Al-hiyal Syari’ah is commonly practiced in Hibah and Testament
Jakarta | Portal Rakernas (21/09/2011)
Hiyal asy-Syari’ah which is recognized as legal fiction in Western tradition, is commonly practiced in Indonesia. The hon. Justice, Mukhtar Zamzami said in the Meeting of Commission II, Rakernas, Tuesday (20/09/2011).
In Indonesia, Muslims often make hibah (bequest) to distribute all of his property to his children before his death. It is aimed change inheritance share among heirs as stipulated in Islamic law of inheritance.
In Islamic law, inheritance share for men is two folds than women. In a case of a man want to give more properties to his daughters or give them like his son’s share, he will deceive the law; properties are distributed before someone’s death by using hibah (bequest).
But, according to Munawwir, hiyal is a kind of deviation to Quranic regulation.
According to Majid Khadduri, this hiyal (legal fiction) is legal. Hibah (bequest) is permitted to practice while someone aims to give more properties to one of heirs. It is one of substantive justice.
Muslim scholars from Hanafiyah school agreed with this legal fiction as long as it is not aimed to avoid religious duties.
Mukhtar Zamzami then explains that Qodri Azizy has a unique term, al-ahkam al-wijdaniyah which means law of affection. An agreement among heirs to distribute inheritance shares becomes important so that they should not file a case to the courts.
How do judges examine this case?
According to Mukhtar Zamzami, case to cancel bequest filed by heirs can be accepted. Bequest from inheritance shares will take in effect if it is agreed by all heirs.
(Arijaya)
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