The Settlement of Joint Property in Religious Courts of Indonesia (a Case in the Religious Court of South Jakarta)

The settlement of joint property, after husbands and wives divorced, is a crucial issue in the Religious Courts of Indonesia. According to the provisions of the Islamic Law Compilation (KHI) and Marriage Law No. 1/1974, a joint property should be divided equally if done peacefully. This research analyzes the joint property settlement after divorce in the Religious Court of South Jakarta and compares it with a number of cases in other similar institutions. This study finds out that the rules as stipulated both in the KHI and Marriage Law No. 1/1974, was not rigidly applied by the judges. Instead, the judges at the Religious Court of South Jakarta took a flexible and casuistic solution for the disputes over the sharing of joint property between divorced couples. The settlement methods used by the judges vary, depending on the case that occurs empirically. The peaceful settlement was also pursued by the Religious Court of South Jakarta, although in general, it was unsuccessful.


Introduction
The term joint property is generally known in societies whose customs recognize the existence of a mixture of wealth. In Indonesian legislation, the issue of joint assets is regulated in Presidential Instruction R.I No. 1 of 1991 concerning the Compilation of Islamic Law in Indonesia and Marriage Law No. 1 of 1974 concerning Marriage. In the two regulations, it is determined that if the marriage breaks up, either because of death or divorce, then the joint property is divided in two, as long as it is not specified otherwise in the marriage agreement.
In addition to the provisions as stipulated in law number 1 of 1974 concerning marriage, in Indonesia also applies Compilation of Islamic Law relating to the sharing of shared assets as stipulated in Article 96 and 97 Compilation of Islamic Law which also regulates the same thing that the distribution of shared property is well death or divorce, each gets half of the joint property. 1 While according to the law of the civil law considers that when husbands and wives at the time of going to marry do not have a property separation agreement between them then the consequence of the marriage is the mixing of the husband's wealth and wife into one property of both together and their respective sections each in this wealth is half. In custom law embracing the central system between the Islamic Law system and the Civil Law Code it is possible that some of the wealth is mixed into property with the husband and wife. 2 The problem that arises is whether the provisions for these two equals portions will fulfill a sense of justice. This requires serious consideration. If both parties (husband and wife) work together, the distribution of shared assets for two equals seems to be easily accepted by the parties. Similarly, if the husband works while the wife only takes care of the household, then such a distribution model will not cause problems. Apart from Islam recognizes the concept of division of labor between husbands and wives in the public and domestic sectors, Islam also teaches that husbands have an obligation to earn a living to finance their children and wives. Judging from this perspective, the model of the distribution of shared assets for two equally seems to be also not too difficult for parties to accept.
But what if the wife works while her husband does not, will they also apply a settlement model for two equally? This requires careful consideration. It seems unfair if the wife who has struggled to collect property and carry the burden that is not essentially her obligation to help alleviate her husband's burden, then, because of divorce, the results of her labor must be shared with her husband equally. The question now is how fair is the verdict? If the decision is deemed unfair, are the judges allowed to override the statutory provisions and take other ways to fulfill a sense of justice?
Another problem that also often arises in the case of joint assets is the difficulty to prove that someone has a large share of the disputed property. Even though Law No. 1 Th 1974 article 35 paragraph (1), and (2) have provided clear and explicit explanations of shared assets-that is, assets acquired during marriage are exempted from assets acquired from inheritance and gifts-but because generally the disputed assets are in control one of the parties or has been in his name, it is very possible for those who control the property will say that this is not a joint asset, but a gift or inheritance. If this happens, the judge will find it difficult to prove whether the claim submitted by either party is true or not,

