Legal harmonization of marriage guardian appointments for children from unregistered marriages: a shafi'i perspective

Abstract

The appointment of marriage guardians for children born from unregistered marriages remains a legal issue due to differences between the Shafi'i School and Indonesian positive law. The Shafi'i School recognizes the biological father as the lawful marriage guardian if the marriage fulfills Islamic legal requirements, whereas Indonesian law requires marriage registration to establish the legal relationship between father and child. This study analyzes the legal considerations applied by the Mojosari Office of Religious Affairs (KUA) in appointing marriage guardians from the Shafi'i perspective. A qualitative case study was conducted using observation, interviews, documentation, and literature review, with data analyzed through qualitative and normative approaches. The findings show that the KUA appoints a wali hakim when the parents' marriage cannot be legally verified, while a wali nasab is recognized only when supported by documentary evidence or a court-issued itsbat nikah. The study demonstrates the harmonization of Islamic jurisprudence and Indonesian positive law in marriage guardian appointments, contributing to greater legal certainty and improved marriage administration.