Marital Property

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Talk about marriage, will always talk about property. Because marriage can not be separated by marital property.

Marital property , in Indonesian Law is known as harta kekayaan dalam perkawinan (syirkah). It is all wealths that got by husband and wife during marriage, together or personally.

Marriage Law number 1 year 1974 and Compilation of Islamic Law divide marital property in:

• Harta Bawaan (brought property, original property): property that was taken in marriage. It ussually under each side. Example, before marriage a wife bought a car, so the car is included in her harta bawaan. Harta bawaan has some differential terms in some region. Like in Java, it it called gono-gawan. In West Java, barang bawa. In Bali, babaktan.
• Harta Perolehan (acquisition property): property that got by husband or wife personally after marriage. It ‘s got by special way, like inheritance, or gift that required not includen in communal property.
• Harta Bersama or harta pencaharian (communal property): property that got the couple during marriage, included benefit, profit of brought property and acqusition property. It is under control husband and wife, together. Example, X has had rice-field, after married the rice-field give some profit. The profit is used to buy a house. So the house is included communal property, although it is benefit of rice-field as brought property. In Java, harta bersama is called gono gini.

The diversification of marital property is very important. It’s connected to inheritance and divorce case. If one of the couple died, example wife, by diversification can be stipulated which goods can be shared. Which wealth can be inherited by husband, by children and other family. Included which property that must be return to clan (remember, Indonesians always obey Adat Law too).

So in divorce case. By classification, esier to stipulate which husband’s property, which the wife’s property. Included which property that must be shared into 2.

A Story in Period of Prophet Daud and Prophet Sulaiman

The old story below is a story that jugde’s consideration (qarinah) can be a proof. It happened in era of Prophet Daud and Prophet Sulaiman.

There were 2 women quarrelled each other, to get a child. The first woman was rather young, and the other was rather old. Prophet Daud decided to win the old woman because of her confession as the true mother.

Prophet Sulaiman who joined in the court, put a sword and pretended ready to split the child. He said, “It’s fair”.
The rather old woman agreed with spliting. But the rather young woman said that she gave the child to the other voluntarily providing the child won’t to split. If Sulaiman split the child, the child would die.
Prophet Sulaiman decided to give the child to the rather young woman. Because she is the true mother of the child. A mother will never let her child die.

Polygamy and Mutilation

For man that committed polygamy or has intention to do it, must be careful and must have good consideration. The polygamists really must give justice for his wives, and never make his wife/wives broken-heart. Because once a polygamist make his wife/wives annoyed, it can result in a fatality.

At least that was happened to Karyadi. The case is bomming in this week.

Karyadi, 53 years old, is a polygamist. He has 4 wives. Slice of his body was found in Kalibaru, Kramatjadi, East Jakarta. Yes, he is victim of murder and mutilation.

From investigation, police found proof that Karyadi killed and mutilated by Muryani (53 years old), his 2nd wife. And she has been arrested.

Sunday, October 12, Karyadi was struck by gas tank, then killed and his body was cut in 14 parts. Then Muryani threw away slices of Karyadi's body to some different places.

Motive of killing is heartsick. Knowing her husband married again, Muryani was jealous and very angry. She felt be betrayed. On an interview, she was asked about her feeling after killed her husband. She said, no regret.

Until now, this case is still processed by police. And all slices of Karyadi's body have not found yet.

The case above is lesson for polygamist or man intended to commit poygamy. Wife's permission is very, very important. Fair to all wives is absolute attitude. But fair for someone does't always mean fair to the other. Unfair husband can break wife's heart. And a painful woman sometimes can be very dangerous.

Li'an Oath (2)

Li’an or Li’an Oath (Curse Oath) happens because husband accuse wife commited zina (adultery) and or refuse the child in his wife’s uterus or refuse child had born by his wife. Whereas wife deny husband’s indictment and or refutation.

Li’an is regulated in Quran Surah An Nur section 6-9.

“And people who accuse their wife (zina), whereas they have no witness except themselves, so the testimony is swear 4 times by the name of Allah, actually he is included true people.” (Quran 24:6)

“And (oath) fifthly: that Allah’s curse for him, if he is included the liars.” (Quran 24:7)

“His wife is avoided from punishment by her oath 4 times by the name of Allah that actually her husband is really included the liars.” (Quran 24:8)

“And (oath) fifthly: that Allah’s curse for her if her husband is included the true people.” (Quran 24:9)

So content of Quran (24: 6-7) is husband’s oath, and wife’s oath is in Quran (24:8-9). And in Indonesia the oaths are poured in Compilation of Islamic law in article 127.

The manner of Li’an
The oath is done by husband first, then followed by wife’s oath. Husband’s oath and wife’s oath are unity. And they can not be separated.

When li’an is valid?
Li’an is legal if it is only performed in front of session of Religious Court.

Legal Consequences

Li'an, of course, has some legal consequences. They are:

• wife is avoided from punishment of zina
• the marriage is broken by Court decision, and the divorce called Talak Bain Kubro
• after divorce, they are forbidden to marry again forevermore
• the child only has nasab (relation) to mother, so has right to inherit only from mother.
  
  

Li'an Oath

Li’an Oath is one of evidences in the religious court. It’s concerning divorce case, because of zina (adultery).

Before speak about the oath, it’s better to speak about breaking of marriage first.
A marriage can break because of dead and divorce. According to Islamic Law Compilation article 116, one of divorce reasons is: if husband/wife commit zina.

