PERTIMBANGAN HAKIM TERHADAP PEMBAGIAN HARTA BERSAMA DALAM KONTEKS ISTRI MENJALANKAN PERAN GANDA DITINJAU DARI PERSPEKTIF HUKUM PROGRESIF DAN MAQASHID SYARI’AH (STUDI PUTUSAN MAHKAMAH AGUNG RI NOMOR 78 K/AG/2021)

Divorce not only terminates a marital relationship but also gives rise to legal consequenses, one of which is the division of marital property. In Indonesia, the distribution of joint assets is regulated is regulated by the Compilation of Islamic Law (KHI), which generally mandates equal division between husband and wife. Howefer, this provision may be considered unfair when the wife plays a dual role, namely as a breadwinner and homemaker. In Decition No. 78 K/Ag/2021, the Supreme Court ruled that an equal division is inappropriate if the wife has made a significant economic contribution. The main issue examined in this study is the judicial considerations regarding the division of joint property in the context of a wife carrying out dual roles, reviewed from the perspective of progressive law and maqashid al-syari’ah, as reflected in the Supreme Court of the Republic of Indonesia Decision No. 78 K/Ag/2021. This study analyzes the judges’ consideration to asses the extent to which the decision accommodates the values of justice, utility, and public benefit for the parties involved. The research method employed is library research with a descriptivecomparative analytical nature, applying both juridical and normative approaches. The primary data source is the Supreme Court of the Republic of Indonesia Decision No. 78 K/Ag/2021, while the secondary data sources include books, journals, and research findings related to research topic. Data collection was carried out by gathering all documents and literature relevant to the topic, while the data analysis technique used was qualitative descriptive analysis. The findings of the study indicate that, from the perspective of progressive law, the judges’consideration in Decision No 78 K/Ag/2021 reflect that an effort to go beyond the mere application of positive legal provisions by taking into account substantive justice for the parties, particularly in the context of a wife performing dual roles. The judges did not solely adhere to statutory provisions such as the Marriage Law and the Compilation from the Islamic Law, but also considered the utility and public benefit of the decision for both parties. Meanwhile, five fundamental objectives of shari’ah (hifz al-din, hifz alnafs, hifz al-‘aql, hifz al-nasl, dan hifz al-mal), particularly in the aspect of hifz al-mal (protection of property), so that the division of assets may be carried out fairly and proportionally in accordance with the concrete circumtances of the parties.

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