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Socio-Legal Factors Affect the Violation of Heirs Rights by Sibling Using Islamic Law FIRDHA LISTIWARDANI 017201100006

Methodology of Interdisciplinary

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Page 1: Methodology of Interdisciplinary

Socio-Legal Factors Affect the Violation of Heirs Rights by Sibling Using Islamic

Law

FIRDHA LISTIWARDANI

017201100006

PRESIDENT UNIVERSITY

FACULTY OF LAW 2013

Page 2: Methodology of Interdisciplinary

Table of Content

I. Introduction ................................................................... 1

A. Background ......................................................... 1

B. Academic Reason ………………………………….. 1

C. Practically Reason …………………………………. 2

D. Research Question ............................................... 2

E. Step & Method of Research ................................. 2

F. Systematic of Paper ............................................. 3

II. Conceptual Framework ................................................. 7

III. Overview of Rights Of The Heirs According To

COMPILATION OF ISLAMIC LAW......................... 10

IV. The Case of Division of Inheritance

in ZA Family …………………………………………… 14

V. Analysis of The Case ………………………….………… 16

VI. Closing …………………………………………………… 17

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CHAPTER I

Introduction

A. Backgound

Most common happen in Indonesia, the parents will leave their assets to their

children who’s left behind. However, in the implementation of the distribution itself

often happen a violation by one of the family members who by any chance wanted a

greater share than what it should be. Regardless of the division of inheritance,

Indonesia had three laws that can be used which is customary, Islamic, and West

law in here using civil law. The inheritance system practised by Civil Law is

individual-bilateral, the collective nature is customary law, while the law of

inheritance in Islam, as well as Civil Law which is individual-bilateral.

The system of inheritance according to Civil Code applies for 3 classes. I.e.

Europe and they are equated with the European, the East, the Eastern Chinese

Foreign other foreign and indigenous groups are subjecting yourself. Whereas the

system of Islamic law according to the heir applies to those who are Muslim.

Because of the more complex about the problem of the division of heirs in Indonesia

so this research will be focusing on Islamic Law

In this research is one of the cases where the family member who is actually one

of the heirs who disregard the rights of other heirs or claimed to be an only child.

An example of this is often the case in our country, such as the rights of another heir

violated by a member of the heirs. Based on the description above, it be carried out

directly on a real case, which in this case occurred in a family of (late) Mr. ZA, in

Bandung.

B. Academic Reason

As the academic reason is to analysis how is the inheritance ruled by law. In

addition, this research will also as one of the duties in the methodology of

interdisciplinary legal research which is to combine two disciplines of legal and

social aspects of reality that occurs in society. As we know that the law may occur

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because of the social relations that would here emphasize how social factors can

influence the laws that have been made.

C. Practically Reason

In order to understand more about the case and find out how the legal and social

aspects can be applied in such cases. Like in this problem, what will be the impact

of the violator after this case happen, what are the social impact that will happen to

the people that here are a family.

D. Research Questions

The research question that will be elaborated in this research are :

1. How is the rights from the heirs according to Islamic Law in Compilation of

Islamic Law ?

2. How is the division of inheritance in the case that happen to ZA Family?

3. How the protection of rights have been violated by the heirs of the other

heirs in this case is the siblings itself granted by the law?

4. How is the legal efforts that has been done by the parties in order to solve

the case?

5. What factors that affect the opinion of them (the parties) towards the efforts

to solve this case?

6. How to solve this kind of case to protect the right of the heirs which

violated?

E. Step & Method of Research

Methods of data analysis in this research will conducted with a data analysis

technique which in order to understand the meaning behind the data that seem or

look for the quality of research by comparing the rules and regulations with which

the data obtained in the field so that it will eventually be concluded that inductive

research to draw conclusions from it that are specific to the general. In the process

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of search the primary data which is interview, the authors don't get trouble because

the speaker is easy to meet and communicate, so that it can accelerate the author in

the process of this research material with no time given. While the secondary data is

easier to find with only the limited literature found and article about the related case.

F. Systematic of Paper

A systematics of this study in order not to deviate from the title and the problem.

