Ijtihad: Jurnal Wacana Hukum Islam dan Kemanusiaan Vol.
No.
, pp.
135-154, doi : 10.
18326/ijtihad.
The use of ex officio to fulfill womenAos post-divorce rights at the Samarinda Religious Court Lilik Andar Yuni Institut Agama Islam Negeri (IAIN) Samarinda E-mail: lilikandaryuni@yahoo.
DOI: 10.
18326/ijtihad.
Problems in fulfilling womenAos rights after divorce in Religious Courts still exist due to the weakness of supporting elements for the court decisions and their procedures, and obstacles from the excouples.
Therefore, religious judges are expected to have sensitivity and support for women in making decisions with the value of justice, legal certainty, and benefit.
This normative juridical study used statutory and conceptual approaches to explain the use of ex officio in fulfilling iddah and mutAoah living in the Samarinda Religious Court and its suitability to legal purposes.
A literary study was done in collecting data by compiling secondary data related to the theme.
Then, the data were analyzed using the qualitative descriptive method.
Ex officio discourses and legal objectives theory were used to analyze the raised issues.
Fulfilling iddah and mutAoah living through ex officio at the Samarinda Religious Court in talaq divorces refers to Supreme Court Regulation (PERMA) No.
3 of 2017, and Circular Letter of Supreme Court (SEMA) No.
1 of 2017.
Meanwhile, the application of ex officio in lawsuit divorces refers to PERMA No.
3 of 2017 and SEMA No.
2 of 2019.
The fulfillment of womenAos rights after divorce at the Religious Courts through ex officio aligns with legal objectives:
legal certainty, justice, and benefit.
Pemenuhan hak perempuan pasca cerai di Pengadilan Agama menyisakan banyak problem, disebabkan lemahnya elemen pendukung putusan pengadilan dan prosedur pemenuhan hak-hak perempuan, kendala dari pihak mantan suami serta mantan istri.
Oleh karena itu, hakim agama diharapkan memiliki sensitivitas dan keberpihakan pada perempuan, sehingga akan menghasilkan putusan yang bernilai keadilan, kepastian hukum dan kemanfaatan.
Studi ini dimaksudkan untuk memberikan gambaran bagaimana penggunaan ex officio hakim dalam pemenuhan nafkah iddah dan mutAoah di Pengadilan Agama Samarinda serta bagaimana keselarasan penggunaan ex officio dengan tujuan hukum.
Penelitian ini merupakan penelitian hukum yuridis normative, dengan pendekatan Ijtihad: Jurnal Wacana Hukum Islam dan Kemanusiaan.
Volume 21.
No.
Desember 2021: 135-154 perundang-undangan dan pendekatan konseptual.
Adapun teknik pengumpulan datanya dengan studi kepustakaan dengan cara mengumpulan data skunder terkait tema yang dikaji.
Sementara analisis data dilakukan dengan cara deskriptif kualitatif.
Diskursus ex officio dan teori tujuan hukum digunakan untuk menganalisis isu yang diajukan.
Pemenuhan nafkah iddah dan mutAoah di Pengadilan Agama Samarinda pada putusan cerai talak melalui ex officio hakim merujuk pada Perma No.
3 Tahun 2017.
SEMA No.
1 Tahun 2017 .
Sedangkan penerapan ex officio hakim pada cerai gugat mengacu pada PERMA Nomor 3 Tahun 2017 dan SEMA No.
2 Tahun 2019.
Pemenuhan hak perempuan pasca cerai di Pengadilan Agama melalui ex officio selaras dengan tujuan hukum, yakni kepastian hukum,keadilan dan kemanfaatan.
Keywords: ex officio.
iddah living.
mutAoah living Introduction Discussing womenAos rights always leads to debate regarding their position in the patriarchal culture, which justifies the hegemony of men over women (Rahmawati, 2020, p.
and justice, as they are part of the disadvantaged group.
It is not just about their sexuality, but even more complex.
they are placed in intersectional relationships related to race, class, colonialism, and naturism, in addition to poverty and underdevelopment (Hartanto & Firdausy, 2014, p.
WomenAos problems dealing with the law include: .
lack of knowledge about legal .
limited funding.
barriers to communication.
physical and mental barriers (Kelompok Kerja Perempuan, 2018, p.
