Pelaksanaan Prinsip Memperketat Perceraian Di Wilayah Hukum Pengadilan Tinggi Agama Semarang Dalam Perspektif Maqâsid Al-Syari'ah
Hasyim, A. Muliany
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The principle to limit divorce adopted by Law No. 1 Year 1974 concerning Marriages (Marriage Law) is aimed at achieving the goals of marriage as well as reaching the objectives of Islamic law (maqâṣid al-syari’ah). The central idea of maqâṣid al-syari’ah is the benefit when the need for ḍarûriyat is fulfilled and the five pillars (maqâṣid al-khamsah), which include hifẓ al-dien, hifẓ al-nafs, hifẓ al-'aql, hifẓ al-nasl, dan hifẓ al-mâl, are maintained. The first, formulation of the problem was why limiting divorce is necessary as in the principle of the Marriage Law. Second, how is the implementation of the principle to limit divorce under the jurisdiction of High Religious Court of Semarang in the perspective of maqâṣid al-syari’ah? The purpose of this study were, first, to develop a theory about the need to limit divorce. Secondly, to develop and discover a theory about the efforts to overcome escalating divorce cases and their actualization using the principle to limit divorce.The study was conducted in the jurisdiction of Semarang High Religious Court using the qualitative type of field research with an empirical juridical approach. The object of this study was to discuss the principle to limit divorce adopted by the Marriage Law in the perspective of maqâṣid al-syari'ah. The subjects of this study were the judges in the jurisdiction of Semarang High Religious Court. The method of data analysis in this study was descriptive analysis. The way this study carried out was consisted of several phases, including pre-activities and field work activities. The data sampling used the quota sampling and purposive sampling techniques, and the data was collected through interviews and literature study. Case which is allowed but hated by Allah is divorce.The results of this study were, first, necessity to limit divorce which regulated by Marriage Law, because marriage is a very strong agreement or mīŚâqan galīẓan, which is very closely related with religion. Marriage is not only physical but also spiritual, limiting divorce to realize the goal of marriage, sakinah mawaddah and rahmah, to overcome escalating divorce cases and reduce the negative impact children. Secondly, Religious Courts under the jurisdiction of the High Religious Court of Semarang have implemented the principle to limit divorce, maximized mediation integration in litigation, and optimized agency Hakam to realize the goal of marriage. Products Religious Court decision based on the following conditions: if both parties want to peace the case is canceled, if there is no reason the case is not accepted or NO (niet ontvankelijke verklart), if cannot be proved the case is rejected. On the other hand, if peace efforts are not successful, the lawsuit is proven and there is sufficient reason, there is no hope left to live in the household, judges apply the methods of welfare, as the central idea Maqâṣid al-syari'ah,the lawsuit is granted with the consideration to refuse mafsadah is preferred than achieving mafsadah because refusing mafsadah is the benefit in accordance with the Maqâṣid al-syari'ah. Divorce rate in the jurisdiction of Semarang High Religious Court during 2009-2012 increased, comprising 69% wife’s consent and 31% husband’s consent. The main factors were the husband neglecting his obligations as well as continuous quarrels and disputes and the other is act of domestic violence. The efforts to tackle escalating divorce cases and their actualization by tightening divorce were, first, the quality of premarital preparation course should be increased by adding more topics about marriage and more sub-topics about the rights and obligations of husband and wife. Other breakthroughs, such as expanding the absol ute competence of Religious Court in handling domestic violence cases, should be encouraged. So Religious Court handling divorce cases at the same time handling domestic violence cases to realizing the principle is simple, fast and inexpensive so that is no longer one person litigants on two the judiciary.