Systematics of writing is described as follows:

CHAPTER I : INTRODUCTION

This chapter are describe about the background of the issues that will be

elaborate based on titles that have been outlined, the formulation of the problem,

purpose of the study, the benefits of research, research methods, and systematic

writing.

CHAPTER II : CONCEPTUAL FRAMEWORK

This chapter will elaborated about the conceptual framework of this research

which is property of rights, rights of the heirs.

CHAPTER III : OVERVIEW OF RIGHTS OF THE HEIRS

ACCORDING TO COMPILATION OF ISLAMIC LAW

This chapter explains bagaimana pengaturan mengenai hak-hak ahli waris diatur

di dalam Kompilasi Hukum Islam buku 2 mengenai Waris.

CHAPTER IV : THE CASE OF DIVISION OF INHERITANCE IN ZA

FAMILY

This chapter contained the case itself which explain about how is the division of

inheritance in this family, and how the violation of the rights happen according

to the result of interview.

CHAPTER V : ANALYSIS OF THE CASE

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In this chapter it discuss all of the formulation of the problem and analysis of the

case. It also contain legal efforst to solve this problem that has been done by the

family also what are the factors that influence them towards the legal efforts to

protect their rights.

CHAPTER VI : CLOSING

In this chapter will be written about the conclusions of the research and

suggestion.

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CHAPTER II

Conceptual Framework

A. Law of Inheritage according to Islamic Law

Understanding the law of inheritance according to article 171 letters a

Compilation of Islamic law is the regulation on the transfer of the rights of

ownership of the property of the heir to the legacy, determine who – who has

the right to be heirs and how its parts each. In a more general context, the

legacy can be construed as a transfer of material rights of the people who

died to the surviving heirs.

B. Harta Warisan

Inheritance according to Islamic inheritance law is a default property and

property of all at less cost-the cost incurred for the heir during the illness and

after his death. For example, the management of the debt payment funerals

and burial. Inheritance in Islamic inheritance law is not only to property but

also the rights of the heirs1.

While the notion of inheritance according to Article 171 letter e

Compilation of Islamic Law is inheritance default property plus is part of the

joint property once used for the purposes of the heir over the sick until death,

the cost of maintaining the corpse, and the granting of debt payments for

relatives.

C. The Heirs

The Heirs is a person or a group of relatives who have familial

relationship with the person who died and the right to inherit or receive the

relic treasure left by a person (testator).2

1 Salman, Otje, Mustofa Haffas, and Lili Rasjidi. Hukum Waris Islam. Refika Aditama, 2002.

2 AMRON, MOHAMMAD. "KEDUDUKAN AHLI WARIS ANAK PEREMPUAN BERSAMA AHLI WARIS SAUDARA DALAM HUKUM WARIS ISLAM DI PENGADILAN AGAMA SEMARANG." (2006).

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Compilation of Islamic law in article 171 letters (c) provide a description

of what is meant by the heir is the person at the time of his death had a blood

relationship or marital relationship with heiress, Muslim and not obstructed

because the law to be the heir.

Heirs are seen predominantly in a note of the identity card/KTP or the

recognition or the practice or testimony, while for a newborn or a child who

is not yet an adult, according to his father or religious environment.

Group of The Heirs are consisting of:

a. According to blood relations:

- Group of men consisting of: father, son, brother, uncle and grandfather.

- Consists of a group of women: mother, daughter, sister of the

grandmother.

b. According to the marriage relationship consists of: a widower or

widow.

If all heirs exist, then it is entitled to inheritance only: children, father,

mother, widow or widower.

D. Property of rights

According to the Islamic religion, it said that the men get 2 times more

part than the women. Accordance with Article 176 of Islamic law

compilation book 2 that says “ Anak perempuan bila hanya seorang ia

mendapat separoh bagian, bila dua orang atau lebih mereka bersama-sama

mendapat dua pertiga bagian, dan apabila anak perempuan bersama-sama

dengan anak laki-laki, maka bagian anak laki-laki adalah dua berbanding

satu dengan anak perempuan.”

