Rekonstruksi Sistem Hukum Keluarga Islam Indonesia Pasca Putusan Mahkamah Konstitusi No 46/PUU–VIII/2010 Tentang Anak Luar Nikah
Latief, M. Nur Hasan
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The legal system in Indonesia has positioned children who are born out of wedlock to have a civil relationship only with the mother or her family, while with the father or his family the child cannot be related by civil law as stipulated in Law No. 1 Year 1974. However, the Constitutional Court through its Verdict No. 46/PUU-VIII/2010, stating that illegitimate children have a civil relationship not only with the mother and her family but also with the father and his family, changed this regulation. This Constitutional Court Verdict No. 46/PUU-VIII/2010 has definitely brought significant impacts on the legal system in Indonesia in the perspective of material law as well as proceedings in the court. Furthermore, this verdict has triggered pros and cons in the community. Therefore, this research would discuss the implications and the direct as well as indirect impacts of this Constitutional Court Verdict on the elements of family law system as well as the legal construction on illegitimate children after the issuance of this verdict in the system of Islamic family law in Indonesia. This study was a non-doctrinal legal research with a hermeneutic approach. A non-doctrinal legal study is a research that studies the process of legal construction and implementation in the society, including the interrelation between law and legal institutions. The main data of this research were taken from library research that consisted of primary legal substance, secondary legal substance, and tertiary legal substance, which were supported by data from the field. The field research data was obtained via interviews with the judges of Religious Court. The data were then analyzed using the model invented by Matthew B. Miles and Michael Huberman, which suggested data collection, data reduction, data presentation, and conclusion drawing steps. The results were, first, the legal implication of Constitutional Court Verdict would establish a legal system that is open in interpreting illegitimate children because the verdict has not specified the types of illegitimate children. Second, the direct impact of this verdict was that religious courts would receive more applications or lawsuits relating to the civil rights of illegitimate children. Meanwhile, the indirect impact of this verdict occurred in the Ministry of Internal Affairs (civil registry office) relating to children’s birth certificates, the Ministry of Religious Affairs related to the services of the Office of Religious Affairs, and the Ministry of Law and Human Rights concerning the draft of Government Regulation about illegitimate children, as well as the Ministry of Women Empowerment and Child Protection relating to the socialization and protection efforts for illegitimate children. Third, the legal construction of illegitimate children after the issuance of this verdict experienced fundamental changes in the structure of Islamic family law because the position of illegitimate children and legitimate children became equal. However, this would apply to illegitimate children who have a biological relationship with the father. After the issuance of this verdict, illegitimate children would have the rights to obtain child custody, child livelihood, including civil administration and registry (but the rights do not apply to nasab/patronymic, custody, and inheritance).