PERJANJIAN PISAH HARTA PASCA PUTUSAN MK No. 69/PUU-XIII/2015 ANALISI HUKUM POSITIF SERTA MAQASHID SYARIAH

Abstract

Constitutional Court Decision No. 69/PUU-XIII/2015 expands the time for making a property separation agreement, which was originally only before or during marriage, to also include the postnuptial agreement. This policy brings double consequences: asset protection on the one hand, potential household disharmony on the other. Different from the previous study that discussed the property separation agreement from the perspective of positive law or Islamic law separately, this study integrates the two through the sharia maqashid approach to formulate a point of balance (tawazun) between the two. The study aims to analyze the legal position of the property separation agreement after the Constitutional Court's decision, its conformity with the principle of ḥifẓ al-māl, as well as the comparison of its benefits, using a literature study method with descriptive-analytical and comparative analysis. The results of the study show three findings. First, the Constitutional Court's decision removes the time limit in Article 29 of the Marriage Law so as to provide legal certainty and flexibility for couples. Second, this agreement is in line with ḥifẓ al-māl through two functions: preventing property disputes and strengthening the certainty of asset ownership. Third, household disharmony is not a direct result of agreements, but depends on openness, mutual agreement, and consistency in the fulfillment of maintenance and taawun-takaful values. Research concludes that tawazun between positive law and sharia maqashid can be achieved if these conditions are met, so that the property separation agreement functions as well as supportive for household resilience.