Institutionalization of Joint Assets
In Islamic law, both in the Qur'an and as-Sunnah, there are no provisions governing the distribution of shared assets. Due to the absence of provisions governing the issue that sharing property together became an ijtihadiyah problem whose settlement was left to the government/judge. According to Ismail Muhammad Syah, the authors of the books of fiqh of the past had not discussed the problem of shared assets in the book is because in general, they are Arabs who do not recognize the customs of property collections (syirkah/musyarakah) in the household. 3 Therefore, the institutionalization of joint assets in a household is generally based on the urf or customs of a country that does not separate the property rights of husband and wife. In other words, common assets generally appear in a community environment that emphasizes a sense of togetherness in household affairs and consider marriage contracts to contain the agreement of partners in fostering domestic life. Therefore, all assets acquired after the marriage contract are considered joint assets between husband and wife, without questioning who is more likely to obtain the property.
Joint assets in marriage are classified in the form of syirkah abdan mufawwadhah, because in general husband and wife in Indonesian society both work to earn a living for their daily family. The Sheikh of Al-Banjari of Banjarmasin called the joint property as the "treasure property" or a forbidden by a taboo property. However, now the problems relating to joint assets in marriage are even more widespread, which shows that the Indonesian Muslim community is in dire need of legal certainty in terms of handling the case.
One example of a joint property case that was once decided by a judge using customary law was the decision of the 1928 Kutoarjo Religious Court. The court first divided the property of Gono-gini before determining the tirkah (heritage) of a dead husband. The distribution of the gono-gini is done by calculating one versus one which is different from the principle of "sepikul segendong" in customary law. Such a method was applied in the District Court (Landraad) after the matter of inheritance and joint assets were under the authority of the District Court. 4 Therefore, in establishing the framework of Islamic Law Compilation (KHI), Indonesian scholars seek to include all related problems in KHI by taking shirkah as a basis for formulating legal principles. To deal with the issue of joint property, the committee of compilation approaches the drafting process by combining shirkah abdan and customary law. 5 In the Compilation of Islamic Law, the provisions for the stipulation of joint assets are regulated in chapter XIII concerning Assets in Marriage, starting from article 85 to article 97. The provisions state that the joint assets are separated from their respective personal assets where personal property remains privately owned and fully controlled by the owner (husband or wife). In addition, the joint assets become the joint rights of the spouses and are completely separated from personal property. who earn and on behalf of whom is registered. In addition, it is also stipulated that without mutual agreement, the husband or wife may not alienate or move the property. Debts for family purposes are borne by the joint assets. Whereas, in serial marriage or polygamy, the form of shared assets is separated between husband and each wife. If the marriage is broken (dead or divorced), then the joint property is divided into two, each gets a half part, and if a death occurs, the part becomes tirkah (heritage). 6 According to the State Law number 1 of 1974 article 37 regarding marriage, if a marriage breaks up because of divorce, the joint property is waived according to their respective laws. In the explanation of article 37, the stated laws may be based on religious law, customary law or other laws. The articles of 96 and 97 of the Compilation of Islamic Laws also stress that the proportion of shirkah for both death divorce and life divorce should be equal regardless the number of the joint property remains unknown.

Joint Property Lawsuits in the South Jakarta Religious Court
Dividing joint or collective property in a marriage is not always easy. It can be seen from numerous lawsuit cases related to this problem. In the South of Jakarta Religious Court. for instance, the divorce lawsuit and joint property cases at the same time might occur as well as the plaintiff and defendant may only demand joint property since they are already divorced. Therefore, they prepare a separate lawsuit. The following table illustrates the number of joint property lawsuit at Jakarta Selatan Religious Court, as happened from 2005 to 2010. 7 Table 1 The The above table indicates that of 34 cases in total, 3 cases were withdrawn, 5 cases were rejected (NO = Niet Ovankelijk verklaard) and the rest 26 cases had been settled and were legally binding.
The following table depicts the development of the number of lawsuits on joint property in the Religious Court of South Jakarta each year. The above table indicates the increase of lawsuit cases number on joint property in Religious Court of South Jakarta within 2005-2010. As the table shows, in 2005 there was only one joint property case and it was settled as well. In 2006, the number of lawsuits joint property was 2 cases, which all also had been settled. In the following years, in 2007, the number of lawsuits joint property increased as many as three cases, consisting of one NO case and two settled cases. In 2008, the number of joint property case grew to four cases which consist of one withdrawn case, one NO case, and two settled cases. Furthermore, in 2009, the number of lawsuits joint property increased sharply, as many as 11 cases, consisting of one withdrawn case, two NO cases, and eight settled cases. Whereas in 2010, the number of joint property claim increased as many as 13 cases, consisting of one withdrawn case and one NO case.
This study will not examine the withdrawn cases either because of retraction or NO. The reason is that both types of lawsuit cases are clearly are not in the process of trial. The researcher, then, will only analyze 26 cases, which are identified as the settled cases.  The above table shows that the joint property lawsuit cases submitted to the South Jakarta Religious Court are varied. The plaintiff side is not always coming from the wives, but also from the husbands. It also applies to those who work and not during their marriage. The table also indicates that the decision tended to be shared equally for both parties (the plaintiff and the defendant) where the husband obtained a half of the joint property, as the ex-wife did. However, not all joint property lawsuit case in Religious Court of South Jakarta could be settled by dividing the property equally, as stated on KHI article 97, but it can be solved by the agreement of both parties where they agree to settle the problems through other ways.

