The decision of property ownership’s status in the marriage relationship is very important in getting its status clearly. In this case, hoped to be known and to make a certain right from the property both of them, that is possibility among them to make their property during marriage or on their effort their selves or together to be one.[1]
According to M.Yahya Harahap S.H.said that commonly, the husband and the wife in Indonesian society work together to get the cost of living for their family everyday and it is for saving on their next time. One important thing on that explaining above is in the reality, that fiqh of Islam does not discuss about the dowry both of husband and wife in the marriage clearly. But all of the scholars of Islam in Indonesia have admitted about this matter as soon as they were hold in interview when the compilation of Islamic laws has been compiled.
But they agreed to make it into syirkah abdan as basis of legal norms formulation, which has relation with the dowry.[2]
But they agreed to make it into syirkah abdan as basis of legal norms formulation, which has relation with the dowry.[2]
a. Based on Islamic law
The Islamic law did not know about the mixing property among husband and wife during marriage. But in the Islamic Indonesian society does not use this principle in marriage, except that marriage becomes the dowry and in their domination without taking notice of the property, does that property come from the husband or wife. In fact, in the Islamic Indonesian society said that there is no separation of property among husband and wife except if it will be common property and used together among them in marriage.
The wife’s property is the wife’s private property and she has a legal right of it, likewise the husband’s property is his, and he has a legal right also. Thus, according to Islamic law, a woman who has married she has capability to take a punitive action, until she can do all of that punitive action in society. However according to western law, a woman has not capability to take a punitive action. She can take punitive action legality only, if she had help and authority of husband’s statement. But according to Islam, marriage makes the wife becomes “syarikatur-rajuli filhayati” or a consortium of husband to go through on a life collectively. Thus among husband and wife is making “syarikah abdan” (Consortium of power) and syarikah mufawadah (unlimited consortium). If they get a property during marriage, it is called by syirkah property that becomes a common property and it is theirs both of husband and wife. Thus, in Islamic law is unification property and separation property.
In separation property matter, each of husband and wife has a legal right about their private property. The husband did not have a right about his wife’s private property. Because of her authority to her property is stable and it does not decrease caused marriage. Therefore the husband doesn’t have a legal right to use the wife’s private property to fulfill a family necessity unless she has permitted him. Moreover that wife’s private property has used by him, it becomes husband debt, and he has to pay it as an obligation unless she lets him be free to use it. And so do the wife can use his also by judge’s permission, if her husband didn’t finance her.
And in unification property (syirkah property) includes a property or a wealth addition of it as husband and wife effort together (syirkah) during marriage, becomes common property of them in the inference of the family. If it brooks or one of them was dead or divorce in a contract marriage, this property will divide in two among them.[3]
As Islam means that syarikah or syirkah is a partnership that has equity participation. Thus, here two or more member of syirkah has to contribute his capital to finance his investment. It occurred too as mudharabah that both of sides ought to take the risk of profit and loss sharing principle, and so do in an equal right. Based on shari’ah, Syarikah is divided into two kinds:
1. Syirkah Al- Milk (Co-ownership).
Syarikah Al-Milk is co-ownership, and it will be there if two or more accepted joint ownership of asset coincidentally without a legal contract of partner.
Essentially, co-ownership is common ownership of the property and could not called by partnership in its meaning reality, because of its existence is not based on one contract in profit and loss sharing principle.
2. Syirkah Al-‘Uqud (Contractual partnership)
Its word can be thought as real partnership, because of all sides want to make an investment contract among them and take a risk of profit and loss sharing principle willingness. It is divided into for kinds.
1. Syirkah Al-Mufawwadhah
Here, the partner had come of age and they ought to have investment in a equal capital and they ought to accept the equal profit and either in the equal loss sharing.
2. Syirkah Al-‘Inan
Syirkah Al-‘Inan is a partnership contract and there are two or more partner has gave the capital of money or in kind, or in a labor, or in a combination of them from these infestations.
3. Syirkah Al-‘Abdan
In this kind, the partner contributes his competence and power to manage it devoid of ordering the capital.
4. Syirkah Al-Wujuh
All of partners ought to contribute their goodwill, worthiness and other relations in their
business promotion devoid of ordering the capital.[4]
b. Based on marriage ordinance
The property that was got during marriage under way becomes common property. The dowry from each of husband and wife, and the wealth from each of their getting as bequest or inheritance, is under their control as far as they did not make other certain about it.
And about common property, the husband and the wife may take measure, if they had agreement, but about the dowry of theirs, husband and wife had a legal right to do all of punitive law to their property.[5]
Besides the general explanation above, it might be happen that among them are making contract about mixing property of husband or wife’s effort or their effort during marriage contract. The mixing of husband and wife’s property can be done as follow:
1. It had be presented by a written agreement or pronounciation before or after marriage contract in marriage, either private dowry property or the property during marriage that was not coming on their effort on the property subsistence.
2. It had made certain with an ordinance or regulation that a property was coming on one of their effort husband or wife or both of them in their marriage contract, as property subsistence is common property of both of husband and wife.
3. Besides both of that method above, the reason of mixing property between husband and wife will be happen by their living reality.
This method is just for common property during marriage and it will be happen automatically, if they are in one to make a good life. In collecting property of family, it hangs more in the good division of labor between them. As marriage ordinance arranged about it (property) in the marriage in the article below:
Article 35:
1.The property that received during marriage becomes common property.
2.The dowry from each of them and the wealth of both of them as prize or inheritance is under their authority as far as they did not make sure other certain.
Article 36:
1.About their property, they can do anything with the permission of them.
2.About the dowry, they have a full right to do anything.
Article 37:
If the marriage is dissolved by divorce, the common property was arranged based on each of their law.[6]
Based on all of that statement above, the mixing property between husband and wife will be happen if the way has enough validation as written above in the article 35, 36, and 37.
[1] Ahmad Azhar Basyir, M.A.Op.Cit.p.60.
[2] M.Yahya Harahap S.H.Kedudukan Kewenangan dan Acara Peradilan Agama, (Pustaka Kartini, 1990), p.297.
[3] H.M.Djamil Latif.S.H.Aneka Hukum Perceraian di Indonesia (Jakarta:Ghalia Indonesia,1982),p.83.
[4] Prof.Dr.Sutan Remy Sjahdeini, S.H.Perbankan Islam Dan Kedudukannya Dalam Tata Hukum Perbankan Indonesia, (Jakarta: Grafiti, 1999), p.57-62.
[5] Mohd. Idris Ramulyo, S.H., M.H.Hukum Perkawinan Islam, (Jakarta: Bumi Aksara, 1999), p.188-189.
[6] Ny.Soemiyati, S.H.Op.Cit.P.101-102.
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