Al-Istinbath Jurnal Hukum Islam Vol.
No.
2, 2025, 678-706
P-ISSN: 2548-3374 .
, 25483382 .
http://journal.
id/index.
php/alistinbath Islamic Judicial Activism in Determining Child Maintenance:
Ex Officio Authority and Peaceful Settlement in Indonesian Religious Courts Alamsyah1.
Asrianti Sukirman2.
Oyo Sunaryo Mukhlas3.
Aden Rosadi4 Universitas Islam Negeri Sunan Gunung Djati Bandung1,3,4 Sekolah Tinggi Agama Islam (STAI) Babussalam Sula Maluku Utara2 Corresponding Author : cahayasyah@gmail.
DOI: 10.
29240/jhi.
Received: 09-04-2025 Revised: 08-05-2025 Cite this article:
Accepted:13-08-2025 Alamsyah.
Asrianti Sukirman.
Oyo Sunaryo Mukhlas.
Aden Rosadi .
Islamic Judicial Activism in Determining Child Maintenance: Ex Officio Authority and Peaceful Settlement in Indonesian Religious Courts.
Approach.
Al-Istinbath : Jurnal Hukum Islam, 10 .
, 2025, 671-699.
Doi: 10.
29240/jhi.
Abstract This article examines the construction of Islamic law in determining child support after divorce through two mechanisms in IndonesiaAos Religious Courts: amicable settlement .
and judgesAo ex officio Although both have a clear legal basis, their practice continues to face challenges: amicable settlements are often compromise-based without objective evaluation of childrenAos needs, while ex officio rulings tend to be more responsive but lack uniformity due to the absence of standardized guidelines.
Employing a juridicalempirical approach with content analysis of four representative decisions from the Bintuhan and Manna Religious Courts .
3Ae2.
, this study identifies the legal considerations applied, assesses the adequacy of child support amounts, and compares the effectiveness of both mechanisms.
The findings reveal that amicable settlements frequently result in insufficient child support, whereas ex officio rulings better protect childrenAos interests yet remain inconsistent.
integrating the principle of maqAid al-syarAoah, particularly uife al-nasl .
rotection of lineag.
, this research introduces the concept of Islamic judicial activism, which positions judges as proactive actors in ensuring the childAos best interests.
Theoretically, the study enriches global Islamic legal discourse by proposing a maqAid-oriented adjudication model that bridges normative texts, socio-economic realities, and substantive justice.
Practically, it recommends that the Supreme Court establish national guidelines for child support determination based on Copyright A 2025 Alamsyah, et.
This work is licensed under a Creative Commons Attribution-Non Commercial-ShareAlike 4.
International License 672 | Al-Istinbath: Jurnal Hukum Islam.
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cost-of-living standards, enhance judgesAo capacity, and strengthen monitoring mechanisms for enforcement.
Thus, this study not only contributes to comparative family law scholarship but also offers an innovative normative model for child protection in Muslim Keywords: child support, ex officio authority.
Islamic judicial activism, maqAid al-syarAoah, family law Introduction The provision of child support after divorce constitutes a central issue in Islamic family law, as it carries implications not only for formal legal aspects but also for moral, social, and child welfare dimensions, with the child being the most vulnerable party.
In the practice of religious courts in Indonesia, the fulfilment of child support can be determined through two primary mechanisms: first, by means of a peaceful settlement resulting from mediation.
and second, through a judicial ruling issued ex officio.
Although both mechanisms are legally recognized, their implementation often encounters substantive challenges.
Peaceful settlements tend to emphasize compromise between parents without sufficient assessment of whether the support is adequate to cover the childAos basic needs.
Meanwhile, the ex officio authority of judges, which is normatively regulated under Article 156 letter .
of the Compilation of Islamic Law (KHI) and Supreme Court Circular No.
4 of 2016, remains facultative, leading to disparities in its 1 This situation raises academic concern regarding how to construct an Islamic legal framework that ensures child protection through both mechanisms, while simultaneously integrating the principles of maqAid al-syarAoah, particularly uife al-nasl, as its normative and operational foundation.
Previous academic studies demonstrate that research on child support after divorce has been conducted from various perspectives.
Rivanka examined the effectiveness of mediation through the Integrated Service Centre for the Empowerment of Women and Children, yet her focus was limited to compliance with the terms of the agreement without providing an in-depth discussion on the integration of Islamic legal values.
2 Syafiuddin emphasized the importance of the 1 Ahmad Syarif Fuadi.
Dadin Eka Saputra, and Munajah Munajah.
AuAnalisis Yuridis Hak Ex Officio Hakim Dalam Perkara Cerai Gugat (Studi Kasus Putusan Pengadilan Agama Martapura Nomor 318/Pdt.
G/2020/PA.
Mt.
,Ay Jurnal Penegakan Hukum Indonesia 1, no.
70Ae87, https://doi.
org/10.
51749/jphi.
2 AuRivanka Gradian Baldi.
Penyelesaian Sengketa Pemenuhan Hak Nafkah Anak Pasca Perceraian Melalui Mediasi Di Pusat Pelayanan Terpadu Pemberdayaan Perempuan Dan Anak.
Alamsyah et.
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principle of the best interest of the child in support rulings as part of human rights protection, but he did not elaborate on the normative aspect of maqAid al-syarAoah.
Latif explored the application of judgesAo ex officio authority in safeguarding womenAos rights in divorce cases, but he did not specifically address its relevance to child protection from the perspective of ul al-fiqh.
4 In addition, contemporary studies published in Islamic law journals, such as those by Nasution et al.
Mufidah, reveal a paradigm shift from a purely legalistic approach toward one that combines positive law with the objectives of the sharia.
However, these studies have not specifically compared the effectiveness of peaceful settlements and ex officio rulings in the context of child support.
Based on these studies, there exists a clear research gap.
First, no study has comprehensively integrated a juridical-empirical analysis of the practices of peaceful settlement and ex officio rulings in child support determination with the normative foundation of Islamic law through the lens of maqAid al-syarAoah.
Second, previous research has tended to isolate each mechanism, thereby failing to present a holistic picture of the substantive differences, challenges, and potential integration of the two approaches in ensuring child welfare.
Third, evaluative considerations regarding the adequacy of the support amount determined either through settlement or judicial ex officio authority remain insufficiently addressed, even though this aspect is crucial to guaranteeing the childAos sustainable livelihood.
The novelty of this study lies in its interdisciplinary approach that combines a normative analysis of Islamic law, particularly the principle of uife alnasl within the framework of maqAid al-syarAoah, with an empirical examination of court decisions in the jurisdiction of the Bengkulu High Religious Court.
This integration produces a legal construction model that is not merely procedural but also substantive in safeguarding childrenAos rights after divorce.
The study does not proceed from a quantitative hypothesis.
rather, it employs a working proposition that the application of maqAid al-syarAoah principles by judges, either through Jurnal Online Mahasiswa Fakultas Hukum Universitas Riau.
Vol 10.
No 2, 2023.
Https://Jom.
Un,Ay n.
3 AuM.
Nur Syafiuddin.
Aksentuasi Kepentingan Terbaik Anak Dalam Putusan Nafkah Sebagai Upaya Penjaminan Hak Asasi Manusia.
Jurnal HAM.
Vol 13.
No 2.
Agustus 2022.
Http://Dx.
Doi.
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30641/Ham.
No Title,Ay n.
