Comparison of Judge's Determinations Regarding Marriage Dispensation (Study of Determination Number 73/Pdt.P/2020/PA.Sak and 201/Pdt.P/2023/PA.Sj)

Abstract

The amendment to the Marriage Law through Law Number 16 of 2019 aims to suppress the high rate of child marriage by raising the minimum age to 19 years. However, the absence of restrictive limits on the phrase "urgent reasons" in Article 7 paragraph (2) creates a legal loophole triggering a disparity in judges' decisions at the Religious Courts. This study aims to analyze the inconsistency of judges' legal reasoning regarding marriage dispensation applications, specifically in cases with a premarital history without pregnancy. This normative legal research utilizes a statute approach and a comparative case approach. The results reveal a sharp disparity in applying the legal discovery method (Rechtsvinding). The judge in Determination Number 73/Pdt.P/2020/PA.Sak applied a socio-religious interpretation, prioritizing the Sadd ad-dzari’ah principle to prevent adultery, thus granting the application. Conversely, the judge in Determination Number 201/Pdt.P/2023/PA.SJ progressively rejected the application, emphasizing that psychological unpreparedness, structural poverty potential, and divorce risks constitute far greater harm. This interpretative disparity directly violates the legal certainty principle (Rechtssicherheit), triggers forum shopping practices, and proves that permissive decisions contradict the Best Interest of the Child principle mandated in PERMA Number 5 of 2019. Therefore, the Supreme Court is recommended to promptly issue a derivative regulation (SEMA) providing an authentic interpretation of urgent reasons. Judges are also required to position the child's educational rights and future welfare as absolute parameters, overriding mere subjective parental moral concerns.