JRSSEM 2022, Vol. 01, No. 9, 1354 – 1362

E-ISSN: 2807 - 6311, P-ISSN: 2807 - 6494

DOI : 10.36418/jrssem.v1i9.140 https://jrssem.publikasiindonesia.id/index.php/jrssem/index

THE POSITION OF CONTRACT MARRIAGE LAW (NIKAH

MUT`AH) IN INDONESIA: A COMPARATIVE STUDY

Teuku Yudi Afrizal*

Malikussaleh University

sinful for those who do it. In the aspect of national law, contract marriage is considered a legal

defect because it is contrary to Article 2 paragraph (1) of Law Number 1 of 1974 on Marriage,

Article 1337 and Article 1332 of the Civil Law, the principle of marriage and the purpose of marriage.

Based on these provisions, a legal marriage is conducted in accordance with the teachings of

religion and beliefs and is not contrary to the values of morality. Marriages that are registered or

registered in accordance with applicable laws and regulations will receive protection from the State.

The practice of contract marriage actually positions the position of women is very weak in the eyes

of the law because the marriage is considered never happened, so the wife is not considered a

legitimate wife, the wife is not entitled to alimony and inheritance from the husband if he dies and

the wife is not entitled to gono gini property if it occurs. separation, because legally the marriage,

DOI : 10.36418/jrssem.v1i9.140 https://jrssem.publikasiindonesia.id/index.php/jrssem/index

Performing marriage or marriage is a

form of carrying out the sunnah of the

Prophet Muhammad SAW and at the same

time carrying out religious orders. The

existence of a religious command to marry

aims to maintain the honor of the human

race and protect the human race from the

heinous act of adultery. According to the

Compilation of Islamic Law (KHI), marriage

pillars and ways that are allowed in Islam.

God created man like any other creation,

did not allow his instincts to do as he

pleased, or allowed the relationship

between men and women to be chaotic.

However, Allah SWT puts the signs and

rules as has been described in various

hasdis of the Prophet Muhammad SAW

(Bastomi, 2016). the purpose of the

arrangement is not to hinder or hinder the

be limited and diminished. In the Qur`an,

Allah SWT explicitly states in his words that

"Glory be to God who has created everything

decree for all His creatures. So, marriage is

not just about channeling sexual desire

contains various rules on how to carry out

marriage, rights and obligations of

husband and wife and children, divorce,

heirs and other rules.

However, a common phenomenon

today is that marriages are based on a

contract or agreement with the agreement

that the bride's clause will be paid a certain

amount, the duration of the marriage is

limited and a better future guarantee. Such

the Middle East. But in fact, not only foreign

tourists who perform contract marriages,

but also many local tourists who come to

West Java, especially in the peak area,

Bogor (Suhartanto, Dean, Nansuri, &

Triyuni, 2018). The term contract marriage

which is rampant in the Puncak Region is

used to refer to marriages performed with

tourists, both foreign and local, which are

limited to a certain time without any

women's position is very weak and men can

go and disappear just like that. If

something happens to the detriment of the

woman during the contact marriage, what

is the legal protection? This article will

attempt to analyze contact marriage and

legal protection for women.

This type of research is legalistic,

doctrinal or normative. According to Rowe,

normative research aims to discover,

explain, study, analyze and present

systematically certain facts, principles,

concepts, theories, laws so as to find new

science and ideas to be suggested into a

change or renewal (Candlin, Bhatia, &

Jensen, 2002). In this study will examine all

inquiry or investigation of the factual data

and or theoretical concepts of the rules and

principles of a particular legal issue in an

attempt to discover, revise or improve the

relevant concepts, theories , principles and

application” (de Oliveira Rodrigues, de

Freitas, Barreiros, de Azevedo, & de

Almeida Filho, 2019). Normative research

means conducting a new, thorough,

systematic study, investigation of facts,

between one law contradictory and the

presence of ambiguity or ambiguity in a

law.

The approach used in legalistic research

can be astatute approach,historical

approach, case analysis approach and

comparative approach (Diantha, 2017).

