Isbat Nikah at the Intersection of Islamic Family Law and Criminal Law

Abstract

This study aims to examine the judicial handling of isbat nikah cases involving legal marriage impediments at the Suwawa Religious Court following the enactment of the 2023 Indonesian Criminal Code (KUHP). The research is motivated by the persistent phenomenon of undocumented marriages seeking retroactive state recognition amidst newly introduced penal threats against unlawful cohabitation. Using a normative juridical method with statutory and case approaches, this study analyzed 88 isbat nikah case dossiers registered at the Suwawa Religious Court in 2026. The empirical findings reveal that 14 cases (15.91%) were formally rejected by the judges due to substantive legal impediments, consisting of pre-existing valid marital ties (71.43%) and mandatory waiting period (iddah) violations (28.57%). These rejections demonstrate that the Religious Courts actively function as a pre-penal moral filter, preventing the administrative legitimization of unlawful and bigamous cohabitation. Consequently, civil adjudication serves as a front-line defense for enforcing Articles 402 and 403 of the 2023 KUHP. This study contributes to contemporary legal doctrine by providing an empirical framework and recommending the urgent establishment of inter-institutional cross-referencing guidelines between civil court registries and public prosecution offices.