DASAR PERTIMBANGAN HAKIM DALAM PENETAPAN PERKARA PERMOHONAN DISPENSASI NIKAH AKIBAT HAMIL DILUAR NIKAH (STUDI KASUS PERKARA NO. 225/PDT.P/2023/PA.BGL

Abstract

Applications for dispensation from marriage due to pregnancy out of wedlock still occur a lot, including in the Pasuruan area and are often granted by judges. The application for a marriage dispensation is regulated in Article 7 paragraph 2 of the Marriage Law which is carried out for very urgent reasons accompanied by sufficient supporting evidence. The consideration factor for the judge to grant the request for marriage dispensation is to produce a value of justice that gives goodness and avoids damage. In this study, the authors examined the basic considerations of judges in determining the case of the dispensation of marriage due to pregnancy out of wedlock at the Bangil Religious Court in case no.225/Pdt.P/2023/PA.Bgl. Where the focus of this research includes: 1) What is the documentary evidence submitted by the applicant to confirm the arguments for the application for a marriage dispensation case number 225/Pdt.P/2023/PA.Bgl? 2) What are the judge's considerations in granting the request for dispensation from marriage case number 225/Pdt.P/2023/PA.Bgl? The method used in this study uses a type of field research with a Juridical-Empirical approach. In the results of the research in conclusion it was found that 1. The Petitioner in confirming the arguments of the application. marriage dispensation case number 225/Pdt.P/2023/PA.Bgl by submitting written evidence in the form of a) authentic deed, namely a photocopy of the applicant's KTP, a copy of the applicant's marriage certificate, a photocopy of the applicant's child's birth certificate which is sufficiently stamped and stamped, and b ) evidence that is not a deed, namely a photocopy of the statement that the bride and groom have never been married, the original marriage rejection letter from the KUA, the original certificate of medical examination of the prospective bride and groom. have never been married, all of which have been examined by a judge. 2. The judge's considerations in granting the request for dispensation for marriage case number 225/Pdt.P/2023/PA.Bgl namely a) Islamic law rules reject mafsadat (damage) and prioritize the opening of the door of maslahah (goodness), namely that harm must be eliminated (Kitab Al Bayan page 38) and b) Consideration of the Constitutional Court Number 30-74/PUU-XII/2014 which allows dispensation of marriage if there are compelling matters at the request of parents and/guardians and c) There is no prohibition against getting married according to Article 8 The Marriage Law in conjunction with articles 39 and 40 KHI, d) the requirements for marriage are fulfilled except for the age according to Article 6 paragraphs 1 and 2 of the Marriage Law in conjunction with Article 15 paragraph 2 and Article 16 paragraphs 1 and 2 KHI, e) There is evidence supporting the argument of the applicant for an authentic deed with force perfect proof in accordance with Article 1870 of the Civil Code and inauthentic deed as supporting evidence in accordance with Article 1881 paragraph 2 of the Civil Code, f) The judge has heard the statements of the Petitioners, the Petitioners' children, the prospective husband and the prospective husband's parents in accordance with Article 7 paragraph (3) of the Marriage Law of 1974 concerning Marriage which has been amended by Law Number 16 of 2019 concerning Law Number 1 of 1974 concerning Marriage jo. Articles 13 and 16 letter g PERMA RI Number 5 of 2019.

Keywords:  Judge's Consideration, Marital Dispensation, Pregnancy Out of Wedlock