Courts are government institutions with the competence to resolve conflicts and disputes to achieve justice (Qabrati, 2020, p.
According to Jamilah, .
7, p.
The religious Court is the most influential institution to realize gender-just access and control over material and non-material rights.
It is one of the law enforcement and justice institutions with authority in family law civil cases (Rinaldo, 2019, pp.
, which are directly in contact with womenAos and childrenAos rights.
This is illustrated by the number of divorce cases submitted to the religious courts, as the number increases year by year (Djawas et al.
, 2021, p.
In 2018 the number of divorces was 444,358 cases, then in 2019, it rose 12% to 480,618 cases.
Meanwhile, the province with the highest divorce rates is East Java with 86,491 cases, followed by West Java with 75,001 cases, then Central Java with 71,373 cases (Rokan et al.
, 2020, p.
The use of ex officio to fulfill womenAos post-divorce rights at the Samarinda.
(Lilik Andar Yun.
In talaq divorce, the ex-wife gets iddah, mutAoah and madhiyah living, and child support when there is no proof of nusyuz, as mandated in Article 149 of Compilation of Islamic Law (KHI).
It also emphasizes that there is no guarantee of womenAos rights after divorce.
This is reinforced by Article 41 .
of Law No.
1/1974, which explains that the wife will not get iddah living if she is nusyuz or gets divorced baAoin sughra.
Despite a juridical norm that guarantees the protection of women and children right after divorce contained in these articles, there is still no guarantee for its fulfillment.
In 2018, the number of divorces was 419,268, in which 307,778 cases were in lawsuit (Nasution & Muchtar, 2020, p.
SuadiAos research confirmed the randomly taken data of SIPP MARI from 1 January 2017 to 25 January 2018, that in the decision on talaq divorce 89,089 cases or about 88.
84% were accompanied by granting the wifeAos rights .
ddah, mutAoah and madhiyah livin.
either decided versteckt or the presence of both parties (Suadi, 2018, p.
However, of the 88, 43% above, only about 20% were realized voluntarily (Suadi, 2018.
The data above shows that even in talaq divorce, where the womenAos post-divorce right is normatively regulated, there were only 20% fulfilled.
Then the question arises on the fulfillment of womenAos rights in lawsuit divorce, which is not juridically regulated.
contrast, the number of lawsuit divorces is three times higher than talaq divorces.
The results of Stijn van Huis research quoted by Abu Rokhmat and Susilo indicated that the Religious Courts in Indonesia leave several problems for women related to the weak elements that support court decisions and procedures for fulfilling the rights of women and children after divorce by ex-husbands (Rokhmad & Susilo, 2017, p.
This paradigm underlies the expectations of the justice-seeking community towards the Religious Courts to: .
enforce and apply the law based on supporting facts.
be more severe in dealing with the interests of women and children who are usually victims of divorce (Suadi, 2018, p.
This further emphasizes that judges in religious courts are tasked not only with divorcing couples, examining, adjudicating, and deciding cases that establish justice for the parties (Triana, 2018, p.
, but also having sensitivity in supporting womenAos rights (Yuni & Murjani, 2020, p.
Because judges have an essential role in realizing justice and enforcing the law in the judicial process (Amarini, 2018, p.
, they are expected to make decisions that guarantee Ijtihad: Jurnal Wacana Hukum Islam dan Kemanusiaan.
Volume 21.
No.
Desember 2021: 135-154 legal certainty, justice, and benefits.
Therefore, the role of the Religious Courts in womenAos rights is urgent.
Several researchers are focusing on womenAos rights in the Religious Courts, such as Suadi .
Mansari and Moriyati .
Fikhria .
in his study.
Suadi emphasized the role of the Religious Courts in protecting the rights of women and children through a decision referring to PERMA No.
3 of 2017, while Fakhria focused on the difference in the number of rights obtained by wives in talaq and lawsuit divorces.
Meanwhile, previous studies on ex officio and talaq divorce can be seen in the research of Fanani and Ulfa .
Zulfa et al.
( 2.
Thariq .
9, p.
Labib .
Mahartika .
