Definition of husband and wife’s property subsistence
The property subsistence is material goods of the husband or the wife that brought back into marriage, which is included his attempt before getting on marriage.
Principally, the property subsistence in the marriage and all along the marriage is the certain property of husband or wife according to the owner of this property. That property includes the gift of marriage, which is received by the wife from her husband or from husband’s family. And according to traditional law, the property is private property of husband or wife as a person who involved in this case, and to keep in mind, that the property has not contract with the family. Thus, generally the husband and wife are free or there are not prohibitions for them to use their private property.[1]
And “Gono-gini” property in the common term is the property acquired jointly among husband and wife especially during marriage, moreover the worker or the owner of the property is the husband and that is divided equally in event of divorce.[2]
It called by husband and wife because occasionally, in our tradition, the worker is husband only in a family, whereas the wife is taking care of her family. But, sometimes both of them are workers until they got income from their work. And about the extent of the income among husband and wife has not influence on share regulation that is got by widow or widower then or after one of them is died. It can be said that income between husband and wife becomes one unit and it cannot be parting, all is one.
Classification of Property in Marriage
In Islamic law, the husband and the wife’s property is separating. So, each of them has a right to use or to spend their property rightful with no any trouble from other.
The right property of each party is the dowry of each one before they get on it or that each one during marriage and it got property was not a large part of joint venture.
The Classification according to the origin of the wealth property in marriage as follows:
1. The dowry is the property of husband’s right and the wife’s right which is received by them before marriage or from inheritance or from other effort
2. The private property of the husband and the wife, which is received by them during marriage. In this case, that property was not received by their effort together or their selves, but it was caused bequest or wills each of them
3. Property subsistence is the property, which is received by them after marriage at the instigation of their effort or one of them.[3]
Husband and wife’s property in Islamic law
One of the basic purposes of the marriage is an existing in the society together in a family’s contract. To get all of that purposes, husband and wife in their life may use the property as worldly things. About the property in marriage, the Islamic law thought that the husband and the wife’s property one another is separating.
Husband’s property
The husband’s property is the private property’s husband, which is received by him neither before marriage nor during marriage or neither his effort nor other side, such as it comes from inheritance or bequest or wills, etc. The husband has a legal right to his private property apart from the one hand participation including his wife. Moreover, he has other obligation that must be done as husband to give his wife and his son a basic maintenance, which is came from that property. Even so the husband obligation is to get ready the family residence, tools, and etc.
And about husband’s property, the wife is obliged to take good care too on her husband’s property.
As Allah said in the holy Quran:
فَالصَالِحاَتُ قنِتتٌ حفِظتٌ لَّلْغَيْبِ بِمَا حَفِظَ اللهُ.{النساء : 34}
“ Therefore the righteous women are devoutly obedient, and guard in (the husband’s) absence what Allah would have them guard”.[4]
Based on the statement above, in the family, the husband is as the guarantor family, and furthermore the wife must take good care too on her husband’s property. Because of taking care of self is not cheater on him and protecting secrets and husband’s property.
Wife’s property
Basically, the Islamic law has made certain about the wife’s private property during marriage is the property which is coming from her husband as her basic necessity of life. Apart of that all, if the husband gives something to her according to her custom, it will named by wife’s own. So, that property is wife’s right comprises jewelry, cosmetic, etc.
a. The nuptial gift (Mahr)
وَءَا تُواالنِّسآءَ صَدُقتِهِنَّ نِحْلَةً {النساء : 4}
“ And give the women (on marriage) her dower as an obligation”.[5]
From that statement above, the meaning of the nuptial gift is something or giving that husband must paid to his wife, and become wife’s legal right and no disturber of it. The husband just has that right, even if she permits him to use willingly. Thus, the wife’s right on the nuptial gift and the husband’s obligation is becoming symbol as husband capability to carry out on the obligation as husband in marriage which will be coming by stability and tranquility of wife’s heart.[6]
b. The maintenance
The meaning of maintenance is one of husband’s obligations to complete all of wife’s necessity of life comprised of cloth, food, residence, domestic help, and medication, even if the wife is the rich woman.
وَعَلَى المَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ {البقرة : 233}
“ But he shall bear the cost of their food and clothing on equitable terms”.[7]
Whereas, the term “ma’ruf” that used by Al-Quran is to give certain maintenance, Its mean that the maintenance will be given properly (medium, middle and no more or no less from her needs), and it is suitable with her condition of life and condition of wife and so do husband’s capable. Because ma’ruf for husband who has a high position is different from who has a low position etc. the term “ma’ruf” can be called a something may be thought become a necessity of life, such as residence’s equipment, simple dressmaking, and the simply jewelry if the husband has capability included of some events must be noticed by husband.[8]
c. The inheritance bequest, prize or other that is received before or during marriage
d. The private property (comes from their effort) before or during marriage
The husband has an obligation only, to prepare the residence to be occupied together but that place is not wife’s hold and so do the husband has other obligation also on the way to prepare the residence’s equipment, the kitchen tools, et cetera. Those are not the wife’s hold unless he gives to the wife freely, or by their custom under such circumstances between them. Its mean is to be hers. Besides that property, the wife has other right to govern in this issue without invading from another people, includes her husband. Therefore, the husband cannot use the wife’s property although it was tied up with the marriage contract; moreover the husband’s obligation is to carry on it, or it can said that the husband forbid to sell or to pawn or to rent out of the wife’s property, even if the wife gives herself of her right to him freely.
Based on the explaining of the statement above, Islam admits the right of wife’s property, during her ability to take measures. And if she will use her property, her husband as a chief of family must know it without any decreasing of wife’s right on her property.
Husband and wife’s property in marriage ordinance
According to the law no.1/1974 clarifies about the property, which is received during marriage, becomes common property. While the dowry of each husband and wife neither gift nor inheritance is under their authority, as far as both of them did not make a certain about it (article 35:1-2). About the dowry, neither the husband nor the wife can do anything on the basis of their agreement. And about the dowry, each of husband and wife has a complete right on taking a punitive action regarding their property (article 36:1-2). If the marriage is broken caused the divorce, the dowry will be arranged according to each of their law. The mean of “their each law”, is Islam canon law, a traditional law, and others laws.[9]
Therefore, the meaning of the law no.1 /1974 resembled by traditional law and other law, but it is far from Europe civil law, which has some differences from the law in Indonesian. It means, that our marriage ordinance nationalistic has accepted all of traditional law that had relevant factors about marriage. These all is sure thing and possible thing for parental family, but no possible for Patrilineal or matrilineal family. Caused that all, the ordinance used a theorem “as far as they did not decide other decision “or” be arranged according to their respective law”.
[1] J.Satrio, S.H.Hukum Harta Pekawinan, (Bandung: PT.Citra Aditya Bakti, 1991), p.202.
[2] John M. Echols dan Hassan Shadily, Kamus Indonesia Inggris, (Jakarta: PT.Gramedia Pustaka Utama, 1994), p.193.
[3] Ny.Soemiyati S.H. Hukum Perkawinan Islam dan Undang-undang Perkawinan, (Yogyakarta: Liberty, 1982), p.99.
[4] The Holy Qur-an.Op.Cit.p.219.
[5] Ibid.p.206.
[6] Ahmad Azhar Basyir, M.A. Hukum Perkawinan Islam, (Yogyakarta: BPFE, 1980). p.49
[7] The Holy Quran, Op.Cit.p.102.
[8] Ibid.p.51.
[9] Prof.H.Hilman Hadikusuma S.H.Hukum Perkawinan Indonesia (Bandung:Mandar Maju, 1990), p.122-123.
No comments:
Post a Comment