Legal Aspects of the Division of Joint Property After Divorce in Mixed Marriages: Analysis of Indonesian Positive Law, Islamic Law Perspectives, and Implications According to International Law

Abstract

This study aims to analyze the status and mechanism of the distribution of joint assets after divorce in mixed marriages according to three perspectives, namely Indonesian positive law, Islamic law, and international law. This study uses a documentation method with a normative juridical approach, namely reviewing laws and regulations, legal literature, jurisprudence, and relevant international legal instruments such as the Convention on the Legal Capacity of Married Women (1958) and the Hague Conference on Private International Law (HCCH) regarding cross-border family law. The results of the analysis show that Indonesian positive law places joint assets as objects that are divided proportionally and fairly, however, in mixed marriages there are often obstacles regarding jurisdiction, court competence, and the status of the citizenship of the assets, especially if the assets are located abroad. In Islamic law, the division of joint assets is not explicitly recognized, but modern scholars through ijtihad have agreed on the concept of musytarakah assets which are analogous to joint property, so that they can still be divided fairly based on contribution and benefit. Meanwhile, international law emphasizes the principle of protecting the civil rights of couples, recognizing status, cross-border assets, and determining the appropriate dispute resolution forum.