PERLINDUNGAN HUKUM TEHADAP PASANGAN YANG DIRUGIKAN AKIBAT PERALIHAN HAK ATAS TANAH SEBAGAI HARTA BERSAMA TANPA PERSETUJUAN

Abstract

Article 2 of Law Number 1 of 1974 concerning Marriage provides for the circumstances under which a marriage is considered legally valid. Marriage not only gives rise to legal relationships concerning the personal status of husband and wife but also gives rise to legal consequences concerning property acquired during the marriage. In practice, however, the transfer of land rights constituting joint marital property is frequently carried out unilaterally by one spouse without the written consent of the other spouse. In principle, joint marital property acquired during the marriage constitutes jointly owned property, the transfer or encumbrance of which requires the consent of both parties. An exception applies where the property being transferred constitutes the separate property of either party acquired prior to the marriage. The research problems addressed in this study are: What are the legal consequences of the transfer of land rights constituting joint marital property without the consent of a spouse? and What forms of legal protection are afforded to a spouse who suffers losses as a result of the transfer of land rights constituting joint marital property without consent? The theories employed in this research are the Theory of Legal Protection proposed by Satjipto Rahardjo and the Theory of Legal Consequences proposed by R. Soeroso. This research employs a normative juridical method, namely legal research based on library research or secondary data, utilizing primary, secondary, and tertiary legal materials. The research approaches used include the Statutory Approach, Conceptual Approach, Analytical Approach, and Case Approach. The collection of legal materials was carried out by identifying, inventorying, and examining positive legal regulations, books, legal journals, and court decisions. The analysis of legal materials was conducted through grammatical interpretation, systematic interpretation, as well as methods of analogical construction and legal refinement construction. The results of the study indicate that the transfer of land rights constituting joint marital property without the consent of a spouse constitutes an unlawful act pursuant to Article 1365 of the Indonesian Civil Code and is contrary to Article 36 paragraph (1) of the Marriage Law. A unilateral transfer may cause losses to one of the spouses because the object subject to the dispute constitutes joint marital property. The transfer of rights over land does not require the consent of the spouse if the object constitutes the separate property acquired by either party prior to the marriage.