Zulfa stated that the judgeAos considerations in applying ex officio in talaq divorce included: .
most of the wives .
he Responden.
did not understand the law, so when the husband filed for divorce to the court, the wife did not personally or through their attorneys appear before the court.
the mandate of Law, namely Article 41 letter .
Marriage Law No.
1 of 1974 and Article 149 letters a and b of the KHI.
the facts of the trial revealing that the husband could pay for the wifeAos rights (Zulfa, 2020, p.
Meanwhile, research on ex officio and lawsuit divorce is seen in the study of Hikmatiar .
and Fuadi et al.
, .
Hikmatiar stated that the wife who filed for divorce would not get iddah living if she was nusyuz.
However, in this study, the judge in the South Jakarta Religious Court gave it in a lawsuit divorce case through the application of ex officio because it was proven that the wife was not nusyuz (Hikmatiar, 2.
This article was written to enrich several previous studies, especially regarding the use of judges ex officio and its relation to womenAos rights, especially the fulfillment of iddah and mutAoah living.
This study was conducted to describe the ex officio discourse and the legal objectives theory, the problems of fulfilling womenAos rights after divorce in the Religious Courts, and the alignment of the use of ex officio in fulfilling iddah and mutAoah living with legal purposes.
Method This normative juridical research examined and discussed legal science doctrines and principles using statutory and conceptual approaches.
It was done by identifying the rules The use of ex officio to fulfill womenAos post-divorce rights at the Samarinda.
(Lilik Andar Yun.
regarding the protection of womenAos rights in the court, namely Law no.
1 of 1974.
KHI.
PERMA No.
3 of 2017 concerning Guidelines for Judging Women Dealing with Law.
SEMA No.
1 of 2017, and SEMA No.
2 of 2019, as well as journals and articles regarding the protection of womenAos rights and their fulfillment in the Religious Courts.
The approach used in this study was conceptual and statutory, by examining Law no.
1 of 1974.
KHI.
PERMA No.
3 of 2017.
SEMA No.
1 of 2017.
SEMA No.
2 of 2019, and lawsuit talaq divorce decisions at the Samarinda Religious Court.
The data collection technique was a literature study, by collecting secondary data in the form of primary legal materials.
Law no.
1 of 1974.
KHI.
PERMA No.
3 of 2017 concerning Guidelines for Judging Women Dealing with Law.
SEMA No.
1 of 2017.
SEMA No.
2 of 2019 and the decision for the lawsuit and talaq divorce and at Samarinda Religious Court, and secondary journal material related to the themes studied.
The data collected were grouped and analyzed by qualitative descriptive analysis, by describing the data obtained from the literature review, conceptualizing, and concluding.
Ex officio discourse and legal purpose The protection of womenAos post-divorce rights in the Religious Courts already has a good legal protection.
The state has a significant role in realizing it, through various regulations It is a state protection for its citizens, as an effort to prevent and suppress, both written and unwritten (Putri & Amiruddin, 2020, p.
Legal protection is intended to provide justice, order, certainty, benefit and peace, in line with the legal objectives (Djojorahardjo, 2019, p.
It is the governmentAos effort to realize legal certainty and to provide legal protection to citizens, ensure that their rights are not violated, and those who do not obey the existing rules will be given sanctions.
The guarantee of the legal protection of womenAos rights after divorce in the Religious Courts can be seen in Article 49 of Law no.
1 of 1974 in conjunction with Article 149 letters .
Articles 152 and 158 of the KHI.
Articles 152 and 158 stipulate that rights cannot be fully obtained in divorce at the wifeAos initiative.
Even if the rights are given, it cannot be fully because mutAoah is given only in talaq divorce as formulated in Article 158 of the KHI.
Ijtihad: Jurnal Wacana Hukum Islam dan Kemanusiaan.
Volume 21.
No.
Desember 2021: 135-154 Other regulations are in the form of.
jurisprudence (Cassation on the Decision 347 k/Ag/ 2010, 410k/Ag/2010 and No.
137k/Ag/2.
, regarding the legality of providing a living during the waiting period when the wife files a lawsuit, when she is not proven nusyuz, and the use of ex officio in giving iddah living with the aim of istibra and also the interests of the husband.
Second.
PERMA No.
3 of 2017, and third, in the form of SEMA including No.
