HISTORY OF JOINT MARITAL PROPERTY IN INDONESIA AND ITS LEGALIZATION

Abstract

The Compilation of Indonesian Law (KHI) has acknowledged the legality of shared property acquired by the spouses during the time of marriage. The same law does not recognize properties acquired before marriage or those acquired as present, inheritance or will as shared property. The idea of shared property in Indonesia is actually drawn from the South Eastern Asian custom, but is then wrapped within the Islamic framework. This paper tries to show this by describing it, its development and canonization in Indonesia historically. In this context, the Javanese tradition plays a major role in accordance to whose custom the Indonesian law on this issue is being practiced. The paper argues that marriage in Indonesia has a lot to do with the shared property, traditionally speaking. Its canonization was therefore a natural process. But it was not without resistance, albeit in minimum way. As far as the canonization is concerned, the Indonesian ulama –the paper maintains- succeeded in it. Hence, they are capable of negotiating the tension between the Shariah, customary law and the demands of the modern life. And that was by means of looking at the shared property as something resembling commodity, whose distribution must be done accordingly.