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1
Lucas, Peter. "Common Law Marriage." Cambridge Law Journal 49, no. 1 (March 1990): 117–34. http://dx.doi.org/10.1017/s0008197300106920.
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The expression “common law marriage” has layers of paradox. It now denotes, as Mr. J. C. Hall pointed out in a recent article in this Journal, a relationship whose characteristic is precisely that it is extra-marital. Previously, for many centuries, the validity of such a marriage was a matter not for the common but the canon law and so, before the Reformation, for the canon law of Rome, the ius commune, Maitland's “wonderful system” administered by the courts Christian and directly applicable throughout western Christendom. The story of the common law marriage in England, Scotland and Ireland offers glimpses of great historical processes and-provides a wider context in which to consider the question raised by Mr Hall as to the survival, or revival, of the common law marriage in England.
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Hall, J. C. "Common Law Marriage." Cambridge Law Journal 46, no. 1 (March 1987): 106–21. http://dx.doi.org/10.1017/s0008197300113637.
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To re-open problems of the past and to rake up arguments long since laid to rest may seem a singularly pointless exercise for a family lawyer of the late twentieth century. Yet the controversy which raged in the 1840s over the requirements for common law marriage was never satisfactorily resolved; and even today the question could still arise and an authoritative answer be required.
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Sechele, Unaludo. "From minors to equals? Kalanga women and marriage legislation in post-colonial Botswana, 1966-2005." Historia 67, no. 1 (June 16, 2022): 1–30. http://dx.doi.org/10.17159/2309-8392/2021/v67n1a5.
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This article examines rural Kalanga women's reactions to marriage legislation in Botswana between 1966 and 2005. This legislation, it could be argued, fails to challenge the broader inequality which exists between women and men in Botswana. This becomes even more apparent when women are identified as belonging to a minority ethnic group and are resident in rural spaces. This article discusses how modernity, tradition-custom, and the law in Botswana converge today. It aims to demonstrate how some women reacted to the abolition of marital power, with a focus on how they perceive marriage. Focusing on rural Kalanga women, the study investigates reactions to Botswana's constitution of 1966, to the marriage laws of 1967, and the 2004 Abolition of Marital Power Act. Finally, it investigates the gendered impact of these laws - as well as the complex discourses surrounding marriage and human rights - on the lived experiences of Kalanga women. The article reflects on the divergent ways in which many women negotiated their struggle for recognition within their ethnic groups - while also circumventing their inferior position as wives under Botswana law and a patriarchal system. Some women in this study preferred to support a more 'traditional' form of inequality within the household. While this study cannot purport to represent all Kalanga women, it does ask important questions about the Botswana gender agenda and in so doing, raises questions of both the perpetuation of patriarchy and women's agency in Botswana.
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Grossbard, Shoshana, and Victoria Vernon. "Common Law Marriage and Teen Births." Journal of Family and Economic Issues 38, no. 1 (November 3, 2016): 129–45. http://dx.doi.org/10.1007/s10834-016-9511-6.
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Quansah, E. K. "Competence of a spouse as a witness: some unresolved issues in Botswana." Journal of African Law 42, no. 1 (1998): 80–89. http://dx.doi.org/10.1017/s0021855300010500.
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Marriage as a social institution has been deliberately protectedas a matter of State policy. Such protection manifests itself in a variety of ways, one of which is the subject of this article. In an attempt to protect the sanctity of marriage, a rule evolved under which spouses cannot give evidence against each other in legal proceedings. In the words of that venerable English jurist, Coke, if this were not so “it might be a cause of implacable discord and dissension between the husband and the wife”. The rule shows itself in strange ways both in criminal and civil cases. For example, the law regards spouses as one person and as such they cannot conspire with each other. Although the institution has been on a slippery slope for a long time with the increasing prevalence of “cohabitation” it has shown remarkable resilience and most of the population still partake and support it. The British bequeathed the rules relating to competence of spouses to Botswana some decades ago and these have since been applied in their pristine purity although the legislature left an escape route by which they could be supplemented. It is this route for supplementation which has led to issues that need to be resolved. Some of these are explored in this article, after a brief historical background of the reception of the rules.
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Almeyda, Aldya Khaira, and Ahmad Khisni. "The Consequences of Divorce Law on Common Property under Marriage Law & KHI." Sultan Agung Notary Law Review 3, no. 2 (August 10, 2021): 689. http://dx.doi.org/10.30659/sanlar.3.2.569-576.
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The distribution of joint assets according to the provisions of Article 37 of Act No. 1 of 1974 concerning Marriage is not clearly stipulated how much each husband or wife is divorced, either divorced or divorced. Article 37 paragraph (1) states that if a marriage breaks up due to divorce, the joint property is regulated according to their respective laws. In the explanation of Article 37 paragraph (1), it is emphasized that the respective laws are religious law, customary law and other laws related to the distribution of the joint property. In addition to Act No. 1 of 1974 concerning Marriage, the Compilation of Islamic Law also applies in Indonesia, which relates to the distribution of joint assets as regulated in Articles 96 and 97 of the Compilation of Islamic Law. Based on these things, the problems that will be examined in this research are: what are the legal consequences of settling disputes on joint property according to Marriage Act No. 1 of 1974 and KHI, and what are the views of Islamic law regarding the distribution of joint assets after divorce, as well as the obstacles to the implementation of the distribution of joint assets in practice at the Salatiga Religious Court, Central Java Province.
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Barker, Chris. "JS Mill on Nineteenth Century Marriage and the Common Law." Law, Culture and the Humanities 15, no. 1 (February 22, 2015): 106–26. http://dx.doi.org/10.1177/1743872115569223.
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This article seeks to clarify the meaning of marriage for Millian liberals by examining marriage in the context of the nineteenth century common law. JS Mill argues that the family can become a school for free institutions. He identifies a ‘‘morality of justice’’ that must replace chivalry or submission as the normal mode of gendered relations. By using pamphlets, speeches, and legal commentaries, it is possible to explain the meaning of Mill’s ‘‘morality of justice,’’ and also to distinguish his liberal conception of marriage from its common law foundations and from sacramental approaches that define marital dissolubility and flexibility differently.
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Poespasari, Ellyne Dwi. "Pauseang-Gift Tradition for Daughter in Batak Toba Common Law." Research, Society and Development 9, no. 5 (March 20, 2020): e01952496. http://dx.doi.org/10.33448/rsd-v9i5.2496.
