PRE MARITAL AGREEMENT IN ISLAMIC LEGAL PERSPECTIVE

Abstract

This study to identify and analyze pre-nuptial agreements in the perspective of Islamic law and to identify and analyze the legal consequences of pre-marital agreements. This study uses a normative method. This study uses a research method approach which is divided into two, the first is the Legislative Approach and the Conceptual Approach. The types and sources of data used are secondary data with data collection techniques, namely library techniques. Based on the results of this study, a prenuptial agreement in the perspective of Islamic law makes an agreement in marriage legally permissible, meaning that it is permissible for someone to make an agreement and may or may not make it. Jamhur scholars are of the opinion that if you have made an agreement, you must fulfill the conditions of the agreement whose law must be fulfilled. The legal consequences of the implementation of a prenuptial agreement are binding on husband and wife so that if one party does not carry out the agreement and harms the other party, then the agreed party can claim his rights to the Court both demands regarding the implementation of the prenuptial agreement and claims for compensation. The research suggestion is that the prenuptial agreement must be adjusted to the laws and regulations in force in Indonesia and do not conflict with the principles of Islamic law. Prospective husband and wife who will get married and want a marriage agreement to be made, the couple should know in detail all matters relating to the marriage agreement. with a prenuptial agreement starting from the form, terms, and legal consequences that will arise with the existence of the prenuptial agreement.

INTRODUCTION

Marriage is the behavior of Almighty God so that life in the natural world can develop good . Marriage No just happening among​ humans , but also occurs in plants plants and animals . [1] Marriage in Indonesia is regulated in Constitution Number 16 of 2019 concerning change Law No.1 of 1974 concerning marriage . Based on Article 1 of Law No. 16 of 2019 concerning change Law No.1 of 1974 said that : " Marriage is bond born inner between a man with a woman as husband wife with objective to form family ( home) ladder ) which is happy and eternal based on Belief in the one and only God.

Marriage in Indonesia is regulated in Constitution Number 16 of 2019 concerning change Law No.1 of 1974 concerning Marriage . Based on Article 1 of Law No.16 of 2019 concerning change Law No.1 of 1974 said that : “ Marriage is bond born inner between a man with woman as husband wife with objective to form family ( home) ladder ) which is happy and eternal based on "One Almighty God ." Based on Article 2 of the Compilation of Islamic Law, marriage is very strong contract ( Mistaqan ghalidan ) for obey Allah SWT commands and carry them out is worship, as confirmed by Allah in the Al-Qur'an surah An-Nisa verse 21: [2]

Translation :

“And how You will take it back , even though You has hang out One each other ( as husband and wife ). And they ( your wives ) have take strong agreement ( bond​ marriage ) from You ."

Observing the meaning contained in the verse above , then marriage is a thing that has wide - ranging consequences within connection law between husband and wife , with marriage That arise a bond containing​ rights and obligations for example like obligation For located stay the same , loyal to One each other, obligations For give shopping House stairs , rights inheritance and so on .

Based on description above , marriage No only concerning overall related regulations​ with a marriage but also involves treasure riches husband wife inside​ marriage . This also includes treasure default and accounts receivable and payable between husband wife , where For protect each other's property and for the sake of comfort second split party need existence letter agreement Pre -marital, as set in Article 29 of the Law Marriage .

In the present time This among Indonesian people often happen before held marriage done making agreement marriage between candidate bride men and women . Agreement marriage also often called with agreement prenuptial agreement or prenuptial agreement , namely agreement made​ before wedding held and binding second split party candidate bride men and women who will married . [3]

In the discussion marriage there is marriage contract , where in Europe called term Pre-enforcement Agreement is agreement made​ before wedding held and binding second split party candidate partner husband the wife who will married . Agreement pre -marriage applies since the wedding that took place and its contents will shared If if happen divorce , death from one of Couples , this is also an agreement Can load How all affairs finance family will set up or on the sign handle it during marriage or wedding ongoing . Agreement the created and approved in front of lawyer or Notary Public Then registered at the Office of Religious Affairs or Notes Civil . [4]

Agreement marriage applicable since wedding held and its contents in general arrange about How treasure riches husband wife will shared If happen divorce , death from one of couple . Agreement this is also generally load How all affairs finance family will set up or handled during wedding ongoing . In general agreement premarital made with objective For arrange consequences marriage that concerns treasure wealth . [5]

Make agreement in marriage the law permissible , meaning may somebody For make agreement or not​​ make . However if Already made How law fulfil the conditions contained in agreement marriage that , becomes discussion among scholars . A number of scholars are of the opinion that fulfil the stated conditions in form agreement That the law is must as law fulfil agreement others , even related conditions​ with marriage more entitled For implemented .

