Journal of Islamic Law (JIL), Vol. 3, No. 2, 2022.

Between State Law and Islamic Law: The Practice of Divorce
Outside the Situbondo Religious Courts, Indonesia
Antara Hukum Negara dan Hukum Islam: Praktik Perceraian
di Luar Pengadilan Agama Situbondo, Indonesia
Abd. Karim Faiz*
Institut Agama Islam Negeri Parepare, Indonesia
abdkarimfaiz@iainpare.ac.id
Zulfahmi AR
Al-Azhar University Cairo, Egypt
zulfahmi469@gmail.com
Ahmad Izzuddin
Universitas Islam Negeri Walisongo Semarang, Indonesia
izzuddin@walisongo.ac.id
DOI: 10.24260/jil.v3i2.848
Received: July 6, 2022
* Corresponding Author

Revised: August 22, 2022

Approved: August 23, 2022

Abstract: The relationship between state law and religion (Islamic law) is still
problematic in its implementation. This problem occurs in practising divorce
outside the court in Situbondo, Indonesia. Its case is interesting because it is
still considered legal by the community and religious leaders according to
religious law even though the divorce decision has not been received from the
court. This legal phenomenon is contrary to positive law in Indonesia. This
article aims to explain the practice of divorce outside the court in Situbondo
and the authority problem between state law and Islamic law. After conducting
intensive field research for three months with perpetrators of out-of-court
divorce, religious leaders, and the Head of the Office of Religious Affairs, the
authors found that the widespread practice of divorce outside the court was
caused by the influence of religious leaders’ understanding and public
understanding. This understanding becomes the doctrine that divorce in
Islamic law is legal without having to await a divorce decision from the
religious court. The authors stated that the dominance of the authority of
Islamic law over state law in the practice of divorce in Muslim societies has
negative implications for the rights of children and ex-wives.
Keywords: State Law, Islamic Law, Divorce Validity, Divorce Outside the
Court, Situbondo.
Abstrak: Hubungan antara hukum negara dengan agama (hukum Islam)
masih menimbulkan problematika pada implementasinya. Hal ini terjadi pada
praktik perceraian di luar pegadilan di Situbondo, Indonesia. Praktik ini
menarik, karena masyarakat dan tokoh agama masih menganggapnya sah

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secara hukum agama walaupun tidak mendapatkan putusan cerai dari
Pengadilan, dan fenomena hukum tersebut bertentangan dengan hukum
positif di Indonesia. Artikel ini bertujuan untuk menjelaskan praktik
perceraian di luar pegadilan di Situbondo dan problematika otoritas antara
hukum negara dan hukum Islam. Setelah melakukan penelitian lapangan
selama tiga bulan secara intensif dengan para pelaku perceraian di luar
pengadilan, tokoh agama dan Kepala Kantor Urusan Agama, para penulis
menemukan bahwa maraknya praktik perceraian di luar pengadilan
disebabkan oleh pengaruh pemahaman tokoh agama dan pemahaman
masyarakat. Pemahaman ini kemudian menjadi doktrin bahwa perceraian
dalam hukum Islam sah tanpa harus menunggu putusan cerai dari pengadilan
agama. Para penulis berargumentasi bahwa dominasi otoritasi hukum Islam
atas hukum negara dalam praktik perceraian mayarakat muslim berimplikasi
negatif bagi hak-hak anak dan mantan isteri.
Kata Kunci: Hukum Negara, Hukum Islam, Keabsahan Perceraian, Perceraian
di luar Pengadilan, Situbondo.
A. Introduction
The State and religion are two inseparable components in the concept of state
law. There are three typologies of the relationship between religion and the State.
First is the integral relationship between religion and the State. The domain of
religion becomes the domain of the State and vice versa. Al-Maududi supported this
first typology. Second is the relationship between symbiotic and dynamicdialectical. Religion and the State are not directly related, and there is still a distance
and control between religion and the State. Religion requires legality from the State
to demonstrate and represent its norms and rules. The State needs religious values
and spirit to realise a godly, fair, and civilised state. This idea was supported by
Abdullah Ahmed Na’im, Muhammad Syahrur, Nahir Hamid Abu Zaid Abdurrahman
Wahid, and Nur Cholis Madjid. The third is the secularisation relationship. Religion
and the State are two domains that must be separated. The latter typology rejects
the formalisation of religion in the system and laws of the State. 1
Based on these three typologies, Indonesia is included in the second typology.
Historically, Muslim societies have established Islamic law as the sole authority in
marriage law before colonisation. During the colonial period, the Dutch East Indies
Government abolished religious (Islamic) provisions in the marriage and divorce
1 M Din Syamsuddin, “Usaha Pencarian Konsep Negara dalam Sejarah Pemikiran Politik
Islam,” Jurnal Ulumul Qur’an 4, no. 2 (1993).