4 AuUdin Latif.
Analisis Yuridis Penerapan Hak Ex Officio Hakim Dalam Melindungi HakHak Perempuan Yang Berhadapan Dengan Hukum Pada Perkara Cerai Talak Di Pengadilan Agama Sorong.
Jurnal Hukum Muadalah: IAIN Sorong.
Vol.
1 No.
2, 2022,
Https://Doi.
Org/10.
4794,Ay n.
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amicable settlements or by exercising ex officio authority, can minimize the risk of child neglect and ensure the proportional fulfilment of their needs.
This research adopts a juridical-empirical approach with a case study method to analyse the practice of determining child support after divorce in religious courts.
The object of study consists of four purposively selected decisions, namely two rulings from the Bintuhan Religious Court (No.
129/Pdt.
G/2023/PA.
Bhn and No.
47/Pdt.
G/2024/PA.
Bh.
and two rulings from the Manna Religious Court (No.
244/Pdt.
G/2024/PA.
Mna and No.
316/Pdt.
G/2024/PA.
Mn.
The timeframe of the decisions analysed is 2023Ae 2024, as this period reflects the increasing trend of divorce cases in the jurisdiction of the Bengkulu High Religious Court and provides access to decisions containing mechanisms of amicable settlements as well as judgesAo ex officio authority.
The selection of Bintuhan and Manna was based on purposive sampling, considering that both courts demonstrate variations in rulings that represent the problem of inconsistency in determining child support.
The limitation of this strategy is that the findings cannot be generalized to all religious courts in Indonesia.
they offer an in-depth understanding within the local context.
Data analysis was carried out using the content analysis method through three main stages.
First, initial coding, which involved classifying court decisions based on the determination mechanism .
micable settlement or ex offici.
and identifying key elements such as the amount of child support, judicial considerations .
atio decidend.
, and legal references.
Second, thematic grouping, which entailed identifying patterns in judicial reasoning, evaluating the adequacy of support in relation to the childAos needs, and integrating the principle of maqAid al-syarAoah .
ife al-nas.
Third, validation of findings, which was conducted through repeated readings, cross-case comparisons, and triangulation with Islamic legal literature as well as positive law regulations (Marriage Law.
Compilation of Islamic Law.
Child Protection Law, and Supreme Court Circular Letter.
This study aims to analyse and construct Islamic legal principles in determining child support after divorce through two main mechanisms, namely amicable settlement resulting from mediation and the ex officio authority of judges in religious court decisions.
The analysis is directed at examining the extent to which these two mechanisms ensure the proportional fulfilment of childrenAos rights by considering basic needs, parental financial capacity, and legal protection for the most vulnerable party.
The primary focus is placed on integrating positive legal norms with the principles of maqAid al-syarAoah, particularly uife al-nasl Alamsyah et.
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rotection of lineag.
, so that the determination of child support is not only legally procedural but also aligned with the objectives of the sharAoah to promote public benefit and prevent harm.
The study also seeks to evaluate the alignment of religious court practices with the principles of substantive justice.
This evaluation is conducted by examining the judgesAo ratio decidendi or legal reasoning in their rulings, both derived from amicable settlements and from the exercise of ex officio authority.
The purpose is to identify the strengths and weaknesses of each mechanism, including potential risks of settlements that provide insufficient support or judicial inconsistency in applying ex officio authority.
Accordingly, this research is expected to provide a comprehensive understanding of the implementation of child support obligations within the context of Islamic family law in Indonesia.
The ultimate goal of this study is to formulate normative and practical recommendations for policymakers, judges, and Islamic legal scholars regarding the ideal model for determining child support.
These recommendations are expected to encourage regulatory reforms, such as affirming the mandatory application of ex officio authority in certain cases, while also strengthening judgesAo capacity to objectively assess the adequacy of child support.
At the practical level, this study is expected to contribute to producing judicial decisions that are consistent, fair, and oriented toward the best interests of the child, thereby ensuring the survival and quality of the next generation of the Muslim community.
Discussion Amicable Settlement in Determining Child Support: Between Procedural Justice and Substantive Adequacy Applications for child support filed either simultaneously with divorce proceedings or separately after divorce may be resolved through mediation.
If the parties agree on who is responsible for providing support and the amount to be paid monthly, such agreement is set forth in a peace agreement, after which the judge decides the child support claim on the basis of the partiesAo settlement.
Pursuant to Article 31 of Supreme Court Regulation No.
1 of 2016, the mediation procedure continues in divorce cases before the Religious Court, where a divorce petition may be accompanied by other claims.
If the parties fail to reconcile, the 676 | Al-Istinbath: Jurnal Hukum Islam.
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mediation proceeds with other declarations.
5 When the parties reach an agreement on other conditions as stipulated in paragraph 1, they may agree on a settlement that includes a divorce clause.
The resolution of some additional claims may be executed if the judgeAos ruling granting the divorce becomes final.
However, such agreement is rendered void if the court rejects the divorce petition.
Claims for child support that are not included in the divorce petition may still be examined during mediation.
This discussion is relevant because the obligation to provide child support is a legal consequence of divorce.
Article 25 of Supreme Court Regulation No.
1 of 2016 stipulates that the scope of mediation covers not only the arguments or petitum of the claim but also issues relating to the subject matter of the dispute.
6 A mediation agreement that includes child support may serve as the basis for the plaintiff to amend the initial petition.
Judicial considerations regarding the use of peace agreements as the basis for determining child support obligations in divorce cases are noteworthy, as reflected in the decisions of the Bintuhan Religious Court and the Manna Religious Court.
Decision of the Bintuhan Religious Court No.
47/Pdt.
G/2024/PA.
Bhn, dated 17 April 2024, imposed child support obligations in a divorce case with the following considerations:8 The parties engaged in mediation reached an agreement on the legal consequences of divorce in this case, particularly regarding the custody of the child born of the marriage between the Petitioner and the Respondent and the provision of support for the child placed in the custody of the Respondent.
The judge did not proceed with an independent assessment of child custody since it had been settled by the parties in the partial peace agreement dated 1 April 2024.
The agreement is valid under Articles 1320 and 1338 of the Civil Code, provided that it does not harm the child and continues to prioritize the childAos best interests and relationship with both parents.
5 Destri Budi Nugraheni.
AuUrgensi Penggunaan Mediasi Dalam Penyelesaian Perkara Pembatalan Perkawinan Di Pengadilan Agama,Ay Al-Manahij: Jurnal Kajian Hukum Islam 14, no.
: 251Ae66, https://doi.
org/10.
24090/mnh.
6 Muhammad Saifullah.
AuEfektivitas Mediasi Dalam Penyelesaian Perkara Perceraian Di Pengadilan Agama Jawa Tengah,Ay Al-Ahkam .
https://doi.
org/10.
21580/ahkam.
7 Hotnidah Nasution.
Windy Triana & Ahmad Rifqi Muchtar.
AuEnsuring ChildrenAos Rights after Divorce in Indonesia: Religious Court Decisions on Nafkah Madiyah,Ay Al-Ahwal: Jurnal Hukum Keluarga Islam 17.
No.
DOI: https://doi.
org/10.
14421/ahwal.
8Direktori Putusan Mahkamah Agung Republik Indonesia, https://putusan3.
id/direktori/putusan/zaeefc9911f0d0f68e0f31363031323 Alamsyah et.