In essence agreement pre -marital is A agreement made by the candidate bride before stage ceremony wedding For to validate both of them as partner husband and wife . Agreement This tie second candidate bride and groom problem distribution treasure each person's wealth or related with treasure personal second split party so that Can differentiated If a day happen divorce or both of them separated by death . Agreement This impressed as an agreement that seems to be pray the occurrence farewell between partner candidate bride . However , no there are people who can ensure What will​ happen and befall other people. So that even though impressive No support its sturdy ark House the stairs that were built someone , agreement This You're welcome protect treasure personal Good from party husband or wife later when happen divorce or death .

Agreement marriage or agreement pre -marriage among Indonesian society in general Still feel foreign and considered taboo to implemented . Some of the community can accept existence agreement marriage the However many still​ Not yet Can accept Because viewed negative and consider that agreement marriage or agreement pre - marriage as something that is not common , materialistic , not ethical and unethical in accordance with custom eastern . Apart from that , agreement marriage is also seen as a form No sincerity or existence Meaning certain from the candidates bride before implementation a marriage . [6]

In Indonesia there are 3 ( three ) regulations about agreement pre- marriage or often also called agreement marriage , namely the Civil Code , Law No. 16 of 2019 concerning change law no. 1 of 1974 concerning Marriage and Presidential Instruction No. 1 of 1991 concerning Compilation of Islamic Law. Since coming into effect Law No. 16 of 2019 concerning change Law no. 1 of 1974 concerning Marriage (UUP), then in Indonesia it has happen unification in in the field of Marriage Law , except as long as it hasn't / isn't set up in Constitution said , then old regulations can be used (Article 66 of Law Number 1/1974).

Based on from description of the background behind this , then writer interested For to study in a way scientific through writing thesis with title : " Agreement Pre- Marital Agreement in the Perspective of Islamic Law”. Description the on appear the problem that will be investigated as following : (1) How agreement pre- marriage in perspective law Islam ?, and (2) How? consequence law from existence agreement pre marriage?. Research objectives This is For know and analyze agreement pre- marriage in perspective law Islam as well as For know consequence law from existence agreement pre -marriage.

Benefits of research in a way theoretical that is can give donation thinking for development knowledge knowledge law in general , and law marriage especially . In particular practical add knowledge for researcher about law marriage

Add material information for parties in need references used​ For study related continuation​ with problem main discussion law marriage specifically agreement pre -marriage

METHOD

research method used by the author use is normative [7] that is research conducted​ with method researching material library or secondary ; research This do approach legislation (Statute Approuch ), approach This done with to examine all regulation relevant legislation​ with ongoing problems​ achieved and approach Conceptual (conceptual approach), approach This move on from views and doctrines that develop within​ knowledge law ; types and sources of data used consists of from material Primary law used consists of from laws and regulations legislation others , materials law secondary data that is not processed Alone collection by researchers , will but originate from hand second , third , and so on , meaning pass One or more the party that is not researcher itself in the form of books, journals , documents agreement and materials law tertiary materials that provide instruction and also explanation to material primary and secondary law . Dakam study This material law tertiary used​ includes the Big Indonesian Dictionary, the Legal Dictionary and related internet sites with agreement pre -marital; technique collection material law to obtain material law both primary and secondary and also tertiary in use method study data collection library , namely obtain data with to obtain study data and analyze on overall Contents the library that became references , including literature books , journals scientific and regulatory related legislation​ with problem in writing thesis This ; all data obtained from results research that has been collected , good material primary law , material law secondary , as well as material law tertiary will be analyzed qualitative descriptive , for get systematic explanation . Description​ done For do Contents or meaning material law is adjusted with Topic existing problems . For​ get a explanation in form results study .

RESULTS

Prenuptial Agreement in the Perspective of Islamic Law

Before birth Constitution Marriage No. 1 of 1974, marriage Muslims in Indonesia have regulated by law his religion , good before Indonesian independence or afterwards . The religious law in question is jurisprudence munqahat , which if seen from the material originate from sect Shafi'i Because part big people in Indonesia in general real practice sect Shafi'i in overall religious practices . Islam before of course No know existence agreement premarital practice like agreement premarital like candidate wife may submit condition before day marriage contract and wedding reception held or at the time of the proposal , indeed Already known in Islam.