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laws. Post-independence, regardless of the dynamics and legal politics, the State
accommodated religious (Islamic) rules in Indonesia’s positivization of family law.2
It is evidenced by the enactment of Marriage Law No. 1/1974 (Marriage Law). In
divorce, Article 39, paragraph 1 of the Marriage Law stipulates that divorce can only
be carried out before a Religious Court session. Unfortunately, some Muslim
communities in Mangaran District, Situbondo Regency, East Java, Indonesia, do not
apply this rule. This practice is affirmed and legitimised by a local religious figure,
KH. Ahmad Djazuli3 that when a husband pronounces divorce to his wife, it is legal
for the wife to be divorced.
One factor for the practice of divorce outside the religious court is the local
community’s religious understanding which is still traditional and has become a
habit in the community. This religious understanding is reinforced by the
understanding of religious leaders that divorce is valid when it is pronounced ṣāriḥ
or figuratively, even though it is done outside the religious court. It was confirmed
by the Head of the Office of Religious Affairs (KUA) of Mangaran District, Abdul
Mukti. Besides the public understanding factor, the divorce process outside the
religious courts is because of the lack of legal awareness of the community, personal
problems that must be covered, economic factors, and time problems.4
Scholars have widely studied the study of out-of-court divorce. Some of these
previous studies focused on the juridical analysis of divorce,5 normative and against
the practice of divorce outside the court.6 Some of these scholars have also examined
the reasons for the perpetrators of out-of-court divorce7 and perceptions from
2 Rusdi Malik, “Kembalinya Unsur Agama ke dalam Hukum Perka Winan di Indonesia,” Jurnal
Hukum & Pembangunan 31, no. 1 (2017): 6–22. It also happened in Malaysia. See: Siti Aminah and
Arif Sugitanata, “Genealogy and Reform of Islamic Family Law: Study of Islamic Marriage Law
Products in Malaysia,” Journal of Islamic Law (JIL) 3, no. 1 (February 27, 2022): 94–110.
3 KH. Ahmad Djazuli is one of the elders and community leaders in Situbondo Regency. He
has a considerable influence on society in the fields of religion, politics and education.
4 Vivi Hayati, “Dampak Yuridis Perceraian di Luar Pengadilan,” Jurnal Hukum Samudra
Keadilan 10, no. 2 (2015): 215–27.
5 Muhamad Fajri and Muhammad Silahuddin, “Tinjauan Undang-Undang dalam Perceraian
di Luar Pengadilan Agama: Studi Kasus di Desa Rancagong Kecamatan Legok,” An Nawawi 2, no. 1
(April 1, 2022): 1–12
6 M. Muhsin and Soleh Hasan Wahid, “Talak di Luar Pengadilan Perspektif Fikih dan Hukum
Positif,” Al-Syakhsiyyah: Journal of Law & Family Studies 3, no. 1 (July 26, 2021): 67–84.
7 Khairuddin, “Alasan Perceraian Luar Pengadilan dan Akibatnya bagi Masyarakat Desa
Sanggaberu Kecamatan Gunung Meriah Aceh Singkil,” Tahkim (Jurnal Peradaban dan Hukum Islam)
5, no. 1 (March 31, 2022): 43–58.