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Batak Toba people are formed from kinship patrilineal systems which follow men side in lineage. Therefore, the position of men is more important than women. Traditional marriage of Batak Toba people is honest marriage where men relative has to pay certain amount of money or it usually called as bride-price to women relative. People of Batak Toba explained that honest marriage is a principal, beliefs and an attitude of magis religious (relationship between spiritual thing and their beliefs). The most important requirement for pauseang-field is honest marriage and giving bride-price (sinamot/tuhor). Bride-price must be fully paid by men relatives to women relatives. There is a consequences if men’s relative are not fully paid the money, men’s relative will have customary debt and must be done as traditional duty. Therefore, pauseang-field cannot be given to daughter and her husband. Tanah pauseang-field from parent (father) will be managed by her husband, because in Batak Toba, daughter could not own any inheritance.
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Frimpong, Kwame. "The Administration of Tribal Lands in Botswana." Journal of African Law 30, no. 1 (1986): 51–74. http://dx.doi.org/10.1017/s0021855300006483.
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Land plays a very important role in the lives of many people in most developing countries, and particularly in Africa, where subsistence agriculture is still widely practised. Accordingly, the nature of land administration can either influence or impede development. Land administration in many African countries, since independence, has been carried out through a policy of over-centralization. This has often resulted in administrative and bureaucratic bottlenecks which have hampered the effective distribution and utilization of land resources. Botswana, on the other hand, has avoided this common pitfall. Its system of land administration has been based on a policy of decentralization. One such area is in the field of tribal lands administered under the Tribal Land Act, which is the subject of discussion in this paper.
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Masud, Muhammad Khalid. "‘Urf’ And Custom In Common Law And Islamic Law: Common Law Marriage, Zawag Orfi And Zawaj Misyar." NAVEIÑ REET: Nordic Journal of Law and Social Research, no. 1 (December 1, 2015): 4–28. http://dx.doi.org/10.7146/nnjlsr.v0i1.111130.
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Masselli, John J., and Blanca L. Runkel. "I Do (Sort of): Tax Planning Strategies for Same-Sex Couples in Common-Law Marriage States after Marriage Equality." ATA Journal of Legal Tax Research 14, no. 1 (March 1, 2016): 72–88. http://dx.doi.org/10.2308/jltr-51522.
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ABSTRACT The U.S. Supreme Court, in Obergefell v. Hodges, ruled that the fundamental right to marry is constitutionally guaranteed to same-sex couples. However, neither this decision nor subsequent Treasury regulations specifically address common-law marriage (currently allowed in 11 states), the majority of which previously required marriage to be between opposite-sex couples. After Obergefell ruled such requirements unconstitutional, nine of those states modified their common-law statutes to include same-sex couples. Because the federal government has long recognized common-law marriage, this paper discusses prospective and retroactive income and wealth-transfer tax planning opportunities for eligible, common-law married, same-sex couples that qualify to file as married filing jointly for the current tax year and any open tax year for which they would have been considered common-law married. This manuscript presents a legal discussion, along with a variety of examples and tax planning strategies for same-sex couples in common-law marriage states.
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Dubler, Ariela R. "Governing Through Contract: Common Law Marriage in the Nineteenth Century." Yale Law Journal 107, no. 6 (April 1998): 1885. http://dx.doi.org/10.2307/797340.
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Cvejić-Jančić, Olga. "Reform of Serbian family law." Glasnik Advokatske komore Vojvodine 78, no. 9 (2006): 3–31. http://dx.doi.org/10.5937/gakv0602003c.
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This paper examines solutions introduced by the new Serbian Family Act. It underlines the fact that the law significantly took in consideration European and international conventions and opinions of the European Court of Human Rights in family law matters. The Court practice will decide whether the equal treatment of the common law marriage and marriage in respect of requirements for their recognition is the best solution at this particular moment. The problem may be solved by equal treatment of the "illegal" common law marriage with invalid marriage. Important novelties have been introduced in the field of adoption, namely the partial adoption has been abolished, the age limit for the full adoption has been abolished; full adoption has become possible under certain circumstances even in case when the child has both parents. The provisions on inter-state adoption have not been well drafted since there is no enough protection for the adopted child in these cases. The new issues, which were not regulated by the Marriage and Family Law 1980 relate to the legal regulation of certain new, merely procedural, rights of the child, namely right of the child to express his/her opinion in all the proceedings that relate to his/her rights, right to file a claim for protection of these rights, possibility of emancipation of minor who became a parent based on the decision of the court, possibility of joint custody protection against family violence, introduction of mediation in the marriage matters and right of habitation under certain circumstances. Other novelties introduced by the law are incorporated in appropriate parts of law, either by amending or by supplementing the law, or by introducing the terminological innovation of certain solutions that existed in the previous law.
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Bohnert, Nora. "Examining the determinants of union dissolution among married and common-law unions in Canada." Canadian Studies in Population 38, no. 3-4 (July 5, 2012): 75. http://dx.doi.org/10.25336/p6m90p.
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This paper examines the determinants of union dissolution among first marriage, second marriage, and common-law unions via an event history analysis of the fourth panel of the Survey of Labour and Income Dynamics (SLID). Results suggest that unemployment and other potentially challenging employment situations are associated with higher odds of dissolution, among first marriage unions in particular. The factors that predict union dissolution are found to differ, both across union types and within common-law unions by region (Quebec versus elsewhere in Canada).
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Jones, Gavin W. "Which Indonesian Women Marry Youngest, and Why?" Journal of Southeast Asian Studies 32, no. 1 (February 2001): 67–78. http://dx.doi.org/10.1017/s0022463401000029.
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Although the Indonesian Marriage Law of 1974 set a minimum age of marriage for females of 16, among some groups – notably Sundanese in West Java and Madurese in East Java – early marriage remained common well after the Marriage Law was promulgated. Early marriage has since declined but certainly not disappeared among these groups. This paper analyses trends in early marriage and reports on a field study among the Madurese.
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Singh, Nituja, Faheem Khan, and Anushka Singh. "Matrimonial Causes & Choice of Law under Private International Law." VEETHIKA-An International Interdisciplinary Research Journal 8, no. 2 (June 30, 2022): 18–24. http://dx.doi.org/10.48001/veethika.2022.08.02.005.
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The institution of marriage is succumbed to yield many causes giving birth to legal action arising from this single relation called ‘marriage’. From time immemorial people have been interacting across the border and hence there have been marriages between individuals crossing the territorial boundary of country. Every country has its own legal system usually different from the legal system based on distinguish cultural, religious or political identity. In this situation if a dispute out of marriage will arise wherein parties are from different legal systems, the court will have to decide about according to which particular law and legal system such conflicting situation relating to marriage would be adjudicated. Private international law is a path to guide judicial courts encountering such situations and this paper is all about how judges have to exercise jurisdiction and private international law and further according to which set of law/s such matrimonial disputes/causes should be addressed.
