GENDER JUSTICE IN FAMILY LAW POLICY: MARRIAGE DISPENSATION AND THE LIMITS OF JUDICIAL DISCRETION

Abstract

Indonesia raised the minimum age of marriage for both sexes to nineteen in 2019, yet applications for judicial dispensation rose sharply thereafter and are granted at rates approaching unanimity, which suggests that the reform shifted the locus of decision rather than the outcome. This study aims to analyse the structure of dispensation as a policy instrument, to test judicial discretion against the protective purposes of both constitutional child protection law and Islamic legal method, and to formulate criteria limiting that discretion. The research applies normative juridical research with statutory, conceptual, case and comparative approaches, supported by a maqāṣid reading of the protection of lineage and of the criterion of legal capacity, drawing on Indonesian legislation and judicial regulations, Moroccan and Turkish provisions, and the scholarship on family law reform. The findings show that the statutory ground for dispensation is framed in open language without substantive criteria, that the procedural safeguards introduced by judicial regulation address process rather than standard, and that pregnancy is treated in practice as a justification although it is the consequence of the harm the rule exists to prevent. Islamic legal method supports restriction, since the classical criterion for marital capacity is the capacity to assume obligations rather than the mere attainment of puberty. The study recommends statutory criteria, mandatory reasoned judgments, an absolute lower bound, and mandatory assessment of the child's own expressed will.