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Kamis, 23 Maret 2023

Roles, Functions and Authorities of Religious Courts (PA)




Role, Functions and Authority of the Religious Courts (PA) -The Religious Courtsare the framework of the National legal system and system based on Pancasila and the 1945 Constitution. The birth of Law no. 7 of 1989 concerning the Religious Courts has affirmed the position and powers of the Religious Courts as referred to in Article 10 of Law No. 14 of 1970 concerning the main provisions of judicial power as well as purifying its functions and organizational structure so that it can reach the level of a judicial power institution which is actually not paralyzed and as it was in the past.

In the life of our society, the problems faced are very complex, including problems related to marriage, which in solving cases are devoted to religious courts.

The role of the Religious Courts in the field of marriage and in the field of inheritance has clear formal and material laws, including matters regulated by special procedures in the religious courts, which will be discussed in this paper.



Problem Statement
a. What are the matters specifically regulated in the Religious Courts ?
b. What is the procedure for resolving disputes in special cases regulated in the Religious Courts?

3. Purpose of Writing
a. Knowing matters specifically regulated in the Religious Courts.
b. Know the procedure for resolving disputes in matters specifically regulated in the Religious Courts.

B. DISCUSSION


1. Divorce Divorce
Regulated in articles 66-72 of Law no. 7/1989, articles 14-18 PP.No.9/1975, CHAPTER XVI articles 113-148 KHI, as special procedural law. The procedure for completing a divorce application for divorce is regulated as follows:


a. Divorce can only be done in front of the court.Divorce can only be carried out before the trial of the Religious Court after the Court concerned has tried and failed to reconcile the two parties (article 39 (1) UUP).

A divorce application for divorce, even though it uses the term application, must be processed as a contentius case, because it contains elements of a dispute and to protect the rights of the wife in seeking legal remedies.


b. Divorce Application LetterA husband who is Muslim (conducting a marriage according to Islamic law), who is about to divorce his wife, submits an application to the Religious Court to hold a hearing to witness the divorce pledge (article 86 paragraph (1) UU-PA).

The above petition contains: a.) Name, age and place of residence of the applicant, namely the husband and the respondent, namely the wife. b.) The reasons that form the basis for the divorce (article 67 UU – PA) To carry out a divorce there must be sufficient reasons

that between husband and wife will no longer be able to live in harmony as husband and wife (article 39 paragraph (2) of the UUP). The reasons for carrying out a divorce have been regulated in a limited manner in the elucidation of article 39 (2) UUP, article 19 PP. No. 9/ 1975, article 116 KHI..

The petitum in the divorce application letter can read: 1.) "Granted the Petitioner's request". 2.) "Determining, allowing Petitioner A to pronounce the divorce vow against the respondent B in front of the Religious Court hearing …...". 3.) "Determining will open the hearing to witness the intended Petitioner's divorce pledge". 4.) “Setting costs according to law”. In accordance with what is desired by article 14 PP. No. 9/ 1975, article 66 paragraph (1) UU-PA


2. DivorceDivorce lawsuit (divorce contest) is regulated in article 40 of Law no. 1/ 1974, articles 20 – 36 PP. No. 9/1975, articles 73 – 88 Law no. 7/1989, articles 113 – 148 of the Compilation of Islamic Law as for the procedure for settling a contested divorce is regulated as follows:

a. Divorce lawsuit filed at the Religious Court: 1) The divorce lawsuit was filed by a wife who was married according to the Islamic religion (explanation of article 20 PP No. 9/1975). 2) The divorce suit was filed at the Religious Court (article 40 paragraph (1) article 63 paragraph (1) of 1974).

b. The divorce suit contains: name, age and place of residence of the plaintiff, namely the wife, and the defendant, namely the husband; the reasons which form the basis of the divorce; divorce petition.