The definition of property rights in the Code of Civil Law is in Article

570 which states that " The right of property is the right to enjoy the use of

something material freely and to act with impunity against the material with

a fully rule of origin is not awry with laws or regulations generally defined

by a power that has the right to define and does not interfere with the rights

of others with all it will not reduce the likelihood of disenfranchisement was

in the public interest based upon the provisions of law and the payment of

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compensation". And how to obtain the property itself is also listed in Civil

Code Article 584, which reads " Property rights over the goods can not be

obtained in addition to the decision to have, with attachment , with the

passing of time , the inheritance , either by law or by the will , and by

appointment or referral by a civil event for the transfer of property , made by

a person entitled to act on that stuff . "

Ownership over inheritance when we reviewed from the division of

inheritance in Islam is a male child had two times larger part than the female

and also widow had given the estate of her husband's legacy. For Muslims,

the division of the estate is an obligatory, as quoted from the Word of the

Prophet: "Divide the inheritance among the heirs according to the Book of

Allah (Al-Qur'an)". (Muslim and Abu Dawud). So it can be said to be the

heirs by itself under the law have the right to have the estate against him.

E. Violations of rights of the heirs

Regarding violations of the rights of the heirs, as noted previously that

the heirs have the right to receive and own property that is intended to be

passed on to him. That said infringement to an heir is when one of another

inheritors want to take a greater part than it should be one of the heirs or

ignoring the rights of other heirs who get a share of inheritance. For

example, there are case that one of the heirs change the name of the other

heirs to his name only in the certificate.

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CHAPTER III

Overview of Rights Of The Heirs According To Compilation of Islamic

Law

Right of the heirs is regulated in Compilation of Islamic Law, which is divided

into :

Large parts each heirs can be explained as follows:

a. The widowed (wife), according to Article 180 Compilation of

Islamic law:

The Widow received the estate of the heir to the legacy of (her

husband) for:

1/4 (one-quarter) section, if the legacy does not have or

leave a child as the heir.

1/8 (one eighth) section, if the legacy has or abandon the

child as the heir.

b. The widower (husband), according to Article 179 compilation of Islamic

law:

The Widower in receiving the inheritance of legacy heir (his wife) of:

1/2 (half) of the section, if the legacy does not have or leave a

child as the heir.

1/4 (one-quarter) section, if the testator/legacy has left or child as

the heir.

c. The child, under section 176 compilation of Islamic law:

Children of the heir to the inheritance of the legacy received the heir (his

parents) for:

1/2 (half) part, if only a daughter, together with father, mother,

widow or widower.

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2/3 part, when two daughters or more, together with father,

mother, widow or widower.

When the girls get together with the boys, then they are as

ashobah (receive the entire estate if there is no father, mother,

widow), if any one of them (dad, mom, widower) then the boys

with girls such as ashobah bilghoir (accepting the entire rest of

the estate after other heirs of the part excluded), provided the boy

twice the girls (2 : 1).

d. The mother, according to Article 178 of the compilation of Islamic law:

The mother in receiving the inheritance of legacy heir (his son) of:

1/3 (one third) part, if the legacy/testator does not have or leave a

child or two brothers as heirs.

1/6 (one sixth) section, if the testator has children or leave or two

brothers as heirs.

1/3 (one third) of the remaining part, that is, after removed part

of the widow or widower if he together with dad.

e. The fathers, according to section l77 compilation Islamic law:

Father in receiving the inheritance of legacy heir (his son) received:

1/3 (one third) part, if the heir does not have or leave the boys.

1/6 (one sixth) or receive a part time (ashobah) when the heir

leaving the girls.

Accept the remaining (ashobah) or 1/3 (one third) part, if the heir

does not have or leave.

f. Siblings, according to section 181 and 182 compilation of Islamic law:

Brother in accepting the inheritance of legacy heir (his brother) of:

1/6 (one sixth) section, if a brother or sister is not inherited with the

same mom together with the child and the father or siblings as well.

1/3 when they are two or more persons

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1/2 (half) of the section, when a biological sister or father inheriting

not together with the child and or father, or a brother.

2/3 (accounting) part, when two sisters or half-brothers inherited the

bladder not together with the child and or father, or a brother.

Accept the remaining (ashobah) if these inherited biological sisters

together with a biological brother or father, if there is no child or

father, and with the provisions of section brother two times the

biological sister (2: 1).

