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Socio-Legal Factors Affect the Violation of Heirs Rights by Sibling Using Islamic
Law
FIRDHA LISTIWARDANI
017201100006
PRESIDENT UNIVERSITY
FACULTY OF LAW 2013
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
ii
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
1
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
2
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
3
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.
4
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).
5
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
6
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.
7
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.
8
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
9
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
10
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.
11
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.
12
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.
13
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
14
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.
15
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
16
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
17
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).
18