Marital Beslag Outside Divorce Lawsuit in the Maqashid Syari’ah Perspective

The law of marriage seeks to protect joint property in the marriage bond with the hope that a quality family can be formed without any problems. Rules in law provide various reasons for formal legal guarantees for the protection of joint assets. This reason also does not escape the view of Islamic law through maqashid syar'iyah. This paper uses a normative approach. The focus of the problem in this paper is the objective of applying marital beslag outside of a divorce suit from the viewpoint of maqashid syar'iyah. The results showed that the provisions for marital beslag outside of a divorce suit were intended to maintain human needs from the financial aspect of the family that could sustain the family. In this context, protection of property helps maintain relationships between individuals (families) through the meaning contained in the text, where confiscation contains an element of family care which is also the goal of the maqasid.


Introduction
Assets in Islam are something very important, because these assets will be used for one's needs and survival. 1 Islam views wealth as a means to get closer to Allah SWT. 2 Therefore, protection of property must be under the auspices of sharia which cannot be so that the property must be protected. 10 During the confiscation period, the use of joint assets will be limited, such as transferring to other parties. 11 A potential approach in examining this confiscation is to use Maqashid syar'iyah in the context of social welfare. This paper describes the meaning of the application of marital beslag as an effort to protect property outside divorce disputes through maqashid. This will give rise to the purpose of protecting the property itself in providing benefits. Maqashid syar'iyah contains the aims and objectives that the shari'ah strives for in establishing a law for the benefit of mankind. 12 Therefore the principles in Islamic law are to eliminate narrowness and difficulty, reduce burdens, gradually enact laws, pay attention to the benefit of humans, and create justice. 13 This writing is done by collecting data and information relating to claims outside of a divorce suit and the concept of protection of property in maqashid syar'iyah, then reviewing and analyzing it with supporting materials in normative studies. All data obtained through literature study will be grouped according to the purpose so that it is easy to understand. With this, the author will easily understand what happened, and what to do base on an understanding of the presentation of the data. After the data is arranged, conclusions will be drawn.