1 of 2017, which explains the addition of clauses on payment of the right of iddah, mutAoah and madhiyah living which will be paid before the divorce pledge is stated, and SEMA No.
of 2019 which essentially reveals the decision in the divorce lawsuit to add a clause Aupaid before the Defendant takes the divorce certificateAy.
SEMA No.
2 of 2019 is the application of progressive legal ideals and new hopes for wives who are currently litigating in the Religious Courts, both in the form of lawsuit divorce and khuluk so that their post-divorce rights will be fulfilled (Najichah & Azizi, 2020, p.
The provision of living .
ddah, madhliyah, and mutAoa.
from the ex-husband to the exwife is carried out by the Religious Courts in two ways, namely.
first, through ex officio as long as the wife is not proven to have committed nusyuz.
and second is reconvention (Suadi, 2018, p.
Reconvention occurs if the wife understands her rights after divorce.
Otherwise, the lawsuit is only limited to wanting a divorce.
Under these conditions, judges are required to play an active role in making decisions that are more valuable in justice and benefit, especially for women.
At this point, the use of ex officio is significant The use of ex officio rights in making decisions in court has a fierce theoretical discussion because judges are considered to have carried out ultra petita, which seems to decide cases that exceed the demands of the litigating parties.
If the decision states more than what was proposed by the parties, it is categorized as a poor decision, even though it is intended for more significant benefit, but is considered an unjustified act (Zulfa et al.
Article 189 .
Rbg.
Jo Article 178 .
of Herzien Inlandsch Reglemen (HIR) confirms that the judge in deciding the existing dispute cannot exceed the lawsuit materials or known as utra partium petitum.
The principle of utra petita is intended as a form of determination for judges not to make decisions not requested by Plaintiff/Applicant The use of ex officio to fulfill womenAos post-divorce rights at the Samarinda.
(Lilik Andar Yun.
In the civil realm, the extent of the case depends on the parties, so the judge is passive.
Individual rights within the scope of civil law get high guarantees, and even if there is an ultra petita in decisions that have been inkracht .
egally bindin.
, the Supreme Court can cancel it (Subagyono et al.
, 2014, p.
Violation of the ultra petita principle is identical to deviation from the rule of law because: .
one of the principles explains that every judgeAos actions must be in line with existing norms .
ccordance with the la.
, and .
exceeding the existing competencies (Article 178 paragraph 3 of HIR) (Fadhilah, 2019, p.
Although ultra petita decisions are still debatable in the civil realm, the Supreme Court allows decisions to contain ultra petita with legal considerations: .
there is a strong .
judges must strive to resolve cases as well as possible.
there is relevance to the lawsuit material.
to get the value of justice following the essence of the initial lawsuit (Fadhilah, 2019, p.
Ex officio are rights owned by judges because of their position to resolve conflicts, which are not following standard normative procedures.
This means that in the use of ex officio, the decision contains an ultra petita, as the decision exceeds what Plaintiff requested.
The ex officio application of judges is very urgent, especially in divorce cases.
In a divorce case, a judge is allowed to decide something not requested by the parties.
The logical arguments built in the application of ex officio in divorce cases are: .
Article 41 of Law no.
1/ 1974.
judges make law, so they must perform ijtihad and play an active role in finding the law.
the authority to contra legume because the existing legal rules are not appropriate.
Fanani ( 2018, p.
stated that the use of ex officio is intended to: .
ensure the life of ex-wife after divorce.
the husband does not arbitrarily divorce his wife.
provide justice for the wife due to talaq divorce.
economically the husband can pay a living.
was further said that several circumstances made it impossible to apply ex officio, namely: .
before sexual intercourse.
the wife is sentenced to baAoin or nusyuz.
the wife states that she does not want the rights.
ex-husband does not have the economic capacity to fulfill ex-wifeAos rights (Fanani, 2018, p.
Ijtihad: Jurnal Wacana Hukum Islam dan Kemanusiaan.
Volume 21.
No.
Desember 2021: 135-154 The application of ex officio rights is intended to balance court decisions.
This means that judges can issue decisions that have fair value.
If a husband divorces his wife and ignores her rights, the judge can guarantee the fulfillment of these rights by applying ex officio rights (Labib, 2017, p.
