Formulating criteria for the civil relationship of children born out of wedlock after constitutional court decision number 46/puu-viii/2010 from the perspective of maslahah according to ‘Izz al-Dīn ibn ‘Abd al-Salām

Rofiq, Mahbub Ainur ORCID: https://orcid.org/0000-0002-9230-767X, Mufidah, Cholil, Fakhruddin, Fakhruddin ORCID: https://orcid.org/0000-0002-2115-8072 and Musataklima, Musataklima ORCID: https://orcid.org/0009-0004-9827-4460 (2026) Formulating criteria for the civil relationship of children born out of wedlock after constitutional court decision number 46/puu-viii/2010 from the perspective of maslahah according to ‘Izz al-Dīn ibn ‘Abd al-Salām. Hakam: Jurnal Kajian Hukum Islam dan Hukum Ekonomi Islam. ISSN 28295803

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Abstract

This article examines the formulation of criteria for the civil relationship of children born out of wedlock after Constitutional Court Decision Number 46/PUU-VIII/2010 from the perspective of legal certainty and the maslahah theory of Izzuddin ibn Abdissalam. The study is grounded in the ambiguity of the phrase “children born outside marriage” and the clause “civil relationship” in the Constitutional Court decision, which has led to diverse interpretations and disparities in judicial decisions. This research is a normative juridical study employing statutory and conceptual approaches. The legal materials consist of primary, secondary, and tertiary sources, including statutory regulations, Constitutional Court decisions, court decisions, Islamic legal doctrines, and relevant legal literature. The findings show that children born out of wedlock should not be treated as a single legal category. They need to be classified into three categories: children born from religiously valid but unregistered marriages, children born from defective marriages or relationships involving legal doubt, and children born from relationships without any marital bond. Each category produces different legal consequences, ranging from full, proportional, to limited civil relationships. This formulation aims to realize legal certainty, justice, utility, and maslahah while protecting children without undermining the legal order of lineage in Islamic family law.

Item Type:	Journal Article
Keywords:	children born out of wedlock; civil relationship; constitutional Court; legal certainty; maslahah
Subjects:	18 LAW AND LEGAL STUDIES > 1801 Law > 180113 Family Law 18 LAW AND LEGAL STUDIES > 1801 Law > 180128 Islamic Family Law 18 LAW AND LEGAL STUDIES > 1801 Law > 180128 Islamic Family Law > 18012813 Hadhanah (Child Custody, Guardianship) 18 LAW AND LEGAL STUDIES > 1801 Law > 180128 Islamic Family Law > 18012815 Nafaqah 18 LAW AND LEGAL STUDIES > 1801 Law > 180128 Islamic Family Law > 18012823 Mahram & Nasab
Divisions:	Faculty of Sharia and Law > Department of Sharia Business Law
Depositing User:	Mahbub Ainur Rofiq
Date Deposited:	15 Jul 2026 15:27

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