Confiscation Filing in Legislation
The laws provide equal rights for husbands and wives towards the applications for confiscation. 14 Thus, the basis request for it was not based on the position of the plaintiff, but on who controlled the joint property. The seizure process must of course go through a request for confiscation to a court judge. The judge will study the request in accordance with the applicable application filing procedures. Regarding seizure based on a request for confiscation, it is fundamental, because the determination of seizure cannot be carried out if there is no initiative from the plaintiff who filed a request for confiscation. In this case, the court has the authority to provide advice and assistance to the Petitioner or to his attorney in filing his application. 15 The requirements for a confiscation application must meet the following elements: 1. A request for confiscation can be filed either with a lawsuit or outside the claim. 2. An application for confiscation must be submitted to the competent authority with a vertical level which means starting from the District Court, High Court and the Supreme Court. 3. The Petitioner / Plaintiff is obliged to explain in detail the form of the object being requested for confiscation. 4. Must be accompanied by clear reasons. 16 The applicant must be able to demonstrate the existence of a relationship and the importance of confiscation in the case concerned. The provisions of Article 261 RBg and Article 720 RV provide the main reasons in the request for confiscation such as a concern or suspicion that the respondent will commit fraud on joint property (embezzling or exiling). The concern or suspicion must be real and objective, in which: a. The process of implementing confiscation is carried out through stages of application examination. After the application for seizure is submitted, the judge or chairman of the panel will examine the contents of the application letter, the evidence for confiscation and consider the reasons for the petition put forward by the applicant. If these conditions have been fulfilled, the judge examining the case can do the followings: 1. Directly issuing a decree that grants the request for confiscation without an incidental hearing being held first. This confiscation order is accompanied by the determination of the day of trial and the order of the parties in a case to appear before the trial as determined; 2. If the request for seizure is unreasonable, then the judge will determine the day of trial and at the same time reject the request for confiscation. This provision also does not require an incidental hearing; 3. The judge makes a decision on the day of the trial and includes a postponement of the request for confiscation. Regarding this provision, an incidental trial is required first and an interim decision must be made.
If the application for confiscation is filed separately from the subject matter of the case, an incidental hearing must be held to determine the seizure and an interim decision is made. 18 There are two possibilities for this. First, filing in writing separated from the lawsuit. In this case, the judge will postpone the trial and order the applicant to register a request for confiscation at the Registrar's Office. Requests for confiscation in writing are usually filed during court hearings or as long as the verdict does not have permanent legal force. Second, submitted orally in court proceedings. The judge will make a note of the request for confiscation and order the clerk to record it in the trial report. Then the trial was adjourned and ordered the applicant to register the request for confiscation at the secretariat. 19 After examining it and it is deemed sufficient and complete, the chairman of the assembly issues a letter of determination on the request for confiscation which rejects or grants the request for seizure. In the event that the application is rejected and new things arise that worry the applicant as the reason for the application for confiscation, the application can be submitted again. If the request for seizure is granted, the judge or chairman of the panel examining the case issues a decree which issues the request for seizure and orders the clerk or bailiff to carry out the confiscation. 20 The bailiff's role in carrying out the confiscation is assisted by two witnesses who meet the requirements, namely Indonesian citizens, aged at least 21 years and can be trusted. 21 Before carrying out the confiscation, the bailiff first notifies the parties and the local village head that the confiscation of the disputed items will take place on the day, date, time and place that have been determined. 22 The purpose of this notification is so that they know and take part in witnessing the confiscation and inform the general public about the purpose of the bailiff's arrival and explain that there is a prohibition on transferring rights or transferring confiscated items to other people. If the act is committed, it is invalid (null and void) and is a criminal act. 23 During the execution of the confiscation, the bailiff must pay attention to several things such as checking whether the confiscation has been legally and officially notified; check the presence or absence of the parties concerned. If the confiscation is not present at the time the confiscation is carried out, the confiscation 19 Ibid. 20 Abdul Manan, Penerapan Hukum Acara Perdata di Lingkungan Peradilan Agama, (Jakarta: Kencana, 2006 will be announced on another day. If the confiscated party is present he can be ordered to also sign the minutes; check and record the confiscated goods and make necessary notes about what happened during the confiscation and must be stated in the report of the confiscation; the minutes of seizure must contain in detail one by one the confiscated goods and also explain the size and weight of the goods seized and signed by the clerk, bailiff or the official appointed to carry out the confiscation. 24 The provisions for confiscated goods have a different implementation. Regarding moving objects, the bailiff leaves the guard of the item to the party where the object is located. 25 It is different if the object confiscated is in the form of money because it is classified as moving goods. 26 Money confiscation can be carried out at the bank where the money is deposited or it can also be transferred to another place deemed appropriate. 27 For example, in the clerk of the Religious Court, provided that the money cannot be used for other purposes or borrowed by anyone. 28 In contrast to immovable objects, the party whose goods are confiscated becomes a legal depositor on the condition that the keeper does not cause a decrease in the value of the said goods. 29 Confiscation of immovable objects must be carried out at the location where the goods are located by matching their characteristics, shape and boundaries. If at the location determined by the bailiff does not find the items to be confiscated or the signs are not in accordance with those mentioned by the applicant, and then the bailiff makes a confiscation report which states that the 24  The provisions for movable objects or immovable objects that are outside the jurisdiction of the court that process the case, the Chief Justice makes a request for confiscation to the court where the goods are located. 31 The application for seizure must be attached to a confiscation determination made by the panel of judges. The court that is requested to be seized is obliged to immediately send the result of the execution of the confiscation to the Court, which processes the case within 28 hours in the form of a confiscation report. 32 Then submit the minutes of seizure at the next trial and determine the legal and valuable confiscation and recorded in the trial minutes. 33 Provisions for confiscated objects in the form of permanent objects or objects registered with government agencies or agencies, so that they are always recorded in the register book and a copy of the minutes must be submitted to the institution or agency concerned. 34 And every item that has been confiscated must be recorded in the religious court's confiscated register book.