The judgeAos decision must be in line with the legal objectives, namely.
legal certainty, justice, and benefits aspects (Yunanto, 2019, pp.
202Ae.
The value of certainty is a value that in principle provides legal protection for every citizen from arbitrary actions so that the law gives the state responsibility to run it.
A legal certainty is a form of legal embodiment that is certain, concrete, and unaffected by anything (Julyano & Sulistyawan, 2019, pp.
14Ae.
Justice demands that people treat each other according to their rights and obligations.
The treatment is not indiscriminate or favoritism.
instead, everyone is treated equally according to their rights and obligations (Hikmatiar, 2017, p.
The benefit is the most important thing in a legal purpose.
Benefit can be interpreted as happiness.
The good or bad of a law depends on whether the law gives happiness to humans or not.
Law is for humans, so the implementation or enforcement of the law must provide benefits to humans/society.
The benefit criteria include.
giving happiness or satisfaction to the litigants.
resolving new polemics or conflicts for the parties.
good relations between the disputing .
giving back the right for the winner.
creating balance in society.
The problems of fulfilling womenAos rights in the court WomenAos rights guaranteed in court decisions, in its implementation, leaves many problems because they are often not fulfilled.
In general, the implementation of a divorce decision accompanied by husbandsAo obligation to pay for iddah, mutAoah, and madhliyah living in the Religious Courts is realized in two ways, namely voluntary implementation and execution mechanism by the Court.
However, execution cannot be a solution because the procedures and costs required for execution are greater and not proportional to the amount of living required (Syahr, 2019.
The use of ex officio to fulfill womenAos post-divorce rights at the Samarinda.
(Lilik Andar Yun.
Voluntary implementation is emphasized.
However, in reality, it does not show a significant number, only in the range of 20% of the 88.
43% of talaq divorce decisions accompanied by the obligation on the husband (Suadi, 2018, p.
That happens because: .
the Religious Courts do not have the authority to force a person to carry out the task, unless the woman submits a request for execution of the decision (Suadi, 2018, p.
the cost of execution is not proportional to the object to be executed.
Barriers in fulfilling the rights of women and children in the Religious Courts can be divided into at least three, namely First: obstacles from the ex-husband: .
the husband ignores the decision of the Religious Court and leaves his residence and his whereabouts are unknown.
the ex-husband does not have a steady income or his assets are not sufficient for execution (Sholeh et al.
, 2019, pp.
86Ae.
Second, obstacles from the ex-wife: .
womenAos knowledge and understanding of their rights is still low (Sholeh et al.
, 2019, p.
women do not know the process and procedures to obtain their rights so that the material for the lawsuit is minimal and tends to harm women.
varying level of education and economy, so that women find it challenging to file applications/claims.
Third, from regulatory factors: .
there is no firm sanction for the ex-husband ignoring the courtAos decision.
there is no mechanism that binds third parties to ensure the payment of living by absentee parties (Irawan, et.
al, 2019, pp.
42Ae.
The use of ex officio in fulfilling iddah and mutAoah living at the Samarinda Religious Court The use of ex officio at the Samarinda Religious Court in fulfilling iddah and mutAoah living is seen in Talaq Divorce Decision No.
1208/Pdt.
G/2021/PA.
Smd.
The rights obtained by the ex-wife are: .
iddah living of Rp 3,000,000.
madhiyah living of Rp 1,000,000 Meanwhile, in the Talaq Divorce Decision No.
1132/Pdt.
G/2021/PA.
Smd.
, the rights obtained are: .
iddah living of Rp3,000,000.
mutAoah living of Rp3,000,000.
childrenAos income of Rp2,000,000 every month with an increase of 10% until the child grows up.
The two examples above describe that the rights of women and children after divorce are accommodated through ex officio.
Those decisions also show that the post-divorce rights Ijtihad: Jurnal Wacana Hukum Islam dan Kemanusiaan.
Volume 21.
No.
Desember 2021: 135-154 obtained from each case depend on each partyAos conditions and the amount is also different.
However, it can be concluded that the rights accommodated include: .
iddah living.
mutAoah living.
hadhanah living.
child support.
Several talaq divorce decisions also state.
Ausubmitted in cash when the talaq pledge is executedAy.
It is in line with PERMA No.