In the Qur'an and Hadith No set up in a way firm about implementation agreement marriage , but Thus the Qur'an does not forbid implementation agreement marriage throughout load agreement marriage the No contradictory with the Koran and Hadith . If Contents from agreement marriage the contradictory with the Qur'an and Hadith is God's law , even though 100 conditions the law in canceled . Likewise​​ with agreement that is not aiming to make permissible what is forbidden or forbid what is halal. The Qur'an and Hadith also look at it A marriage is a sacred bond​ born based on the mind to pure love​​ because of Allah SWT. Therefore That in marriage can just done a agreement pre- marriage or at the time marriage in progress between partner husband wife For arrange in a way Good things that become task obligation rights and authorities between​ partner husband wife in order to achieve desired goal​ in to go through ark House stairs . [8]Therefore that is the Qur'an not forbid the holding of a agreement pre- marriage with notes that Contents from agreement the No contradictory with the laws of Allah SWT contained in the Qur'an and hadith .

Law No.1 of 1974 concerning Marriage and Regulations Government Regulation No. 9 of 1975 concerning Implementation Law No.1 of 1974 concerning marriage No mention in a way detailed and clear about definition agreement marriage including about Contents from agreement . Agreement pre- marriage in perspective Islamic law as a whole agreement the is conditions that are not deviate from Islamic Law. So that the parties involved in agreement the the law must For fulfil requirements . In the Compilation of Islamic Law Article 47, which allows existence agreement pre- marriage which contains can covering mixing treasure personal and separation treasure their respective livelihoods throughout No contradictory with Islamic Law, then Contents agreement That allowed set respective authority to stage determination mortgage or treasure together or treasure company . And in Article 85 of the Compilation of Islamic Law, the basics are explained No There is mixture treasure husband and property wife in marriage , property wife still become right wife and dominated full by him , so also the property husband .

Islam provides regulation in a way general in finish problem together . Division treasure mutual aid depends on the agreement together between husband and wife . Agreement This in the Qur'an it is mentioned with the term "Ash Shulhu " is agreement For do peace between second split party ( husband) wife ). [9]

Make agreement in marriage the law permissible , meaning may somebody For make agreement or not​​ make it . However if Already made How law fulfil the conditions contained in agreement pre - marriage become discussions by scholars. Jamhur ulama believes that fulfil the stated conditions in form agreement pre - marriage the law must as law fulfil agreement others , even related conditions​ with marriage more entitled For implemented .

Law of origin in form agreement and conditions is permissible , during No forbidden syara ' or contradictory with text syara '. Although No mentioned in a way firm in one of the the reason But can concluded , both existing​ in Constitution Marriage and also Compilation of Islamic Law, that a agreement pre -marriage not is mandatory things , and their nature accessories in the sense that there is legitimacy a agreement the hanging from existence a agreement principal , in matter This depends from existence a bond legitimate marriage . [10]]

According to the view of scholars that agreement pre -marriage not Islamic culture and therefore That the law is forbidden, because in it agreement the range happen cheating , fraud , betrayal , cunning , injustice , compulsion , letting go not quite enough Responsibility and tendency violate sharia . [11] Other scholars' views on agreement premarital that agreement premarital considered No ethical applied in​ a the wedding that should have been done in a way sincere and genuine . Agreement premarital in the view of the cleric is a action violate existing provisions​ in Islamic law because has there is ( treasure) default ) or will there is ( at the moment) marriage has taking place ) which results a the marriage that should be sacred become have and have no motive certain .

In a relationship marriage according to Islamic law has there is and it is clear There is The rule , the marriage contract in Islam is a agreement on base existence willingness (' Antaraadhin ). From both split the party that does not violate Islamic sharia rules and norms that do not tied up with form A agreement made​ based on air lust human . A agreement made​ based on air lust man If contradictory with Allah SWT's law is absolute the law is “haram” and “ mardud ” ( departure ) [12], as Allah SWT says in surah Al-Maidah verse 5:

Translation :

"On the day This permissible for those of you who are good . The food ( slaughter ) of those who were given the Book is halal for you , and food you are also lawful for them . (And it is permissible) mangawini ) the woman who looks after honor between women who believe and women who guard honor among those who were given the Book before you , if You has pay dowry​ they with Meaning marry her , no with Meaning commit adultery and not (also) commit it concubines . Whoever disbelieves after believe ( not accept Islamic laws ) then delete it his deeds and he on the day doomsday including those who are at a loss .”