Juridical Procedure
In accordance with the provisions of the procedural law, judges always strive to mediate the parties, so as to allow them to achieve a solution peacefully. However, if this step is unsuccessful, the trial will continue with the process of examination and decision. 10 A decision regarding the division of joint property can be classified based on "who sued and who work producing joint property during the marriage." In the court, the determination of the number of property requires evidence of the plaintiff, such as notarial sale and purchase agreement, certificate and other written evidence. The judge then will examine the evidence of this written evidence to decide whether the property can be identified as joint or collective property and how they obtain the assets. After that, the judge will listen to the answers of the defendant against the plaintiff.
When the property is recognized by the defendant, without any objection at all, the judge will determine that all the treasures sued by the plaintiff as joint property, which is then set unshared. During the process in the court, the evidence to prove how the assets are obtained and when that happened is a very crucial thing because, according to KHI, joint property is those that wife and husband afford together during their marriage.
However, when the claim is rejected by the defendant and they both claim that the property is theirs, the case might turn very difficult. Both sides need to provide evidence to support their claims such as written evidence, witness, or other additional evidence. Once the verification process is considered sufficient, the judge will determine whether to grant the claim in whole or in part and reject most of the others or even may also entirely refuse it.
Another tricky issue that may occur in the determination of joint property is dishonesty of the parties. Such could be in the form of transferring property above named of someone, move the contents of savings to other accounts, or other devious means. In this case, a determination will be even more difficult to decide. However, in accordance with the provisions of procedural law, the judge will ask the plaintiff to prove his claim and ask for the evidence for the defendant's objection. The evidence could be written evidence or witnesses. Then the judge will give a determination as to believe the evidence submitted. The determination could be in favor of the defendant, by setting all the sued treasures to be joint property, or it could also be granted in part, especially if the defendant can prove that there are other treasures on behalf of or under the control of the claimant which were not included in the lawsuit. In determining the common property, the judge is greatly restricted by formal juridical procedural law, namely proof of claim and denial. When this has been done, the judge can not do other than to issue a decision, regardless perhaps there are dishonesty parties.