Person having different domicile, residence or nationality may enter into matrimonial relationship. At the time of marriage no one speculate any matrimonial dispute but emotion, relation and compatibility between emotion and relation is quite different things. Therefore, there is always risk/chance of fractions in every marriage. If parties to marriage are from the same legal system, then their dispute will be adjudicated according to their local substantive and procedural laws of their land. But, if such parties to marriage belong from different legal systems and further if they have married away from their own place viz. a third country, then the jurisdiction and the law to be applied in matrimonial disputes would be looked from the lenses of the private international law.
Thereafter these relations can also culminate into matrimonial disputes which take its legal effect through various matrimonial causes. This research paper mainly aims to analyse the various matrimonial causes present in a matrimonial dispute involving a foreign element which shall come under private international law and various choices oflaw rules, with special emphasis on nullity of marriage. This paper shall also briefly discuss the concept and validity of marriage. This paper shall analyse the concept of matrimonial causes in conflict of law through the Indian perspective. As India is a common law country which is of a shared British heritage and developed in England so the various concepts as aforementioned shall also include comparison with the English law. This paper shall conclude with authors’ observations and suggestions.
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Aminah, Siti, and Arif Sugitanata. "Genealogy and Reform of Islamic Family Law: Study of Islamic Marriage Law Products in Malaysia." JIL: Journal of Islamic Law 3, no. 1 (February 27, 2022): 94–110. http://dx.doi.org/10.24260/jil.v3i1.556.
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As an Islamic country, Islamic family law reform in Malaysia is experiencing various dynamics. This article aims to examine the genealogy, reform, and products of Islamic family law in the field of marriage (munakahat) in Malaysia. The authors find that Malaysia’s Islamic law reform is divided into three periods using literature research. In the Malay period, Islamic values were generally embedded in the law in Malaysia. During the British colonial period, English law had dominated and was used as common law, which was absorbed in various legislation and jurisprudence in Malaysia. It was only after independence that efforts to reform and codify Islamic family law began, marked by the stipulation of the jurisdiction of the federal territorial government and the territorial government into thirteen states. The codification of family law began with establishing a committee to amend Islamic law and be guided by other Islamic countries. The authors find four areas of marriage that have been reformed in Malaysia, namely the age limit for marriage, marriage registration, polygamy, and divorce. Among the four areas of marriage law, the authors find slight differences in regulations on the technical and material grounds in each state in Malaysia.
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Erickson, Amy Louise. "Common Law versus Common Practice: The Use of Marriage Settlements in Early Modern England." Economic History Review 43, no. 1 (February 1990): 21. http://dx.doi.org/10.2307/2596511.
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Clarkson, C. M. V. "Marriage in England: favouring the lex fori." Legal Studies 10, no. 1 (March 1990): 80–90. http://dx.doi.org/10.1111/j.1748-121x.1990.tb00030.x.
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The orthodox rules on validity of marriage at common law are that formal validity of marriage is governed by the lex loci celebrationis and essential validity of marriage (or capacity to marry) is governed by the personal law, ie the law of domicile. Neither the lex loci celebrationis nor the lex fori ought to have any interest in such questions of essential validity.According to such orthodoxy there are two rules of English law that are suspect and in need of reconsideration. First, there is (arguably) the rule that the parties to a marriage do not need to have capacity to marry by the lex loci celebrationis when they marry abroad but do need such capacity when the marriage takes place in England. The second rule subject to attack is the notorious ‘exception’ based on Sottomayer v de Barros (No 2)2 which allows a foreign incapacity to be ignored when an English domiciliary marries in England, but not when the marriage takes place abroad.
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Makka, Misbahul Munir, Rosdalina Bukido, and Faradila Hasan. "Questioning about Law Number 16 of 2019 concerning Marriage Dispensation in PA Kotamobagu." Kawanua International Journal of Multicultural Studies 1, no. 2 (August 30, 2021): 80–84. http://dx.doi.org/10.30984/kijms.v1i2.29.
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This research aims to show the results of the issuance of Law No. 16 of 2019 and the increasing application for marriage dispensation at the Kotamobagu PA. Underage marriage is a common thing in society. Many things are a factor in underage marriage, one of which is pregnancy outside of marriage and is considered to approve the proposed marriage dispensation. This research is field research located in PA Kotamobagu. The results obtained are that although the issuance of Law Number 16 of 2019, cases of underage marriages are even increasing. This case is evidenced in PA Kotamobagu. In 2020 the application for marriage dispensation was higher than the previous year. One of the reasons for submitting a marriage dispensation made by the community is a pregnant woman out of wedlock, so the judge must approve the proposed marriage dispensation. In other words, this law has no impact on suppressing the number of underage marriages, and the increased age limit has increased the dispensation for marriage.
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Judiasih, Sonny Dewi, Susilowati Suparto, Anita Afriana, and Deviana Yuanitasari. "WOMEN, LAW AND POLICY: CHILD MARRIAGE PRACTICES IN INDONESIA." NOTARIIL: Jurnal Kenotariatan 3, no. 1 (July 6, 2018): 47. http://dx.doi.org/10.22225/jn.3.1.647.47-55.
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Child marriages are common throughout Indonesia. This is due to a strong influence of Indonesian customs and religion that strongly influence the lives of its people. It is worth pointing that marriage age arrangements in Indonesian Marriage Law reinforces that legal age for men is 19 years and 16 years for women. The 2012 statistics show that Indonesia is the 37th highest in the world in child marriage, while at the Southeast Asian level, this country ranks second after Cambodia. The ranking went up dramatically since in 2016, based on UNICEF, Indonesia ranked the 7th in child marriage worldwide. This means that the practice of child marriage in Indonesia happens, especially to women at the age of 18 years, and there is no discrimination related to the age of marriage. Against this matter, there has been a file for judicial review that demands marriage age for men and women to be pegged at the age of 18 years. However, the Judge of the Constitutional Court, through Decision Number 30-74/PUU-XII/2014, states that age of marriage remains valid for the 19-year-old for man and 16-year-old for women. The struggle does not stop there because at this time, there a national movement of STOP CHILD MARRIAGE formed by civil organisations in cooperation with the Commission of Child Protection and Ministry of Woman Empowerment and Child Protection. This movement sees that the practice of child marriage is a national emergency problem that must be addressed seriously. Further, this movement demands immediate enactment of government regulation in favour of the law which must promptly revise the Marriage Law, especially related to the marriage age.
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Trofimets, I. A. "Genesis of marriage law in Spain." Lex Russica, no. 3 (April 5, 2019): 124–33. http://dx.doi.org/10.17803/1729-5920.2019.148.3.124-133.
