Saturday, September 25, 2010

Can A Father Prevent Marriage of His Daughter?

Q: Some years ago I and my husband divorced. Then I raised our daughter by myself. Now our daughter is adult and she will marry. I think it’s not important to tell my ex-husband about plan of our daughter marriage, because he has not cared about our daughter. He has not given living cost to her daughter. Can my daughter marry by wali hakim? And can my ex-husband prevent the marriage?

A: In Islamic Law, a woman can not give herself in marriage. She always needs wali nikah (marriage guardian). Wali nikah consists of wali nasab and wali hakim (magistrate guardian). A woman can not marry by wali hakim as long as wali nasab is still exist and has no obstacle to be wali nikah. In the case above, the father as the principal wali is still exists, still alive. So the daughter can not marry by wali hakim.

According to Compilation of Islamic Law article 62 section 2, a blood father that never act his obligation as head of family is not drop his right as wali to prevent a marriage that will do by other wali. So it’s clear that a father can prevent marriage of his daughter.

It’s important to tell a father about plan of his daughter’s marriage. It’s his right to be wali nikah, although he never do his duties as a good father. And if he dislikes (adlal), the daughter just can marry by wali hakim after it’s decisioned by Religious Court. That’s the rule. It’s stipulation of State Law and Religious Law.

Wednesday, September 15, 2010

The Principles of Islamic Inheritance Law

Islamic Inheritance Law (Faraidl) is one of branch of law that in force in Indonesia. Legal source of Faraidl are Quran, Hadist, and Ijtihad.

Quran regulate faraidl so clearly, why? Because inheritance can cause quarrel easily. Fair for someone maybe not fair for the other. So that about inheritance is returned to Allah, because true fairness just from Allah.
The principles of Islamic Inheritance Law are:
  • Islamic Inheritance Law takes median strip between capitalism and communism, so that it regulates inheritance, also gives freedom for someone to give his inheritance by testament
  • The deceased can’t pevent the Heir/Heiress to get his/her right of inheritance. And the Heir/Heiress can get his/her right without statement ‘accept’ or judge decision
  • Inheritance is only limitated in family environment. Heir/heiress and the deceased must have family conection, because of marriage or blood conection. The closer family is more principal than the farther
  • Islamic Inheritance Law tend to divide inheritance to recipiens as most as possible, from the closest family until the farthest family. From child, grandchild, mother, father, sister, brother, grandfather, grandmother, nephew, niece, until great-grandmother, there’s regulation for them
  • There is differences part of man and woman. Part of man is two times part of woman. Why is the man get bigger than the woman? Because a man is a leader of a family who shoulder all burdens of his family
  • No differences of heir/heiress among adult, underage or baby just born
  • There are certain part of heritance, i.e. : 2/3, ½, 1/3, ¼, 1/6 and 1/8 (Look Quran, Surah An-Nisa section 11). The regulation is ta’abbudi, something must do because regulated by Quran.

Saturday, September 4, 2010

Development of Taklik Talak in Indonesia

Taklik Talak or Ta’liq al-talaq (Conditional Divorce) has been in Indonesia, particularly in Java island, since centuries ago. Since era of Islamic Mataram kingdom under Sultan Agung (1613-1646). That’s research of Hisako Nakamura. She is a Professor of Anthropology in the Faculty of International Studies at Bunkyo University.
Nakamura divided development of taklik talak into 3 period:
  1. era of Mataram kingdom
  2. era of Dutch colonial
  3. era after independence of Indonesia in 1945.
Era of Mataram kingdom
Sultan Agung is the first king in Java that received the tittle of Sultan. During his rule, Islam penetrated deeper among the general population of Java.
In the era of Islamic Mataram kingdom, the pronouncement of taklik talak was formalizad simply, like this:
(The bridegroom is read out a promise by a religious official): “Listen Bridegroom. Do you accept the royal promise (janji dalem) of taklik? In the even you leave your wife so-and-so for seven months by land or for two years by sea, axcept if you are on military duty, and he even your wife does not want to be quietand bring the case to the religious court (rapak), then talak one will fall after the court investigation proves the case to be true.”
(The bridegroom answers): “Yes, I do.”
Era of Dutch Colonial
  • The Dutch Colonial Government promoted the native custom and instruction including mention of ta’liq al-talaq was issued by Herman Willem Daendels, Governor General of the Netherland East Indies (1807) to native regent (bupati) of Java
  • It was followed by decrees of the duties of the religious judge (penghulu) in Stb. (Staatsblad) 1835 No. 58, and on the formation of the Religious Court (Raad Agama) in Stb. 1882 No. 152
  • Ta’liq al-talaq appeared as part of Ordonansi Pencatatan Perkawinan (Ordinance on Marriage Registration) in Stb. 1895 No. 198, in Stb 1929 No. 348, Stb. 1931 No. 348, and Stb. 1933 No. 98 for the Solo and Yogyakarta principallities.
Era After Independence of Indonesia
About marriage of muslim including taklik talak is regulated in Compilation of Islamic Law (Presidential Instruction No. 1/1991). Standart taklik talak is here.