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judges’ views8 and fatwas on the practice.9 In addition, other scholars also examine
the legal consequences of the practice of divorce outside the court10 and legal
sanctions for the perpetrators.11 A few focus on the negative impact of divorce
practices on children’s rights12 and ex-wives.13 In contrast to some of these studies,
besides examining the practice of divorce outside the courts, the authors also
focused on the contestation of legal authority between the State and Islamic law. The
authors argue that the problem of the duality of legal authority harms the rights of
children and ex-wives after divorce.
This article is a qualitative study14 with a case study approach conducted
over three months, from July to September 2021. The authors focused on the divorce
practices of the community in Situbondo Regency, East Java Province, Indonesia. The
authors used data collection techniques as interviews with three divorce cases
outside the religious court because the wife was not collecting her husband. In
addition to the divorcing couples, the authors interviewed the KUA of Mangaran
Sub-district and KH. Ahmad Djazuli, a religious figure in Mangaran Sub-district and
also serves as Muntsyar of the Situbondo Nahdlatul Ulama Branch Management
(PCNU). The authors selected these three cases based on the areas that are the most
villages that follow Djazuli’s recitation, Tanjung Glugur and Mangaran villages.
Besides interviews, the authors used observation and documentation as fund
collection techniques. The data collected is then analysed descriptively analytically,
namely describing divorce cases based on data from informants and literature and
8 Muhammad Jufri and A. Muhyiddin Khotib, “Tinjauan Hukum Islam dan Hukum Positif
Terhadap Status Cerai Talak di Luar Pengadilan Agama (Pandangan Ketua Pengadilan Agama
Bondowoso),” Al-Hukmi: Jurnal Hukum Ekonomi Syariah dan Keluarga Islam 1, no. 2 (2020): 189–97.
9 Nurdin Bakri Nurdin Bakri and Antoni Antoni, “Talak di Luar Pengadilan Menurut Fatwa
MPU Aceh No 2 Tahun 2015 tentang Talak,” Samarah: Jurnal Hukum Keluarga dan Hukum Islam 1, no.
1 (July 17, 2017): 52–71.
10 Maryati Maryati, “Akibat Hukum terhadap Perceraian yang Dilakukan di Luar Pengadilan
Agama Merlung Kabupaten Tanjung Jabung Barat,” Jurnal Ilmiah Universitas Batanghari Jambi 22, no.
1 (2022): 500–503.
11 Muhammad Yalis Shokhib, “Sanksi Hukum terhadap Pelaku Talak di Luar Pengadilan
Agama,” Al-‘Adalah: Jurnal Syariah dan Hukum Islam 3, no. 1 (March 5, 2018): 58–88.
12 Amelin Heranti Amelin Heranti, “Dampak Perceraian di Luar Pengadilan terhadap Hak
Nafkah Anak (Studi Kasus di Desa Mendala Kecamatan Sirampog),” Khuluqiyya: Jurnal Kajian Hukum
dan Studi Islam 4, no. 1 (2022): 18–49.
13 Muhammad Nur, Imam Jauhari, and Azhari Yahya, “Perlindungan Hukum terhadap Korban
Perceraian di Luar Pengadilan (Suatu Penelitian di Kota Langsa Provinsi Aceh),” Jurnal Penelitian
Hukum De Jure 19, no. 4 (2019): 563–72.
14 Imam Gunawan, “Metode Penelitian Kualitatif,” (Jakarta: Bumi Aksara, 2013): 32–49.