3 of 2017 concerning Guidelines for Judging Women Dealing with Law.
Among the principles contained therein is to protect womenAos rights in court.
It is also in line with SEMA No.
1 of 2017, that the fulfillment of obligations is included in the decision with the clause.
Aupaid at the time of taking the divorce pledge.
Ay The inclusion of Ausubmitted in cash at the time the talaq pledge is executedAy means that the divorce pledge and the fulfillment of the rights are unified obligations, in the sense that the divorce vow will not be read out until the husband fulfills his obligations to his ex-wife, with the six-month deadline for repayment.
Payment of iddah and mutAoah living before uttering divorce pledge, apart from being an anticipatory step against the former husbandAos reluctance to carry out his obligations, with various factors and reasons, provides more guarantees of legal protection for women and children after divorce, not only in the decision but also in providing legal protection for women and children.
Meanwhile, the application of ex officio in lawsuit divorce cases can be seen in the following Decisions:
No.
1726/Pdt.
G/2021/PA.
Smd.
The right accommodated is the iddah living of Rp 15,000,000 paid every month Rp 5.
000 for three months.
No.
1042/Pdt.
G/2021/PA.
Smd, decided versteckt.
The right accommodated are: .
Monthly living of the two children is Rp 3,000,00 until they are adult.
iddah living of Rp 3,000,000 .
mutAoah living of Rp 750,000 .
No.
1131/Pdt.
G/2021/PA.
Smd, decided versteckt.
The rights accommodated are: .
iddah living of Rp 3,000,000 .
mutAoah living of Rp 2,000,000 Observing the three divorce decisions above is quite encouraging because womenAos rights are well guaranteed through ex officio.
The rights obtained are not only iddah but also mutAoah living.
This is interesting because judges rarely sue for divorce decisions using ex officio, it is not even applied, because when the wife files for divorce, there is no obligation of the ex-husband to provide a living, because there is no reconciliation (Mahartika, 2020.
The use of ex officio to fulfill womenAos post-divorce rights at the Samarinda.
(Lilik Andar Yun.
The form of lawsuit divorce is baAoin, so the husband is not obliged to provide mutAoah and iddah living (Najichah & Azizi, 2020, p.
In addition, it is considered as a form of rebellion by the wife to break away from the marriage bond with her husband.
As a result, the wife does not get her rights in full or even does not get it at all (Fakhria, 2018, p.
It is seen that the provision of iddah and mutAoah in the lawsuit divorce decision at the Samarinda Religious Court through the ex officio refers to the Cassation Decision No.
k/Ag/2010.
No.
410k/Ag/2010.
No.
276k/Ag/2010, concerning the legality of providing iddah living in a lawsuit divorce case as long as the wife is proven not to be nusyuz and PERMA No.
3 of 2017 as well as SEMA No.
3 Year 2018 points .
The cases above also describe that womenAos rights are guaranteed through ex officio, two of which were decided versteckt.
The VerstecktAos decisions happen 70% in lawsuit divorce (Susantin, 2020, p.
This is reinforced by the results of FaisolAos research in Malang Religious Court, in April 2019 the number of divorce decisions was 687, and 442 were decided versteckt (Rochman et al.
, 2019, p.
There were several reasons behind the absence of the Defendants at the trial, including .
They want a quick divorce.
Unknown address.
They do not want a divorce.
They donAot want to be complicated with court matters but want a divorce ((Rochman et al.
2019, pp.
They agree to divorce but is reluctant to pay court fees (Waluyo, 2019.
Looking at case No.
1042/Pdt.
G/2021/PA.
Smd.
and 1131/Pdt.
G/2021/PA.
Smd.
The DefendantAos address and place of work were precise, but he did not want to be bothered with court matters and wanted a quick divorce.
the Defendant was present at the beginning of the mediation process but not in the trial process until the decision.
However, through ex officio, the judge sentenced .
Custody of the child in the Plaintiff Aos hands.
the living for 2 children of Rp 3,000,000 every month.
Iddah living for Rp 3,000,000.
MutAoah living for Rp 750,000.
The judgeAos consideration for Defendant is because of his financial ability as he works in Public Department with a salary of Rp 4,100,000 per month and from the chronology of the case, the wife is not nusyuz.