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As a manifestation of parental responsibility, the Petitioner and the Respondent agreed during mediation that the Petitioner is obliged to provide child support for their 8-year-old child in the amount of Rp400,000.
00 per month, with a 10% annual increase.
This obligation remains in force until the child reaches the age of 21, attains adulthood, or becomes independent, provided the child remains in the custody of the Respondent as the biological mother, and does not cover educational and healthcare expenses.
This agreement aligns with Article 41.
of the Marriage Law.
Article 105.
of the Compilation of Islamic Law, and the Formulation of Legal Principles of the Religious Chamber as set forth in Supreme Court Circular Letter No.
3 of On the basis of these considerations, the judge imposed the obligation of child support on the Petitioner in accordance with the settlement.
The Decision Manna Religious Court No.
316/Pdt.
G/2024/PA.
Mna, dated 8 November 2024, imposed child support obligations in a divorce case with the following considerations: 9 Based on the mediation held on 15 October 2024, the Plaintiff and the Defendant agreed that in the event of divorce, custody of the 3-year-old child would be granted to the Plaintiff as the biological mother, since the child had been living with her.
The Plaintiff was required to provide the Defendant with access to maintain communication, hold meetings, and extend affection to the In the mediation agreement dated 15 October 2024, it was agreed that the Defendant would provide child support in the amount of Rp200,000.
00 per month, to be delivered through the Plaintiff.
On the basis of this agreement, the Judge did not conduct further assessment but incorporated into the operative part of the ruling that the Defendant was obliged to pay child support to the Plaintiff in the amount of Rp200,000.
per month until the child reaches the age of 21, attains adulthood, or becomes independent, with an annual increase of 10 percent, excluding educational and healthcare expenses.
The decision of the Bintuhan Religious Court relied on Article 1320 and Article 1338 of the Indonesian Civil Code (KUHPerdat.
as the legal basis to strengthen the validity of the partiesAo agreement.
Article 1320 stipulates the requirements for a valid contract, namely mutual consent, legal capacity of the 9Direktori Putusan Mahkamah Agung Republik Indonesia, https://putusan3.
id/direktori/putusan/zaef9db3fea1c0e4bda33136323233 678 | Al-Istinbath: Jurnal Hukum Islam.
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parties, a specific object, and a lawful cause.
Article 1338 affirms the principle of pacta sunt servanda, meaning that a legally made agreement binds the parties as if it were law.
Since the content of the agreement did not contravene the law, public morality, or the childAos best interest, the contract was deemed legally valid and In contrast, the decision of the Manna Religious Court did not explicitly refer to any legal provisions but instead used the mediation outcome as the primary reference in formulating the ruling.
Greater emphasis was placed on the content of the agreement as a product of mutual understanding, without directly invoking contractual provisions under the Civil Code.
This approach was pragmatic, prioritizing peaceful settlement between the parties rather than focusing on formal legal aspects.
Judicial rulings in divorce cases that determine child support solely on the basis of amicable settlements reached during proceedings may create significant issues when no comprehensive evaluation is conducted regarding the adequacy of the agreed amount to meet the childAos basic needs.
The risks become more pronounced if the amount of support determined is insufficient to cover the childAos living requirements, including food, clothing, housing, education, and 10 Protection of childrenAos rights cannot be confined merely to respecting parental agreements.
In situations where bargaining positions are unequal, such as when the mother is economically disadvantaged or unaware of the childAos legal rights, the child may become a victim of an agreement that is procedurally valid but substantively harmful.
Amicable settlements in divorce cases, particularly concerning the determination of child support, constitute one of the instruments recognized and facilitated by the Indonesian religious court system.
This mechanism usually arises from the mediation process regulated under Supreme Court Regulation (PERMA) No.
1 of 2016 on Court-Annexed Mediation Procedures.
Within the context of Islamic family law, amicable settlement is regarded as an application of the principle of ulu .
eaceful resolutio.
, which is highly encouraged in Islamic teachings, as mentioned in QurAoan Surah al-HujurAt verse 10, emphasizing the importance of reconciling disputing parties.
Such agreements are not only intended to reduce emotional conflict between divorcing spouses but also 10 Aisyah Nurhayati.
Budi Santoso, dan Rahmat Hidayat.
Evaluasi Kecukupan Nafkah Anak dalam Perspektif Perlindungan Anak di Indonesia.
Journal of Social Welfare and Family Law 43, no.
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1080/09649069.
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expected to establish legal certainty governing their rights and obligations after divorce, including the childAos right to support.
In practice, amicable settlements concerning child support are often regarded as flexible and efficient solutions.
The parties have the discretion to determine the amount, form, and method of payment of support according to their economic condition, capacity, and moral considerations.
Mediation enables direct communication between parents to reach a common ground perceived as fair by both sides.
This is consistent with the principle of voluntariness, which constitutes the foundation of mediation.
In many cases, the mediator judge even encourages the parties to prioritize the childAos needs before deciding the nominal amount of support.
Thus, procedurally, an amicable settlement reached through mediation gains legal legitimacy once incorporated into a peace deed .
kta van dadin.
and reinforced in the operative part of the courtAos decision.
Upon closer scrutiny, however, such settlements do not always align with the substantive justice that represents the ultimate goal of Islamic law.
Frequently, the agreed amount of support is not based on a real calculation of the childAos needs but rather influenced by compromise to conclude the case swiftly.
For instance, in several rulings of the Bintuhan and Manna Religious Courts examined in this study, there were cases where the father only agreed to provide a monthly allowance that was objectively far below the minimum standard of living for children in the region.
Although legally valid in procedural terms, such agreements ultimately risk harming the child and neglecting the principle of the best interest of the child, which is recognized in both national and international law.
From the perspective of Islamic law, this becomes a serious concern because the obligation to provide child support is not merely governed by contractual agreement between parents but is a sharAo duty inherently attached to parents, particularly the father, as mandated by the QurAoan and Hadith.
QurAoan Surah al-Baqarah verse 233 explicitly commands fathers to provide for the maintenance and clothing of their children in a proper manner.
13 The principle of bi al-maAorf in this verse indicates that child support must be commensurate with 11 Dwi Novita et al.
AuFamily Conflict Disclosure on Social Media in Islamic Law: Islah as a Reconciliation Mechanism,Ay Al-Istinbath: Jurnal Hukum Islam 10, no.
: 443Ae58, https://doi.
org/10.
29240/jhi.
12 Margrite Kalverboer et al.
AuThe Best Interests of the Child in Cases of Migration:
Assessing and Determining the Best Interests of the Child in Migration Procedures,Ay International Journal of ChildrenAos Rights 25, no.
: 114Ae39, https://doi.
org/10.
1163/15718182-02501005.
13 Muhammad Amirul Ramli.
AuBulletin of Early Childhood,Ay Bulletin of Early Childhood 1, 1 .
: 1Ae19.
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propriety, social conditions, and the actual needs of the child.
Therefore, if an amicable settlement results in an amount that is not maAorf, then from a fiqh perspective such an agreement contradicts the objectives of the sharAoah and may be subject to judicial correction.
Another aspect that requires attention is the divergence of perception between parents regarding the definition of Auadequacy of support.
Ay In several cases, fathers perceived child support as limited only to basic needs such as food and clothing, while expenses for education, healthcare, and recreation were considered optional.
14 In fact, maqAid al-syarAoah, particularly within the framework of uife al-nasl, situates the needs of the child holistically, encompassing physical, mental, and social aspects.