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analysing them based on fiqh (Islamic jurisprudence) and positive law.
B. Talak Perspective of Fiqh and Positive Law in Indonesia
Etymologically, divorce (ṭalāq) comes from the Arabic ṭa-la-qa.15 The word
“ṭalāq” is a corruption of ṭa-la-qa which becomes maṣdar with the meaning or
intention of ithlāk, which means letting go or leaving.16 In terminology, using certain
words, the word “ṭalāq” is interpreted as removing the marriage bond or reducing
its bondage. The Shafi’iyah Madhhab defines the word “ṭalāq” as unbinding and
releasing.17 The Shafī’īyah Madzhab provides conditions and pillars that must be
fulfilled in determining whether the divorce is valid. 18 The conditions and pillars of
divorce according to the Shafi’iyah Madzhab are five: muṭliq (husband), ṣighaṭ (the
words of divorce, either explicit or implicit), maḥāl (wife who is in a legal marriage),
wilāyah (ownership, i.e. the woman whose words of divorce are uttered is his wife),
and qoṣdun (intent and purpose in this case for shighat uttered with implicit words).
Meanwhile, the conditions of divorce according to the Shafi’iyah Madzhab are three:
the marriage contract, baligh and rationale. 19 Abdul Karim Zaidan argued that the
validity of the actions of mukallaf in the perspective of Islamic law is seen from the
manifestation of the elements (pillars) and conditions of deeds. If the pillars and
conditions are fulfilled, then the divorce is in sharia. 20
Unlike the Syafi’iyah Madzhab, which is held by most Muslim communities in
Indonesia, the rules of marriage are regulated in the Marriage Law and the
Compilation of Islamic Law (KHI). Article 38 of the Marriage Law categorises
breaking marital ties in three circumstances: death, divorce and court decisions.21
Regarding the breaking up of a marriage because of a court decision, Article 39
explains that couples who wish to apply for divorce must fulfil one of the reasons for
15 Atabik Ali, “Kamus Kontemporer Arab-Indonesia (Yogyakarta: Multi Karya Grafika Pondok

Pesantren Krapyak, t.t.): 1140.
16 Luis Ma’luf, Kamus Al-Munjid, (Beirut: Al-Maktabah Al-Katuliqiyah, 1986): 406.
17 Abu Ishaq, Al-Muhadzab fī Fiqh al-Imām al-Syāfi’ī, Jilid I, (Beirut: Darul Fikr, 2016): 380.
18 Abu Ishaq, 45.
19 Al-Syafi’i, Al-Umm, 47.
20 Abdul Karim Zaidan, Al-Wājiz fī Uṣūl al-Fiqh,” Cet. VII, (Beirut: Muassasah Qurtubah, 1994):
55.
21 Muhammad Isa, “Perceraian di Luar Pengadilan Agama Menurut Perspektif UndangUndang Nomor 1 Tahun 1974 dan Kompilasi Hukum Islam (Suatu Penelitian di Wilayah Hukum
Mahkamah Syar’iyah Aceh Besar).,” Jurnal Ilmu Hukum 2, no. 1 (2014).

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divorce and must first follow the reconciliation of the two parties. If the
reconciliation is unsuccessful, then the application or lawsuit can be continued, and
the process or procedure for divorce is regulated in other laws and regulations. 22
Article 114 of KHI explains that the breakdown of marriage due to divorce
can be occurred due to talak or based on a divorce lawsuit. Article 117 of KHI
explains that the definition of talak is “The husband’s pledge before a Religious Court
session which is one of the reasons for the breaking up of marriage in the manner
referred to in Articles 129, 130 and 131”. The authority to decide on divorce is
regulated in Article 115: “Divorce can only be carried out before a session of the
Religious Court after the Religious Court has tried and failed to reconcile the two
parties.” This provision is reinforced in Article 123 of KHI that the divorce occurs at
the time the divorce is declared in front of the Religious Court.23
Based on the explanation above, it can be concluded that there are differences
in the validity of divorce between Islamic law and state law. In Islamic law, divorce
is legal when the conditions and pillars are fulfilled. Meanwhile, in state law, a legal
divorce is a divorce that can only be carried out in front of a court session. Second,
the legality of divorce in Islamic law does not require witnesses. In contrast, state
law considers that divorce can only be carried out in the Religious Court after the
Religious Court has tried and failed to reconcile the couple (wife and husband)
(Article 115 of KHI). The State, through religious court judges, requires the pledge
of divorce to be witnessed by a religious court judge. Third, in Islamic law, divorce
is valid when the husband utters the ṣighaṭ ṭalāq, either in ṣāriḥ or innuendo,
intending to divorce. Whereas in state law, divorce occurs when the divorce is
declared in front of a court session (Article 123 of KHI).
Although it is regulated in state law that divorce is legal after the pledge of
divorce in court, the fact is that in society, there are still numerous divorces that
occur outside the court. Juridically, this practice harms the rights of both parties
(husband and wife) and children. First, divorce is illegal and has no legal binding
22 Fajri and Silahuddin, “Tinjauan Undang-Undang dalam Perceraian di Luar Pengadilan

Agama.”
23 Bing Waluyo, “Sahnya Perkawinan Menurut Undang-Undang Nomor 1 Tahun 1974 tentang
Perkawinan,” Jurnal Media Komunikasi Pendidikan Pancasila dan Kewarganegaraan 2, no. 1 (2020):
193–99.