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The study of the institution of marriage in the foreign legal order makes it possible not only to see the identity and historical succession, but also to find out whether the provisions on marriage have common features that characterize it as the highest value, and how permissible foreign borrowing in the formation of its own legal system without prejudice to its uniqueness and individuality. The use of foreign experience reveals a lot of issues and conflicts that need to be resolved in relation to national law. An obligatory component is the study of the heritage of the past, the so-called legislative retrospective, which contributes to the knowledge of legal culture. For the first time in domestic science there is an attempt to periodize the institution of marriage in Spain, depending on the type of social regulator: customs, canonical rules, rules of law (own and borrowed). The periodization of the Spanish marriage law is presented and the main features of its formation are shown: the application of the customs of the peoples inhabiting the territory of Spain; the reception of Roman private law; the influence of Canon law; the appearance of foreign influence. The whole history of marriage law is divided into 5 periods: customary law (the first period), the rule of canon law (second period), systematic legislation on marriage (the third period), harmonization of secular marriage legislation with the provisions of canon law (the fourth period), contemporary law (fifth period). Separately, in the settlement of relations between the sexes, a pre-legal period is allocated. Of course, each period is characterized by a variety of rules of marriage law, which is explained by the evolution of social relations and the development of the legal institution of marriage. The consistent influence of universal values on the formation of legal provisions of marriage is shown. As the marriage law is formed, rules are formed that determine the conditions and order of its conclusion. The enduring value of the family organization of the way of life of people and the family form of management determines the preservation of this social institution throughout the period of human history, although in a constantly changing form.
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Alfin, Aidil, and Busyro Busyro. "NIKAH SIRI DALAM TINJAUAN HUKUM TEORITIS DAN SOSIOLOGI HUKUM ISLAM INDONESIA." Al-Manahij: Jurnal Kajian Hukum Islam 11, no. 1 (February 22, 2018): 60–78. http://dx.doi.org/10.24090/mnh.v11i1.1268.
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The differences of laws in marriage registration have generated argumentative conflicts among the ulama. Some of them agree and the others disagree. Ulama who agree say that proscribing secretly marriage (nikah siri) is in accordance to Islamic law. Even though the regulation about marriage registration has been written in The Indonesian Act No. 1 of 1974 on Marriage and in the Compilation of Islamic Law in Indonesian, the practice of secret marriage is still existed among Indonesian Muslim society. They base their practices on what some of local ShafiiyahUlema say all the time that this kind of marriage is in accordance to shari’ah. It is common to say that Shafi’ischool of law is the largest shari’ahschool of law in Indonesia. In the sociology of Islamic law, most of the scholars in Indonesia who adhere to the Shafi'i school and also most of the Indonesian Muslim community adhere to the same school, may have a significant influence on the constraints of reform of Islamic law related to the registration of marriages in particular and other matters about marriage in general contained in the Law No. 1 of 1974 and the Compilation of Islamic Law in Indonesia.
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Yakin, Ayang Utriza. "Hukum Pernikahan di Kesultanan Melaka Abad ke-15 dan ke-16 M." Ulumuna 19, no. 1 (June 29, 2015): 1–32. http://dx.doi.org/10.20414/ujis.v19i1.1248.
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This article examines legal aspects of Marriage law in the Sultanate of Malaka in the 15th and 16th centuries. It focuses on some legal aspects of Undang-undang Melaka (a text of laws of Melaka) represented by Liaw Yock Fang, regarding the issues of marriage such as wali (marriage guardian), ijāb-qabūl (consent of both parties), witness(es), t\alāq (repudiation), faskh (broken marriage contract), interfaith marriage and marrying slave. This study aims to know the source of the marriage laws of Undang-Undang Melaka (UUM). It shows that UUM was a collection of common law in Melaka and consisted of Islamic law. One aspect of Islamic laws was marriage law. In UUM, the legal aspect was based on fiqh of several schools (madhhab), particularly the al-Shāfi‘ī school derived from al-Iqnā’ written by al-Sharbini. This finding also refuses the previous research finding stating that it was derived from al-Taqrīb by Abū Shujā‘.
DOI: http://dx.doi.org/10.20414/ujis.v19i1.1248
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Saez, Macarena. "Same-Sex Marriage, Same-Sex Cohabitation, and Same-Sex Families around the World: Why Same Is So Different Book reviews/Comptes rendus/Buchbesprechungen." European Review of Private Law 19, Issue 5 (October 1, 2011): 631–68. http://dx.doi.org/10.54648/erpl2011046.
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Abstract: Forty years ago, same-sex couples were not legally accepted in any country. In the last thirty years, however, around 20% of countries have granted some rights to same-sex couples, making them visible to society. While there are still countries that criminalize sexual relations among two consenting adults of the same sex, other countries are allowing same-sex couples to marry and form a family. Countries that have decriminalized sexual relations between individuals of the same sex have shortly thereafter seen a rise in the public debate about formal recognition of same-sex couples. At the centre of this debate is the role of marriage. While some scholars claim that marriage is essentially heterosexual and the basis for societal structure, others consider the exclusion of same-sex couples from marriage to be unfair discrimination. Both positions are represented in the reports received for the XVIIIth Congress of the International Academy of Comparative Law. Section 1 of this article briefly explains the situation of same-sex couples in countries that have opened marriage to individuals of the same sex. Although there may be a common understanding of what marriage entails, in some countries, same-sex marriage has become a subcategory of marriage, with different rules than heterosexual marriage and restricted access to certain rights. Section 2 offers a summary and analysis of the status of same-sex unions in countries that sent reports to the XVIIIth Congress of the International Academy of Comparative Law and have not opened marriage to same-sex couples. Section 3 provides a comparative analysis of the most recurrent arguments used in the processes of recognition and denial of same-sex unions in the countries reviewed. Finally, section 4 draws some conclusions on the state of marriage today.
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Zeigler, Sara L. "Wifely Duties: Marriage, Labor, and the Common Law in Nineteenth-Century America." Social Science History 20, no. 1 (1996): 63. http://dx.doi.org/10.2307/1171504.
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Idrus, Nurul Ilmi. "Problematizing the Minimum Age of Marriage: The State and Local Perspective on Marriage Dispensation in South Sulawesi." Jurnal Humaniora 34, no. 2 (December 19, 2022): 159. http://dx.doi.org/10.22146/jh.73661.
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Child marriage occurs throughout the world, in developed countries and especially in developing countries, including Indonesia. This article examines how categorisation of age is problematised particularly in relation to marriage dispensation after the amendments of marriage law in 2019. Using a qualitative approach, this study was conducted in Maros Baru District, Maros Regency, South Sulawesi. Thirty-seven participants were interviewed and a total of 30 participants were involved in three focus group discussions. Findings demonstrate that there is a gap between legal categorisation of age and its local interpretation in the context of marriage practices. While the amendment of marriage law in 2019 aims to increase the minimum age of marriage, marriage dispensation still occurs. Marriage dispensation is usually given under the consideration of supported evidence in relation to the benefits (maslahat) as well as the harms (mudharat). However, when a request of marriage dispensation is rejected, marriage still occurs. As such, it is common for unregistered marriage (nikah siri) to be a “way out”.
