Normative Criteria for the Use of Wali Muhakkam in Itsbat Nikah Proceedings

Abstract

This study aims to formulate the limitations and criteria for the use of wali muhakkam as a requirement for marriage validity in itsbat nikah proceedings (judicial confirmation of marriage) and to analyze the legal certainty of their application. The research addresses the interpretive scope of Article 2(1) of Law No. 1 of 1974 on Marriage, particularly its reference to religious law, and its relationship with the Compilation of Islamic Law, which regulates wali nasab and wali hakim but does not explicitly regulate wali muhakkam. This regulatory gap has contributed to divergent judicial interpretations. Employing normative legal research with statutory, conceptual, and case approaches, this study analyzes six Religious Court determinations: three rejecting and three granting applications for judicial confirmation of marriage involving wali muhakkam. Legal materials were collected through library research and analyzed prescriptively using Jasser Auda’s Systems Approach and Bagir Manan’s theory of legal certainty. The findings establish that wali muhakkam should be treated as an exceptional, last-resort mechanism rather than an alternative equivalent to wali nasab or wali hakim. Its use must satisfy six cumulative criteria: the absence of a wali nasab capable of exercising guardianship; the actual unavailability of the wali hakim mechanism; exceptional circumstances; consistency with the objectives of Islamic law (maqāṣid al-syarī‘ah); compatibility with the national marriage law system; and the guardian’s personal qualifications under relevant Islamic jurisprudential doctrines. The originality of this study lies in formulating these cumulative, case-specific criteria as normative parameters for judicial assessment to strengthen legal certainty through decisions grounded in relevant facts, evidence, and reasoned legal analysis.