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force. Second, the practice harms the divorced wife. A wife who is divorced outside
the religious court when she wants to remarry with her new husband will have her
marriage rejected by the Office of Religious Affairs as there is no valid divorce
certificate from the religious court. Third, the negative impact on husbands who
want to remarry a new wife because of the absence of a divorce certificate, this
desire will be administratively stipulated to polygamy and administratively must get
a marriage permit at the religious court. Fourth, the obligation to provide a
livelihood to children whose parents divorce outside the religious court cannot be
prosecuted legally in the court.24
C. Description of Three Out-of-Court Divorce Cases
After conducting observations and interviews with religious leaders and
three cases of married couples who divorced outside the religious court, the authors
found similarities between the three cases in Situbondo Regency. The similarity is
that the divorce occurred because the ex-wife did not collect her husband, and the
ex-wife did not have good faith with her husband for a week. The attitude and
expression of the husband before leaving the house given by his parents-in-law and
returning the wife to her parents-in-law’s house, the husbands in these three cases
assumed that the divorce had occurred, even though there had not been a decision
from the religious court. For more details, the authors describe the three divorce
cases as follows.
The first divorce case was between Abdul Aziz bin Maskut and his wife,
Sumyati binti Sumyati. 25 Both of them are residents of Tanjung Glugur Village,
Mangaran District, Situbondo Regency, East Java. The couple has been married since
1994, as evidenced by Marriage Certificate No. 291/03/XI/1994 on 05 November
1994. Abdul Aziz bin Maskut lived in a house prepared by his wife in a tradition in
Situbondo. The tradition obliges the wife’s parents to prepare a house for their
daughter- and son-in-law.
After 15 years of marriage, the relationship between Aziz and Sumyati

24 Hayati, “Dampak Yuridis Perceraian di Luar Pengadilan.”
25 Abdul Aziz, Interviews with Divorce Actors Outside the Religious Court, September 19,

2021.

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deteriorated, and there were frequent bickering and scuffles. Aziz was not only in
conflict with Sumyati but also with his parents-in-law, who were inclined to defend
their daughter. On 06 July 2009, Aziz left the house he had been living in with his
wife and parents-in-law. Aziz returned to live at home with his parents. After a week
of leaving the house, Sumiyati and her parents-in-law did not come to Aziz’s house
to mediate or find the best solution to their marriage. After waiting and no one came
to his house, Aziz decided to divorce his wife on 13 July 2009. At the end of
September 2009, Aziz filed a divorce petition with the Situbondo Religious Court,
citing continuous quarrels and a lack of love between them. Finally, Aziz was legally
divorced from his wife on 22 March 2010. It was evidenced by a Certificate of
Divorce No. 0375/AC/2010/PA.Sit.
The second divorce case was between Ali Zubairi and Lilik Mardiyani. Both
husband and wife are addressed at RT. 08, RT 03, Mangaran Village, Mangaran Sub
district, Situbondo Regency.26 They have been legally married since 2001, as
evidenced by Marriage Certificate No. 09/09/I/2001. Since the marriage, Zubairi
has lived with his wife in a house provided by his wife’s parents (in-laws). They have
a son named Ahmad Taufiq, seven years old.
After being married for nine years, their household was cracked. His wife
often borrowed millions of rupiah without Ali Zubairi’s knowledge in 2009.
Mardiyani did this three times and was warned by Zubairi. Because his wife’s
attitude did not change, Zubairi finally left their house, which was lived in on 20
January 2010, and returned to his parent’s house. A week after he left, Mardiyani
and her parents-in-law did not come to his house. Finally, on 30 January 2010,
Zubairi divorced his wife because his wife was not considered to have good faith in
their household. Zubairi proved this by the absence of Mardiyani’s visits to his home
after he left. In February 2010, Zubairi filed for divorce with the Situbondo Religious
Court because of disputes and quarrels that could not be expected to reconcile. In
June 2010, the divorce between Zubairi and Mardiyani was completed. It is
evidenced by a Certificate of Divorce No. 613/Pdt.G/2010/PA.Sit.
The third divorce case was between Yoto bin Yoto and Saniya binti Sunasi.
26 Ali Zubairi, Interviews with Divorce Actors Outside the Religious Court, September 14,

