Dinamika Syarat Pemisahan Tempat Tinggal 6 Bulan dalam Perceraian: Analisis SEMA Nomor 3 Tahun 2023 dan Implementasi Maqashid Syariah

Abstract

The high divorce rate under the pretext of continuous disputes and quarrels’ has led to the desacralization of marriage and triggered disparities in Religious Court decisions. In response, the Supreme Court issued Circular Letter (SEMA) No. 3 of 2023, mandating a minimum 6-month separation period as an objective standard for a broken marriage, with a specific exception for cases indicating Domestic Violence (KDRT). This normative legal research aims to analyze the ratio legis and the implementation of this regulation using statutory and conceptual approaches based on Maqashid Syariah. The findings indicate that the 6-month separation requirement serves as an instrument of sadd adz-dzari'ah to minimize impulsive divorces, ensure legal certainty, and protect family integrity (hifz al-nasl). Conversely, the exception for KDRT victims represents the harmony and flexibility of Islamic law, which prioritizes the safety of human life (hifz al-nafs) over the formal administrative procedures of marriage. In conclusion, SEMA 3/2023 has normatively succeeded in harmonizing legal certainty with gender justice. However, on an empirical implementation level, this regulation demands the courage of Religious Court Judges to conduct progressive legal discovery (rechtvinding) when evaluating non-formal KDRT evidence to prevent the secondary victimization of women.

The high divorce rate, citing persistent disputes and quarrels, has created a phenomenon of the desacralization of marriage and triggered disparities in decisions in the Religious Courts. Responding to this, the Supreme Court issued SEMA Number 3 of 2023, which requires a minimum of 6 (six) months of separation as an objective standard for broken marriages, with special exceptions for cases indicating Domestic Violence (KDRT). This normative legal research aims to analyze the legislative ratio and implementation of this regulation using a statutory and conceptual approach based on Maqashid Sharia. The results of the study indicate that the 6-month separation period requirement is a sadd adz-dzari'ah instrument to minimize impulsive divorce, ensure legal certainty, and protect family integrity (hifz al-nasl). On the other hand, the exception for victims of domestic violence represents the harmony and flexibility of Islamic law that prioritizes the safety of human life (hifz al-nafs) above the formalities of marriage administration procedures. In conclusion, SEMA 3/2023 has normatively succeeded in establishing a dialogue between legal certainty and gender justice. However, in its empirical implementation, this regulation demands courage from Religious Court Judges in conducting progressive legal discovery (rechtvinding) when assessing non-formal evidence of domestic violence to prevent secondary victimization of women.