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Herger, Csabáné. "A 17. századi protestáns természetjogászok családképe." DÍKÉ 6, no. 1 (December 28, 2022): 57–90. http://dx.doi.org/10.15170/dike.2022.06.01.05.
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The history of the development of the matrimonial law is a particularly useful tool for researching and comparing the biblical and Roman law roots of European legal culture. In Western Christianity, the (essential elements of) canonical marriage law had been unified by the second decade of the 13th century. However, the Protestant movements that developed in the first half of the 16th century and their denominational marriage law system led to further fragmentation, which has essentially continued to the present day, notwithstanding the fact that the rise of civil marriage and the secularisation of the law of dissolution in the 19th and 20th centuries meant that denominational marriage law no longer had any civil legal force. The most appropriate method for a historical comparison of Protestant ecclesiastical marriage law is to first consider the doctrines of the founders of the dominant movements on the institution of marriage, focusing on the differences that constituted a breaking point in relation to medieval canon law on marriage. In the Protestant regions of Europe, hundreds of secular (state, provincial and municipal) laws on the marriage law had already been enacted by the 16th century, and their common feature, in addition to the theological background mentioned above, was that they drew on biblical and Roman legal roots, while retaining elements of traditional customary law. In this overview, I will first introduce the Protestant understanding of the virtues of marriage through the example of Martin Luther and Jean Calvin, and then examine how the generation of natural law scholars who followed them, notably Hugo Grotius and John Selden, thought about the marriage bond on this basis.
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Hamdi, Isnadul. "PERLUASAN MAKNA HARTA BERSAMA PERSPEKTIF SOSIOLOGI HUKUM ISLAM." JURIS (Jurnal Ilmiah Syariah) 17, no. 1 (June 30, 2018): 63. http://dx.doi.org/10.31958/juris.v17i1.1012.
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This research is based on the problems in the distribution of common property. First, the emerging of differences in the system of distributing of common property in talak raj'i and talak ba'in. Second, the occurrence of expansion in terms of income during marriage such as the existence of insurance. Third, the existence of the agreement in marriage before the joint property is shared. The result of the research shows that in the sociology perspective of Islamic law the effort to share the common property: first, in the case of divorce because the situation is still in the iddah period of talak raj'i, property should not be divided because it minimizes the possibility of reunification. Unlike the case if talak ba'in, property should be devidedd soon because it certainly will not be reunited. Second, in response to the expansion of common property such as the existence of insurance money, all Indonesian Judge agreed that all property acquired during marriage is related to Taspen Insurance, Asabri Fund, Labor Insurance, Traffic Accident Fund, Passenger Accident Fund, Life Insurance Fund, Property of Luggage, Credit that has not paid off. Third, the agreement in marriage greatly affects the distribution of common property given the existence of Article 45, 52, and 97 Compilation of Islamic Law "divorced or divorced widow respectively entitled to two joint property as long as not specified in the marriage agreement.
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Hofri-Winogradow, Adam. "The Muslim-Majority Character of Israeli Constitutional Law." Middle East Law and Governance 2, no. 1 (2010): 43–80. http://dx.doi.org/10.1163/187633710x12628514527560.
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AbstractThis article offers a novel interpretation of Israel's constitutional discourse. It is well-known that despite its Jewish majority, Israel orders marriage and divorce in a manner similar to that prevalent in most Muslim-majority countries: by granting the traditional religious community courts of the various religious groups which make up its population exclusive jurisdiction over community members' matters of marriage and divorce. What is less well known is that Israel's constitutional discourse, too, fits a pattern common in Muslim-majority jurisdictions, in espousing a double commitment to both a religion—in Israel's case, Judaism—and human rights. The Israeli Supreme Court has for decades emphasized Israeli constitutional law's commitment to liberalism and human rights while de-emphasizing its commitment to religion. Consistently with this approach, the Court has considered Israel's marriage regime an anachronistic blot on the law, and has constructed an alternative, civil marriage regime to serve the needs of Israel's secular liberals, whose views the Court often echos. I argue that the Court should strive to render its liberal policy choices more palatable for Israel's conservatives, by presenting them as the results of a harmonization of the religious and human rights pillars of Israel's constitutional discourse, investing in a close analysis of religious texts directed at legitimating those choices, where possible, in religious terms. A recent Israeli case hints in this direction. I conclude by suggesting that Israel's Muslim-majority type marriage regime, updated to include a civil marriage alternative, could be seen as a reflection of its complex constitutional order.
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Margalit, Yehezkel. "TEMPORARY MARRIAGE: A COMPARISON OF THE JEWISH AND ISLAMIC CONCEPTIONS." Journal of Law and Religion 33, no. 1 (April 2018): 89–107. http://dx.doi.org/10.1017/jlr.2018.12.
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AbstractThe Jewish marriage differs from the Catholic Christian marriage, which is an institution surrounded by the halo of a holy sacrament that cannot be nullified. It also differs from the Islamic marriage, which is closer to a legal agreement than to a sacrament, wherein the husband alone may annul the marriage, either unilaterally or by mutual consent. This is especially true of the Shi'ite marriage—themuta—which may be annulled without any divorce proceedings at a predetermined date. In this article, I present a little-known possible halakhic stipulation: temporary marriage. I consider its roots and the different applications in Talmudic sources. An example of the Babylonian application of this conditional marriage is the cry by important Babylonianamoraim, “Who will be mine for a day?” In this unique case, some of the halakhic authorities rule that there is no necessity for agetin order to terminate the marriage. I consider the early halakhic rulings on these cases and the modern version of this stipulation, which was also rejected by modern halakhic authorities. I also offer a comparative study of a possible parallel to the marriage for a predetermined period, the Shi'ite temporary marriage, which is intentionally restricted to an agreed period of time and does not require divorce to annul it. I conclude my discussion by revealing the possible common roots for the Jewish temporary marriage and the Shi'ite temporary marriage in ancient Persian law.
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Kiggundu, John. "University Education and Intellectual Property in the Digital Era." International Journal of Innovation in the Digital Economy 1, no. 4 (October 2010): 19–26. http://dx.doi.org/10.4018/jide.2010100102.
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The national level of Intellectual Property Law covers national legislation and policy as well as common law, while at the international level it covers international treaties and conventions to which Botswana is a signatory. The Mission of the University of Botswana is to advance the intellectual and human resource capacity of the nation and the international community. In this regard, the goal of this paper is that the University plays a central role in the development of intellectual property law and policy and in the protection of intellectual property at the University and the nation at large. The University must articulate its position on intellectual property issues so as to influence national policy and legislation as well as international developments in intellectual property in the digital era. The area that greatly affects the University of Botswana in its core business is copyright. Accordingly, this paper focuses mainly on issues arising in copyright especially in the digital era and how they affect the University’s core business. The paper covers the duration of copyright, licensing agreements, the cost of digital information, the preservation of digital information, distance learning, the protection of indigenous knowledge systems, and the development of intellectual property education.