c. Divorce lawsuits can be filed based on the reasons or reasons set out in the elucidation of Article 39 paragraph (2) of Law no. 1/1974, article 19 PP No. 9 of 1975, articles 116 and 51 of the Compilation of Islamic Law, namely: a) The husband commits adultery or becomes a drunkard, addict, gambler, and so on which is difficult to cure; b) The husband leaves his wife for 2 (two) consecutive years without permission wife and for no valid reasons or for other reasons beyond his capacity; c) The husband gets a prison sentence of 5 (five) years or a more severe sentence after the marriage takes place

; place of residence of the plaintiff, except in cases where:

a. The plaintiff deliberately left the joint residence without the defendant's permission, so the divorce suit was filed with the Religious Court whose jurisdiction covers the defendant's residence,

b. The plaintiff is domiciled abroad, then the divorce suit is also filed with the Religious Court whose jurisdiction covers the place of residence of the defendant,

c. The plaintiff and the defendant domiciled abroad, so the lawsuit was filed with the Religious Court whose jurisdiction covers the place where their marriage took place or with the Central Jakarta Religious Court (article 73 Law No. 7/1989).

Divorce lawsuits are processed at the Claims Registrar's Office and recorded in the Master Register of Claims.[2]

d. Summons of the Parties

Summons of the parties in a contested divorce case are carried out in the same way as summons in a divorce divorce case. Summons against the parties whose residence is in the territory of another Court, is carried out through the Religious Court at the place of residence of the summoned party (article 103 (2) UU-PA).[3]

e. Examination Examination

of the divorce suit is carried out by the Panel of Judges no later than 30 (thirty) days after the file or letter of divorce suit is registered at the Registrar's Office. The examination was carried out in closed court, as well as the examination of witnesses (article 80 Law No. 7/1989, article 33 PP No. 9/1975) The

time limit between case registration and examination is the same asin the case of divorce.

f. Commulation cases

Lawsuits regarding child custody, child support, wife maintenance and husband and wife joint assets can be filed together with a divorce lawsuit or after the divorce decision has permanent legal force (Article 86 (1) UU-PA). the same as in divorce cases. If the defendant submits countermeasures then it will be resolved according to the countermeasures procedure

g. Conciliation Efforts

Conciliation efforts in cases of divorce lawsuits are carried out in the same way as in cases of divorce divorce.

h. Provisional sue

During the course of the divorce suit, at the request of the plaintiff or defendant or based on consideration of the possible harm, the court may allow the husband and wife not to live in the same house (article 77 UU-PA, article 24 PP No. 9/1975).

The request can be made orally in court and recorded in the minutes of the trial. Permission not to live in the same house was given by the Judge during the trial and recorded in the minutes of the trial.

During the course of the divorce suit, at the request of the plaintiff, the court may:

a. Determine the maintenance that is borne by the husband

b. Determine the things necessary to ensure the maintenance and education of children.

c. Determining the things that need to ensure the maintenance of goods which are the joint rights of the husband and wife or goods which are the rights of the husband or goods which are the rights of the wife (article 78 UU-PA, article 24 PP No. 9/1975)[ 4]




3. Acara li'anOther procedures are regulated in KHI Article 127 as follows:

a. The husband swears four times with the word accusation of adultery and or disobedience of the child, followed by the fifth oath with the words,. "God's curse upon him if the accusation and or denial is a lie".

b. The wife refused on the grounds that the accusations and or denials were not true". Followed by the fifth oath with the words of God's wrath on him if "the accusation and or denial is true".

c. The procedures in letters a and b are an inseparable unit.

d. If the procedure in letter a is not followed by the procedure in letter b, then it is considered that there is no li'an.