The divorce happens the Defendant ignores his family and rarely returns home.
Ijtihad: Jurnal Wacana Hukum Islam dan Kemanusiaan.
Volume 21.
No.
Desember 2021: 135-154 Meanwhile, in the Decision No.
1131/Pdt.
G/2021/PA.
Smd.
, decided without the DefendantAos presence .
ecause he was not present from the beginnin.
, through ex officio, the judge gave the wife post-divorce rights, including iddah living of Rp 3,000,000 and mutAoah living of Rp 2.
The judgeAos considerations in this decision are .
PERMA No.
3 of 2017 concerning Guidelines for Judging Women Dealing with the Law.
the husband is economically capable because the Defendant is a civil servant.
the wife is proven not to do nusyuz, because the divorce stems from the husbandAos selfishness.
In Decision No.
1726/Pdt.
G/2021/PA.
Smd .
ttended by Plaintiff and Defendan.
and 1042/Pdt.
G/2021/PA.
Smd.
the rights obtained are iddah and mutAoah living.
However, unfortunately, the two decisions did not include Aupaid before Defendant takes the divorce certificateAy.
Because the decision said so, the ex-wifeAos hope of living during her iddah was not fulfilled.
The decision just stopped on a piece of paper (Darmawati, 2020, p.
Benevolence and justice as legal objectives do not work well because the wifeAos rights are not appropriately fulfilled (Adnya & Musarrofa, 2017, pp.
309Ae.
In contrast to decision No.
1131/Pdt.
G/2021/PA.
Smd includes the sentence Aupaid before the defendant takes the divorce certificate.
Ay This is as confirmed in SEMA No.
2 of 2019 and in the context of implementing PERMA No.
3 of 2017.
This SEMA is a solution that has been faced by ex-wives related to the problem of executing post-divorce rights, and guaranteeing the ease of fulfilling them (Najichah & Azizi, 2020, p.
The application of ex officio judges in fulfilling iddah and mutAoah living several examples above, are they contrary to the ultra petita principle? Although the ultra petita principle and the judgeAos ex officio rights seem contradictory, they have a reasonably harmonious Ultra petita is a form of limitation for judges not to make decisions other than those proposed by the parties.
Meanwhile, ex officio is an inherent competence by judges as their position to make decisions that exceed demands as an embodiment of justice and protection for litigants.
The decision above, deciding the Petitioner/Plaintiff to provide iddah and mutAoah to the Respondent/Defendant, is categorized as ultra petita because the judge decides to exceed what is requested by the Petitioner.
The use of ex officio to fulfill womenAos post-divorce rights at the Samarinda.
(Lilik Andar Yun.
As previously explained, a decision may contain an ultra petita, with the following conditions: .
there are logical considerations.
the judge tries his best to resolve the .
there is relevance to the material of the lawsuit.
to get the value of justice following the essence of the initial lawsuit (Fadhilah, 2019, p.
So, the application of ex officio in both the talaq and lawsuit divorce does not contradict or violate the ultra petita principle, because: .
in the legal considerations it includes Article 41 .
PERMA No.
3 of 2017.
SEMA 1 of 2017.
SEMA 3 of 2018.
the judge makes every effort to produce the best decision for both parties, by granting rights to the .
the provision of iddah and mutAoah by the judge even though it is not requested or demanded by the Parties (Plaintiff/Defendan.
is related the divorce case filed by the Plaintiff/Applicant, in which the consequence of divorce is that the husband is obliged to provide a living .
ddah, mutAoah, madhiyah, and child suppor.
the provision of iddah and mutAoah living in talaq and lawsuit divorce ex officio provides more justice for the parties and this is following the intent of the lawsuit to get the fairest decision.
Referring to FananiAos research, the application of ex officio in fulfilling iddah and mutAoah living has been justified, because: .
from the examples in both divorces, the couple has had sexual intercourse and they have children.
the wife is not nusyuz, because, it is proven that the cause of the divorce is the husband who commits domestic violence or has an affair.
the wife wants these rights.
ex-husband has the financial ability to pay for these rights (Fanani, 2018, p.
The judgeAos decision is the law.
Judges in making decisions do not only look at the law .
he denken syste.
, but also have to ask their conscience by paying attention to justice and expediency when the decision has been handed down .
roblem denke.
