THE EXISTENCE OF CHILD RECOGNITION AND ATTESTATION INSTITUTIONS IN THE PERSPECTIVE OF MAQASHID SHARI'AH THEORY
Abstract
A valid marriage will give birth to a legitimate child, meaning that the interests of the child will be legally protected. But the reality is that not a few children are born outside of legal marriage. This, of course, will have legal consequences for the status and rights of children. Basically, every child must get legal protection, including children born out of wedlock. This is because children's rights are protected by the state as stipulated in Article 28B paragraph (2) of the 1945 Constitution, which means that the provisions of the 1945 Constitution give birth to a constitutional norm that children also have the right to their legal status. To protect the rights of these children, there is known to be a child recognition and attestation institution. The Civil Code regulates the institution of recognition and legalization of children, while in national law the institution of recognition and endorsement of children is regulated in Article 49 and Article 50 of Law No. 24 of 2013 concerning Population Administration. This institution of recognition and attestation of children is very important because with the recognition and endorsement of children, it will be clear the fate of children. In the perspective of Islamic law the purity of nasab is very important, because it is closely related to the family structure, both in the law of marriage, inheritance and other civil rights. Keeping this offspring belongs to one of the maqashid of sharia. The purpose of this study is to determine the provisions for recognition and endorsement of children, as well as the relevance of sharia maqashid theory in child recognition and attestation institutions.
The research method uses the object of research on the existence of child recognition and attestation institutions in the perspective of maqashid sharia, normative juridical approach, the type of data used in this study is secondary data in the form of primary legal material, secundair legal material, tertiary legal material. The data is obtained by conducting a literature review, while the data analysis method is analyzed in a qualitative descriptive manner. The results showed that this provision of recognition and attestation of children is known in the Western legal system regulated in the Civil Code. This recognition and legalization of children applies to children born out of wedlock except adulterous children and discordant children. With this recognition and ratification can change the position of the child into a legitimate child, which will have legal consequences, namely the emergence of civil rights and other rights for children. As for Islamic law, there is no known institution of recognition and legalization of children as the Civil Code. Islamic law recognizes an institution of recognition of children known as istilhaq whose concept is different from the Civil Code. Meanwhile, in the national legal system, it is known that the institution of recognition and legalization of children is regulated in Article 49 and Article 50 of Law No. 24 of 2013 concerning Population Administration which is limited to children born as a result of legal marriages but whose marriages are not recorded. The relevance of the maqashid theory of sharia to the institution of recognition and legalization of children remains based on children born as a result of legal marriage. Maqashid shari'ah to protect offspring or nasab is essential in the life of the human child.
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Civil Code (KUHPercivil)
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