When amicable settlements are oriented solely toward minimal needs and disregard the childAos developmental dimensions, the outcome fails to fulfil the principle of malauah .
ublic benefi.
envisioned by the sharAoah.
In addition, the psychological dynamics during mediation also influence the content of amicable settlements.
It is not uncommon for mothers to occupy a weaker bargaining position, either due to economic factors or the desire to resolve the case quickly without prolonged disputes.
15 Under such conditions, fathers may propose a support amount lower than a reasonable standard, and mothers accept it because of situational pressure rather than a genuinely equal From the perspective of the sociology of law, this phenomenon demonstrates that procedures that are formally valid do not always reflect substantive equality.
This is reinforced by field findings showing that mediators do not always have standardized guidelines for objectively assessing the adequacy of child support, leaving the determination of the amount largely to negotiations between the parties.
Normatively.
Indonesian positive law through Law No.
1 of 1974 in conjunction with Law No.
16 of 2019 and the Compilation of Islamic Law does allow for amicable settlements in divorce.
16 However, there is no explicit 14 Kristin S.
Seefeldt.
AuConstant Consumption Smoothing.
Limited Investments, and Few Repayments: The Role of Debt in the Financial Lives of Economically Vulnerable Families,Ay Social Service Review 89, no.
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15 Daniel R.
Meyer.
Maria Cancian, and Yiyu Chen.
AuWhy Are Child Support Orders Becoming Less Likely after Divorce?,Ay Https://Doi.
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16 Levana Safira.
Sonny Dewi Judiasih, and Deviana Yuanitasari.
AuPerlindungan Hukum Terhadap Anak Yang Melakukan Perkawinan Bawah Umur Tanpa Dispensasi Kawin Dari Pengadilan,Ay Acta Diurnal Jurnal Ilmu Hukum Kenotariatan Dan Ke-PPAT-An 4, no.
: 210Ae 25, https://doi.
org/10.
23920/acta.
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provision stipulating a minimum standard of child support that must be met in such agreements.
This contrasts with several other jurisdictions that establish quantitative guidelines or formulas for calculating child support based on parental income and the number of children.
The absence of such provisions results in inconsistencies in the determination of child support amounts across cases, ultimately creating legal uncertainty and potential injustice for children.
From the perspective of ul al-fiqh, this situation requires an active judicial role to ensure that amicable settlements remain within the framework of malauah .
ublic interes.
17 The concept of istilAu or malauah mursalah can serve as a foundation for judges to reject or revise settlements that are substantively detrimental to children, even if they have been agreed upon by the parties.
In this sense, within the context of the religious courts, judges are not merely AunotariesAy who ratify agreements but bear both moral and legal responsibility to ensure that the content of the settlement is consistent with the objectives of the sharAoah.
Another weakness of amicable settlements is the lack of post-judgment monitoring mechanisms.
Although theoretically a judgment incorporating an amicable settlement carries executory power, in practice the fulfilment of child support obligations often depends on the fatherAos goodwill.
In cases of default or arrears, the mother must file an application for execution with the court, which entails additional time and costs.
This indicates that the effectiveness of amicable settlements depends not only on the content of the ruling but also on the existence of effective enforcement and supervisory mechanisms.
From the perspectives of sociology and anthropology of law, the practice of amicable settlements reflects the interaction between formal legal norms and local socio-cultural norms.
In several regions, including within the jurisdiction of the Bengkulu High Religious Court, there remains an assumption that children residing with their mother are the responsibility of the motherAos extended family, thereby reducing the perceived obligation of fathers to provide adequate support.
Such a view stands in contradiction to Islamic legal principles, which clearly establish that the obligation to provide child support rests fully with the father, regardless of who has custody of the child.
Thus, amicable settlement does indeed offer advantages in terms of procedural efficiency and the potential to reduce emotional conflict between the 17 Firdaus.
AuThe Principles of the Concept of Maslahah in Islamic Family Law of a Wife Looking for Living Husband Taking Care of Household Work,Ay Al-Istinbath: Jurnal Hukum Islam 9, no.
: 259Ae84.
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parties, yet it carries fundamental weaknesses in ensuring substantive justice for the child.
It is therefore necessary to strengthen this mechanism by establishing minimum standards of child support based on actual needs, as well as clear guidelines for mediators and judges in assessing the reasonableness of the agreed Within the framework of Islamic law, such efforts are consistent with the principle of al-uukm yadru maAoa al-malauah wujdan wa Aoadaman .
egal rulings revolve around malauah, whether it exists or no.
18 By optimizing the function of mediation and ensuring that amicable settlements are oriented toward the childAos welfare, this mechanism is expected to serve as an effective means of safeguarding the fulfilment of childrenAos rights after divorce.
However, without improved standards and a stronger role for judges as guardians of maqAid alsyarAoah, amicable settlement risks becoming a mere procedural formality that fails to deliver meaningful changes for the well-being of the child.
JudgesAo Ex Officio Authority in Determining Child Implementation.
Challenges, and Potential for Optimization Support:
The ex officio authority of judges constitutes one of the key legal instruments within IndonesiaAos religious court system, allowing judges to determine certain rights for litigating parties, including child support after divorce, even if such claims are not explicitly submitted by the parties.
19 In divorce cases, this authority has a clear juridical foundation, among others Article 41.
of Law No.
1 of 1974 on Marriage as amended by Law No.
16 of 2019.
Article 156.
of the Compilation of Islamic Law (KHI), and Supreme Court Circular Letter (SEMA) No.
4 of 2016 on the Implementation of Formulations from the Plenary Meeting of the Supreme Court Chambers as Guidelines for Judicial Duties.
Article 156.
of the KHI affirms that as a consequence of the dissolution of marriage due to divorce, the father remains obliged to provide for the maintenance of the child.
20 Meanwhile.
SEMA No.
4 of 2016 explicitly encourages judges to stipulate child support in divorce rulings even when it is not requested by the wife.
Al Nafiz et al.
AuKaidah-Kaidah Fikih Yang Berkaitan Dengan Perubahan Dan Pembaharuan Hukum Institut Agama Islam Negeri Palangka Raya .
Indonesia Agama Yang _ Salihun Li Kulli Zaman Wa Makan _.
Sejak Dahulu .
Keberadaan Islam Memang Di,Ay Al Mustaqbal: Jurnal Agama Islam 2, no.
: 141Ae50.
19 Fuadi.
Eka Saputra, and Munajah.
AuAnalisis Yuridis Hak Ex Officio Hakim Dalam Perkara Cerai Gugat (Studi Kasus Putusan Pengadilan Agama Martapura Nomor 318/Pdt.
G/2020/PA.
Mt.
Ay 20 Dirjen Bimas Islam Kemenag RI.
Kompilasi Hukum Islam Di Indonesia (Jakarta: Direktorat Bina KUA, 2.
Alamsyah et.
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The concept of ex officio in this context reflects the role of judges as guardians of substantive justice, who function not only as AuweighersAy of the partiesAo claims but also as protectors of the rights of vulnerable groups, especially This authority is consistent with the principle of child protection .
he best interest of the chil.
, which has been universally recognized, and aligns with the principles of maqAid al-syarAoah in Islamic law, particularly uife al-nasl, which emphasizes the importance of safeguarding the survival and well-being of In fiqh, although the term ex officio is not explicitly used, the practice of stipulating child support obligations without a formal request corresponds to the concept of qasAAo bi ghayr al-malb, whereby a judge issues a ruling for the sake of public welfare.