However, this study only uses a legal or

marriage law nationally in order to analyze

the laws related to the regulation of contact

marriage and legal protection for women in

Indonesia.

Harjono said that "the word marriage is the

same as the word nikah or zawaj in fiqh

terms" (Boedi & Hasan, 2011). According to

the terminology of jurisprudence, marriage

means a contract (agreement) that contains

the ability to have sexual intercourse by

using the word nikah or tazwij (Nair, 2011).

In Article 1 of Law Number 1 of 1974 on

Marriage, it is concluded that marriage is a

bond born of batun between a man and a

command and perform it is an act of

worship. In the compilation of Islamic law,

it is emphasized that the purpose of

marriage is to realize a loving family life,

mawaddah and rahmah "

Based on the law that the marriage is

not temporary but forever whose ultimate

goal is to form a family of sakinah,

mawaddah and rahmah. Marriage is eternal

meaning that the marriage is not limited in

and eternal family (household), while the

concept of contract marriage is only to get

pleasure that is temporary or in accordance

with the time period that has been agreed

by the parties (husband and wife).

Contract marriage in Islamic law is

known as mut`ah marriage. Mut'ah is

linguistically taken from the Arabic Al-

Tamattu 'meaning to have fun, but in

terminology nikah mut`ah is a marriage

that the origin of the word mut'ah (Arabic)

is something that is enjoyed or given to be

enjoyed (Al-Hamidy, 2008). Similarly, the

verbs tamatta'a and istamta'a come from

the same root word, which is to enjoy or

enjoy something. with a gift to him in the

form of property, food, clothing or

anything else. If the time has passed, then

by itself they part without the word thalaq

and without inheritance (Lubis & Mas,

2020).

marriage (contract), which is married for

one day, one week, six weeks, one year, or

as many as according to the agreement. All

four schools of thought agree that mut'ah

marriage is illegal. If the marriage contract

is mentioned for a period of time, the

contract becomes void and invalid. A

married relationship becomes an

adulterous relationship (Fincham & May,

2017).

Syafi`iyah, and Hanabilah scholars agree

Meanwhile, Hanafi scholars require the

word mut`ah in mut`ah marriage, such as "I

married mut`ah with you". The essence of

mut`ah marriage is to associate the

marriage contract with a specific time

(Abdullah & Awang, 2021). Such time

restrictions are considered contrary to the

purpose of marriage, which is to form a

happy and eternal family.

When viewed from the aspect of Islamic

Prophet Muhammad SAW said “O people,

indeed I have previously allowed you to

mut'ah with women. Now Allah has

forbidden it until the Day of Judgment. So,

whoever has a wife from mut'ah, then let

him divorce and do not take something

that you have given him. "

The companions of the Prophet who

fought wanted to castrate his genitals in

order to avoid adultery. However, the

Prophet forbade such actions until the

marry women with dowry for a while (Al-

Asqalani, 2010). According to Nawawi in his

words that his prohibition and his ability

occurred twice, his ability was before the

khaibar war then he banned in the khaibar

war then allowed again in the year of the

conquest of Makkah (year of Authas), after

that Nikah Muth'ah was banned forever, so

that the rukhshah was erased for -lamanya

(Ridwan, 2014).

their private parts, Except against their

Whoever seeks that which is behind it, then

they are the ones who transgress. ”(QS al

Maarij: 29-31). From this verse, it is known

that the reason for legalizing sexual

intercourse is only through two ways,

namely valid marriage and slavery. Abd

Shomad is of the view that a mut'ah woman

is neither a wife nor a slave. Thus, it is very

clear that sexual intercourse is only allowed

with a wife or slave, while the wife of a

marriage;

rights in his relationship with having

four wives are reduced, while this is not

the case with mut'ah;

considered to be a muhsin because a

woman taken by mut'ah does not

function as a wife, because the mut'ah

does not make the woman a wife and

not a slave, so the person who performs

mut'ah marriage has been removed with a

verse that describes the care of farji, talaq,

iddah, and also the existence of ijma '.