The Position of Confiscation outside Divorce Lawsuit against Marriage
Marital beslage means that all joint assets are frozen under confiscation. 35 This serves to protect the existence and integrity of collective property for the bad intention's of either party. The focus of the assessment in this case is the security or protection of the existence of joint assets. 36 Provisions related to the protection of 30  joint assets can be found in the KUHPdt (Indonesian Civil Code) which reads "During the trial, the wife may take actions, with the judge's permission, to keep her belongings from being lost or wasted by the husband." 37 Other laws that regulate this can also be found in Government Regulation Number 9 of 1975 concerning the Implementation of Law Number 1 of 1974 concerning Marriage, Law Number 7 of 1989 concerning Religious Courts and Compilation of Islamic Law which reads "During the ongoing divorce lawsuit for petition by the plaintiff or the defendant, the court may determine matters necessary to ensure the maintenance of goods which are joint rights of husband and wife or items which are the right of the husband or items which are the rights of the wife". 38 If starting from the provisions of Article 190 of the Civil Code and Article 24 paragraph (2) letter c of Government Regulation No. 9 of 1975, the application of marital beslag institutions was limited to divorce cases (huwelijksontbinding). However, in a broad sense, the application of marital beslag includes other disputes that arise between husband and wife such as waste of money. Another article in the Compilation of Islamic Law also states that "Without prejudice to the provisions of Article 24 paragraph (2) letter c of Government Regulation no. 9 of 1975 and Article 136 to place collateral confiscation of joint assets without an application for divorce, if one of them commits an act that is harmful and endangers joint property such as gambling, drunkenness, wastefulness and so on." 39 Compilation of Islamic Law explains that a husband and wife can file a request for marital beslag without a divorce suit. The application is used to protect joint assets from the actions of one of the harmful parties, such as drunkenness, gambling, wastefulness, and so on, so that they can spend their assets without intending to divorce. In other words, marital beslag guarantees joint property 37 Article 190 of the Civil Code. 38  The Civil Code also regulates marital beslag outside the main case (divorce suit) Article 186 of the Criminal Code, where this provision has been modified as written customary law in accordance with the spirit contained in Supreme Court Circular No.3 of 1963. 41 This article explains that it is permissible for a wife to submit a request for marital beslag outside of a divorce suit and a request for separation of marital assets that are still intact if the husband's behavior actually wastes family assets which can bring catastrophic destruction to the household. 42 The request can also be submitted if the husband's management of assets is not orderly, so that the safety and integrity of joint assets is not guaranteed. 43 The request for marital beslag in this case must be based on the reason that the joint property is in danger because of an act of the husband or wife which actually wastes joint property and may result in the collapse of the family and household; There is no order in managing and managing joint assets by husband or wife that could endanger the integrity of the joint assets. 44 Granting the application focuses on the reasons for filing for confiscation due to indications that joint assets can be lost and harms other parties and their children in the future. 45 Certainly, this must be accompanied by strong evidence such as authentic letters and witness statements. If this concern cannot be proven, the application for confiscation will be rejected. However, if proven, the request will be granted. Thus, an continuity and development of human life. In the development of Nusantara (Indonesian) fiqh thought, the fuqahā 'Nusantara continuously practiced fiqh which was unique or in accordance with the situation and condition of the people in the archipelago which of course turned out to be putting forward maqashid al-syari'ah such as Nur Al-Din Al-Raniry (W. 1068 H / 1658 AD), Syeikh Abdurrauf Singkel (1024 H / 1615 AD), Shaykh Muhammad Arsyad Al-Banjari (1710-1812 AD), Sheikh Ahmad Khatib Minangkabau (1860-1916 AD), Munawir Syadzali, Ibrahim Hosen, Sahal Mahfudz , andAli Yafie. 50 The Shari'a aims to create the benefit of mankind in this world and the hereafter. 51 This statement can be said that the content of maqashid syar'iyah or the purpose of law is the benefit of mankind. This opinion starts on the understanding that an obligation is created to realize the benefit of mankind and none of God's laws have no purpose. 52 Jhering called for a change from the law of causality mechanism to maqashid law. In his view, an action appears to be passive if it is based on the understanding of cause. However, if it is based on a maqashid understanding, actions that are moved by an intention will appear to be active and have their own awareness. Even if the purpose of an action is uncertain, without the intention of the action, it is impossible to exist as an effect without cause. 53 Intention is an indispensable component of legal philosophy. 54 The purpose of regulating the confiscation of collective property is realized in order to protect the property from Protection of assets in the form of confiscation, in addition to protecting joint assets, but also to ensure the integrity of the marriage. The context of the application of confiscation is to protect property from actions that endanger property so that it can result in family resilience. 56 The application of this marital beslag provides flexibility for husband and wife to maintain family resilience. In the contemporary maqashid conception, be concerned for the family is a development of the preservation of offspring (hifzn nasl) which is family oriented and moral values in Islamic law. 57 'Abd al-Qadir' Awdah provides an example of a quite interesting settlement related to safeguarding assets. Someone who is forced to sacrifice in order to save the property of other people who really need it for their survival, then this is allowed because of hifz nasl. In addition, it also has a hifz mal element in the sense of participating in the development and empowerment of others. 58 Jamaluddin Atiyyah also explained specifically with regard to maqashid or the purpose of marriage law (family) by using the principle of understanding and interpreting the text of the Al-Qur'an and Hadith about maqashid syar'iyah marriage. He stated that the maqashid syar'iyah of marriage is to regulate the relationship between men and women, create a family that is sakinah mawaddah wa rahmah (happy, loving and supportive), keep offspring, maintain diversity in the family, set good patterns in the family, and regulate Protection of assets in confiscation is intended to maintain human needs from the financial aspect of the family while maintaining family relationships. Intent systems can produce different results for the same environment as long as the different results achieve the desired purpose. 60 Concern for the family is another result found in refinement as a manifestation of property protection. With this, safeguarding property in the context of confiscation outside of a divorce suit helps to maintain relationships between individuals (families).
The confiscation policy follows the consideration of the principles of maqashid syar'iyah and the wishes of the community through social benefits. The benefits expressed by nas or not directly expressed by nas will combine into one category of benefit mentioned in the text. 61 This includes explicitly and implicitly as long as the benefit reaches maqasid in the Islamic legal system.

Conclusion
The basic concept of maqashid syar'iyah as an ethicalmoral basis is to reveal the goals to be achieved from a legal stipulation in order to achieve maslahah for humans both in the world and in the hereafter by parsing the five features of daruriyyat alkhamsah, namely: (1) maintain religion; (2) nurturing the soul; (3) maintaining offspring; (4) maintaining reason; and; (5) maintaining property.
Protection of assets in the form of confiscation is an effort to maintain the financial aspects of the family while maintaining family relationships. Safeguarding assets in the context of confiscation outside of a divorce suit also maintains relationships between individuals (families). This is done through a system of intent which can produce different results for the same environment 59 Jamaluddin 'Atiyyah, Nahwa Taf