2021.

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Their marriage occurred in April 2003, as evidenced by Marriage Certificate No.
67/03/IV/2003.27 Unlike the two previous cases where both lived in a house
provided by the wife’s parents, this couple lived in Yoto’s house at RT. 03, RW 05,
Semiring Village, Mangaran Sub-district, Situbondo District.
In 2008, their household was cracked because of Saniya’s affair with another
man. In 2009, Yoto saw Saniya walking with another man who was not her family.
After being caught in an affair by her husband, Saniya finally confessed that she had
been having an affair since 2008. Based on this confession, Yoto returned his wife to
her parents-in-law’s house on 10 October 2009. The aim was for Saniya to selfevaluate her mistake. After eight days of Saniya never returning to Yoto’s house to
apologise and reconcile with him, Yoto finally divorced his wife because of the
infidelity and lack of good faith to continue the marriage on 18 October 2009. At the
end of February 2010, Yoto filed for divorce at the Situbondo Religious Court
because of his wife’s infidelity. On 10 May 2010, Yoto’s divorce from Saniya became
legal based on Certificate of Divorce No. 354/Pdt.G/2010/PA.Sit.
D. Divorce Outside the Religious Courts: Between State Legal Authority and
Islamic Law
State law has regulated that divorce is legal after the pledge of divorce in
court. In fact, the State’s legal authority is still ignored by the Situbondo Muslim
community, who still believe that divorce occurs based on the fiqh. The community’s
religious understanding has been practised continuously by some of the Situbondo
Muslim community and has become a tradition. This factor is one of the reasons for
the practice of divorce outside the religious court. In addition, lack of legal
awareness, personal problems that must be concealed, economic factors, and
problems of time are the other four factors.28
Regarding the first factor, the tradition of divorce outside religious courts is
reasonable. The main reason is the duality of legal authority understood by the
community. In addition to the authority of state law, the community is also the
authority of Islamic law. In the fiqh, a ṣāriḥ divorce uttered by the husband can be
27 Yoto, Interviews with Divorce Actors Outside the Religious Court, September 14, 2021.
28 Hayati, “Dampak Yuridis Perceraian di Luar Pengadilan.”

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considered a legal divorce, even though it is uttered outside the religious court (state
authority). This legal duality was affirmed by Abdul Mukti, KUA of Mangaran subdistrict, Situbondo district.29 Mukti explained that various couples in Situbondo are
divorced and separated before obtaining a divorce certificate from the religious
court. It impacts the practice of sirri marriages (unregistered marriage) by assuming
that the husband is already a widower, even though he has not received a divorce
certificate from the religious court.
The religious understanding of the Situbondo Muslim community is
reinforced by one of the local religious leaders who have influenced numerous
pilgrims, KH Ahmad Djazuli.30 As the holder of authority (being an authority),31
Djazuli argued that a legal divorce in Islamic law could occur when a husband
explicitly or implicitly utters a divorce to his wife, even though the divorce is not
uttered in a religious court. The Situbondo Muslim community then implements
these fatwas and the doctrines as in the three cases above. The problem of the
dualism of authority in divorce in the Situbondo Muslim community causes couples
who are already not living together to assume that they have divorced, even though
the religious court has not decided on them.
Divorce outside the religious court occurs in some Situbondo Muslim
communities with negative juridical implications. First, the divorce is not legal and
has no binding legal effect due to divorce outside the court. It is according to Article
115 of the Compilation of Islamic Law. Second is the negative impact on divorced
wives outside the religious court. The reason is that when a wife who is divorced
outside the religious court gets married again to her new husband, this will be
rejected at the Office of Religious Affairs because there is no legal divorce certificate
from the religious court. Third, due to the absence of a divorce certificate, the
negative impact on husbands who will marry a future wife will administratively be
stipulated to polygamy and must make a marriage permit at the religious court.
Fourth, the obligation to provide a livelihood to children whose parents divorce