CHAPTER IV

The Case of Division of Inheritance in ZA Family

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This family consist of Parents with 8 children, I initialed them with alphabet, like the

first child is A, 2nd is B and so on until H.

Based on the interview, the division of inheritance in ZA family is the parents gave a

verbal confession to his children about the location of the land intended to be made as

heir to his children. Assets in the form of field results are intended for all. Although it

can be a part of each. Some of the rented house that was built and financed by parents

results arranged by parents, and rented to the built and financed by the children, the

results are shared with the parent.

That condition has been running for decades. And there has never been a problem. Then

dad passed away in May 2004. So the heirs to assume possession of all the evidence is

in the hands of the mother. The Beneficiary did not dare to ask for proof of ownership

to the mother because the ethics as a form of Sundanese people to parents, they feel it is

unethical to inquire regarding the certificate of the land while the mother is still there.

Recognition given by father formerly started implemented in accordance with the

ownership of each, even though the certificate there are still in the hands of the mother.

Then one of the heirs of the G, proof of ownership of the name flipped a parent (father)

to his own name in accordance with the recognition given by the parents, and all agreed

because he thought it was indeed right. but others don't do the same thing to him by

reason of all to have a steady income, while G cannot have, with a view to undertaking

therefore tittled name and collateralized to the Bank Danamon.

Then in about the year 2009 one of the heirs, namely C sells his share to the G. All

families are happy because the effort to think ahead. Later in 2010, G offers to buy the

land the E with the reason to expand, E was pleased due to the efforts of forward G

visual appearance therefore E agreed to purchase its land with a value of 130 million

payment was made and 2 months later (December 2010). During the lebaran 2010, all

families get together and ask the parents choices about certificate-the certificate that is

stored in the assets of mother, mother says that the certificate is in place to document

the bag late father. The bags are then taken up and opened, it turns all the certificate No.

The family then asked everyone who may borrow or ever take the certificate to be

honest, from the eight heirs.

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The confession is as follows:

A says that she did not know and never hold the certificate.

B says that due to the recognition of the rights of the elderly the soil intact is

owned by him, there is no recognition of the other, then he is holding his own

certificate.

C says that even though he was already selling his share to G, never handed over

the certificates. So just in the form of receipts of purchase.

D and E never asks for names, but reversed it never happened and never holds

the certificate is the proof of ownership rights.

F says that most of its rights which incidentally certificate on his behalf, because

at the time there is a certification program from the Government, so the

certificate on behalf of F, but it has the right of E and F.

H ever saw and holds a certificate of ownership, the right he himself on behalf of

the parents and ask G to take care of turning the name and after asking the

PPAT, it cost quite expensive and he undo his intention, the certificate is taken

because it is still in the hands of G.

The question of the results of the meeting, where the certificate is owned by A, D, E, F,

and H? All claims to not know. Then E on 2 months then take the initiative to regroup

with the heirs and to talk about the proof of ownership. Then the mother said that she

had been invited by G to sign something that mothers do not know, in two places, and

just at that time the information mothers aged 80 years. So do not quite understand.

Later asked by G E regarding payments that haven't been performed while the House is

purchased already dismantled and occupied by G. She said that her business was in

ruins and the plan will sell the House. All the family is aghast because the House is

pretty fancy and ultimately wondering where the money to build it all. E urge the G to

be honest, the mother ever brought recognition where recognition of rights, then that

certificate was never returned.

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The problem, the assets of D, E, and F, enter to belong to G. D, E, and F have objected

and asked to repeal certficate from the bank. According to the information of the G, did

not want to give the bank a certificate before its debts paid off. Meaning if G can't pay,

then the land is sold, there is a possibility of ownership D, E, and F to be lost. Then E

initiated to sue to court TUN in order to cancel the certificate on the basis of the

certificate which not right where such parties when changes are harmed don't know and

not include. So who will be focused upon the question of D, E, and f. While H and A

will be completed then, as proof of ownership is still on behalf of parents.

From the results of interviews with E, E will make a concerted effort to redress PTUN

to cancel a certificate by reason of a change of name certificate from a parent to a legal

defect, G do not meet the formal juridical elements. For these purposes, E already take

care of the affidavits. For a description of the heir, is equipped with a known family

history of composition by the witness of representatives of mother and dad, RT and

RW. Then the deaths of parents, the father. Then the copy of ID card, families report

card, marriage certificate, birth certificate instead of all the heirs. Then the known heir

affidavits by the village head and head. Next gather evidence a copy of the original

certificate and changes. If the certificate is void, the agreement with the bank is void,

but debt remains running.