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Busyro, Busyro. "Menyoal Hukum Nikah Misyār dalam Potensinya Mewujudkan Maqāṣid Al-Aṣliyyah dan Al-Tab’iyyah dalam Perkawinan Umat Islam." Al-Manahij: Jurnal Kajian Hukum Islam 11, no. 2 (December 1, 2017): 215–32. http://dx.doi.org/10.24090/mnh.v11i2.1297.
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The main purpose of marriage is having progeny besides for having happy and restful life. It is common saying that every people that get married are having kids besides other purposes in their lives. Unlike the purpose of common marriage, the main purpose of nikah misya>ris not for having kids. Yet, nikah misya>r is the marriage that aims only to have life together legally and to get sexual pleasure. This kind of marriage is done like common marriage in Islamic law that still fulfils the requirements and the principles of marriage. Some of Ulamas see that nikah misya>r is allowed to do. They argue that the purpose of marriage is not only for having descendant, but also for enjoyment and happiness. Ignoring to have kids in marriage aim actually is not a digression of Islamic rules. Otherwise, some of Ulama strongly forbid this kind of marriage because it does not actualize the interest of marriage that is to have posterity. However, in maqa>ṣid al-aṣliyyah (primary purpose of syari’ah) and maqa>ṣid al-tab’iyyah (secondary purpose of syari’ah) view, nikah misya>r should be banned because it clearly infringes the will of The Lawmaker, al-Syâri’ (Allah).
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Neng Widya Millyuner, Adi Nur Rohman, and Elfirda Ade Putri. "Interpretation of The Phrase “Coercion” in The Compilation of Islamic Law as Reasons for Cancellation of Marriage." KRTHA BHAYANGKARA 15, no. 2 (December 9, 2021): 271–88. http://dx.doi.org/10.31599/krtha.v15i2.844.
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Marriage is a common thing in society with ubudiyyah elements in it. However, legal issues often accompany the sanctity of the marriage bond itself, such as the cancellation of a marriage due to an element of coercion from a third party. Article 71 Compilation of Islamic Law (KHI) states that one of the reasons for being able to apply for a marriage cancellation is because of coercion when the marriage took place. The purpose of this study is to analyze the meaning of the phrase "coercion" as a reason for annulment of marriage and its accompanying legal implications. This type of research is classified as normative-empirical legal research using a statutory approach and a conceptual approach plus a sociological approach as a tool. This research refers to a variety of primary, secondary and tertiary legal materials compiled and traced through literature studies and interviews with judges of the Religious Courts. The legal materials that have been collected are then analyzed descriptively and analytically. The results showed that what is meant by coercion in marriage is a marriage that occurs not because of one's own will or feels that he is under threat. As a form of legal consequence, annulment of a marriage by force is different from divorce, where the marriage bond that occurred before the breakup of the marriage is considered never to have occurred.
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Rapoport, Yossef. "Matrimonial Gifts In Early Islamic Egypt." Islamic Law and Society 7, no. 1 (2000): 1–36. http://dx.doi.org/10.1163/156851900507553.
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AbstractThe mahr or sadāq is the only marriage gift required under Islamic law. But Islamic law did not necessarily determine actual marriage settlements, even in early Muslim societies. In this essay, I compare the early Islamic legal literature with the pattern of matrimonial gifts recorded in marriage contracts and divorce deeds preserved from early Islamic Egypt. In marriage settlements recorded in the papyri, the groom gave a sadāq that was divided into advance and deferred portions, and brides brought to the marriage a counterpart dowry (jihāz or shiwār). These marriage settlements, which were common to Muslims, Copts and Jews, resembled the Egyptian marriage settlements of late antiquity. The Islamic legal literature preserves the objections of contemporary jurists, including Mālik, to these Egyptian practices, which they initially regarded as an objectionable innovation. Eventually, the local traditions were incorporated, albeit with modifications, into the legal discourse.
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Opromolla, Adriana. "Law, Gender and Religious Belief in Europe: Considerations from a Catholic Perspective." Ecclesiastical Law Journal 9, no. 2 (April 11, 2007): 161–74. http://dx.doi.org/10.1017/s0956618x07000324.
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In the teaching of the Catholic Church, the institution of marriage derives directly from God, for common good and for the good of spouses and children. Human authorities are called upon not to transform its characteristics and to avoid any attempts to distort them. However, the Church is today confronted with a changing understanding of the notion of ‘gender’ and with new considerations about the meaning of ‘marriage’ on behalf of parts of society and of political institutions. Based on an overview of the recent legislative and political proposals concerning family issues at the European level, this article aims to assess what model of family the Member States of the European Union are developing, and how the traditional concept of marriage could be influenced by this evolution.
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Seeliger, Sylvia. "Hampshire Women as Landholders: Common Law Mediated by Manorial Custom." Rural History 7, no. 1 (April 1996): 1–14. http://dx.doi.org/10.1017/s0956793300000935.
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The traditional idea of a landowner is inextricably bound up with concepts of maleness. The most frequently used word for a landowner is simply ‘landlord’, with the corresponding feminine form ‘landlady’ carrying quite different connotations. The law with regard to inheritance and marriage lends weight to this interpretation, since common law, until the mid-nineteenth century, decreed that married women could not own property or make contracts as individuals, in theory leaving only spinsters and widows as potential landowners. Yet scrutiny of manorial, enclosure, tithe and land tax documentation reveals that women commonly held land either as owners or occupiers.
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Naixin, Naixin. "REVISITING THE LEGAL NATURE AND CONTENT OF A MARRIAGE CONTRACT IN THE MODERN LAW OF THE PRC." Humanities & Social Sciences Reviews 7, no. 5 (November 2, 2019): 1003–6. http://dx.doi.org/10.18510/hssr.2019.75133.
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Purpose of the study: This paper deals with problematic issues related to the legal nature of a marriage contract. It also determines the contents of a marriage contract, which is regulated mainly by Article 19 of the PRC Law "On Marriage" of 2001 and the basic principles of civil law inherent in contract law in general.
Methodology: A common example is the cases when spouses agreed to transfer immovable property from one spouse to another after marriage, but in practice, the spouses did not register changes on the status of the immovable property. In the event of a divorce, one of the spouses requires to recognize the ownership of the real estate and register the changes, while the other spouse disputes that point.
Results: In recent years, marriage contracts have become increasingly popular in China, but special regulations on them in China's Marriage and Family Law are still unavailable. There are a lot of disputes and issues in practice relating to the definition of a marriage contract. In this regard, the question of the legal nature and content of a marriage contract is the subject of debatable research in Chinese legal doctrine.
Applications of this study: This research can be used for the universities, teachers, and students.