Practically, the implementation of ex officio authority by judges in religious courts offers several significant advantages.
First, it addresses the shortcomings of amicable settlements, which sometimes produce child support amounts below actual needs.
Through ex officio, judges can stipulate amounts more aligned with the fatherAos financial capacity and the childAos needs, even if the wife does not submit such a claim.
Second, ex officio prevents a legal vacuum that may harm children, particularly in divorce cases concluded without any agreement on Third, this authority can serve as a legal education tool for society, reinforcing that child support is not a right to be neglected or unilaterally negotiated, but a binding and absolute parental obligation.
Nonetheless, the implementation of ex officio in practice is not always Based on an analysis of rulings from the Bintuhan and Manna Religious Courts, this study found significant variation in the determination of child support by judges.
In some decisions, judges set support in detailed terms, specifying the number of children, their ages, and specific needs such as education and In others, however, the stipulated amounts were general and even relatively low compared to the regional cost of living.
This disparity indicates that although ex officio grants judges the authority to act proactively, not all judges exercise it with equal precision or with the same level of awareness regarding the principle of child welfare.
Several factors contribute to this disparity.
21 First, there is no standardized technical guideline on calculating child support when applying ex officio.
Judges 21 Dian Agustin and Ahmad Musadad.
AuDisparitas Keberhasilan Mediasi Antara Perkara Perceraian Dan Sengketa Ekonomi Syariah Di Pengadilan Agama Surabaya,Ay MORALITY: Jurnal Ilmu Hukum 9, no.
: 192, https://doi.
org/10.
52947/morality.
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typically rely on personal experience or prevailing practices in their jurisdiction.
Second, limited information on the fatherAos economic condition poses a serious In many cases, plaintiffs or defendants do not submit detailed evidence of income, leading judges to determine support based on assumptions or minimal Third, the heavy caseloads in religious courts often prevent judges from conducting in-depth examinations of the partiesAo financial circumstances.
From the perspective of Islamic law, ex officio authority is consistent with the principle of siyAsah sharAoiyyah, which refers to policies adopted by rulers or judges to realize communal welfare in accordance with the sharAoah.
In this regard, judges act not only as enforcers of positive law but also as custodians of sharAoah values that prioritize childrenAos rights.
This concept is also linked to the principle of al-qasAAo bi al-Aoilm .
uling based on the judgeAos knowledg.
, which in the modern context may be understood as decisions made on the basis of data, facts, and objective standards rather than solely on the requests of the litigating parties.
Strengthening the role of judgesAo ex officio authority can also be examined from the perspective of the sociology of law.
When judges determine child support without a request from the wife, this reflects a paradigm shift from a passive judiciary to a responsive judiciary.
Such a paradigm is essential to ensure that law functions as an instrument of social protection rather than merely a dispute resolution mechanism.
In divorce cases, children are parties without a voice in court, which requires judges to act as representatives of their interests.
Another challenge is the resistance of some parties to ex officio rulings.
practice, some fathers feel burdened because they perceive that judges have AuaddedAy obligations not demanded by the opposing party.
Such objections sometimes lead to appeals or even outright refusal to pay the child support This indicates the need for more intensive legal education for society, emphasizing that child support obligations are imperative provisions and not dependent on the demands of the opposing party.
Optimizing ex officio requires strategic measures.
First, the Supreme Court could issue child support calculation guidelines based on the regional standard of living, thus providing judges with an objective reference.
These guidelines may include variables such as the childAos age, educational expenses, healthcare, and other needs relevant to child development.
Second, judgesAo capacity must be 22 Fikri Islamie.
AuOtoritas Tafsir T A Bi Ao N : Analisis Penafsiran Qat A Dah Bin Di Ao A Mah Al-Sad s y Tentang Ayat-Ayat TakdirAy 2, no.
: 21Ae40.
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strengthened in assessing the fatherAos financial ability, including through examination of income documents or tax records.
Third, the integration of ex officio with the principles of maqAid al-syarAoah should be emphasized in judicial education and training, ensuring that decisions are not only procedurally valid but also substantively just.
Moreover, empowering mediators and substitute registrars in collecting preliminary data on the partiesAo economic conditions can also assist judges in applying ex officio.
More comprehensive data would enable judges to set realistic and equitable amounts of support.
At the same time, post-judgment monitoring should be enhanced.
For instance, courts could require periodic reports on the implementation of child support or collaborate with third parties such as child protection agencies to monitor compliance by fathers.
The findings of this study suggest that judgesAo ex officio authority holds great potential as an instrument for protecting children after divorce.
however, its effectiveness largely depends on judgesAo awareness of their proactive role, the availability of accurate data, and adequate regulatory support.
Without these elements, ex officio risks becoming a mere legal formality that does not fully guarantee childrenAos welfare.
Therefore, ex officio should not be viewed solely as a judicial right or discretion but as a moral and juridical duty inherent in judgesAo function as enforcers of Islamic law.
Within the framework of maqAid al-syarAoah, every ex officio ruling on child support must be grounded in the intention and effort to safeguard childrenAos survival, dignity, and future, while ensuring that divorce does not become a gateway to the neglect of the next generation.
Ex officio is the authority and responsibility granted by law to the presiding judge by virtue of office to uphold law and justice in accordance with the belief in the Almighty God.
The judgeAos ex officio authority constitutes both independence and responsibility entrusted by the state to adjudicators, enabling them to fully utilize the potential inherent in their office and to exercise proportionally the powers attached to their position in order to take concrete legal measures during trial proceedings, namely examining, adjudicating, and resolving cases without requiring a formal request, in order to provide legal protection and justice to all litigants.
23 Mukti Arto.
Penemuan Hukum Islam Demi Mewujudkan Keadilan: Penerapan Penemuan Hukum.
Ultra Petita & Ex Officio Hakim Secara Proposional, (Yogyakarta: Pustaka Pelajar, 2.
, 216.
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The exercise of a judgeAos ex officio authority is particularly relevant when divorce petitions do not include claims for child support and when child support is not addressed in mediation settlements before the court.
When the parties appear in divorce proceedings, the panel of judges will order mediation with the assistance of either a judge-mediator or a non-judge mediator.
During mediation, issues of child support, associated with who bears responsibility and the amount payable, may be discussed and settled.
However, when divorce cases, whether cerai talak or cerai gugat, proceed without the opposing partyAos attendance and without any child support claims in the petitum, the judgeAos role in exercising ex officio authority becomes crucial to ensure the granting of child support.
As for the legal foundation of ex officio authority.
Article 156.
of the Compilation of Islamic Law (KHI) states that the court may also consider the fatherAos financial capacity in determining the amount of child maintenance and education for children not under his custody.
This provision is reinforced by Supreme Court Circular Letter (SEMA) No.
4 of 2016, which affirms that the Religious Court may determine child support ex officio from the father if the child is in the custody of the mother pursuant to Article 156.
of the KHI.
Judicial considerations regarding the application of ex officio authority in imposing child support obligations in divorce cases are particularly noteworthy, as illustrated in the ruling of the Bintuhan Religious Court.
Decision of the Bintuhan Religious Court No.
129/Pdt.
G/2023/PA.
Bhn, dated 31 July 2023, imposed child support with the following considerations:25 Article 41.
of Law No.