Zina is serious indictment. When a husband indict his wife of zina. He must be present 4 witnesses in court. The witnesses must male and muslim. If the husband can’t present them, he must take an oath that his wife commited zina. The oath is Li’an Oath.

Li’an Oath must do 5 times. The first 4 times is: 'I bear witness to Allah that I am true about my indictment that my wife commited zina.' Then at the 5rd oath, added: 'Allah’s curse of me if I was lie about my indictment.'

Whereas a wife indicted zina, if she is not guilty, she can deny by oath 5 times too. The first 4 times is: 'I bear witness to Allah that my husband’s indictment of me is lie.' Then the 5rd, added: 'Allah’s curse of me if my husband’s is true.'

From the content, Li’an Oath is extraordinary oath. It’s has horrible effect for the liar. Allah’s curse of the liar can happen everytime and everywhere. It maybe happen soon in the world, and maybe happen in the hereafter too. Noone knows.

It can understood because in Islam, zina is a big sin.

Legal Sources of Islamic Inheritance Law

".... obey Allah and obey Rasul and obey ulil amri among you. Next if you have difference of opinion, return it to Allah (Quran) and Rasul (Sunnah)...." (Quran 4:59)

Why muslims must obey ulil amri? Because ulil amri follow the law that agreed by fuqahas.

So, according to Quran (4:59), legal sources of Islamic Inheritance law are:

1. Quran
2. Sunnah Rasul
3. Ijtihad.

Quran
There are sections about inheritance:
A. the principal sections:

1. Quran (4:11): contains stipulations about share of child/children, father, and mother
2. Quran (4;12): share of widower, widow, and brother/sister
3. Quran (4:176): about kalalah (no child and no father).

B. the assistant sections:

1. Quran (4:7): man and woman have right to inherit their parent's wealth and their families's wealth
2. Quran (4:1): blood relation result in right to inherit
3. Quran (4:8): about other families, the orphans and the poor
4. Quran (4:33): about people ever swore to loyal to the deceased
5. Quran (2:180): testament (wasiat)
6. Quran (2:240): teach husband to make testament to his wife about goods

Sunnah Rasul

1. Hadist from Bukhari and Muslim : residu of inheritance especially for heir closer to deceased
2. Bukhari and Muslim: about wala' (slave's inheritance that no family)
3. Ahmad and Abu Daud: if no heir/heiress
4. Al-Jama'ah except Muslim and Nasai: muslim can not inherit from non-muslim, and non-muslim can not inherit from muslim
5. Ahmad, Malik, and Ibnu Majah: a murderer can not inherit from someone that he killed
6. Bukhari: about case that heiress are 1 daughter, 1 grand-daughter (from son) and 1 sister, Prophet Muhammad shared 1/2 to daughter, 1/6 to grand-daughter, and residu to sister
7. Ahmad: that Prophet Muhammad gave 1/6 to 2 grandmothers.

Ijtihad

1. share of hermaphrodite
2. about residu after shared to all heirs
3. share of mother.

Marriage Prevention by Registerer Official of Nikah

Sometimes there is a violence of marriage law but no one prevent the marriage. Can the marriage be performed? Registerer official of Nikah (Pegawai Pencatat Nikah) is forbidden to perform or help to perform a marriage if he know existance ot violence of rules, although no request of marriage prevention.

The rules that may be collided are:

• Minimun limitation of age of bride and/or bride-groom
• there is marriage obstacle between bride and bride-groom
• connected to polygamy requirements
• stipulation about the couple that divorced, then want to marry again after one side married with someone else and divorced
• connected to manner of implementation of marriage that ruled by other law.

If Registerer Official of Nikah opines that on a marriage there is something forbidden by Marriage Law Number 1 year 1974, he will refuse to perform the marriage. Then the Registerer Official of Nikah gives written explanation about rejection and the reason.

Concerning the rejection, the sides can make a complain. They have right to request a decision to Court by delivering explanation letter of rejection of marriage. Court is Religious Court in legal area where Registerer Official of Nikah exist.

Religious Court will investigate the case by short procedure and will give decision.

The kind of decision are:

• strongger the rejection of Registerer Official of Nikah
• command perform the marriage.

What happen with the Court’s decision if the obstacles are lost? The decision will powerless if obstacles that result in rejection is gone. And the couple that want to marry can repeat information about their purpose to marry.

Prevention of Marriage

Prevention of marriage is done to avoid a marriage that forbidden by Islamic Law and State Law. It can be done if bride and/or bride-groom si not fulfil requirement of marriage according to law.

Difference of social status, ethnic, wealth can not be reasons to prevent a marriage. Only difference of religion (ikhtilaafu al dien) can be reason of prevention of marriage.

Prevention can not be done by everyone. Only certain person can do it. They are:

• All family in upward and downward straight line (including father)
• brother and sister
• wali nikah (marriage guardian)
• wali (guardian)
• husband /wife of bride/bride-groom
• pointed employee to watch marriage.

How to prevent a marriage?

Prevention of marriage must be forwarded to Religious Court (Pengadilan Agama) in legal area where the marriage will be performed. Someone that prevent the marriage, must tell Registerer Official of Nikah (pegawai Pencatat Nikah) about the prevention. Then the Registerer Official of Nikah tell bride and bride groom about request of marriage prevention.

Revocation of Marriage Prevention

The marriage can not be performed as long as the prevention has not revoked. Marriage prevention can be revoked by revoke request of prevention in Religious Court. It also can be revoked by decision of Religious Court.