REKONSTRUKSI KONSEP KEADILAN HAKIM DALAM MENYELESAIKAN SENGKETA HARTA KEKAYAAN PERKAWINAN BERBASIS KEMAJEMUKAN HUKUM

Abstract

The background of the study is based on pluralism in the legal marital property against legal centralism by publishing of the Act No. 1 of 1974 on Marriage (UUP) containing unification spirit in it. It causes, in court practice, inconsistency in rule application bringing the effect on the justice concept of judge decision. The problems formulations in this dissertation are : (i) how does the marriage property law prevail in the reality of plurality? (ii) why the concept of justice of the judge in the decision of marriage property dispute has not reflected the substantial justice? (iii) how is the construction of justice concept of the judge in settling the marriage property dispute? This research is included in the non-doctrinal research tradition with the socio-legal approach. Its social setting is the marriage property dispute using judges and notary as the research subjects. The data were collected using interviews and documentary study. As the complement, the information related to the research was obtained through the “professional experiences” as one of many sources of “theoretical sensitivity”. The data were analyzed following the interactive model from Matthew B. Miles and A. Michael Huberman. Data validation was conducted using triangulation of sources and methods. This research results show : (i) the diversity in the form and legal rules of marital property are the reality. The domination of UUP application in the practice of marital property dispute resolution in the district court has no effect on legal pluralism. UUP takes over the concept of marital property from custom law having parental nature so that to those who are the subject to custom law has no problem in applying UUP. In addition, there are similarities in the meaning and division concept in Custom Law, Civil Code, and UUP related to the property acquired during marriage so that the application of UUP and other legal systems to all group of people does not cause problems. The difference is on the innate property and the property acquired because of gift or inheritance so that it must apply the law in accordance with the group. (ii) the concept of marital property dispute decision in the district court has the orientation to procedural justice. It is caused by the strong domination of positivism paradigm and the emphasis on formal evidence in civil cases so that it is difficult to realize a substantial justice. (iii) the existing condition of marital property dispute resolution shows unenforced equality principle. This study recommends the importance of equality principle enforcement in the quality oriented to proportional division by concerning the roles and behaviors of spouses during marriage, and viewing the real origin of properties. The new construction of judge justice in solving marital property dispute is a justice concept oriented to substantive justice, based on legal pluralism and progressive law base. Keywords : reconstruction, concept of justice, judge, marital property, legal pluralism