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All Journal JILS (Journal of Indonesian Legal Studies)
Rahmawati Mohd Yusoff
Faculty of Law, Universiti Teknologi MARA
Law, Crime, Criminology & Criminal Justice

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Juridical Consequences of Anticipatory Breach as a Form of Breach of a Contract Dewi Sulistianingsih; Christian Chandra Wijaya; Rahmawati Mohd Yusoff; Yuli Prasetyo Adhi
Journal of Indonesian Legal Studies Vol. 9 No. 1 (2024): Navigating Legal Landscapes: Exploring Justice Development in Indonesia and the
Publisher : Universitas Negeri Semarang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15294/jils.vol9i1.4537

Abstract

Default is a condition in which one of the parties does not carry out or fulfill obligations to the other party as specified in an agreement. In addition, there are several forms of default: not doing something at all, doing something but it is too late, doing something only partially, and doing something prohibited. The concept, the forms, and the consequences of default are often encountered in various literature and legal experts' opinions, unlike the concept of Anticipatory Breach, which is a form of breach of contract/default that exists universally in contract law. In Indonesia, no positive legal provisions accommodate the Anticipatory Breach concept in the form of default. Its nonexistence becomes interesting from the point of view of contract law, where sometimes the parties to the agreement directly or indirectly commit a form of anticipatory breach in implementing the agreement. So that this will raise a question how the impact of an anticipatory breach on the sustainability and implementation of the agreement that the parties have made.
Sole Custody and The Implication of Fault-based Divorce Under the Indonesian Legal System Hartini Hartini; Haniah Ilhami; Rahmawati Mohd Yusoff
Journal of Indonesian Legal Studies Vol. 9 No. 1 (2024): Navigating Legal Landscapes: Exploring Justice Development in Indonesia and the
Publisher : Universitas Negeri Semarang

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15294/jils.vol9i1.4576

Abstract

This study analyses the reasons why most judges in Indonesia’s religious courts tend to rule in favour of the sole custody model over the joint custody model following a divorce, even though the state, through the Child Protection Act, has enacted regulations emphasizing the granting of child custody using the joint custody model. This study is an evaluative review of the dominant sole custody model decided in the Religious Court concerning the Indonesian divorce law system, which emphasizes that divorce must be filed for a reason. The study results show that the divorce law requiring divorce to be accompanied by a reason and adopted by the Religious Court makes Indonesia a country that adopts a fault-based divorce system. This impacts the contestation and efforts of one party to find fault with the other party through the proof process in the Religious Court. Furthermore, to show that one party is better and more moral, there is a struggle for child custody rights while affirming the presumption that the party winning child custody is the better and more moral party. This means that child custody is always given to one party, not to both parties. The Religious Court needs to consider the use of a no-fault divorce system for several reasons: (1) Islamic jurisprudence recognizes no-fault divorce, namely, divorce with khuluk (khul’), and (2) efforts not to defame the couple in court are more in line with Islamic teachings.
Co-Authors Christian Chandra Wijaya Dewi Sulistianingsih Haniah Ilhami Hartini Hartini Yuli Prasetyo Adhi