And article 128 that li'an is only valid when done in front of a Religious Court session.[5]


4. Khuluka. The occurrence of khuluk: 1) khuluk is a divorce that occurs at the request of the wife by giving a ransom or iwadl to and with the consent of her husband (article 1 letter i of KHI) 2) divorce by way of khuluk is a special procedure regulated in articles 1 letter i, 8, 124, 131, 148, 155, 161, and 163 KHI.3) divorce with khuluk due to violation of ta'lik talaq is settled according to the procedure of divorce by suit.

b. Procedures for khuluk: 1) a claim for divorce is submitted to the PA who owns the place of residence along with the reasons 2) khuluk must be based on the reasons for the divorce according to the applicable provisions 3) the PA no later than one month summons his wife and husband to hear the reasons and explanations 4) in the trial the PA gave an explanation about the consequences of khuluk and gave advice.[6]


5. Annulment of MarriageMarriage annulment is a mechanism guaranteed by law. Article 22 Law no. 1 of 1974 concerning Marriage states emphatically that 'marriage can be annulled if the parties do not meet the requirements to enter into a marriage'. An application for annulment can be filed by the wife or husband. Article 22 Law no. 1/1974 states that a marriage can be annulled if the parties do not meet the requirements to enter into a marriage.

However, a marriage that does not meet the requirements does not automatically become void, but must go through a court decision. Article 37 PP No. 9/1975 emphasizes that the cancellation of a marriage can only be decided by a court. This is considering that the annulment of a marriage can have far-reaching consequences both for the husband and wife and for the family. So this provision is intended to prevent the cancellation of a marriage by agencies outside the court.

The procedure for submitting an application for annulment of marriage is carried out in accordance with the procedure for filing a divorce suit. Matters related to filing, examining marriage annulment and court decisions, are carried out in accordance with the procedures referred to in articles 20-35 PP No. 9/1975, namely the procedures for settling divorce suits (article 38 PP No. 9/1975).


6. Polygamy PermitApplications for permission to have more than one wife (polygamy) are regulated in articles 3, 4 and 5 of Law no. 1/1974, articles 40 – 44 PP No. 9/1975, articles 55 – 59 Compilation of Islamic Law. The procedure for applying for a polygamy permit is regulated as follows:

a. Polygamy must have permission from the Religious Court A husband who wants to have more than one wife (polygamy) must first obtain permission from the Religious Court where he lives (article 4 paragraph (1) Law No. 1/1974).

b. PA relative authority: Application for permission to have more than one wife is submitted to the Religious Court at the place of residence (article 4 paragraph (1) of Law No. 1/1974)

c. The application for permission to have more than one wife must contain: the name, age and place of residence of the applicant, namely the husband and the respondent, namely the wife/wives; reasons for having more than one wife; petitum.

The application for a polygamy permit is a contentious matter, because the wife's consent (required) is required. Therefore, this case was processed at the Lawsuit Registrar's Office and registered in the Case Master Case Register of Lawsuits.

In calling the parties to the Religious Courts, they must summon and hear the husband and wife to court. Summons are made according to the procedure for summons regulated in the ordinary civil procedural law regulated in article 390 HIR and related articles. (see further Chapter IV Part G regarding Summons of parties).

Examination of the application for a polygamy permit a) is carried out by the Panel of Judges no later than 30 (thirty) days after receipt of the application letter and its attachments (article 42 paragraph (2) PP No. 9/1975). b) Basically, the examination is carried out in the trial is open to the public, unless for certain reasons according to the judge's considerations recorded in the Minutes of the Session, c) the examination can be carried out in a closed session (article 17 yat (1) Law No. 14/1970) Evidence: the Religious

Court then examines regarding:

a. Whether or not there is a reason that allows a husband to remarry, as an alternative condition.

b. Whether or not there is consent from the wife, both verbal and written consent, which must be stated before the court.

c. Whether or not the husband has the ability to provide for the necessities of life for his wives and children

d. whether or not there is a guarantee that the husband will treat his wives and their children fairly with a statement or promise made by the husband in the form prescribed for that purpose.

Even if there is written consent from the wife, this agreement must be confirmed by verbal consent before the court, except in cases where the wife has been summoned properly and officially but is not present at the hearing and has not ordered another person to act as her representative.

