ANALYSIS OF THE MARRIAGE GUARDIAN RIGHTS FOR CHILDREN BORN FROM UNREGISTERED MARRIAGES FROM THE PERSPECTIVES OF ISLAMIC LAW AND POSITIVE LAW: (A CASE STUDY IN PANGTONGGAL VILLAGE, PROPPO DISTRICT, PAMEKASAN REGENCY)

Abstrak

Unregistered (siri) marriages, which remain prevalent in society, give rise to various legal issues, particularly concerning the rights of a marriage guardian (wali nikah) for children born from such unions. The differing perspectives between Islamic law and positive law in Indonesia regarding the status of the biological father as a marriage guardian create a complex issue, especially in practical implementation within society. This study aims to analyze the rights of a marriage guardian for children born from unregistered marriages from the perspectives of Islamic law and positive law, as well as to examine its implementation in Pangtonggal Village, Proppo District, Pamekasan Regency.This research employs a normative-empirical method, which examines applicable legal provisions based on Islamic legal norms and statutory regulations, and connects them with empirical facts found in the field. Data were collected through interviews with community leaders, village officials, and related parties, supported by a literature review of relevant legal sources. The results indicate that, from the perspective of Islamic law, children born from unregistered marriages still have a lineage (nasab) relationship with their biological father as long as the marriage fulfills the pillars and conditions, thus granting the father the right to act as a marriage guardian. Meanwhile, under positive law, children from unregistered marriages are administratively recognized as having civil relations only with their mother and the mother's family. Consequently, the biological father cannot automatically act as a marriage guardian without formal acknowledgment or a court determination. This difference creates legal and social implications in the practice of marriage within society.This study is expected to contribute to the development of Islamic family law and serve as a consideration for society and relevant authorities in addressing issues related to marriage guardianship for children born from unregistered marriages.