However thus There are also scholars who hold this view that agreement marriage or agreement pre- marriage indeed contradictory with ethics and culture of eastern people . However in a way Islamic law matters the valid and can implemented by the candidate partner husband wife the For protect each of us if in the drive day happen conflict in House the stairs that end with divorce . Benefits of agreement marriage or agreement pre - marriage is a price for each couple in arrange treasure object his marriage in a way law if happen divorce the .

The views of scholars on agreement marriage or agreement pre -marriage according to Islamic law is different between One with others. Some scholars are of the view that agreement marriage or agreement pre- wedding carried out by the couple candidate husband a Muslim wife is forbidden by law Because matter the contradictory with customs and sharia Islamic law which originates from from the law of Allah SWT. However there are also views that cause that agreement marriage or agreement pre -marriage legal in a way Islamic law for implemented although in a way ethics and culture or custom eastern matter the viewed as something that is not common For done

Al Kaththabi explain that terms and conditions in wedding different , including there is something mandatory filled Because the right way and among them there is something not need fulfilled . [13]Therefore that , obligation in fulfil the requirements contained in agreement marriage depends to existing requirements​ in agreement That himself . As for Ibn Timiyah's opinion in agreement say that for healthy people​ his mind , if stage agreement contain kindness from the intended purpose achieved , it is not He retreat or betray him . Depends terms and conditions certain That useful rather than let it be without conditions , or more useful Again than if​ No given condition The same very .

The Compilation of Islamic Law regulates the principles No There is mixing between treasure husband and wife Because marriage . Property wife still become right wife and dominated full by him Likewise the husband . However , the parties can stage agreement about position treasure in marriage with make agreement premarital .

When analyzed in a way more fundamental about agreement marriage or agreement pre- marriage in Islamic law can it is said that making agreement marriage or agreement pre- marriage by prospective partner husband wife is one of the form concern partner the to treasure owned objects​ Good treasure default before ongoing marriage and also property acquired​ during the marriage period ongoing . Concerns This based on to something things that have not been done happen namely a conflict House ladder so that result in the occurrence divorce . Concerns the occurrence conflict House stairs that resulted in the occurrence divorce in a marriage that eventually fight over treasure object marriage which is treasure worldly the is a desire or air lust human being who is not in line with the law of Allah SWT. therefore That agreement marriage or agreement pre -wedding made by the couple candidate husband wife the viewed contradictory with guided by Islamic law to the law of Allah SWT.

Legal consequences of having a pre-nuptial agreement

Agreement Pre-Wedding in the Civil Code​ and also Law no. 1 of 1974 Concerning Marriage is a agreement about treasure object suitable wife during marriage they , who deviate from principle or the pattern established by law , because in both regulation that is basically the wealth obtained during marriage become one , to be treasure together . Agreement pre -marriage is means For do protection to assets of the parties . So agreement marriage can load arrangement about treasure together and also treasure default . Husband and wife released For do action law .

There is an agreement pre -marital childbirth consequence law , because agreement mentioned desired by some consequence so that cause a number of consequences , including : [14]

1. In a way law of the parties each other related with the holding of agreement pre- marriage and each must carry out obligations and rights . The parties must also Ready with consequence the law that will arise when do violation to agreement marriage .

2. In a way psychological , agreement marriage will cause feeling No believe to partner his life . He will overshadowed feeling Afraid if his partner do violation to agreement , anxiety This will result in No happiness in undergo House ladder .

3. In a way sociological and cultural , agreement marriage cause existence culture shock. Eastern society whose family No know individualistic Of course reject existence agreement prenuptial agreement​ pre -marriage is considered as a things that are not There is Because take importance treasure only . Although not forever agreement pre -marriage oriented towards property in marriage .

Agreement premarital This made For stage deviation to unity treasure riches There are various type the reason people make promises separation treasure or treasure certain or management or treasure certain in​ agreement premarital . Where in marriage with unity treasure in a way round or treasure separate , definitely There is the consequences that occur . The reasons and possible consequences arise from agreement premarital this , among others: [14]

1. In marriage with unity in a way month . Where has consequence wife protected from possibilities action arbitrarily husband on treasure not move and property move certain others , which were brought wife to in marriage . Without existence the agreed restrictions wife in agreement premarital , husband have authority full on treasure unity . Including all the treasure brought wife to in unity the .

