP SITA MARITAL HARTA BERSAMA DALAM PERKARA PERCERAIAN: STUDI TERHADAP PUTUSAN NOMOR 322/PDT.G/2020/PA.RBG DAN NOMOR 269/PDT.G/2021/PA.RBG DI PA REMBANG. Masters thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

This research is motivated by the fact that there is still a religious court decision that rejects the application for marital confiscation of joint property (marital beslag) in divorce cases, even though in principle the confiscation aims to provide legal protection for joint property so that it is not transferred during the trial process. This problem shows that there is a tension between the application of formal legal norms and the value of substantive justice that is expected to protect the weak, especially the wife. Based on data at the Rembang Religious Court during the period 2020-2024, three rulings were found that rejected the application for marital confiscation, namely Decision Number 322/Pdt.G/2020/PA. Rbg, Number 269/Pdt.G/2021/PA. Rbg, and Number 291/Pdt.G/2023/PA.Rbg. This phenomenon is the basis for the author to examine the extent to which the judge's consideration in rejecting the marital confiscation has reflected the values of justice, certainty, and legal usefulness as stated by Gustav Radbruch. This research is included in qualitative research using a study of court decision documents (library reseach). The nature of this research is descriptive-analytical with a normative-empirical approach. The analysis was carried out using Gustav Radbruch's theory of three basic legal values, which include justice (gerechtigkeit), utility (zweckmäßigkeit), and legal certainty (rechtssicherheit), to assess the extent to which the legal objectives are reflected in the judge's considerations. The data was obtained through laws and regulations, legal literature, copies of the decisions of the Rembang Religious Court, observations and interviews with judges and related parties. The results of the study show that the judge's reason for rejecting the application for marital confiscation of the common property is based on normative and formal considerations, including: unclear object of confiscation, uncertainty of the status of property ownership, and no indication of transfer or embezzlement of property by one of the parties. However, in the context of the application of the theory of legal objectives, Radbruch decision Number 269/Pdt.G/2021/PA. Rbg) is considered to have reflected the balance between justice, utility, and legal certainty. This is because judges continue to provide alternative legal protection for vulnerable parties. Meanwhile, in Decision Number 322/Pdt.G/2020/PA. Instead, judges are more oriented towards formal legal certainty without deeply considering substantive justice aspects. Thus, in general, it can be concluded that the application of substantive justice values in the case of marital confiscation of common property at the Rembang Religious Court is still not fully optimal.

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