Rights Connected to Inheritance

If one dead, he/she usually leaves some properties (inheritance) to his/her family. The properties (inheritance) then become his/her family’s right as heir. And if the heir is consist of more than one person, so it must be shared.

Can the inheritance shared directly? No. Before it split, the heirs must consider rights that connected to inheritance. The right connected to inheritance is obligation of the heirs. May be deceased has had unpaid debt when he/she lived. Or may be the deceased leaved testament connected his/her property.

Before divide the inheritance, the heirs obligate to use the property for:

1. pay care of deceased’s corpse, from bathing until funeral

Corpse management since bathing until funeral can use wealth of inheritance, as long as not over, and it’s not contravene with Islamic value.

As a traditional-religious society, every aspect of life in Indonesia never can be separated from tradition (adat), including death. There are ceremonies concerning death.

Like in Yogyakarta. There is Tahlilan, is ceremony that some people pray together for the deceased.They read tahlil, surah Yasin and pray in order Allah forgive and bless the deceased. The family that leaved, usually perform tahlilan in 3 days or 7 days in a row. Then perform it in 40^th, 100^th, and 1000^th days after day of death. After the the praying end, the family give some drink and food to the people. And when the people go home they bring berkat. Berkat is a gift, usually meal, as an appreciate from the deceased’s family to the people that pray for deceased.

Of course the ceremony, including drink and food, that presented before and after funeral, are not tought in Islam. So if the ceremonies done as tradition, the cost can not be burdened to inheritance. Inheritance only can be taken for caring corpse.

2. pay deceased’s debt

After taken for carrying corpse, inheritance can be taken for pay deceased’s debt. If the amount of the debt is bigger, so the the paying is sufficed by inheritance. If the creditor more than 1, so each creditor only paid according to comparison of amount of debts. Example, Mr. X dead and leave debts to Mr. A Rp. 2000, to Mr. B Rp 5000, to Mr. C Rp. 3000. So total debts is Rp. 10,000. Remains of inheritance after taken for caring corpse is Rp 9000. It’s not enough to pay all creditors. So all creditors are paid by comparison 2:5:3. So Mr A get Rp. 1800, Mr. B get Rp. 4500, and Mr. C get Rp. 2700.

The heir have no obligationto cover remainder of debts from their own wealth. But if the heir want to cover it, that is better. That’s assumed as kindlines of heir, not legal obligation…. But, the heir or the family should pay the debt, because if the deceased still has debt she/he will defended in akherat. She/he cannot enjoy result of her/his ibadat/amal (kindliness) before the debt is paid or the creditor sincere it.

3. Doing testament (wasiat)

Testament is last one’s desire relation with property that she/he leave. The last one’s desire must principal than heir’s right.

Wasiat is limited maximum 1/3 of inheritance (after taken for paid caring corpse and debts). Wasiat must be done without anyone’s permission.

How if amount of wasiat more than 1/3 of inheritance?

• According to Jumhur Ulama (most ulama): wasiat more than 1/3of inheritance is legal, but implementation of surplus of 1/3 depends on permission of all heirs. If all heirs permit it, surplus 1/3 can be done. But if a part of the heirs permit it and the others not permit, so wasiat only done that agreed.
• According to Ulama Dhahiriyah: wasiat more than 1/3 is null, although all heirs permit it. Reason: Hadist Nabi stipulated that wasiat by 1/3 of property is much.

What about wasiat for heir?

• According to Jumhur Ulama: wasiat for heir is legal but the implementation depends on the other heir. It’s like wasiat more than 1/3.
• According to Ulama Dhahiriah: Wasiat for heir is null, because Hadist Nabi teach that no testament for heir.
• According Ulama Syi’ah Imamiah: wasiat for heir is legal and can be implementated without permission.

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Hakam

Hakam is mediator in syiqaq case. Syiqaq is hard dispute between husaban dan wife. Hakam consists of 2 sides 1 from husband and 1 from wife.

"And if you worry there is dispute between them, so send a hakam from man's family and a hakam from woman's family. If the two hakams intend make reparation, sure Allah help husband-wife.... " (Quran 4:35)

So if there is dispute, the problem is solved by hakam first.

Authority of Hakam

1. According to Fiqh expert:
Hakam is duty to give advice to the couple. If hakam fails to peace husband and wife, so hakam can divorce the couple although one of sides disagree. How to divorce the couple? Hakam of husband's side fall talak 1 by paying iwadl to hakam of wife's side, then hakam pf wife's side accept the talak 1 and iwadl.

2. According to Madzab Hanafi:
Hakam only duty to advise to the couple, and help to find problem solving. If hakam fails, hakam can not divorce the couple. So, the case is brought to the court because only court tahat can divorce the couple.

In Indonesia, stipulation about hakam from madzhab Hanafi is inforce.

Law of Talak

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Legal categories in Islam are 5, i.e : fardlu (compulsory), sunnah, halal, makruh, and haram. So does talak.

