PERJANJIAN PRA NIKAH DALAM PERSPEKTIF HUKUM ISLAM DAN HUKUM POSITIF DI INDONESIA

Abstract

Marriage is a legal bond between two people who love each other and choose to live together in commitment and fidelity. There are times when the prospective couple before marriage enters into a prenuptial agreement which is used to regulate several aspects of marriage such as property rights and distribution of assets. The purpose of this study is to describe the implementation of prenuptial agreements in Indonesia, describe the provisions of prenuptial agreements, and find out the legal consequences if the prenuptial agreement is violated according to Islamic law and Indonesian positive law. This type of research is normative with statutory, conceptual, and comparative approaches—data collection techniques through literature search and qualitative descriptive analysis methods. Marriage agreements are regulated in Book I Chapter VII Articles 45-52 Compilation of Islamic Law. In the Criminal Code the legal provisions relating to prenuptial agreements are regulated in Articles 139-154 of the Civil Code. The contents and agreement of the agreement cannot be changed during the marriage unless both parties agree to change it. According to the Criminal Code, prenuptial agreements are made with a notarial deed and registered at the civil registry office. Both in Islamic law and positive law, if there is a violation related to the agreement, the husband or wife who cannot accept this situation can submit it as a reason for divorce or compensation.

Keywords: Agreement, Prenuptial, Islamic Law, Positive Law