1 of 1974 on Marriage stipulates that Auas a result of the dissolution of marriage by divorce: .
both the mother and the father are obliged to maintain and educate their children solely on the basis of the childAos best interests.
the father is responsible for all necessary costs of maintenance and education.
Ay Similarly.
Article 105.
of the KHI provides that Auin the event of divorce: .
the cost of child maintenance is borne by the Ay 24 Mitra Kurniawan.
Zulfahmi Bustami, and Sofia Hardani.
AuAnalisis Kritis Pasal 156 (C) KHI Mengenai Pemindahan Hak Asuh Anak Dalam Konteks Penelantaran Oleh Ibu: Perspektif MaqAshid Al-SyarAoah,Ay Legitima : Jurnal Hukum Keluarga Islam 5, no.
: 315Ae30, https://doi.
org/10.
33367/legitima.
25Direktori Putusan Mahkamah Agung Republik Indonesia, https://putusan3.
id/direktori/putusan/zaee2f5417d1057680e63130343131 Alamsyah et.
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Although the guarantee of fulfilment is explicitly regulated ex officio in Article 156.
of the KHI and in the Formulations of the Plenary Meeting of the Religious Chamber as contained in SEMA No.
4 of 2016, the determination of the amount imposed on the Petitioner as the father must consider fairness and propriety by examining evidence of his financial capacity, the childAos basic needs, and the PetitionerAos take-home pay.
This is in line with the legal formulations of the Religious Chamber Plenary Meeting in SEMA No.
7 of 2012 and SEMA No.
2 of 2018, as well as the doctrines of certain Hanafi scholars and the opinions within the Maliki and Hanbali schools, which combine the textuality of QurAoan Surah al-alAq verse 7 with the Prophet MuhammadAos .
eace be upon hi.
guidance to Hindun binti AoUtbah .
ay Allah be pleased with he.
Child support is guaranteed and regulated by legislation, both in the Marriage Law and in the Child Protection Law, such that the state is obliged to ensure and safeguard the fundamental rights of children, particularly their basic needs .
lothing and foo.
, so that their growth and development are secured for the future, while divorced parents are prevented from neglecting these duties despite living separate lives.
According to the Formulation of the Religious Chamber Plenary Meeting in SEMA No.
3 of 2018, assessment of financial capacity and basic living needs may be undertaken during trial examination.
Based on the facts established in court, the Petitioner admitted that his average take-home pay as a driver was Rp1,500,000.
00 per month.
Given the PetitionerAos acknowledgment of his ability to bear responsibility as a father, namely Rp1,000,000.
00 per month, the Judge assessed that such an amount would represent fair propriety in comparison to his stated income.
Considering the fatherAos capacity as well as fairness and the childAos best interests, the Judge deemed it just to impose an obligation of Rp1,000,000.
per month on the Petitioner, exclusive of educational and healthcare expenses .
hich are incidenta.
, until the child reaches adulthood, becomes independent, or attains the age of 21, provided that the child remains in the custody of the Respondent as the biological mother .
ide Article 156.
KHI).
Based on these considerations, the Judge concluded that the guarantee of child support fulfilment must be determined by ordering the Petitioner to pay child support for his son with the Respondent, born in Kaur on 29 June 2021, in the amount of Rp1,000,000.
00 per month, exclusive of educational and 688 | Al-Istinbath: Jurnal Hukum Islam.
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healthcare expenses, until the child reaches adulthood, becomes independent, or attains the age of 21, provided that he remains in the custody of the Respondent as the biological mother.
The Decision Manna Religious Court No.
244/Pdt.
G/PA.
Mna/2024, dated 12 August 2024, imposed child support obligations in a divorce case with the following considerations:26 Based on the evidence submitted, the PetitionerAos admission, and witness testimony at trial, it was established that the Petitioner and the Respondent have one child, aged 18 years, who is currently a student at Universitas Terbuka.
The child is in the custody of the Respondent as the biological In light of this fact, the judge referred to SEMA No.
4 of 2016 Ae Formulation of the Religious Chamber Ae C.
5, which stipulates that the Religious Court may determine child support from the father if the child is in the motherAos custody.
Similar provisions are found in Article 156.
of the Compilation of Islamic Law and Article 41.
of Law No.
1 of 1974 as amended by Law No.
16 of 2019, which affirm that the father is responsible for the maintenance and education of the child, and if unable, the court may determine that the mother share in the costs.
Facts revealed during the trial indicated that the Petitioner, a Civil Servant in the Indonesian National Police, had income documented in his salary statement amounting to Rp5,673,400.
The Petitioner claimed that his net salary was only Rp2,700,000.
However, this claim was not substantiated by documentary evidence or witness testimony.
Accordingly, although the Petitioner admitted to receiving only that amount, the judge nevertheless ruled that the Petitioner must fulfil his obligations after divorce as outlined in the As the biological father and a Civil Servant in the Indonesian National Police who is physically and mentally fit, the Petitioner was deemed capable of earning income.
The judge found no grounds to exempt him from his paternal obligation to provide child support.
To uphold the principles of fairness, propriety, legal utility, and legal certainty, the judge decided to establish child support obligations for the Petitioner regarding the child currently in the RespondentAos custody.
The Petitioner was ordered to pay Rp500,000.
00 per month for the 18-year-old child, to be 26Direktori Putusan Mahkamah Agung Republik Indonesia, https://putusan3.
id/direktori/putusan/zaef588472026ea480823135323533 Alamsyah et.
all : Islamic Judicial Activism in A.
| 689
delivered through the Respondent.
This decision was based on the principle articulated in SEMA No.
3 of 2018, which requires judges to consider the husbandAos financial capacity and the childAos basic living needs in determining The amount was adjusted to the PetitionerAos circumstances and deemed the minimum reasonable standard of living in Bengkulu Selatan Regency.
To safeguard the childAos best interests and ensure their future needs are not undermined by inflation and fluctuations in the rupiahAos value, the judge ruled that the judgment should include an annual increase of 10 percent on the child support amount imposed on the Petitioner, until the child marries or reaches the age of 21, exclusive of educational and healthcare costs.
The ruling of the Bintuhan Religious Court in determining child support referred to several legal provisions concerning child maintenance, namely Article 41.
of Law No.
1 of 1974 on Marriage.
Article 156.
of the Compilation of Islamic Law (KHI).
Law No.
23 of 2002 on Child Protection, the ProphetAos hadith to Hindun binti Utbah, and Supreme Court Circular Letter (SEMA) No.
4 of 2016.
In setting the amount of support, the judge referred to SEMA No.
3 of 2018 by considering the fatherAos occupation and income, the fatherAos acknowledgment of his financial capacity during trial, and the childAos basic Meanwhile, the ruling of the Manna Religious Court on child support was based on Article 41.
of Law No.
1 of 1974.
Article 156.
of the KHI, and SEMA No.
4 of 2016.
The amount of support was determined by considering the fatherAos income, the PetitionerAos economic condition, and the childAos basic needs, while also adjusting it to the reasonable standard of living in Bengkulu Selatan Regency.
A careful examination of both rulings reveals that the judges, in exercising ex officio authority on child support, did not rely solely on legal provisions granting judges the right to determine support without a request from the parties, as stated in Article 156.
of the KHI and SEMA No.
4 of 2016.
They also referred to other provisions concerning child maintenance, namely Article 41.
of Law No.
1 of 1974 on Marriage.
Article 156.
of the KHI.
Law No.
23 of 2002 on Child Protection, and SEMA No.
3 of 2018.
