Marital property within the marriage law a debate on legal position and actual applications

Pelu, Ibnu Elmi A.S. and Dakhoir, Ahmad (2021) Marital property within the marriage law a debate on legal position and actual applications. Al-Jāmi‘ah: Journal of Islamic Studies, 59 (2). pp. 287-316. ISSN 0126-012X

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Abstract

This paper presents a debate on the legal posistion of marital property and its application. It begins with examining the legal position of marital property and the application of the UUP and KHI for Muslims. It also pays attention to a discussion of whether the position of marital property needs to be declared in a marriage agreement or comes into effect automatically in every marriage. It ends with examining various actual applications in resolving a legal dispute over the marital property in the Indonesian Religious Courts. As qualitative research, this study adopts a socio-historical approach. Data were taken from such regulations on the marital property as the UUP and KHI, official documents released by the Supreme Court of the Republic of Indonesia. The data were also collected from books and reputable journals. Based on the socio-historical analysis, it could be concluded that the legal position of marital property distribution has been regulated in the UUP and KHI coming into force nationally. Under this legal framework, the property acquired during a marriage belongs to both spouses. In practice, however, the spousal rights to share the property ownership becomes broken in two situations, i.e., when the husband and wife agree to include the formulation of the distribution of marital property in their marriage agreement, and when one of them files a lawsuit
for the marital property by either litigation or non-litigation. Decisions based on the qualitative contributions have turned out to be more dominant in the history of settling disputes over marital property in Indonesia

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