Novelty/Originality of this study: In this research, the model of Revisiting the legal nature and content of a marriage contract in the modern law of the PRC is presented in a comprehensive and complete manner.
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BENNETT, BRUCE S. "Banister v. Thompson and Afterwards : The Church of England and the Deceased Wife's Sister's Marriage Act." Journal of Ecclesiastical History 49, no. 4 (October 1998): 668–82. http://dx.doi.org/10.1017/s0022046997005629.
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The medieval canon law of affinity as an impediment to marriage combined a large range of prohibited degrees with a wide power of dispensation. After the Reformation, however, English law, in line with mainstream Protestant opinion, prohibited marriages within the degrees mentioned in Leviticus, with no provision for dispensation. The prohibited degrees were set out in ‘Archbishop Parker's Table’ in the Prayer Book, beginning with the memorable declaration that ‘A man may not marry his grandmother’. In the nineteenth century, however, some of these restrictions came to be challenged. The classic case was that of marriage with a deceased wife's sister, and it was under this title that successive bills were introduced to alter the law.Until 1857 the law of marriage was administered by the ecclesiastical courts, according to the canon law. However, the civil courts modified and controlled this canon law by means of the writ of prohibition: canon law was now subordinate to common law, and where the two conflicted the civil courts would over-rule the ecclesiastical courts. Marriage with a deceased wife's sister was illegal, and, as with other impediments to marriage, a case could be brought in the ecclesiastical courts to have such a marriage declared void. A case on these grounds could only be brought during the lifetime of both spouses. Nevertheless, the marriage had theoretically been void ab initio, and even after one spouse had died the survivor could still be proceeded against for incest.
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Essop Sheik, Nafisa. "Customs in Common: Marriage, Law and the Making of Difference in Colonial Natal." Gender & History 29, no. 3 (October 14, 2017): 589–604. http://dx.doi.org/10.1111/1468-0424.12321.
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Mogomotsi, Goemeone E. J., and Patricia K. Mogomotsi. "The applicability of riparian rights doctrine in Botswana: the judicial refusal to depart from the common law principles?" Commonwealth Law Bulletin 44, no. 4 (October 2, 2018): 625–36. http://dx.doi.org/10.1080/03050718.2019.1662320.
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Ng'ong'ola, Clement. "Land Problems in Some Peri-Urban Villages in Botswana and Problems of Conception, Description and Transformation of “Tribal” Land Tenure." Journal of African Law 36, no. 2 (1992): 140–67. http://dx.doi.org/10.1017/s0021855300009864.
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In Botswana, as in several other African countries with a similar historical experience, a dual or plural land tenure system was carried over from the colonial era. The bulk of the land falls within the category of “tribal land”. It is predominantly held and occupied by indigenous peoples under customary notions of land tenure. The State also holds as “State land” a fairly significant proportion which fell under the category of “Crown lands” during the colonial era. A tiny proportion now falls within the category of “freehold land”. This is predominantly held and occupied in conformity with common law notions and conceptions imported into the country with colonial rule. To some extent both State land and freehold land are held under or governed by “received law”, in contradistinction to tribal land which is largely held under customary law.In 1968, barely two years after independence, the Botswana parliament enacted legislation which attempted to reform customary land tenure by replacing existing customary or tribal institutions of land control and administration with statutory land boards. These started operating in 1970, and it soon became apparent from early assessments that even this limited and cautious programme of reform would not escape some of the problems associated with land transformation exercises elsewhere in Africa.
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Winarno, Winarno. "PEMBAGIAN HARTA BERSAMA DALAM PERKAWINAN MENURUT UNDANG-UNDANG NOMOR 1 TAHUN 1974 DAN HUKUM ISLAM." ASY SYAR'IYYAH: JURNAL ILMU SYARI'AH DAN PERBANKAN ISLAM 5, no. 1 (September 30, 2020): 84–103. http://dx.doi.org/10.32923/asy.v5i1.1231.
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Marriage is one of the religious commands that must be done by people who already have the physical and mental abilities to carry it out. In the law state of Indonesia, marriages are regulated by the state regarding the terms and conditions for someone who is going to get married, and both rules are directed at men and women. These rules are contained in Law Number 1 of 1974 and Islamic Law. Therefore, if the marriage does not meet the terms and conditions set, the marriage cannot be carried out.
Since marriage is a union between a man and a woman, there will be cooperation, both cooperation in fostering households to achieve harmony and in finding property for survival. Each property obtained by a married couple will become a common property even though in terms of quantity, the one earned by each husband and wife can be different, even the one who earns money is only one of them. However, the marriage between the two makes the property belong together. Although in terms of civil and Islamic law, there are no strict rules regarding shared assets, but because the assets are obtained after marriage, they become shared property. Therefore, if a divorce in the future occurs or one dies, the assets must be divided in half. The rules for the distribution of shared assets do not actually violate the general provisions contained in either positive law or Islamic law.
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Mardiyah, Mardiyah, and Azhari Yahya. "KEWENANGAN KEJAKSAAN DALAM MENGAJUKAN PERMOHONAN PEMBATALAN PERKAWINAN (Suatu Penelitian di Kabupaten Aceh Besar)." LEGITIMASI: Jurnal Hukum Pidana dan Politik Hukum 7, no. 1 (December 4, 2018): 108. http://dx.doi.org/10.22373/legitimasi.v7i1.3967.
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This research aims to know the authority of the public prosecutor in applying the cancellation of marriage application at Mahkamah Syar’iyah Jantho. Article 22 of the Act Number 1, 1974 on Marriage states that a marriage bond might be cancelled if it failed to fulfill the requirement. However, in the practice at the Mahkamah Syariyah Jantho, the prosecutor has never been conducted such authority. This research aims to explore the reasons of the Public Prosecution Office has never been applying for the invalid marriage and legal consequence for the prosecution office when it fails to conduct its duties. This is field research, by using a juridical empirical approach. The research findings are the public prosecution office might apply for r the marriage cancellation towards marriage as ruled in Article 23 point c of the Marriage Act due to reasons for the Prosecution Office that has never been applying is due to the reason that there is no special explanation regarding the matter and there is different perception. The Prosecution Office or the prosecutor but it has implication over the ignorance of not applying the cancellation of marriage. Thus in terms of keeping the law is working, and preventing the offense committed in the future and there is legal certainty amongst people there should be a common goal and aims in imposing law by law enforcers in responding the authority and the position of the public prosecution office in applying the application of marriage cancellation.
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Vaquer, Antoni. "Wills, Divorce and the Fate of the Dispositions in Favour of the Spouse: A Common Trend in European Laws of Succession." European Review of Private Law 11, Issue 6/6 (December 1, 2003): 782–90. http://dx.doi.org/10.54648/erpl2003050.
