TINJAUAN KRITIS ATAS ASAS KEPENTINGAN TERBAIK ANAK DALAM PRAKTIK DISPENSASI KAWIN DI INDONESIA

Abstract

This study critically examines the implementation of the Best Interests of the Child (BIC) principle in the practice of granting marriage dispensations in Indonesia. Using a socio-legal approach, the research analyzes the gap between the normative provisions in Supreme Court Regulation (PERMA) Number 5 of 2019 and its implementation in the rulings of Religious Courts. Primary data was obtained from the analysis of marriage dispensation decisions in several religious courts, supported by a literature study of primary and secondary legal sources. The research findings reveal that although PERMA No. 5 of 2019 has established procedural standards to guarantee the BIC principle, in practice, a reduction of the substantive meaning of this principle occurs. Judges' considerations in granting marriage dispensations are predominantly dominated by religio-moralistic reasons such as "avoiding zina" (unlawful sexual intercourse) and socio-cultural pressures such as "covering shame" due to out-of-wedlock pregnancy. Analysis of the court decisions shows that elements of the BIC principle, such as hearing the child's opinion, considering the long-term impact on education, and the child's mental health, are often neglected. The fulfillment of procedural obligations under PERMA is carried out formalistically without meaningful implementation. This study concludes that without clear operational guidelines and consistent enforcement, the BIC principle has the potential to become an instrument of legitimation rather than protection in the practice of granting marriage dispensations. The development of operational technical guidelines, enhanced judge capacity building, and a strengthened monitoring system are required to ensure the substantive implementation of the BIC principle in every marriage dispensation decision.