29 Abdul Mukti, Interview with Kepala KUA Kecamatan Mangaran.
30 Ahmad Djazuli, Interview with Religious Leaders, September 10, 2021.
31 Muhammad Lutfi Hakim, “Hermeneutik-Negosiasi dalam Studi Fatwa-Fatwa Keagamaan:
Analisis Kritik terhadap Pemikiran Khaled M. Abou El Fadl,” Istinbath 19, no. 1 (July 16, 2020): 34.

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outside the religious court cannot be legally prosecuted in court. It is under Article
156-point f of the KHI.32
E. The Legality of Out-of-Court Divorce from a Maṣlaḥah Perspective
The determination of the legality of divorce in Islamic law is considered from
the fulfilment of the conditions and pillars of divorce. If the conditions and pillars
are fulfilled, then the divorce between the husband and wife is valid. On the other
hand, if the divorce does not fulfil the conditions and pillars, then the divorce is
illegal.33 Concerning the three cases in this study, all of them fulfilled the conditions
and pillars of divorce. In the first and second pillars (muṭliq and maḥāl), the husband
and wife in all three cases were healthy, baligh and with good mental health. In all
three cases, the husband uttered the divorce directly to his wife by an implicit
statement. After uttering the divorce (talak), the husband left the house given to him
by his parents-in-law and sent the wife back to her parents-in-law’s house. After
waiting a week, the wife did not have any good intentions by not picking up her
husband or returning to him. This act of not picking up her husband means divorce.
Thus, the five pillars and conditions of divorce have been fulfilled, and the divorce is
legal in fiqh based on the Shafi’iyah Madhhab.34
In contrast to the perspective of state law, divorce can only occur if it is
uttered clearly and explicitly in a religious court. In addition, the reason for divorce
is a determining factor in whether the divorce that the husband stipulates is
acceptable or not.35 In positive law, Article 39, Paragraph 1 of the Marriage Law
requires the religious court to attempt to mediate between the two spouses before
obtaining a divorce. If mediation is unsuccessful, then the religious court can decide
on divorce based on the reasons filed by one of the husband and wife (Article 39 of
the Marriage Law and Article 116 of KHI), namely adultery, drunkenness, gambling
and other despicable acts that are difficult to be cured; being left for two years
without permission; being convicted of five years in prison or more, committing
32 Hayati, “Dampak Yuridis Perceraian di Luar Pengadilan.”
33 Wahbah Zuhaili, Fiqhul Islam wa Adillatuhu (Depok: Gema Insani, 2010): 562.
34 Al-Syafi’i, Al-Umm, 563.
35 Mohammad Barmawi, “Ikrar Talak Pengadilan Agama (Sebuah Tinjauan atas Istinbat
Hukum Pengadilan Agama tentang Sahnya Perceraian),” Qolamuna: Jurnal Studi Islam 1, no. 2 (2016):
191–212.