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Abstract: Some European laws of succession have a provision dealing with the effects of judicial separation, divorce and annulment of marriage on wills. This article compares those provisions and stresses a common trend alien to any intervention of a supranational legislator. Even though the approaches in each system of law are not the same, all of them establish the ineffectiveness of any disposition in favour of the spouse made in the will. Another possible common principle of the law of succession in Europe is thus outlined.
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Chirwa, Danwood Mzikenge. "Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles." Journal of African Law 55, no. 1 (March 3, 2011): 105–27. http://dx.doi.org/10.1017/s0021855311000052.
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AbstractThe 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.
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Widanarti, Herni, and Kornelius Benuf. "Development of Rules Concerning Indonesian Marriage Agreements." Politik Indonesia: Indonesian Political Science Review 7, no. 2 (September 8, 2022): 179–93. http://dx.doi.org/10.15294/ipsr.v7i2.34640.
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This study aims to examine the legal consequences caused by the marriage bond between a man and a woman, namely for the sake of law there is a mixture of assets between the two. This mixing of treasures led to the emergence of common property. However, there are exceptions to this mixture of assets, namely assets obtained before marriage, assets obtained based on gifts and assets obtained based on inheritance. So even though the mixing of assets occurs by law, it does not mean that this situation cannot be avoided. The existence of a marriage agreement that explicitly separates the assets of husband and wife in marriage. By entering into a Marriage Agreement, the two prospective husband and wife are entitled to prepare some deviations from the laws and regulations regarding the association of assets, as long as the agreement does not violate good morals or general rules and as long as all provisions are respected. This article will analyze and discuss the development of regulations regarding Marriage Agreements in Indonesia.
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Krešić, Boris. "SAME SEX UNIONS OF LIFE IN THE PRACTICE OF THE EUROPEAN COURT OF JUSTICE." Journal Human Research in Rehabilitation 4, no. 1 (January 2014): 6–12. http://dx.doi.org/10.21554/hrr.011402.
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In several cases the the European Court of Justice (ECJ) interpreted the provisions of the Agreement on the European Community in terms of homosexual rights. The practice of the ECJ in the last five years (2008-2013) shows the tendency to expand the rights of homosexual persons. The paper brings the analysis of four decision of the ECJ in the cases where it decided on the issue of discrimination on grounds of sexual orientation. In the first two verdicts, the Court refused to compare marriage and common-law marriage to the same-sex union of life, thus limiting same-sex partners to achieve certain rights. In other two cases the Court made step forward and compared marriage and same-sex union of life but only if both, marriage and same-sex union of life are regulated by national law.
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Miqat, Nurul, and Farida Patittingi. "THE RIGHTS OF LAND IN MARRIAGE AGREEMENT OF MISCENEGATION BY SUBSQUENT THE CONSTITUTIONAL COURT DECISION NUMBER 69 / PUU-XIII 2015 BASED ON THE CUSTOMARY LAW PERSPECTIVE." Yustisia Jurnal Hukum 7, no. 1 (April 30, 2018): 94. http://dx.doi.org/10.20961/yustisia.v0i0.17532.
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<p>The definition of marriage is provided in Article 1 that: "Marriage is a mental bond between a man and a woman as husband and wife with the aim of forming a happy, eternal, (family) family based on the One Supreme God." The meaning of marriage under the law, Law Number 1 Of 1974 is a marriage has a very close relationship with religion, spirituality, so that marriage not only has the element of birth / body, but the element of spirit / rokhani also has a very important role. The legal consequence of a marriage is the position of a woman who becomes a wife and a man becomes a husband, hence the rights and obligations assumed by both after the legal act of marriage. For those who marry most do not think about the effects of marriage, on their wealth, some of them only think that the consequences of marriage are only the union of two families, and the continuity of their marriage in order to be eternal and happy. Marital Laws Article 35 to Article 37 regulate about the field of marriage property for husbands and wives, Affirmation of Article 35 states that marriage property becomes a common property. While the property of each luggage as a gift or inheritance, is under the control of each. Unless otherwise specified in order to serve as joint property, for this other determination the husband and wife are allowed to make "marriage agreement", this marriage agreement contains about marriage property. Likewise to the perpetrators of miscenegations. Indonesian citizens who marry foreign citizens, not knowing that there are legal consequences of such miscenegations, there is a right to be lost as a result of miscenegation. The rights in question relate to the marriage agreement, which if the perpetrator of a miscenegation does not enter into a marriage agreement will impact on land rights , and it is also known under costumary law.</p>
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Fathurrahman, Sholahuddin, and Ali Wasiin. "ANALISIS YURIDIS PERTIMBANGAN MAJLIS HAKIM TERHADAP ALAT BUKTI DALAM KASUS PEMBAGIAN HARTA BERSAMA /GONO GINI (Analisis Putusan Pengadilan Tinggi Agama Surabaya Nomor 308/Pdt.G/2017/PTA.Sby)." MIZAN, Jurnal Ilmu Hukum 7, no. 2 (April 24, 2019): 8. http://dx.doi.org/10.32503/mizan.v7i2.457.
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Division of joint property due to this divorce the authors want to review further that is by doing research on the Implementation of Sharing of Joint Property in Practice in High Religious Court Surabaya No. 308 / Pdt.G / 2017 / PTA.Sby The plaintiff/Appel made a legal effort ( Appeals) after the plaintiff/complaint lawsuit in the Religious Court of Nganjuk with the case number,1339/Pdt.G/2016/PA Ngj dated 5 April 2017 the rejectThe formulation of the problem in this thesis is: (1) What is the judge judge's consideration in the distribution of common property in the High Court of Religion Surabaya Number 308 / Pdt.G / 2017 / PTA.Sby? (2) How is the execution / execution of the sharing of common property in the High Court of Religion Surabaya in case No. 308 / Pdt.G / 2017 / PTA.Sby?The type of this research is Empirical law research which depart from the study of the validity of the Law is a legal research that examines the comparison between the Law Reality with Ideal Law.The results of this study are: (1) The distribution of joint property in the High Court of Religion Surabaya Number 308 / Pdt.G / 2017 / PTA.Sby conducted on the basis of Law Number 1 Year 1974 on Marriage and Compilation of Islamic Law, the assets acquired whether the husband or wife is a joint right so long as no other is specified in the marriage agreement and if the marriage is terminated, each is entitled 1/2 (half) of the property, because during the marriage there is a common property, the Judge here gives a decision on the magnitude part of each. The court shall determine the division of such joint property ½ (half) to the plaintiff and 1/2 (half) of the part for the defendant. (2) Implementation of the execution of the sharing of common property in the High Religious Court of Surabaya The case number 308 / Pdt.G / 2017 / PTA.Sby is voluntary by the parties because they are less concerned about the decision of the Nganjuk Religious court, because their main purpose (the plaintiff and defendant) is divorced