Employed wife sued her employed husband 11
This case was registered in During the marriage, the plaintiff and the defendant have had a joint property, in the form of a piece of land and building on it, which is located in Pangkalan Jati village, Limo district, South Jakarta, Certificate Properties No. 02 049/Pangkalan Jati, written on behalf of the Plaintiff. The defendant admits that the land is on behalf of the Plaintiff. However, regardless the defendant recognition, as the location of the land and the building in a suit is not accurate, the action becomes blurred, and therefore a lawsuit against the property should be declared unacceptable (NO).
In addition, the plaintiff and the defendant also had a piece of land and building on it, located on Jl. Kemang Utara No. 31, South Jakarta, written on behalf of the Defendant. As this was still in installments and already paid/repaid Rp. 500.000.000, -, while the rest of the installments of Rp. 1,400,000,000, -(one billion four hundred million), the remaining mortgage debt was considered to be paid by both parties; plaintiff and defendant. In addition, the Plaintiff and the defendant also owned a black color Honda Accord -branded car 1985 No. Pol B 6 LX, No. EZ Machine 22019675, No. SA65481854 order, No. 7075392  In this case, there was no denial of the object property, so it could be proven that the property was owned during the marriage. Both sides decided to divide the joint property into two equal parts. However, there was a burden from the plaintiff side, who bears the cost under the name of the ownership of land and buildings, while the defendant will only help the process behind the name. In this case, The lawsuit was a pure form of joint property lawsuit, because the joint property lawsuit filed after the divorce. In its decision, the judge set the Plaintiff and the Defendant to get a half of their joint property. The verdict for the same two average was also taken by Terri Court judge in case No. 1449/Pdt.G/2014/PA.TL which was settled on September 15, 2015. This case was successfully settled.
If we draw a line between theoretical legal study (law in book) to the study of law in practical terms (law in action) on problems of joint property, it becomes clear that there is a gap in the religious courts in implementing the provisions of the Compilation of Islamic Law (KHI) on the division of joint property According to article f, subpart f on KHI, joint property is "wealth in marriage or syirkah, namely wealth derived both alone or with spouse, during a marriage without necessarily discussing who earn or own the property.
Furthermore, article 97 on KHI points out that a widow or widower has rights to get a half of joint property with an equal proportion. Similarly, the article 96 also indicates that 50% of joint property should belong to the one who is still alive. In short, according to the Law, a joint property should be divided equally regardless who are unemployed or employed.
From some of the cases above, the decisions in the case of the distribution of shared assets in the South Jakarta Religious Court did not generally come out of the KHI rules. But in practice, the provisions of KHI are not the only basis used as a reference for judges in making decisions. In other words, the provisions of KHI are not always practiced as written, but the values contained therein, namely justice. As long as the parties can be reconciled and agree to peacefully choose a solution, then their agreement is what the judge uses to resolve the dispute even though it may come out of the provisions written in the KHI.
In the view of the judges, if the marriage breaks up, either because of death or divorce, as long as there are no parties questioning the distribution of shared assets, the distribution then is by means of peace, without claiming a lawsuit. If the amount of joint assets has been determined, the division will be divided into two equals, 50%, and 50% regardless of who manages the assets. In accordance with the provisions of articles 96 and 97 Compilation of Islamic Law, unless the division is carried out peacefully by the parties, then 50% and 50% rules are taken into consideration.
However, very often in the distribution of shared assets among parties, the judge find difficulties to determine the number of shared assets to be shared. The most common difficulties are related to evidence that is not enough by the parties. In this case, there can be assets that are actually shared assets, but because they cannot be proven, the assets cannot be designated as joint assets.
Another problem the judges often meet is claims against savings or deposits at the bank As the judge will deal with the issue of bank secrecy, DOI: http://dx.doi.org/10.24042/adalah.v%vi%i.2484 the parties may transfer their savings or deposits to other accounts which are difficult to track by the Court. As a result, the amount sued will not be similar to the amount found in the account. Clearly, an honesty of the parties is needed.
Thus it is clear that the rules for two (equal) as stipulated in the KHI, are not rigidly applied by the judges for all cases of the sharing of shared assets submitted to the Religious Courts. but it is used as a reference for judges in making decisions. Therefore, in its implementation in the Religious Court, especially in the South Jakarta Religious Court the distribution of joint assets is more flexible and casuistic, depending on the judge's consideration in seeing the case.

Conclusion
In the Marriage Law No. 1 of 1974 and the Compilation of Islamic Law, it states that the joint property is only those obtained by both wife and husband during a marriage. This provision does not discuss where or from whom such property is obtained. It may include the property and income of the husband, wife's assets or income, personal property of husband and wife, provided that the wealthy are accrued throughout the marriage. The Religious Court of South Jakarta, as the other religious courts also apply, has established a rule that the settlement of joint property should be based on KHI where each of them will get a half of the joint property. However, this rule cannot always be applied in that way because sometimes the judges will get different cases. Some cases can be settled by mutual agreement, some are not. This shows that the implementation of the division of KHI and marriage law No. 1 of 1974 on the joint property depends on the cases and situations Bibliography Abdul, Nashori Ghofur. "Peradilan Agama di Indonesia Pasca UU No.