Analisis Pertimbangan Hukum Hakim terhadap Penerapan Prinsip Contra Legem dalam Pembagian Harta Bersama Pasca Perceraian Berdasarkan Pasal 97 Kompilasi Hukum Islam (Studi Putusan No. 786/Pdt.G/2023/Pa.Pal.)

Sitorus, Marlin Noviardana Betty (2026) Analisis Pertimbangan Hukum Hakim terhadap Penerapan Prinsip Contra Legem dalam Pembagian Harta Bersama Pasca Perceraian Berdasarkan Pasal 97 Kompilasi Hukum Islam (Studi Putusan No. 786/Pdt.G/2023/Pa.Pal.). Undergraduate thesis, UPN Veteran Jawa Timur.

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Abstract

The research under this title raises two issues: how is the contra legem principle applied in decisions on the division of joint assets based on Article 97 of the Compilation of Islamic Law? And how are the wife's rights protected post-divorce regarding the division of joint assets in Decision No. 786/Pdt.G/2023/PA.Pal.). This issue is raised because it stems from the position in Decision No. 786/Pdt.G/2023/PA.Pal. of applying contra legem to Article 97 of the Compilation of Islamic Law. Its implementation is then examined in a case of division of joint assets that was annulled by a first-instance decision in its appeal. This decision aims to determine the application of the contra legem principle to Article 97 of the Compilation of Islamic Law (KHI) regarding the division of joint property and the protection of the wife's rights in an appeal decision that overturned the first instance decision that granted a larger portion to the defendant. This study uses doctrinal research based entirely on secondary data, including primary, secondary, and tertiary legal sources. The results demonstrate that the application of the contra legem principle in the Palu District Court Decision (⅓:⅔) represents a judge's discretion driven by gender-based substantive justice and recognition of the wife's double burden. However, this action was not upheld at the appeal level, which restored the division to ½:½ in accordance with Article 97 of the KHI, reinforcing formal legal priority. Although the material portion was corrected, the protection of the wife's rights after the divorce remains functionally guaranteed through the postponement of asset distribution until the children are adults. To enhance protection, it is recommended that Religious Courts integrate compensation for child support debts by deducting directly from the ex-husband's share, thereby achieving material and functional justice and permitting the use of cassation. Keywords: Contra legem, joint property, KHI.

Item Type:

Thesis (Undergraduate)

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