Possibility of talak law:

1. Fardlu

Fardlu meant: if done will get reward, and not done will get sin. Husband obligates to fall talak within enforcement of hakam’s decision in syiqaq. So if husband fall talak, he will get reward from God, and if he doen’t fall talak he will get sin.

Hakam: peacemaker that has duty to make husband and wife peace. Hakam consist of 2 people, 1 from husband’s family and 1 from wife’s family.

Syiqaq is hard dispute between husband and wife.

2. Sunnah (something if done will get reward, but if not done will not sin). Talak law is sunnah if wife made a sin (has love affair with other man), or if husband can not able to do his duty as husband.

3. Halal (something that permitted, no matter if it done or not). Talak law is halal if wife can not makehusband pleasure.

4. Makruh (something if done will not sin, but if done will get reward). Talak law is makruh if woman is shaleh (good) woman.

5. Haram (something forbidden, so if done will sin and not done will get reward from Allah). Talak law is haram if wife in menstruation condition when talak is fallen.

Classification of Talak

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There are some kinds of talak, and each talak has different consequence.

According to the number, talak is divided into:

1) Talak Raj’i : talak that fallen once or 2 times (talak 1 and talak 2).

Consequence of talak Raj’i: husband has probability to make peace with wife. Mean, husband and wife can back as family (rujuk). Example, talak 2 that fallen to wife without paid iwadl

2) Talak Ba’in Shughraa (small Ba’in talak), is talak that forbidden to rujuk, but may make new akad nikah although ex-wife in iddah period.

Talak Ba’in Shughraa consists of:

• Talak 1 or talak 2 that fallen to wife whom has been never mixed (qobla al dukhul),
• talak 1 or talak2 by khuluk. Khuluk is divorce that happen because of wife’s request and wife give ransom (iwadl) for husband. And amount of ransom is based on husband’s agreement,
• Talak that fallen by Religious Court.

3) Talak Ba’in Kubraa (big ba’in): talak that happen in 3 times. After talak ba’in kubraa is fallen, husband and wife can’t rujuk and can’t marry again, except there is certain requirement.

Certain requiremet is:

• ex-wife had married with other man and then divorced ba’da al dukhul (husband-wife relation is accured),
• and she passed her iddah period.

Except those classifications, there are still talak sunny and talak bid’i.

Talak Sunny is talak that permitted. That is talak that fallen when wife in her holly period (not in menstruation condition), and she is not mixed by her husband in the pure period.

Talak bid’i is talak that forbidden. That is talak that occur when wife in menstruation condition, or wife in pure condition but she has been mixed by her husband in the period. So it possible that wife pregnant.

Talak

Talak (thalaq) is husband’s confession in front of session of Raligious Court that become one of reasons of breaking of marriage.

Islamic law stipulates that right to fall talak exist on husband. Why? It’s based on consideration:

• a man usually thinks clearly before act,
• consequences of talak is burdened on husband.

Consequences of talak

If marriage is broken because of talak, so ex-husband has obligations:

• To give proper mut’ah to ex-wife, except the ex-wife is qobla al dukhul (has been never touched during marriage). Mut’ah is a gift from ex-husband to ex-wife whom is fallen talak. Form of mut’ah: goods or money or other that can make ex-wife pleasure.

• To give living cost to ex-wife during iddah period, except the ex-wife has been fallen talak bain or nusyuz (disobey) and not pregnant. Iddah is period that ex-wife can not marry again after her divorce.
• Paid all mahar debt, or paid ½ of mahar debt if qobla al dukhul
• Give hadhanah fee to his children whom under 21 years old. Hadhanah is cost to care and educate children.

Validity of Talak

Talak that fallen is lawful as long as fulfil certain requirements. The requirements are:

• Someone that fall talak must baligh, has sound of mind, and no coercion
• Existance of sighat (clear statement). Sighat can be said by: clear words and can be understood (sharih), satirical words (kinayah)
• Must be talked in front of 2 witnesses. The witnesses must male and fair.

Figure of Talak

Number of talak is 3 (3 times). Each talak must be fallen step by step. Why? In order that husband has chance to think clearly, divorce or not.

Breaking of Marriage

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Everybody almost always want s happy marriage, eternal love, and everlasting marriage. But noone can against destiny. Sometimes people make a mistake that influenced their life, including their houshold life.

A marriage can break because of:

• deadth
• divorce
• court decision.

According to Islamic Law, breaking of marriage that result from divorce, can accur because of:

1. husband’s action: talak, illa, dzihar
2. wife’s action: tajwidl, khuluk.

According to Compilation of Islamic Law article 114, divorce can happen because of:

• talak
• divorce indictment

Court Decision that result in breaking of marriage, is connected with:

• violation of taklik talak (conditional divorce)
• fasakh (revocation of marriage)
• syiqaq (quarrel between husband and wife that result in breaking of family)
• li’an (curse oath)
• riddah (convert).