Proceedings of the 4th International Colloquium on Interdisciplinary Islamic Studies in conjunction with the 1st International Conference on Education, Science, Technology, Indonesian and Islamic Studies, ICIIS and ICESTIIS 2021, 20-21 October 2021, Jambi, Indonesia

Research Article

Habitual Residence on Children Victims of Divorce in Mixed Marriage: Maslahah Mursalah Perspective

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  • @INPROCEEDINGS{10.4108/eai.20-10-2021.2316346,
        author={JM  Muslim and Nanda  Humairatuzzahrah and Suci  Ratnawati},
        title={Habitual Residence on Children Victims of Divorce in Mixed Marriage: Maslahah Mursalah Perspective},
        proceedings={Proceedings of the 4th International Colloquium on Interdisciplinary Islamic Studies in conjunction with the 1st International Conference on Education, Science, Technology, Indonesian and Islamic Studies, ICIIS and ICESTIIS 2021, 20-21 October 2021, Jambi, Indonesia},
        publisher={EAI},
        proceedings_a={ICIIS AND ICESTIIS},
        year={2022},
        month={2},
        keywords={custody mixed marriage habitual residence maṣlaḥah mursalah},
        doi={10.4108/eai.20-10-2021.2316346}
    }
    
  • JM Muslim
    Nanda Humairatuzzahrah
    Suci Ratnawati
    Year: 2022
    Habitual Residence on Children Victims of Divorce in Mixed Marriage: Maslahah Mursalah Perspective
    ICIIS AND ICESTIIS
    EAI
    DOI: 10.4108/eai.20-10-2021.2316346
JM Muslim1, Nanda Humairatuzzahrah1,*, Suci Ratnawati1
  • 1: UIN Syarif Hidayatullah Jakarta
*Contact email: nandahumairatuzzahrah21@mhs.uinjkt.ac.id

Abstract

This study aims to answer the problem of child custody in marriages of different countries. They make the concept of habitual residence as Maṣlaḥah Mursalah in the settlement of child custody rights in inter-state marriages. This type of research is qualitative with the support of library research and by using a doctrinal legal approach (doctrinal research). The sources of data used are the laws in force in Indonesia, books, articles, and journals related to this research. With the influence of globalization in Indonesia, there are many marriages between different countries. The author focuses on the impact of mixed marriage divorce, namely the struggle for child custody. Historically, The decision on child custody in inter-state marriages focuses on Law Number 62 of 1958 concerning Citizenship, that the Ius Sanguinis principle is used as an absolute principle. However, the law has generated a lot of controversies. Then, Law Number 12 of 2006 concerning Citizenship was born as a substitute. In this Law, the principle of Ius Sanguinis is absolutely replaced with an optional right. But these optional rights also have a negative impact on the welfare of children. The results of this study explain that child custody in mixed marriages of different countries is determined by the concept of habitual residence. Because the concept of habitual residence puts forward the principle of the best interest of the child or prioritizing happiness for children.