PENGAKUAN STATUS ANAK DI LUAR PERKAWINAN PASCA PUTUSAN MK NO. 46/PUU-VIII/2010 DALAM PERSPEKTIF HUKUM ISLAM DAN HUKUM POSITIF ( Studi Kasus di Pengadilan Agama Kabupaten Kediri)

Abstract

The existence of a child born outside of marriage will have legal consequences regarding the rights and obligations of the child. Furthermore, in Law No.1 of 1974 concerning marriage, it is not regulated to have any children outside of marriage and their legal status in a limited manner. In Article 43 paragraph (1) and (2) it only states that "Children born outside of marriage only have a civil relationship with their mother or with their mother's family". However, the Constitutional Court took a firm breakthrough with regard to children outside of marriage. If the Marriage Law in Article 43 paragraph 2 states that children outside of marriage only have a civil relationship with the mother and the mother's family. So after experiencing a change in the law, it turns into a child born outside of marriage who has a civil relationship with the mother, mother's family and biological father if it is proven by science and technology so that they can file a lawsuit to the court for recognition. The purpose of this study was to determine the recognition of children after the Constitutional Court decision No.46 / Puu-Viii / 2010 in the perspective of Islamic law and positive law as well as those applicable in the Kediri District Religious Court. This study uses an empirical method in which information is obtained through direct observation and interviews with the object of research and analyzing the processed data. The results of the study and discussion show that in Islam, children outside marriage are adulterous children, in Islamic law children born from sirri marriages are legitimate children who have other nasab and civil relations with their parents. Whereas in a positive legal view, marriage can be recognized and said to be valid if it is carried out in accordance with their respective religions and recorded according to applicable regulations, so that children born from unregistered marriages are referred to as out-of-wedlock children who can only get recognition if filed. application for determination of the origin of the child. In practice, in the Kediri District Religious Court, recognition of the status of children outside of marriage as biological children can be submitted by means of petition for the origin of the child through marriage and non-isbath which is based on cases of sirri marriage, sirri polygamous marriage, and divorce from sirri marriage.