Consent from the wife is no longer needed in the case of:

- his wife/wives may not be asked for his consent and may not be a party to the agreement; or

- no news from his wife for at least 2 (two) years; or

- due to other reasons that need to be assessed by a religious court judge.

Verdict: If the Religious Courts are of the opinion that there is sufficient reason for the applicant to have more than one wife, the Religious Courts will issue a decision in the form of permission to have more than one wife. Against this decision, both the wife and husband can appeal or cassation.

Case costs: charged to the Petitioner (article 89 paragraph (1) Law No. 7/1989).

Implementation of polygamy: Marriage registrars are prohibited from recording the marriage of a husband who will have more than one wife before obtaining permission from the religious court which has permanent legal force.[7]


7. Wali AdholRegulated in the Minister of Religion Regulation No. 2 of 1987 dated 28 October 1987 regarding guardian judges. Wali Adhol is a lineage guardian who has the power to marry brides who are under his guardianship, but he refuses or does not want to marry as befits a good guardian.


Procedure for solving the adhol guardian
a. Determining the legal status of the guardian is determined by a PA decision

b. The prospective bride submits an application for the determination of her legal guardian with an application letter.

c. The application letter contains

the identity of the prospective bride as the applicant.


8. Events for the settlement of marital property disputesa.) If there is a dispute between husband and wife regarding joint property, the settlement of the dispute shall be submitted to the religious court (article 98 KHI) b.) Disputes regarding joint property may take the form of: 1) determination of joint property by husband and wife; 2) maintenance and utilization of assets jointly by husband and wife; 3) determining the share of each husband and wife; and 4) distribution of assets with husband and wife. C.) Disputes over marital assets can arise due to: 1) marriage breaking up, either because of death or because of divorce, or 2) without breaking up the marriage. D.) The settlement of marital property disputes can be submitted: 1) together with the divorce case, 2) after the divorce occurs, or 3) after the death of one of the husband and wife or both husband and wife. E. ) in the event that one of the husbands or wives files a divorce case, it can be submitted at the same time regarding the settlement of the joint assets of the husband and wife, either in compensation from the plaintiff/applicant or in the form of compensation from the defendant/respondent (article 66 (5) and article 86 (86) 1) Law No. 7/1989). F.) The judge has the authority to consider whether the combination of joint property dispute resolution can be accepted and resolved simultaneously with the divorce or not accepted so that it must be resolved after the divorce occurs as a separate case. G.) in the event that claims regarding joint assets are combined with divorce, then he is subject to the divorce dispute decision, so that if the divorce case is rejected (not accepted), then joint property cases must not be accepted and if the divorce case is granted then the distribution of joint assets can be settled at the same time. H.) the merger of cases of settlement of joint assets with divorce is a special provision that applies to courts within the religious courts. This is intended to realize a trial that is simple, fast and low cost. I.) the claim for the distribution of joint assets can also be filed after the divorce occurs, as a result of the divorce. J. Likewise, the distribution of joint assets can also be submitted after the marriage is broken up due to death and can also be accompanied by the distribution of inheritance. K.) in the event of an election dispute then: 1) insofar as it concerns the determination of whether the disputed property is joint property or personal property of the husband/wife,



C. CLOSING

1. Conclusion

In the Religious Courts there are special matters regulated in special procedural law, namely issues regarding marital disputes including talak divorce, divorce proceedings, li'an events, khuluk, marriage annulment, polygamy permits, legal guardians , and settlement of marital property disputes.

2. Suggestions

Knowing the procedural law of the Religious Courts is an important matter for syari'ah students to master.

For more details and details, open Compilation of Islamic Law (SUHARTO) H.42
Arto, Mukti, Practice of Civil Cases at Religious Courts, Yogyakarta: Student Library, 2011. H.224
Ibid 225
Ibid 226
Tri Wahyudi, Abdullah, Religious Courts in Indonesia, Student Libraries. H.341
For more details, open mukti arto h. 234-235
Ibid H.241-243
Read Arto, Mukti H.245-250
source:kingilmu



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