The Juridical Impact of Mediation Procedural Defects on the Validity of Divorce (Talak): Perspectives of the Shafi'i School and the Compilation of Islamic Law (KHI)

Abstrak

Mediation practices in Religious Courts play a crucial role as an instrument of peace to reduce divorce rates. However, in its implementation, fundamental procedural challenges are frequently encountered, one of which is the erroneous application of mediation by judges during the court session for the execution of the divorce pledge (ikrar talak). This error generally occurs when a case has been decided and has acquired permanent legal force (inkracht van gewijsde), yet the mediator judge still enforces a repeated mediation process that is formally defective under procedural law. This study aims to analyze in depth the juridical impact of such procedurally defective mediation practices on the validity of talak, utilizing a comparative analysis between the jurisprudential perspective of the Shafi'i school and the formal provisions in the Compilation of Islamic Law (KHI). The research method employed is normative-juridical (doctrinal legal research) with a statutory approach, a conceptual approach, and a comparative law approach. Secondary data consisting of authoritative books of the Shafi'i school, the legal text of the KHI, and the Supreme Court Regulation (PERMA) Number 1 of 2016 were analyzed qualitatively using content analysis. The results conclude two main findings. First, in classical Islamic law conceptualization according to the Shafi'i school, the validity of pronouncing talak rests entirely on the substantial fulfillment of pillars (rukun) and conditions (syarat), particularly the independence aspect of the talak utterance (sighat) by a husband of sound mind without coercion. The Shafi'i school does not depend the validity of talak on judicial bureaucratic formalities; thus, a procedurally defective mediation by a judge does not ruin or invalidate the sharia validity of talak (diniyyan). Second, within the framework of Indonesian positive law represented by the KHI and the Religious Judicature Law, talak is interpreted as a legal act that is only valid and possesses binding legal force if it is pledged before a Religious Court session after undergoing valid mediation procedures. Procedural defects in the implementation of mediation at the final stage directly imply a formal defect (legal defect) in the judge's decree or decision. This results in the loss of executorial power over the divorce pledge, which potentially triggers legal uncertainty regarding the marital status and the civil rights of the former wife. This study demonstrates the existence of dualism and tension between state law formalities and the material validity of Islamic law (living law). The recommendations of this study encourage the Supreme Court to reconstruct procedural law through technical regulations that clarify the boundaries and timeline of mediation so as not to obscure the crucial stage of executing the divorce pledge in Religious Courts.