Their opinions against the efforts of the law:

Because the focus to D, E, and F them agree with the remedy will be done by E and that

the heirs of the other supports and is ready to become a witness.

What factors affect their opinion of the remedy:

a. The family wanted what was right anyway, what became the civil

rights to others must be separated according to the division.

b. There should never be a family imprisoned fellow brothers.

c. Still only want to take what became his another brother, therefore

want to cancel certificate.

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d. Ever mediation with the bank to borrow the certificate for splitbut

the bank does not allow and asking to be paid off because its debt

is large enough.

CHAPTER V

Analysis of The Case

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From the results of interview containing chronological about how the Division of the

estate and violations, there are some aspects that can be analyzed

a. From the Division of the rights

That the family not professed division of inheritance according to Islamic Law

or compilation of the basics of the Division of rights according to Islamic law.

Because according to the chronology of this great family of the parents give a

verbal confession to his sons about the location of the land intended to be made

heir to his children. So the broad division is not exactly the same as the

provisions in the compilation of the Islamic law that if men got 1 part and

women. in addition not known well how part obtained by the current status of

the mother as a widow. Because according to Islamic Law Compilation Article

180 points 2, the widow received the estate of the heir to the legacy of (her

husband) of 1/8 (one eighth) section, if the heir has or abandon the child as

beneficiary. The family, however, no one felt objection with this. But in my

opinion, this is the problem. Suppose there is a written statement about the

Division of inheritance according to the provisions contained in the compilation

of Islamic law, I don't think this problem will not occur.

b. Why is there a credit in Bank lending

As seen from cases based on interviews, that G seem to do credit loans to the

banks, so that the urgent thing he menganggunkan so that the certificate belongs

to the D, E, and F, which he named them turning into G and his mother's name.

Magnitude of the debt he had to pay to the bank is 750 million with 18

million/month, what used to build homes totaling 750 million with the

expectation of being paid from the proceeds of the venture.

The legal steps that must be done, theoretically the way class-action lawsuit, by

suing the local BPN with banks as defendants the intervention. Because the

parties are harmed just wanted to cancel the certificate that has been behind that

name, so that the parties can go back to the injured get the right Division of the

beneficiary in accordance with the oral confession that he used to be pronounced

by the late father. If you want to cancel the certificate must be The State to court.

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Due to this case, in my opinion it is not the competence of the Religious Courts,

because as already explained earlier that this family is indeed in practice does

not follow the Division of inheritance according to the provisions in the

compilation of Islamic law.

CHAPTER VI

CLOSING

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The conclusion that can be drawn from some of the above explanation that ZA

families not in practice implement terms in the compilation of the Islamic law regarding

the Division of the inheritance, so with just a verbal acknowledgement only. And there

are a number of social factors which influence such as ethics, where families feel if the

mother is still there, it is not ethical for them to ask the inheritance given by the father

who had passed away. And regarding the problems behind the certificate name pick D,

E and F and G to be the mother, who felt wronged to make remedy i.e. cancel the

certificate. This case could have been brought into a civil case because the land legacy

is indeed a complex issue.

The parties who got their rights violated up until now haven’t take this case to

the court because they said they still collecting the documents related to the case. They

decision to take this case to administrative court is only to cancelled the certificate that

has been title changed. I think it was a legal effort, with reason and consideration of

related parties who do not want to ensnare G with his actions or criminal sanctions and

civil penalties.

References

Regulation

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1. Kompilasi Hukum Islam

Jurnal, Skripsi

1. Salman, Otje, Mustofa Haffas, and Lili Rasjidi. Hukum Waris Islam. Refika Aditama, 2002.

2. AMRON, MOHAMMAD. "KEDUDUKAN AHLI WARIS ANAK PEREMPUAN BERSAMA AHLI WARIS SAUDARA DALAM HUKUM WARIS ISLAM DI PENGADILAN AGAMA SEMARANG." (2006).

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