Both rulings also included a provision for a 10 percent annual increase in support to anticipate inflation and clarified that child support does not cover education and healthcare expenses.
This provision refers to SEMA No.
3 of 2015, which recommends annual adjustments and the separation of child support components.
When compared with practices in other countries, it becomes evident that mechanisms for determining post-divorce child support vary and may serve as 690 | Al-Istinbath: Jurnal Hukum Islam.
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comparative references to strengthen IndonesiaAos legal framework.
In Malaysia, for instance, the Syariah Court holds authority similar to judgesAo ex officio powers in Indonesia but is supported by Child Support Guidelines, which provide a quantitative reference in determining support based on parental income, the number of children, and the cost of living in each state.
27 This ensures greater uniformity in rulings and reduces disparities among judges.
In Egypt.
Article 18 of the QAnn al-Usrah (Family La.
requires judges to automatically determine child support in divorce cases without awaiting a request from the wife, as a direct implementation of the fatherAos sharAo obligation to the child.
In Pakistan, the Family Courts Act of 1964 likewise establishes the fatherAos obligation to provide child support as imperative, with calculation formulas developed through Supreme Court jurisprudence that take into account income and childrenAos basic needs.
29 Even in Western legal systems such as the United States, each state has a standardized child support calculator that judges are required to use when deciding divorce cases involving children.
30 This comparison indicates that Indonesia remains relatively underdeveloped in this area because it lacks uniform technical guidelines for calculating child support, leaving ex officio authority largely as individual judicial discretion.
Therefore, the integration of maqAid al-syarAoah into Indonesian religious court practice can be reinforced by adopting best practices from other jurisdictions, namely the development of quantitative guidelines based on childrenAos actual needs as a standardized reference in every ruling, while still allowing room for judges to adjust to local Islamic Legal Analysis Based on MaqAid al-SyarAoah in Determining Child Support After Divorce Imran Rasul.
AuHousehold Bargaining over Fertility: Theory and Evidence from Malaysia,Ay Journal of Development Economics 86, no.
2 (June 1, 2.
: 215Ae41, https://doi.
org/10.
1016/J.
JDEVECO.
28 Hala Ahmed and Nour El-Din.
AuIndeterminacy of the Best Interest of the Child and ShariAoa Rules in Custody Adjudications: Egypt Case,Ay Theses and Dissertations.
June 15, 2021, https://fount.
edu/etds/1641.
29 Syeda Saima Shabbir and Syeda Saima Shabbir.
AuAnalysing Welfare Of Child Through Law: Impact Of Key Rulings Of The Supreme Court Of Pakistan In Shaping The Legal Landscape Of Child Maintenance,Ay Journal of Media Horizons 6, no.
4 (September 6, 2.
: 66Ae81, https://doi.
org/10.
5281/zenodo.
30 Charles J.
Meyer.
Justin W.
Soulen, and Ellen Goldberg Weiner.
AuChild Support Determinations in High Income Families - A Survey of the Fifty States,Ay Journal of the American Academy Matrimonial Lawyers .
, https://heinonline.
org/HOL/Page?handle=hein.
journals/jaaml28&id=509&div=&collection=.
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all : Islamic Judicial Activism in A.
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The integration of maqAid al-syarAoah into judgesAo ex officio rulings in child support cases within IndonesiaAos Religious Courts represents an effort to harmonize positive legal norms with the fundamental values of Islamic law that are oriented toward malauah .
ublic benefi.
The primary principles relevant in this context are uife al-nasl .
rotection of lineag.
and uife al-nafs .
rotection of lif.
, which require that children continue to receive adequate fulfilment of their needs after their parentsAo divorce.
Within this framework, ex officio authority becomes a judicial instrument that enables judges to act proactively in protecting vulnerable parties, even when such rights are not explicitly requested by the From a juridical perspective, ex officio has strong legitimacy in Indonesian positive law through Article 156.
of the Compilation of Islamic Law (KHI).
Article 41 of Law No.
1 of 1974 in conjunction with Law No.
16 of 2019, and Supreme Court Circular Letter (SEMA) No.
4 of 2016.
In practice, however, its effectiveness often varies among judges and across jurisdictions.
Some ex officio rulings clearly reflect a commitment to childrenAos welfare by setting support amounts that consider the local cost of living, including annual increases to anticipate inflation, and separating educational and healthcare expenses.
Conversely, other rulings still impose low amounts inconsistent with childrenAos actual needs, demonstrating weak integration of maqAid al-syarAoah into judicial From the standpoint of maqAid al-syarAoah, judges should not rely solely on procedural aspects or the principle of contractual freedom between the parties, but also evaluate the substance of settlements or ex officio determinations to ensure alignment with substantive justice.
The principle al-uukm yadru maAoa al-malauah wujdan wa Aoadaman mandates that the validity of law depends on the malauah it Accordingly, when the amount of child support agreed upon or determined fails to meet the childAos needs, judges are obliged to intervene through ex officio authority to safeguard childrenAos rights as a sharAo trust.
This integration also requires a strong methodological approach.
First, judges must have access to updated standards of childrenAos living costs based on official data, such as from the Central Bureau of Statistics (BPS), to ensure decisions are grounded in objective evidence.
Second, case examinations must include thorough evaluations of the fatherAos financial capacity, including documentation of income, assets, and dependents.
Third, from the perspective of the sociology of law, there must be a paradigm shift from a passive judiciary to a 692 | Al-Istinbath: Jurnal Hukum Islam.
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responsive judiciary that prioritizes the protection of vulnerable parties, particularly children.
The implications of integrating maqAid al-syarAoah into ex officio rulings extend beyond individual protection to shaping the culture of Islamic family law in Indonesia.
31 When judicial decisions consistently prioritize the childAos best interests, society will internalize that child support obligations are not merely contractual matters between parents but religious and social responsibilities that must be fulfilled.
Thus, such integration contributes to transforming family law into a system that is more responsive, just, and oriented toward the well-being of future generations.
The fundamental principle in constructing Islamic law for determining child support is to ensure the fulfilment of all childrenAos needs in a proper manner, including both primary and secondary needs, in accordance with local socioeconomic conditions.
Within the framework of ul al-fiqh, this aligns with the maxim al-uukm yadru maAoa al-malauah wujdan wa Aoadaman .
he validity of law depends on the presence of public benefi.
In other words, if a judgment or settlement does not provide malauah for the child, then from a sharAoah perspective such ruling must be corrected or revised.
In practice, this means that judges must conduct an objective assessment of the amount of support by considering factors such as inflation, educational expenses, healthcare, and other developmental needs of the child.
The maqAid al-syarAoah approach also requires a balance between the fatherAos financial capacity and the childAos actual needs.
The maxim lA yukallifu AllAhu nafsan illA wusAoahA (Allah does not burden a soul beyond its capacit.
provides the basis for ensuring that the child support determined is realistic and However, this principle must not be misused as a justification for setting support amounts that are unreasonably low without objective grounds, since child support is a sharAo obligation that cannot be eliminated based merely on the fatherAos subjective claims.
Therefore, the construction of Islamic law must regulate mechanisms for transparently assessing the fatherAos capacity, such as through examination of income, assets, and observable lifestyle indicators during trial proceedings.
31 Achmad Suhaili.
AuIntegrasi MaqAid Al-SyarAoAh Dalam Praktik Peradilan Agama Di Indonesia: Studi Alternatif Penyelesaian Sengketa Keluarga,Ay Mabahits : Jurnal Hukum Keluarga 6, 1 .
