“Under The Hand” Divorce Islamic Law Study of the Implementation of Divorce

Abstract

Islamic Law regulates marriage and divorce sufficiently; Islamic jurists argue that if someone sentences the word talak and its kind to his wife then the talak is considered as valid. Meanwhile, positive law states that “Talak is a declaration of a husband performed in front of court session in Religious Court which becomes one of the reasons of divorce”. The fact shows that the people of Carenang, Serang, tend to refer on the Islamic law of divorce, not the one declared before the trial court. This matter engenders the illegal aspect of law, such as issuing a false death certificate to the former spouse. In order to elucidate the problem, the author proposes two main questions: (1) How is the concept of “under the hand” divorce based on fiqih and positive law?; (2) How is the Islamic Law review on the Article 39 Point 1 Law No. 1 of 1974 about Marriage and Article 34 of Government Regulations No. 9 of 1975? This study is conducted in normative jurisdiction and sociological jurisdiction which is comparatively descriptive analytic. This study is also conducted through mashlahah mursalah approach and Bentham utility principle. The results of the study show that; first, “under the hand” divorce performed by Carenang’s people is considered valid through the eye of Islamic Law, while it is invalid based on Positive Law due to the absence of the pledge before the trial court. Second, the behavior of “under the hand” divorce in Carenang has become a social fact and is included in Al-Maslahah al-Daruriyah category. The enactment of divorce law regulated by Article 39 Point 1 Law No. 1 of 1974 about Marriage and Article 34 of Government Regulations No. 9 of 1975 is covered in the Al-Maslahah al-Hajiyah category.