Approaches of the Religious Court Judges in Indonesia to Settle Joint Marital Property Disputes

Sukiati

Nurasiah

Milhan

 

Abstract: This article examines the approaches and considerations of judges in resolving marital assets and joint marital property (commonly referred to as harta bersama in Indonesia) disputes between husband and wife in Indonesian Religious Courts. The analysis includes an investigation of the judges’ approach to determining the roles played by spouses in creating joint marital property and the effect of such determination on the division of joint marital property. The article finds that judges have followed both textual and contextual approaches to the applicable law in determining the role played by spouses in creating joint marital property. The analysis in this article finds that the provisions on the joint marital property included in Indonesian law requiring a 50:50 division of joint family property are primarily aimed at protecting the rights of women where their role in marital life is limited to being homemakers. However, judges have taken broad and flexible approaches to apply this law and have not only included working women within the fold of this law but also given working women a preferable treatment as compared to working men. This article concludes that the division of joint marital property involving working women – whether the men work or not – is no longer based on the provisions included in the Indonesian Islamic family law, rather they are based on the type of role played by women who have contributed to the creation of joint marital property.