حق المطلقة في الأموال المكتسبة خلال الزوجية في الفقه الإسلامي والقانون الإندونيسي ومدونة الأسرة المغربية

This item is published by Universitas Islam Negeri Sunan Ampel Surabaya

Awiety, Jomana Mohamed Abri (2019) حق المطلقة في الأموال المكتسبة خلال الزوجية في الفقه الإسلامي والقانون الإندونيسي ومدونة الأسرة المغربية. PhD thesis, UIN Sunan Ampel Surabaya.

Text
Jomana Mohamed Abri Awiety_F43416079.pdf
Download (2MB)

Abstract

In Muslim societies, Women suffer after their divorce from losing their right to assets mutually acquired by spouses during marriage. Consequently, legislators developed individual and separate articles detailed in the Family Laws to remedy this situation. This study examines the nature of these financial resources and the best ways to organize their provisions and assert the rights of each party following the divorce. This study is based on the Indonesian Civil Code No. 1 of 1974, and the compilation of the Indonesian provisions KHI No. 97, based on the Gono-Gini customs. It is also compared to the Moroccan Family Code, Law No. 49 (Equal Compensation for Equal Contribution). Research Questions: 1) What rights a divorcee has to assets acquired with her husband during marriage in Islamic Jurisprudence, Indonesian Law and the Moroccan Family Code? 2) What is the effect of Indonesian and Moroccan customs on the divorcee right to money acquired during marriage? 3) What are the means of guaranteeing the right of the wife to assets acquired during her marriage? This Library study pursued the comparative historical and interpretive descriptive approaches. Results: 1. there is consensus on the divorcee’s financial rights (such as deferred mahr, alimony for Ei’daa and Mot’aa) and the financial autonomy of women in both Islamic jurisprudence, Indonesian, and Moroccan law. In the case of a contested divorce, assets acquired during marriage are subject in Islamic jurisprudence to the rules of "evidence by the plaintiff and oath from that who denies", or through reconciliation and compromise. In Indonesian and Moroccan law, the contract of participation requires equal sharing of assets, which is optional rather than compulsory 2. Custom plays a major role in shaping joint-financial management systems in Indonesia and Morocco. 3. A custom-based company has been adapted in Morocco and Indonesia in order to manage joint funds, but this approach has the inherent weakness of being subject to regional terms and rules. Using the structure of companies and associations in order to model financial relationships in a marriage, sets a faulty precedent, for the two situations are incompatible. (The speculative company, the agency, the lease or share-crop system) is the legally accepted form of the contract for acquisition of matrimonial funds, which is documented in the court independently of the marriage contract, and indicating the contribution of each party.