Implementing Child Protection in Marriage Dispensation Rulings: A Case Study at the Mahkamah Syar’iyah Takengon

Abstrak

The Law Number 1 of 1974 concerning Marriage states that the age of marriage for men is 19 (nineteen) years and for women is 16 (sixteen) years. Furthermore, Law Number 16 of 2019 concerning Marriage which has been revised states that the age of marriage for men and women is 19 (nineteen) years. This provision is based on the child protection law, which states that children are those who are not yet 18 years old. Then, under another rule, the judge has the authority to give dispensation to children who are about to get married. In practice in society, child marriage often occurs, this is shown by the high number of child marriages in Central Aceh Regency that were given dispensation by the Takengon Syar'iyah Court. Despite the Takengon Syar'iyah Court's intended role in reducing child marriage rates, the judge's decision resulted in dispensation for many child marriage couples. The author is interested in examining the implementation of Law Number 16 of 2019 regarding requests for marriage dispensation at the Takengon Syar'iyah Court, and the judge's considerations in determining marriage dispensations at the Takengon Syar'iyah Court. This type of research is empirical juridical, which understands law with concepts as real behavior by observing social dynamics. The research results show that the implementation of Law Number 16 of 2019 concerning marriage age limits for applications for marriage dispensation, especially at the Takengon Syar'iyah Court, is still less effective in terms of its firmness and legal certainty. The judge's consideration in determining a marriage dispensation is to consider that the harm that arises as a result of rejecting the request for dispensation is greater than the harm that occurs as a result of underage marriage itself. Meanwhile, consideration of religious norms usually refers to the concept of maslahah.