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serious persecution; physical disability or illness that can prevent husband and wife
from fulfilling their obligations; continuous disputes and quarrels; violating the
marriage agreement; and conversing religion (apostasy).36
Based on the three divorce cases above, the authors argue that the three
divorces ignore the concept of maṣlaḥah,37 especially the rights of children and exwives after the divorce. The Islamic Sharia is nothing more than preserving human
rights, whether based on text or using the method of istinbāt al-ḥukm. The direction
of the benefit of Islamic law is for the benefit of humans. The determinations of
Islamic law must be based on what is explicit and implicit in it, which contains values
of benefit and justice.38 Sheikh Abdul Karim Zaidan in Al-Wājiz fī Uṣūl al-Fiqh defines
maṣlaḥah as taking good and refusing the negative. This definition has two positive
dimensions, namely efforts to bring goodness with the aim of maṣlaḥah and efforts
to avoid harm for maṣlaḥah either individually or in the general scope.39
Divorce has legal implications. Five things need to be considered because of
divorce. First the prohibition of halal relations (relationship as husband and wife).
Second, mut‘ah. The third is paying off a husband’s duty to a woman as either dowry
or nafkah (alimony). Fourth, ‘iddah for women. Fifth is the right to hadānah. These
are all rights and obligations that the husband and wife must fulfil after getting
divorced.40 In the three divorce cases above, numerous irregularities are not fulfilled
by the divorced husband and wife. In the first and second divorce cases, the husband
did not give the wife the right to mut‘ah, while in the third divorce case, the husband
did not give mut‘ah, and there was no ‘iddah for the wife. In addition, the
irregularities committed by the husband in the three divorce cases above against the
wife’s rights have no legal protection. It can be a disadvantage to one side and a

Imam Taqiyuddin Abu Bakar Al-Husaini, Kifayatul Akhyar, (Surabaya: Maktabah AlHidayah, 1997): 104.
37 Yasin Arief, “Praktik Perceraian di Luar Pengadilan Agama dalam Perspektif Kompilasi
Hukum Islam (Studi Kasus Desa Sirahan Kecpraktik Perceraian di Luar Pengadilan Agama dalam
Perspektif Kompilasi Hukum Islam,” Prosiding Konstelasi Ilmiah Mahasiswa Unissula (KIMU) Klaster
Humanoira, 2021.
38 Zuhaili, Uṣūl al-Fiqh al-Islamī, 38.
39 Zaidan, Al-Wājiz fī Uṣūl al-Fiqh, 236.
40 Yulisa Fitri, Jamaluddin Jamaluddin, and Faisal Faisal, “Analisis Yuridis Perceraian di Luar
Pengadilan Menurut Undang-Undang Nomor 1 Tahun 1974 tentang Perkawinan dan Menurut
Pendapat Ahli Fikih Islam,” Suloh: Jurnal Fakultas Hukum Universitas Malikussaleh 7, no. 1 (2019):
29–54.
36

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“favour” to the other41 , resulting in a lack of fairness and loss to the aggrieved
person.
The assumption of the legality of divorce in the first, second and third cases
carried out before obtaining a decision from the religious court is very contrary to
the concept of maṣlaḥah in Islamic law, as has been explained by Sheikh Abdul Karim
Zaidan. With divorce practices outside the religious court, there are numerous
disadvantages for the ex-wives, which takes away the value of maṣlaḥah which is the
principle and purpose of Islamic law.42 In considering the choice between taking
benefit and avoiding harm, the ulema of uṣūl al-fiqh (uṣūliyyūn) prefer to avoid harm.
Therefore, the practice of out-of-court divorce in the Situbondo Muslim community
must also focus on the negative impact of this practice and the rights of children and
ex-wives post-divorce.
F. Conclusion
State law states that the divorce must be conducted in a religious court.
Unfortunately, several Situbondo Muslims conduct divorces outside of court and
assume that the divorce is legal by Islamic law. It is under the local custom that after
the husband has been out of the house for more than a week and the wife does not
come to the husband’s house to mediate and pick up the husband to live together
again. The husband considers the wife’s attitude as no intention, and the divorce has
automatically fallen to his wife. This practice violated the values of utility in Islamic
law. Therefore, the occurrence of divorce because of the absence of the wife from
the husband’s house for mediation and picking him up to live together again as a
result of divorce is an attitude that is not in line with the guidance of the Qur’an. It
harms the rights of children and ex-wives. Thus, the value of the benefit that is the
purpose of divorce is being lost. Thus, the practice of out-of-court divorce must also
focus on the negative impact of this practice and the rights of children and ex-wives.

41 Nur, Jauhari, and Yahya, “Perlindungan Hukum terhadap Korban Perceraian di Luar
Pengadilan (Suatu Penelitian di Kota Langsa Provinsi Aceh).”
42 Zaidan, Al-Wājiz fī Uṣūl al-Fiqh, 237.

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