2. In marriage with treasure separate , there is agreement is protection for wife against possibility be held accountable treasure the against debts incurred by the husband or on the contrary .

Consequence other laws of made by him agreement premarital Already Certain is the separation property obtained at the time before marriage in progress and also during marriage in progress in accordance with what was promised in agreement premarital . If one of party No explain Contents from agreement premarital , then matter That can made into reason in lawsuit divorce . Agreement prenuptial agreement can also be tie to party third during party the third is also involved in making agreement premarital the .

Agreement premarital is incident the law that has the consequences that have occurred regulated by applicable law .​ Consequence legal from Agreement premarital is includes :

1. Agreement tie party husband and party wife ;

2. Agreement tie party third party concerned ;

3. Agreement only can changed with agreement second party husband and wife , and not harm interest party third , and approved by the employee logger marriage . [15]

Agreement Prenuptial agreement that has been approved by the employee marriage registrar applies binding and valid as Constitution for party candidate husband wife and party third , as far as party stuck . If the agreement prenuptial agreement that has been made husband wife No implemented or happen violation to the agreement made , then in a way automatic give right to wife For request cancellation of marriage or as reason lawsuit divorce .

Consequence made by him a agreement premarital can in the form of connection between husband wife , problem parent relationship​ with children and the most prominent problems that is about treasure objects each party makes​ agreement . Regarding the settings can seen in Constitution Marriage . So , if one party No carry out agreement and detrimental party other , then for injured party​ can demand his rights That to Court Good demands about implementation agreement premarital and also demands change loss . Article 51 of the Compilation of Islamic Law explains that violation on agreement premarital give right to wife For request cancellation marriage or submit it as reason lawsuit divorce to Religious Court . While about demands change loss , if seen pure default to a agreement can submitted to District Court for demand change make a loss to agreement that is not implemented or No fulfilled .

Description on can seen punishment for the party fulfilling obligation in accordance with Contents agreement , threatened with punishment change make a loss as replacement the rights of the injured parties . However matter This No as well as immediately happened , but If in matter thus There is making in the form of invitation for the defendant carry out agreement or in the form of other punishments as appropriate with agreement of the parties who promised . On the other hand, Article 1374 of the Civil Code stated : " With No reduce his obligation For give change loss , sir plaintiff can prevent granting the stated demands in previous article , with​ offer and mean it do in advance general before a judge statement that reads that He ask for Sorry therefore , with consider the insulted as an honorable person ”.

Explanation of Article 1374 of the Civil Code which can picked a the most important meaning is agreements That must be explained by the parties with faith good and compliance . If it happens violation to agreement premarital , then violation agreement premarital the can made into reason For submit lawsuit to Court . Reason for its creation a agreement premarital is No For divorce later day But tend For protect the parties husband and wife If happen things that are not wanted during marriage .

There are some that will happen in making a agreement , namely about matter achievement a objective if second split party fulfil reciprocal obligations and rights​ in a way full , no achievement objective if one of them party No fulfil his obligations , and it happened a state of affairs that is not objective if loss consequence action oppose law . [15]Need be noticed in make agreement premarital that not long after agreement pre -marriage, marriage Already must was held . Because whenever someone is needed​ permission For marriage That die moreover formerly so must be agreement marriage that has been made That replaced and must made a new one with business stand from the person whose contents required at the time That .

If it happens violation about separation treasure riches in agreement pre -marriage, wife entitled request cancellation of marriage or submit as reason lawsuit divorce in the Religious Court (Article 51 of the Compilation of Islamic Law).

CONCLUSION

Based on results research and discussion that has been outlined previously , then writer interesting a number of conclusion as following : Agreement premarital in perspective Islamic law in essence the law permissible , meaning may somebody For make agreement or not​​ make it . Jamhur ulama is of the opinion that If has do agreement , must fulfil condition agreement whose law is must fulfilled . As a result law from existence implementation agreement premarital is nature tie to husband wife so that if one of them party No carry out agreement and detrimental party other , then for injured party​ can demand his rights That to Court Good demands about implementation agreement premarital and also demands change loss . Based on results research that has been put forward , then researcher provide suggestions for become material consideration as following : Agreement premarital must customized regulation the laws and regulations in force in Indonesia and do not contradictory with principles Islamic Law. Prospective spouse husband the wife who will carry out marriage and want made by him agreement marriage should partner the know with Details all related matters​ with agreement premarital start from form , conditions , and consequence the law that will arise with existence agreement premarital the .