As a law, the judgeAos decision must be able to realize the purpose of the law itself, namely justice, certainty and benefit, because the fundamental value of law includes at least three values, namely justice, benefits, and legal certainty (Julyano & Sulistyawan, 2019, p.
The use of ex officio in the Samarinda Religious Court in divorce decisions above has automatically provided legal certainty because the wifeAos fate becomes clear.
As the purpose of the law is to provide protection and certainty, with the divorce decision providing certainty for the wife whose fate is hanged by her husband, it shows the clarity of womenAos Ijtihad: Jurnal Wacana Hukum Islam dan Kemanusiaan.
Volume 21.
No.
Desember 2021: 135-154 status in society.
In addition, by including normative rules in Law Number 1 of 1974.
PERMA and SEMA in the considerations, it also guarantees legal certainty because they contain juridical values.
It also contains the value of the benefit, because the provision of a living, besides being consolation strengthening the ex-wife, it is also a form of legal protection for divorced women so that they are not financially deprived due to unfavorable conditions.
(Rohman et , 2020, p.
In addition, it also provides benefits for the wife because it has provided The divorce decision makes the wife sad, but the judge is recommended to give the ex-wifeAos rights to reduce the sadness.
When the wife does not ask for it, the judge with the attached position can give it through ex officio.
Because the granting of these rights and providing benefits to the ex-wife, also provides consolation on the other side.
Because, after all, expediency is the most important thing in legal purposes.
The indicator of whether the decision is good or not is whether it gives happiness for the parties involved.
The law is for humans, so its implementation must also benefit humans.
This is in line with the usefulness parameters, including.
providing happiness and satisfaction for the parties, .
resolving new conflicts for the parties, .
the rights and obligations of the parties have been obtained (Mahmudah, 2019, p.
In addition to providing certainty and benefit, the use of ex officio in the decisions at Samarinda Religious Court also has the value of justice because the divorced wife gets a divorce certificate, and more than that, she also gets her rights.
So it provides more balance and has justice value because it guarantees the fulfillment of the rights of women and children (Labib, 2017, p.
It can be concluded that the use of ex officio in the example of talaq divorce decisions above, is in line with the objectives of the law, namely justice, legal certainty, and benefits.
Meanwhile, in the divorce decision, as described previously, when the injunction includes the sentence.
Aubefore the defendant takes the Divorce Certificate,Ay the decision follows legal When the sentence does not include the sentence, it can be said that the decision only provides legal certainty, because basically, when the marriage certificate is obtained, the wifeAos fate becomes clear.
At the same time, justice and benefit are not guaranteed if the fulfillment of the wifeAos rights is only limited to a decision on paper.
The use of ex officio to fulfill womenAos post-divorce rights at the Samarinda.
(Lilik Andar Yun.
As the main actors in law enforcement, judges in making decisions must at least reflect the legal objectives, namely justice, certainty, and benefits.
However, it is common for the three objectives of the law to be harmoniously correlated.
On the contrary, they confront and contradict each other.
If it happens, then justice is the priority (Rizkiana, 2020, pp.
570Ae.
, because law equals justice.
There is no law without justice (Mukhlishin.
Sarip, 2020, p.
Conclusion The use of ex officio in fulfilling iddah and mutAoah living in in talaq and lawsuit divorce at the Samarinda Religious Court does not contradict the ultra petita principle because it includes.
the logical considerations.
the best effort of judges to make the best decisions.
the relevance to the lawsuit materials.
worth justice.
The application of ex officio at the Samarinda Religious Court which decided the Petitioners and Defendants to provide iddah and mutAoah living and their harmony with legal objectives can be sorted as follows: In the two talaq divorce decisions used as examples in this study, all of them include a clause.
Aupaid before the divorce pledge is stated.
This is in line with the objectives of the law, namely justice, legal certainty, and benefits.
Meanwhile, from the three examples of divorce decisions, two of them, on their commands, stated.
Auto be paid when the Defendant takes the divorce certificateAy.
This decision is more in line with the objectives of the law.
This is an initial study for the East Kalimantan region, and there are still many shortcomings and weaknesses.
Further research is needed with the same theme but with a broader range of locations to refine it.
References