DISHARMONI DAN FLEKSIBILITAS HUKUM PERKAWINAN BAGI MASYARAKAT MUSLIM DI INDONESIA: KAJIAN TERHADAP PERATURAN PERUNDANG-UNDANGAN DAN PRAKTIK

Fatma Amilia, NIM.: 19300016158 (2026) DISHARMONI DAN FLEKSIBILITAS HUKUM PERKAWINAN BAGI MASYARAKAT MUSLIM DI INDONESIA: KAJIAN TERHADAP PERATURAN PERUNDANG-UNDANGAN DAN PRAKTIK. Doctoral thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

This research is motivated by the complexity of legal regulations concerning marriage for Muslims in Indonesia, in that these regulations are dispersed across various interrelated laws and statutes, both vertically and horizontally. On this condition, it is anticipated that inconsistency, disharmony, and lack of synchronization may exist. Such inconsistencies are expected to occur internally within the articles of the Marriage Law itself, and externally across different laws and regulations. This study seeks to answer three crucial questions: first, to what extent are the laws regulating marriage issues in Indonesia synchronized with one another, both vertically and horizontally? Second, why do the legal provisions on marriage for Muslims in Indonesia exhibit openness and flexibility? Third, does such flexibility influence policymakers’ attitudes, and what are the practical implications of disharmony and flexibility in the enforcement of Muslim marriage law in Indonesia? The purposes of this research are to analyze the synchronization of marriage law regulations for Muslims in Indonesia, identify the factors causing disharmony and normative flexibility, and examine their implications in the practice of marriage law enforcement. This study employs empirical juridical research, focusing on statutory texts and legal practices that reflect the systematics and characteristics of these laws. The study examined primary legal materials such as Law No. 1 of 1974, the Compilation of Islamic Law, the Child Protection Law, the Civil Registration Law, as well as guidelines, circulars, and Supreme Court regulations. It also draws on empirical data from judicial practices manifested in decisions and rulings of religious and civil courts. These textual and practical data are analyzed using theories of legal policy, political accommodation, normative conflict, and siyāsah sharʿiyyah to investigate the causes of disharmony and its implications in practice. Three main results are discovered. First, marriage law regulations for Muslims in Indonesia were essentially designed in the spirit of mutual consideration and integration, aiming to form a unified system of marriage law. However, within these interrelations, disharmony and flexibility with distinct characteristics are found. Disharmony appears in the form of legal excuses (ḥīlah) in regulating interfaith marriages and marriages involving pregnant women. Other disharmony arises from multiple interpretations of child custody provisions and the determination of the beginning of the iddah period. Alongside these disharmonies, the study also identifies flexibility in regulating the minimum marriage age through dispensation mechanisms and in relaxing the obligation of marriage registration through isbat nikah. Secondly, disharmony and flexibility in Muslim marriage law in Indonesia are rooted in the dynamics of legal formation and development, which bring together diverse orientations, values, and normative constructions. Disharmony in interfaith marriage and marriage involving pregnant women is mainly influenced by the intersection of legal policy responses to religious pluralism, the strengthening of child protection principles, and the growing human rights perspective in interpreting marriage law. Meanwhile, disharmony in child custody arises from a shift in the basis of custody rights from the ḥaḍānah concept in Islamic jurisprudence to the principle of the best interests of the child. The multiple interpretations of the beginning of the iddah period stem from differing constructions of when a marriage is considered dissolved—between Islamic jurisprudence, which ties divorce effects to the pronouncement of divorce, and Indonesian formal law, which places dissolution within judicial mechanisms. Flexibility in regulating the minimum marriage age and marriage registration obligations reflects normative tensions between the need for stability and certainty of law and the demands of legal change, as well as between the ideality of law as formulated in norms and the social realities faced by the society. Third, disharmony and flexibility in Muslim marriage law in Indonesia affect how law operates in practice and reduce the imperative force of norms. For instance, in interfaith marriage cases, many couples apply to civil courts and obtain permission, while others resort to conversion, often manipulatively. In cases of marriage involving pregnant women, some women marry the men of their pregnancy, while others feel legitimized to marry a different man. In marriage registration issues, many couples prioritize isbat nikah over the primary requirement of registration, even allowing space for unregistered polygamous marriages to be legitimized through isbat nikah. These examples demonstrate that the realization of legal certainty and benefit depends heavily on the discretion and interpretation of law enforcers, ultimately shifting the center of legal development from legislators to implementers—from legislation (tashriʿ) to interpretation (ijtihādī).

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