HAK ASUH (HADHANAH) ANAK AKIBAT PERCERAIAN SEBAB MURTAD PERSPEKTIF HUKUM POSITIF DAN HUKUM ISLAM

Abstract

Abstract

This article aims to describe the issue of child custody (Hashanah) resulting from divorce due to apostasy, both from the perspective of positive law and Islamic law. Positive law concerning the Marriage Law, Child Protection Law, and the Compilation of Islamic Law. Meanwhile, Islamic law refers to the opinion of madhhab imams based on the theory of Maqashid al-Shari'ah. This type of research is a library research with qualitative descriptive research methods. The findings of this research are; Firstly, custody rights (hadhanah) of children resulting from an interfaith divorce or one of the parents being an apostate are not regulated in the law. However, in Islamic law or KHI in article 105 in the case of divorce, the maintenance of children who are not mumayyiz or have not reached the age of 12 years is the mother's right. If the mother apostates or converts to a religion other than Islam, the mother's custody of her child will be lost. Law no. 1 of 1974 concerning Marriage and KHI needs to be further refined because there is still a legal vacuum regarding the absence of regulations governing how to process divorce between different religions in writing, so couples who married in Islam then apostatized from Islam and are confused about the divorce procedure, for couples who divorce because one party leaves the Islamic religion (Apostate).

Kayword:          Hadhanah, Divorce, Apostasy, Positive Law, and Islamic Law