Legal Construction of Unregistered marriage: A Comparative Analysis from the Perspective of Ushul Fiqh and Positive Law

Abstract

Unregistered marriages are a socio-religious phenomenon that continues to grow in Indonesian society, even though they are not officially recognized by the state. This phenomenon raises complex legal and social issues, particularly in relation to the protection of women's and children's rights and legal certainty in the institution of marriage. This study aims to analyze the legal construction of secret marriage practices through the perspective of ushul fiqh and Indonesian positive law. Using a qualitative method through a legal-normative approach, this study examines Islamic legal norms and national regulations related to marriage through an analysis of legislation, fatwas, and legal literature. The results of the study show that there is tension between the state's legal-formal principles and the normative flexibility in Islamic law regarding marriage registration. Therefore, an integrative and contextual legal formulation is needed, one that can accommodate social realities without neglecting the values of justice and legal protection. The implications of this research highlight the need for reform of Islamic family law that is responsive to religious practices at the grassroots level, while ensuring legal certainty and the civil rights of citizens.