Rechtsvinding of Religious Court Judges in the Case of Marriage Dispensation: Efforts to Protect Children's Rights

Abstract

Child marriage is increasing in Indonesia. Changes in nomenclature in 2019 regarding the age limit for marriage as an effort to prevent child marriage had no effect. Child marriage continues to take place by applying for marriage dispensation. Dispensation applications have increased since 2020. This indication can be seen from the increase in marriage dispensation applications granted by Religious Court judges, especially Religious Courts in Lampung Province. The marriage dispensation clause is the basis for judges to grant applications for child marriage with consideration of urgent reasons and supporting evidence. The purpose of writing this article is how the legal discovery (rechtsvinding) of religious court judges in the case of dispensation of child marriage, rechtsvinding is an effort to protect children's rights. This article uses a qualitative method, and uses a hermeneutic approach, which focuses on issues of interpretation and understanding, which relate to oral and written discourse or text from the determination of Religious Court judges based on consideration of Gustav Radbruch's three legal values (justice, legal certainty and usefulness). The results show that judges face problems in deciding child marriage dispensation cases, where the decision to reject or accept the dispensation application considers the least negative impact, in order to protect the rights of children.