Therefore, mut'ah marriage is included in

the category of prohibited marriage. In

contrast to the Shiite group, they consider

that not a single verse or hadith removes

the ability of mut'ah marriage, even

according to them the verse about mut'ah

is a muhkamat verse. However, if we study

of the Prophet Muhammad SAW

in an emergency only. But this ability has

been confirmed by some hadiths above.

Therefore, it is very clear that the law of

mut'ah marriage is haram and will be sinful

for those who do it.

Indonesia is one of the countries that

upholds women's rights both legally,

the political aspect, the quota of women

who enter parliament reaches 30 percent

so it is expected that women can defend

their people from all forms of violence,

both physical and psychological violence.

In terms of law, Indonesia

adheres Equalitythelaw principle. Law

enforcement does not discriminate

between the sexes but all people are equal

and there is no special treatment for certain

genders.

accountable both at the time of the

marriage, during the marriage and the end

of the marriage period. Therefore, Law No.

1 of 1974 on Marriage and the Compilation

of Islamic Law not only regulates the pillars

and conditions but also regulates the rights

and obligations and legal consequences

that arise after the marriage relationship. In

addition, when there is an act of domestic

violence during marriage then there are

women such as Law No. 1Year 1946 on the

Violence.

Marriage that is legal according to

religion and the law of the State and is not

registered or registered in accordance with

applicable laws and regulations. Therefore,

the state can protect women from all legal

consequences arising after the occurrence

of marriage. This is because the law

enforcement has the authority to force the

parties to perform the marriage in

anything from the marriage.

Contract marriage is considered a legal

defect because it is contrary to Article 2

paragraph (1) of Law Number 1 of 1974 on

Marriage. Article 2 paragraph (1)

determines that a marriage is valid if it is

performed in accordance with the law of

each religion and belief. In the aspect of

Islamic law it has been explained above that

the majority of scholars are of the view that

contract marriage is prohibited and anyone

Islam adopted by both spouses to perform

a contract marriage then by itself the

marriage is not valid.

Looking at the practice of contract

marriage that occurs, it is clear that the

objective elements of an agreement are not

met. Something that can be agreed

objectively is in the form of goods in

accordance with Article 1332 of the Book of

Civil Law and Law Number 1 of 1974 on

that the agreement cannot be ratified if it

mentioned in Article 1337 of the Code of

Civil Law which stipulates that a cause is

prohibited if it is prohibited by law or

contrary to good morality and public order.

Article 1335 of the Civil Code states that an

agreement without cause, or that has been

made for a false or prohibited reason, has

no legal force. Contract marriage that is

practiced today is not based on love,

honesty, sincerity of volunteerism, but the

marriage as one form of sacred promise

between a man and a woman is covered by

several principles of marriage, one of which

is the basis of marriage for ever. This

principle emphasizes that marriage is

performed to perpetuate offspring and

build love and affection for a lifetime. This

principle is contrary to the concept of

contract marriage which is carried out

within a certain period of time which has

been previously agreed upon with a certain

marriage that took place so that legally, the

legal consequences of not recording the

marriage are :

a. Marriage is considered invalid;

b. The child has only a Civil relationship

with his mother;

c. Children and mothers are not entitled

to alimony and inheritance;

certificate;

In addition, a contract wife will not get

her rights as a wife, where those rights

legally include:

wife;

inheritance from the husband if he

dies;

is very detrimental to the woman. This is in

you who think. " (QS Ar-Rum (30): 21).

is based on State law, so all the

consequences that arise after the marriage

can be held accountable both at the time of

the marriage, during the marriage and the

end of the marriage period. Therefore, Law

No. 1 of 1974 on Marriage and the

Compilation of Islamic Law not only

regulates the pillars and conditions but also

regulates the rights and obligations and

legal consequences that arise after the

Elimination of Domestic Violence.

Marriage that is legal in religion and

State law and registered or recorded in

accordance with applicable laws and

regulations, the State can protect the legal

consequences arising after the marriage

because the law has the authority to force

the parties to perform the marriage in

accordance with existing laws. The practice

of contract marriage actually positions the

not entitled to gono gini property if it

occurs. separation, because legally the

marriage, the contractual marriage is

considered to have never occurred.

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