PENIADAAN HAK GONO-GINI AKIBAT PERSELINGKUHAN DALAM PERJANJIAN PRA NIKAH (PERSPEKTIF HUKUM ISLAM DAN HUKUM POSITIF INDONESIA)

Ikhsan Arifudin Hakim, NIM.: 19103060068 (2026) PENIADAAN HAK GONO-GINI AKIBAT PERSELINGKUHAN DALAM PERJANJIAN PRA NIKAH (PERSPEKTIF HUKUM ISLAM DAN HUKUM POSITIF INDONESIA). Skripsi thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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Abstract

This research is motivated by the growing phenomenon of prenuptial agreements containing clauses that eliminate rights to marital joint property (gono-gini) due to infidelity, particularly as widely discussed on social media. This phenomenon raises legal issues because, on the one hand, prenuptial agreements represent the freedom of contract, while on the other hand, they potentially conflict with principles of justice and legal provisions governing marital property in both Islamic law and Indonesian positive law. Therefore, this study aims to examine the validity of such clauses and analyze them from the perspectives of Islamic law and Indonesian positive law using the theory of justice. The research method employed is library research with a normative juridical approach. Data are obtained from primary legal sources, including legislation, the Compilation of Islamic Law, and prenuptial agreement documents, as well as secondary sources such as books, journals, and related literature. This study is descriptive-analytical in nature, with data analysis conducted through data reduction, data presentation, and conclusion drawing, using the theory of munakahat and the theory of justice. The results indicate that under Indonesian positive law, clauses eliminating rights to joint marital property in prenuptial agreements are generally permissible as long as they do not violate law, religion, or morality. However, the absolute elimination of such rights due to infidelity has the potential to conflict with principles of justice and the protection of the parties’ rights as stipulated in the Marriage Law. From the perspective of Islamic law, although there is flexibility in regulating property through mutual agreement, the total elimination of rights does not fully align with principles of justice and public benefit (maslahah). Therefore, such clauses tend to create an imbalance of rights and do not fully reflect justice, requiring careful consideration in their application.

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