The legal formulation of the spiritual marital bond in the division of joint property following divorce

Abstract

Article 1 of Law Number 1 of 1974 conceptualizes marriage as an institution requiring a balance between spouses’ external and inner obligations. However, judicial practice has not adequately considered the inner dimension, as judges tend to emphasize measurable economic contributions. This study examines the legal standing of the marital bond as a consideration in the division of joint property and formulates its legal construction following divorce. It employs a descriptive-analytical method, a normative juridical approach, and qualitative analysis of legislation, legal doctrines, and judicial practice. Supreme Court Decision Number 477 K/Ag/2014, Stabat Religious Court Decision Number 606/Pdt.G/2011/PA.Stb., and Surabaya Religious High Court Decision Number 345/Pdt.G/2020/PTA.Sby. demonstrate that joint property division remains dominated by material considerations of economic contribution, whether through equal or proportional distribution, while the inner dimension of marriage remains insufficiently accommodated. From the perspective of maṣlaḥah, the marital bond should be assessed hierarchically through ḍarūriyyah (essential), ḥājiyyah (complementary), and taḥsīniyyah (enhancing) considerations. Incorporating this dimension is therefore essential to achieving substantive justice in the division of joint property following divorce.