: 1Ae14.
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The integration of amicable settlement and ex officio authority in the construction of Islamic law can be realized through a tiered approach.
32 At the first stage, judges should facilitate amicable settlement between the parties while ensuring that the settlement meets the minimum standard of child support based on actual needs.
Such standards could be established through Supreme Court regulations or technical guidelines referencing the cost of living data in each At the second stage, if no settlement is reached or if the amount agreed upon falls below the standard, judges are obliged to exercise their ex officio authority to determine support in line with the childAos needs.
In this way, ex officio serves not merely as a complementary measure but as a corrective instrument ensuring the attainment of malauah for children.
This is consistent with the doctrine of siyAsah sharAoiyyah.
From the perspective of the sociology of law, this construction of Islamic law must also account for the socio-cultural factors that influence public perceptions of child support.
In some regions, there remains a belief that after divorce, a child under the motherAos custody becomes the responsibility of her extended family, thereby reducing the perceived obligation of the father.
Such a view is clearly inconsistent with the principles of Islamic law, which affirm that the obligation of child support rests entirely upon the father, regardless of custody Therefore, an ideal construction of Islamic law must be accompanied by legal education emphasizing that child support is an absolute obligation of the father and cannot be transferred to others.
Furthermore, the construction of Islamic law must incorporate elements of monitoring and effective enforcement.
One of the main weaknesses in the current system lies in the lack of post-judgment supervision.
Many cases show that child support determined by the court is not paid consistently, and the enforcement process requires complicated and costly execution proceedings.
Within the framework of maqAid al-syarAoah, this indicates that the objectives of preserving lineage .
ife al-nas.
and life .
ife al-naf.
are not fully achieved.
33 To address this issue, the construction of Islamic law may adopt mechanisms such as periodic reporting by the father or the involvement of third parties, such as child protection agencies, to monitor compliance with child support obligations.
32 Ahmad Musyahid.
AuStruktur Kaidah Fiqhiyyah : Fondasi Universal Dalam Penetapan Hukum IslamAy 3, no.
: 692Ae700.
33 Syamsuar et al.
AuIntegration of Maqashid Syaria in Nurcholish MadjidAos Thingking about Principles for Effective Good Governance,Ay Al-Istinbath: Jurnal Hukum Islam 9, no.
: 45Ae 62, https://doi.
org/10.
29240/jhi.
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An Islamic legal construction based on maqAid al-syarAoah must also ensure the continuity of support until the child achieves independence.
In Indonesian positive law, child support is generally provided until the child reaches the age of 21 or marries.
However, in certain contexts, children who are not yet economically independent despite surpassing that age continue to require financial assistance, for instance when pursuing higher education.
Within the framework of uife al-nasl, the continuity of education and child development is part of protecting a quality lineage.
Therefore, judges may exercise their discretion to extend support obligations under special circumstances, provided that this ensures malauah and does not impose a disproportionate burden.
All components of this Islamic legal construction must aim to create a balance between procedural justice and substantive justice.
Procedural justice is achieved by ensuring that every process of determining child support follows the established legal mechanisms, either through amicable settlement or ex officio Substantive justice is realized by ensuring that the outcome truly meets the childAos needs and protects their rights.
The integration of these two forms of justice is the practical embodiment of the principle of al-Aoadl wa al-iusAn, which represents the ultimate objective of Islamic law.
If such a construction of Islamic law is properly implemented, it is expected not only to provide optimal protection for children after divorce but also to contribute to the formation of a new legal culture in society.
This legal culture would regard child support as a moral and social obligation of equal importance to formal legal obligations.
Ultimately, this will promote the development of an Islamic family law system that is more responsive, humane, and aligned with both universal human values and sharAoah teachings.
The theoretical contribution highlighted in this study is that the integration of maqAid al-syarAoah, particularly the principle of uife al-nasl, into judgesAo ex officio rulings not only strengthens child protection after divorce but also gives rise to a new model that can be termed Islamic judicial activism.
This model positions judges not merely as approvers of partiesAo agreements but as active actors who internalize the objectives of the sharAoah in legal determinations.
This provides a significant contribution to contemporary Islamic legal theory by expanding the function of judicial ijtihAd in religious courts from being merely technical-procedural to realizing substantive justice.
On the practical level, this research offers an applicable framework consisting of standardized guidelines for determining child support based on the cost of living, mechanisms for evaluating Alamsyah et.
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parentsAo financial capacity, and post-judgment monitoring to ensure continuity of child support.
Thus, this study contributes not only to enriching academic discourse on maqAid al-syarAoah in family law but also to providing operational solutions for religious courts in producing consistent, fair, and child-cantered The concept of Islamic judicial activism introduced in this research constitutes a significant distinction from similar studies in Egypt.
Malaysia, and Pakistan.
In Egypt, although judges are under an imperative obligation to determine child support in every divorce case, the practice remains largely administrative as it relies exclusively on family law statutes without broader space for judges to creatively integrate maqAid al-syarAoah.
In Malaysia, the Syariah Courts employ Child Support Guidelines as quantitative standards, but these primarily emphasize uniformity in support amounts rather than expanding the scope of judicial ijtihAd.
In Pakistan, judicial authority is affirmed under the Family Courts Act of 1964, but its nature remains normative and not explicitly connected with the maqAid al-syarAoah framework.
By contrast, this study offers a different perspective by positioning Indonesian judges as proactive actors who not only apply positive law but also internalize the objectives of the sharAoah .
ife al-nas.
to ensure child protection.
In terms of global Islamic legal theory, this model makes an important contribution by demonstrating that contemporary judicial ijtihAd can move from mere judicial discretion toward maqAid-oriented adjudication.
This enriches Islamic legal discourse by presenting a new paradigm of responsive judiciary that bridges normative texts, socio-economic contexts, and the demands of malauah, while also serving as a reference for the development of Islamic family law across various Muslim jurisdictions.
Conclusion This study demonstrates that the mechanisms for determining child support after divorce in IndonesiaAos Religious Courts through amicable settlement .
and judgesAo ex officio authority have distinct strengths and weaknesses.
Amicable settlements tend to produce compromise-based amounts of support that do not always correspond to childrenAos actual needs, while ex officio rulings are more likely to safeguard childrenAos interests yet remain inconsistent due to the absence of standardized guidelines.
An analysis grounded in maqAid al-syarAoah, particularly the principle of uife al-nasl, underscores the importance of repositioning judges as proactive actors in ensuring the fulfilment of the childAos 696 | Al-Istinbath: Jurnal Hukum Islam.
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best interests.
From this arises the concept of Islamic judicial activism, which situates judges not merely as executors of rules but as normative agents who integrate the objectives of the sharAoah with socio-economic contexts.
The theoretical contribution of this research lies in developing a framework of maqAid-oriented adjudication, which enriches global Islamic legal discourse by emphasizing that judicial discretion can be directed toward the substantive protection of children.
On the practical level, this research calls on the Supreme Court to formulate a national guideline for determining child support based on cost-of-living standards, to strengthen judgesAo capacity in exercising ex officio authority, and to develop mechanisms for monitoring compliance after rulings.
Accordingly, this study not only highlights the urgency of reforming judicial practice in IndonesiaAos Religious Courts but also offers a normative model relevant for the development of Islamic family law in other Muslim jurisdictions.
References