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Gender Justice Questioned in Indonesia’s Joint Property Law, New Study Finds
A 2026 study by Sri Hariati and Haeratun of the Faculty of Law, Social and Political Sciences (FHISIP), University of Mataram (UNRAM), examines how Indonesia’s Compilation of Islamic Law (KHI) handles the division of marital property and whether it truly reflects gender justice. Published in Jurnal Multidisiplin Madani (MUDIMA), the research highlights a key legal tension: rules designed to ensure fairness may, in practice, produce unintended inequality.
The findings matter because joint property disputes—especially after divorce or death—affect millions of Indonesian families. As gender equality becomes a central policy and social issue, understanding how legal frameworks treat men and women differently is critical for ensuring fair outcomes in family law.
Background: Equality vs. Fairness in Islamic Family Law
Indonesia’s legal framework for Muslim families is heavily shaped by the Compilation of Islamic Law, introduced through Presidential Instruction No. 1 of 1991. The KHI governs marriage, inheritance, and property rights, and is widely used in Religious Courts.
At its core, Islamic teaching promotes egalitarian values. Men and women are regarded as equal in dignity, rights, and responsibilities, even while recognizing biological differences. Gender justice, in this context, does not mean identical treatment, but fair treatment based on roles, contributions, and circumstances.
However, the study notes that modern interpretations of gender justice go beyond formal equality. They emphasize access, participation, control, and benefits in family and social life. This broader understanding raises questions about whether a uniform legal rule—such as dividing marital assets equally—can truly reflect fairness in diverse real-life situations.
Methodology: Combining Legal Texts and Real-World Practice
The researchers used an empirical legal approach, combining:
- Statutory analysis of KHI provisions on joint property (Articles 85–97)
- Conceptual analysis of gender justice principles
- Sociological (empirical) insights into how laws are applied in practice
Data included primary legal materials and secondary sources such as legal literature and prior studies. The analysis relied on qualitative and descriptive methods, supported by triangulation to ensure data validity.
This approach allowed the authors to compare “law in books” with “law in action,” revealing gaps between written rules and real-world outcomes.
Key Findings: Where the Law Supports—and Falls Short of—Gender Justice
The study finds that many KHI provisions support gender equality, but some key rules—especially those governing property division—remain problematic.
1. Strong Support for Equal Property Rights
Several KHI articles clearly uphold gender equality:
- Separate property rights: Assets owned before marriage, or received as gifts or inheritance, remain under individual control.
- Equal authority: Both husband and wife can manage their own property without needing spousal permission.
- Shared responsibility: Both spouses are responsible for maintaining joint property.
- Mutual consent: Joint property cannot be sold or transferred without agreement from both parties.
These provisions align with international standards such as the CEDAW Convention, which calls for equal rights in property ownership and management.
2. The 50:50 Rule: Equality or Hidden Inequality?
The most controversial finding concerns Article 97 of the KHI, which mandates that joint property be divided equally (50:50) after divorce, regardless of each spouse’s contribution.
Key concerns include:
- Ignoring unequal contributions: A spouse who contributed more financially may receive the same share as one who contributed less.
- Potential “invisible discrimination”: A rule that appears fair can disadvantage one party in practice.
- Lack of contextual flexibility: The law does not account for variations in economic roles within marriage.
This rigid approach may conflict with the principle of substantive justice, which considers real-life conditions rather than formal equality alone.
3. Recognition of Non-Economic Contributions
Despite the 50:50 rule, the study highlights a more progressive trend in judicial practice:
- Courts increasingly recognize non-economic contributions, such as household management and emotional support.
- Wives who do not earn income are still considered contributors to family wealth.
- Judges sometimes move beyond formal ownership documents to assess actual roles during marriage.
This reflects the Islamic concept of syirkah (partnership), where both spouses are seen as partners in building family wealth.
Real-World Implications: Toward More Contextual Justice
The study suggests that Indonesia’s legal system is at a crossroads between formal equality and substantive justice.
For policymakers:
- There is a need to revisit rigid provisions like Article 97 to allow more flexible, case-based decisions.
- Legal reforms could better reflect both financial and non-financial contributions.
For courts and legal practitioners:
- Judges play a crucial role in interpreting the law in ways that reflect real-life fairness.
- Continued recognition of domestic labor is essential for gender-equitable outcomes.
For society:
- Public awareness of legal rights—especially among women—remains limited.
- Strengthening legal literacy and access to legal aid is critical to achieving justice.
Author Insight
Sri Hariati of the University of Mataram emphasizes that fairness in marital property division must go beyond numerical equality. In her analysis, equal division without considering the lived realities of marriage can lead to subtle forms of injustice, even when the law appears neutral.
Author Profiles
- Sri Hariati, S.H., M.H. – Legal scholar at the Faculty of Law, Social and Political Sciences, University of Mataram (UNRAM), specializing in Islamic family law and gender justice.
- Haeratun, S.H., M.H. – Researcher and lecturer at FHISIP UNRAM with expertise in legal sociology and Islamic law.
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