Harmonisasi hukum perkawinan adat dan hukum perkawinan nasional dalam mengatasi permasalahan perkawinan adat dibawah umur di Kabupaten Lingga

Tan, Winsherly (2023) Harmonisasi hukum perkawinan adat dan hukum perkawinan nasional dalam mengatasi permasalahan perkawinan adat dibawah umur di Kabupaten Lingga. Doctoral thesis, Universitas Pelita Harapan.

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Abstract

Indonesia is a country that has the goal of realizing general welfare. One of the characteristics of a prosperous country is the promotion and protection of human rights. One of those rights is building a family as mentioned in Article 28 letter b of the 1945 State Constitution of the Republic of Indonesia. The phenomenon that occurs in Indonesia today is the practice of underage marriages as is the case in the customary marriages of the sea tribe community in Lingga District of the Riau Islands Province. This, however, contradicts Article 26 of Law Number 35 of 2014 concerning Child Protection. This dissertation aims to analyze national law and customary law in regulating marriage, assess the implementation of national law and customary law in regulating marriage among the Sea tribe community in Lingga District, and find an ideal legal solution through legal harmonization between national law and customary marriage law in the sea tribe community in Lingga District. The research method of the dissertation adopts an empirical juridical approach. The theoretical framework used in this dissertation are the Theory of Legal Operations, Development Law Theory, and Legal Compliance Theory. The analytical method in this dissertation uses the Spradely Data Analysis Model. The results of the research show that first, in the national law regarding marriage there is still a discrepancy between Law Number 16 of 2019 concerning Marriage and Law Number 35 of 2014 concerning Child Protection. Based on the theory of the enforceability of the law, the formation of the Marriage Law has a good purpose, namely, to protect the civil rights of children and women's rights in marriage by allowing underage marriages to be carried out through filing a dispensation. This was carried out based on the social phenomenon that has occurred, namely the rise of underage marriages in Indonesia which could have not been controlled. However, this provision was misused. In traditional marriages, the form of underage marriage is recognized, and the state recognizes and respects the existence of customary law. Second, the implementation of national law on traditional marriages of the Sea tribe community in Lingga District is categorized as ineffective through the Law Effectiveness Theory because there are weaknesses in the factors of substance, structure, culture, society, and infrastructure. This is also supported by the Theory of Development Law, namely written laws that should change people's behavior have not been able to change the people of the sea tribe. It is also strengthened by the Law Compliance Theory, namely the people of the Sea tribe in Lingga District have not been able to comply with national laws because of the doctrine and habit of carrying out a culture of "reciprocity" through underage marriages. As for the implementation of customary marriage law in the Sea tribe community, it also has many negative impacts such as death in mothers during childbirth, death in infants, malnourished babies, and loss of education rights for women. Third, the ideal legal solution is to harmonize law through an institutional approach.

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