Kajian Hukum Islam dan Hukum Positif Mengenai Taklik Poligami dalam Perjanjian Perkawinan Untuk Mencegah Poligami Ilegal di Indonesia

Abstract

A marriage agreement is an agreement made before or during the marriage. Both parties can make a valid written agreement by mutual consent, which is then legalised by a marriage registrar or notary. The contents of the agreement also apply to third parties as long as they are related to them. Marriage agreements containing monogamy clauses or not to be polygamous that the author met several couples made such agreements. From the rise of marriage agreements with taklik polygamy, it raises a big question about the law and permissibility of agreements whose clauses are monogamous, both analysed in terms of Islamic law and positive law; for example, there are 5 marriage agreements with taklik polygamy. The focus of the research is on the marriage agreement in terms of Islamic law and positive law, as well as its relevance to the legal context in Indonesia. The research method uses a normative juridical approach, with materials and data found, collected, and analysed to obtain conclusions to analyse. Data collection techniques using literature (library research). Data presentation using inductive reasoning. Data analysis using comparative. The findings of this research are: Marriage agreements with polygamy taklik can be done with the provision of conditions, namely based on mutual agreement, not violating the limits of law and decency. Based on the legal context in Indonesia in a marriage that adheres to the principle of monogamy, which is basically a marriage for only one wife, it is relevant to the existence of a marriage agreement with an effort to reduce irresponsible polygamy or illegal polygamy and allows the wife to ask for fasakh nikah if polygamy is without a justified procedure. In addition, the marriage agreement can also be used as a preventive law for those who enter into the marriage agreement. In Islamic law, there is still a debate regarding the marriage agreement with the taklik polygamy; it is not permissible and not required to be fulfilled because these conditions conflict with the rights and obligations arising from the marriage contract, and it is permissible because it contains benefits and does not conflict with Shara; in essence, the law of permissibility of polygamy is for the benefit of both husband and wife.