Ahmad Yani, Encep and Latipulhayat, Atip and Hernawan, Dedy (2025) Post-Divorce Division Of Marital Assets From The Perspective Of The Maslahah Mursalah Theory. Disertasi(S3) thesis, UNIVERSITAS PASUNDAN.
![[img]](http://repository.unpas.ac.id/style/images/fileicons/text.png) |
Text
JURNAL DISERTASI.pdf Download (188kB) |
Abstract
Joint property from an Indonesian Islamic jurisprudence perspective is equated with the concept of syirkah., as regulated in Article 1 letter f of the Compilation of Islamic Law (KHI) which states that "Property in marriage or syirkah". Further regulations are contained in Article 97 of the KHI which states that "Widows or widowers who are divorced are each entitled to half of the joint property, as long as it is not stipulated otherwise in the marriage agreement." However, in practice, this provision has experienced deviations in various Religious Court decisions. The composition of the division varies, such as 1/3 to 2/3, ¼ to ¾, even up to 1/5 to 4/5. This raises a number of problems, including: how to classify husband and wife obligations, how to implement the formula and form of division, and how the concept of distribution of joint property after divorce is reviewed from the perspective of the theory of benefit. The focus of this research is more on the Distribution of Joint Property After Divorce with the Parameters of Husband and Wife Obligations from the Perspective of the Theory of Maslahah Mursalah. This research method is descriptive analysis, while the approach method used is normative juridical. The research stage used is carried out in 2 (two) stages, namely: library research and field research. The data collection technique used in this research is as follows:documentand interviews. The obligations and prohibitions of husband and wife from the perspective of the theory of benefit are classified based on their urgency into three categories: dharuriyyah (primary), hajiyyah (secondary), and tahsiniyah (tertiary). In judicial practice, the implementation of the division of joint assets is based on the theory of syirkah. Religious court decisions show the existence of legal flexibility, which is evident from the variation in the composition of the division such as 4/5 and 1/5, 2/3 and 1/3, and 3/4 and ¼. From the perspective of the theory of benefit, the division of joint assets reflects the value of contextual justice, for example (1) If the husband works and the wife takes care of the household, the husband gets 58%, the wife 42%. (2) If the wife continues her domestic role but has an emotional relationship with another man, then e-ISSN: 2775-5037 p-ISSN: 2614-3917 Original Article Encep Ahmad Yani et al. (2025). https://doi.org/10.24815/jr.v8i3.47945 Page 3686 of 3693 the division becomes 70% for the husband and 30% for the wife. Keywords: division, joint property, partnership, maslalahah mursalah
| Item Type: | Thesis (Disertasi(S3)) |
|---|---|
| Subjects: | RESEARCH REPORT |
| Divisions: | Pascasarjana > S3-Ilmu Hukum 2025 |
| Depositing User: | Mr soeryana soeryana |
| Date Deposited: | 31 Jul 2025 03:44 |
| Last Modified: | 31 Jul 2025 03:44 |
| URI: | http://repository.unpas.ac.id/id/eprint/77574 |
Actions (login required)
 |
View Item |
