Reconstruction of Divorce Suit Regulations on the Reason That the Husband Does Not Provide Maintenance to the Wife Based on the Values of Justice
Abstract
Maintenance is a wife’s right during marriage and after divorce within a certain time limit. This study aims to: (1) analyze the unjust regulation of divorce lawsuits due to a husband's failure to provide maintenance; (2) examine the weaknesses of the existing regulations; and (3) reconstruct the regulations based on the principle of justice. The research employed a constructivist paradigm with normative and empirical approaches, using a descriptive research design. Data sources consisted of secondary legal materials (primary, secondary, and tertiary), with data collected through literature review, qualitative descriptive analysis, and field studies. The theoretical framework includes the Theory of Islamic Justice (Grand Theory), Legal System Theory (Middle Theory), and Progressive Legal Theory (Applied Theory). The findings reveal that: (1) Regulations concerning divorce lawsuits due to the husband’s failure to provide maintenance are still unjust, as marriage laws remain ambiguous and influenced by patriarchal cultural biases. As a result, divorce rulings are easily granted even when the fault lies with the husband, without any compensation for the wife. (2) The weaknesses of the regulation lie in three aspects: legal substance (lack of protection for the wife's rights post-divorce), legal structure (the passive role of Religious Court officials who rely solely on legal texts), and legal culture (low public legal awareness and prevalent legal manipulation). (3) Justice-based reconstruction includes value reconstruction (redefining the basis of regulation to ensure fairness) and normative reconstruction, namely adjustments to Law No. 16/2019 on Marriage (Article 7 paragraph 1) and Supreme Court Circular No. 1/2022 to align with the sighat ta’lik talak. Therefore, the regulation must be revised to ensure justice for wives, both during the divorce process and in the post-divorce period.
Copyright (c) 2025 Fatimah Asyari, Anis Mashdurohatun, Jawade Hafidz, Isnawati Isnawati
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