THE PRINCIPLE OF SELF SUBMISSION IN DIVORCES CASES FROM THE PERSPECTIVE OF LEGAL CERTAINTY

The problem of the principle of submission in the divorce law in the Religious Court by a non-Muslim couple occurs because the couple's marriage is based on Islamic law. What cannot be separated from Islamic law is Islamic family law because it is related to the faith of a Muslim. Islamic family law can only apply to Muslims and cannot apply to non-Muslims. The problem of the principle of submission to the divorce law was incomplete (incomplete norm) or the existence of a legal vacuum (vacuum of norm) in marriage law in Indonesia. This research is a legal research and is normative in nature. The approach used is statutory, case, and conceptual. The legal materials used are primary, secondary and tertiary. The method of collecting legal materials is first to qualify the facts and then to qualify the law. The analytical tool used is legal interpretation in the form of principal, systematic and grammatical interpretation.


Introduction
The principle of submission in general is usually found in Islamic banking disputes because the transactors do not only include Islamic banking with Muslim customers. However, there is also a problem where the transactors are Islamic banking with non-Muslim customers. It can be concluded that the implementation of Islamic economic law is more flexible, namely not only for Muslims but also for non-Muslims. In contrast to Islamic family law (al-ahwal al-shakhshiyyah) which is specific and limited to Muslims. (Yasin, 2016).  2. Does not provide legal certainty to the parties. Whereas the law should be able to guarantee legal certainty for the community. (Mulyata, 2015) This research uses legal certainty because it emphasizes that the results of the law or more specifically legislation are nothing but to guarantee and create legal certainty for the community. Legal certainty includes 4 (four) elements, namely certainty of rules or regulations, government and bureaucratic certainty, certainty or justice and social upheaval. There are 4 (four) decisions that have been mentioned are closely related to legal certainty.

Divorce Law in Religious Courts
Non-Muslim couples who submit themselves to divorce laws in the Religious Courts occur because their marriages are based on Islamic law and are registered at the Religious Affairs Office so that when a divorce occurs, they must be submitted to the Religious Court. This is found in 4 (four) decisions which are also the primary legal material in this study. The classification of the 4 (four) decisions is as follows: a.  Muslim couples must use the religious law which legalizes their marriage if they come into contact with the law even though their status has changed religions.
The incomplete norm and the existence of a legal vacuum (vacuum of norm) above cannot be used as an excuse by the Panel of Judges for refusing to examine, try and decide the divorce case. This happens because the judicial power system in Indonesia adheres to the ius curia novit principle. Then, there were no legal considerations from the Panel of Judges in 4 (four) decisions that considered the ius curia novit principle. In fact, this principle is the most basic reason to be used as a legal basis for examining, trying and deciding the divorce case.
Ius curia novit or curia novit jus are judges who are considered to know all the laws so that the court must not refuse to examine, hear and decide cases (Harahap, 2006). The incomplete law (incomplete norm) and the existence of a legal vacuum The contradiction of the 2 (two) principles when applied to the 4 (four) decisions is as follows: a. On the one hand, the court cannot reject cases on the grounds that the law is incomplete (incomplete norm) and the existence of a legal vacuum (vacuum of norm) in marriages in Indonesia.
b. Meanwhile, on the other hand, when the case is accepted, it will be contrary to the principle of Islamic personality because the parties to the 4 (four) decisions are non-Muslim couples.

Courts from the Perspective of Legal Certainty
Even though, spiritual is inherent and personal affair but everybody has spiritual right. It needs legal protections (Setyowati, 2018) those that had been decided by the previous court. If for similar cases there is a big difference between court decisions in certain cities and court decisions in other cities, both in consideration and dictum, in a period that is not too different but one has permanent legal force. This will create legal uncertainty because the public does not know which ones to refer to when they are dealing with the court. This happened in 4 (four) decisions which became the primary legal material in this study.
As for simplifying the analysis in this sub-chapter, we will first provide conclusions from the legal considerations of the Panel of Judges in each decision which is the primary legal material in this study which will then be analyzed using 4 (four) elements of legal certainty. Thus, it will appear that there is legal uncertainty over the issue of the principle of submission by non-Muslim couples to divorce law in the Religious Courts.

Legal Certainty
The In fact, the meaning of talak ba`in shughra in Article 119 paragraph (1) is divorce which cannot be referred to but may be a new marriage contract with her exhusband even though it is in idah (Syaifuddin, 2014). Meanwhile, people who are c. "dependent" rules without implementing rules so that the basic rules cannot be implemented.
d. The 3 (three) reasons above also greatly affect legal certainty and can easily lead to abuse of authority or arbitrary action (Ali, 2010) Because these 3 (three) reasons greatly affect legal certainty so that it still causes disparity in judges' decisions in deciding divorce cases for non-Muslim couples. for non-Muslim couples. This resulted in non-Muslim couples having to submit to divorce laws in the Religious Courts (Hamami, 2003).

Government And Bureaucratic Certainty
It is very clear that the above will not provide legal certainty to non-Muslim couples because they have to submit to the divorce law in the Religious Courts whereas, the principle of submission can only be applied to disputes in the field of sharia economics in accordance with Article 49 of Law Number 3 Year 2006. This shows that it is very important for a national effort to be serious in regulating laws and regulations, not just making new ones, let alone patchwork. So that there will be no more submission to the divorce law in the Religious Courts by non-Muslim couples.

Court Supremacy
The four decisions show that judicial certainty in Indonesia is still not and does not provide certainty. In fact, the role of the judiciary is also very important in maintaining legal certainty because the world of justice is one of the components that affect legal certainty. It will provide legal certainty if a case is examined, tried and decided by an appropriate judicial environment. It is well known that of the 4 (four)  decisions above resulted in the absence of legal certainty because this divorce case was examined, tried and decided by an inappropriate judicial environment, namely the environment of the Religious Courts which had limited authority for Muslim justice seekers. This shows that the divorce case should be examined, tried and decided by the judiciary which has the authority for people who seek justice apart from being Muslim, namely the General Court.

Social Uproar
The difference in legal considerations in terms of the imposition of the dictum of the decision is very risky for social upheaval because between talak ba'in sughra and fasakh have different legal consequences. As Article 119 stipulates that talak ba'in sughra is talak which cannot be referred to but it is permissible to have a new TlR: 2020 Vol 2 (1) Haqqiyah Uthlufah 77 marriage contract with her ex-husband even though it is in idah. From this provision it is very clear that the legal consequence of the imposition of talak ba'in sughra is that it is still possible to carry out a new marriage contract even though it is in idah while the parties to a divorce case are non-Muslims. In contrast to the fall of fasakh. After the marriage is declared fasakh, it breaks without any other legal consequences such as talak ba'in sughra (Sabaeni, 2001). From the imposition of this dictum that will cause a conflict or noise because of disparities in the decisions of cases or cases of the same position. If the problem of submitting oneself to the Islamic divorce law by non-Muslim couples and the disparity in the dictum of the ruling continues, order will not be created. Because, law is not only seen as an convenience or simply to fulfill or satisfy a need, but also contains a dimension of order. Without order, there is not only uncertainty but it will be very detrimental to the interests of the people and can lead to social anarchy. c. The role of the Religious Courts which are not placed on their authority; d. If the problem of submitting oneself to the Islamic divorce law by non-Muslim couples and the disparity in the dictum of the verdict continues, there will be no order