A Legal and Human Perspective
Adapted from Dr. Muhammad Syaifuddin, S.H., M.Hum., Law of Divorce, Sinar Grafika, Bandung
Under Law No. 1 of 1974 on Marriage, the purpose of marriage is to form a happy and enduring family based on belief in God Almighty.
In Islamic family law, as reflected in the Compilation of Islamic Law, marriage is intended to create a household characterized by sakinah, mawaddah, and rahmah:
- Sakinah: peace and emotional security,
- Mawaddah: love and mutual affection,
- Rahmah: compassion and responsibility.
In reality, however, not all marriages can be sustained. In certain circumstances, maintaining a marital relationship may cause greater harm—legally, emotionally, and socially.
The key question is therefore not simply whether divorce is allowed, but whether divorce always represents failure, or whether it may carry certain legal and human wisdom.
Legal Grounds for Divorce
Government Regulation No. 9 of 1975, Article 19, provides legal grounds for divorce, including:
- One party commits adultery or engages in chronic misconduct such as alcoholism, drug abuse, gambling, or similar behavior that is difficult to remedy;
- One party abandons the other for two consecutive years without consent and without valid reason;
- One party is sentenced to imprisonment for five years or more after the marriage takes place;
- One party commits serious cruelty or violence endangering the other;
- One party suffers a physical disability or illness preventing the fulfillment of marital obligations;
- Continuous disputes and conflicts between husband and wife with no reasonable prospect of reconciliation.
These provisions demonstrate that the law does not promote divorce, but rather recognizes it as a last legal remedy when the objectives of marriage can no longer be achieved.
The Legal and Human Wisdom Behind Divorce
1. Divorce as a Means of Self-Correction and Protection
If the law were to completely close the door to divorce, marriages in crisis could become a source of prolonged suffering. Ongoing conflict between spouses almost inevitably affects children and undermines their well-being.
In this context, divorce may function as a protective legal mechanism, allowing each party to:
- acknowledge mistakes,
- restore personal dignity, and
- rebuild life with greater awareness and responsibility.
2. Divorce as a Safeguard Against Greater Harm
Islamic legal scholars and jurists agree that divorce is permissible because forcing a damaged marriage to continue may result in deeper harm—ongoing hostility, neglect of obligations, or even violence.
Accordingly, talaq is assessed contextually:
- Mandatory, when hostility has reached a level where separation is the only viable solution;
- Prohibited, where no legitimate marital problem exists;
- Permissible, where persistent harmful behavior occurs;
- Recommended, in certain circumstances involving serious neglect of fundamental religious duties.
This approach reflects a shared legal principle: the law prioritizes prevention of harm over formal preservation of status.
Closing Remarks: Divorce Is Not an Absolute Failure
Divorce is not an ideal outcome.
However, it should not be reduced to a moral stigma or viewed in purely emotional terms.
From a legal and human perspective, divorce serves as a final mechanism to protect dignity, safety, and the future of all parties involved, including children.
Just as in corporate practice we recognize risk management and exit strategies, family law also provides structured solutions when the original objectives can no longer be achieved without serious harm.
What ultimately matters is not merely separation or continuation, but whether the decision is made consciously, responsibly, and with legal clarity.
Editorial Note
This article is intended for general legal education and reflection. Each divorce case involves unique legal and personal circumstances and should be assessed individually with proper legal advice. (ID)