People ' s Understanding of the Off-Court Talak ( Case Study in Nagari Koto Tuo , IV Nagari District , the Sijunjung Regency )

This study describes the understanding of the people of Nagari Koto Tuo, IV Nagari District, The Sijunjung Regency about divorce (talak) outside the Religious Court. Ideally, with the enactment of Law No. I of 1974 on marriage, talak should be decided in the Religious Court. However, this ideal procedure does not apply effectively in Nagari Kuto Tuo. Although the local settlement is not distant to the local Religious Court and the access for transportation is easy, many husbands recklessly decide to divorce their wives at home during the dispute between them without registering their lawsuits to the court. The purpose of this study is to lower the off-court divorce rate and raise legal awareness of the public about the importance of following the prevailing regulation regarding divorce in Indonesia. This is important because divorces decided without statutory procedures have adverse impacts, especially for women and children. This study uses a qualitative approach, with the divorced wives being the subject of the study. The data collection techniques include observation, interviews and documentation. Data validity techniques follow the triangulation method, whereas data analysis is performed through the following steps: data collection, data reduction, data presentation and conclusion drawing. This study found that the understanding of the people in Nagari Koto Tou about divorce is shaped by classical Islamic jurisprudence (fiqh) that posits husband to have the absolute right to divorce. With this absolute right, husbands can decide to divorce their wives whenever and wherever they want without being bothered to consider registering it formally to the local Religious Court. The divorced wives are left in despair without any power to defend her right. This provision on divorce is considered indisputable let alone contested. As a consequence, this off-court divorce generally leaves women traumatized, making many of them unwilling to get another marriage. This trauma partly contributes to the number of off-court marriages, for they do not see its importance. Legal certainty obtained from the Vol. 7 No. 1 June 2021 100 court's verdict of divorce as recorded by the divorce certificate is deemed unnecessary, for they would not remarry in the future.


INTRODUCTION
Every married couple dream of happy marriage life. Nevertheless, disharmony is sometimes inevitable. The differences and arguments that colour marriage not rarely ends up with divorce. One form of divorce is talak (Ghazaly, 2010, p. 191) Talak (henceforth: divorce) is the removal or breaking of the bonds of marriage between husband and wife. From the perspective of Islamic jurisprudence, divorce is halal but loathed by Allah SWT. The loath of Allah of divorce is stated in the following hadith (al-Kahlani, 1995, p. 169) Meaning: Ibn 'Umar (may Allah have mercy on him) said: "The lawful act that Allah loath is divorce." (H.R Abu Dawūd and Ibn Mājjah).
Ibn Umar's hadith on divorce mentioned above implicitly indicates that divorce should only be the final solution among other measures in cases of recurring disharmony between the husband and the wife that can hardly be reconciled peacefully. The phrase ِ ‫ل‬ َ ‫ال‬ َ ‫ْلْ‬ َ ‫ا‬ ُ ‫ض‬ َ ‫غ‬ ْ ‫َب‬ ‫أ‬ in the hadith indicates that divorce is a thing that God hates very much. Therefore, divorce is only permissible when there is no other way to maintain a marriage for married couples.
Fiqh literature describes divorce as the husband's prerogative to his wife.
The husband can decide to divorce his wife without any other parties or institutions can intervene. Accordingly, there is no restriction whatsoever for a husband to divorce his wife anywhere and anytime. His declaration of divorce towards his wife does not require the presence of other parties, including the religious court, for divorce is only the right of the husband. The concept of husband's absolute divorce is what society understands. This is how divorce understood as regulated by Islam and should be obeyed by its adherents.
Unlike those fiqh literature, in Indonesia divorce is regulated in statutory procedures. Divorce, in fact, is one of the state's concerns. Divorce is stipulated in The procedure of divorce before the Court session is stipulated in its own laws and regulations.
As for the Compilation of Islamic Law (KHI), divorce is stipulated in

RESEARCH METHOD
This study follows the qualitative research method, which Bogdan and Taylor, in Moleong (2007:4). This research was conducted in Nagari Koto Tuo, IV Nagari District, the Sijunjung Regency. This study uses primary and secondary data sources, which, based on Lofland and Lofland explanations, take shape as words and actions. In addition to that, this study also looks at additional data such as documents and others (Moleong, 2007, p. 157). The data sources in this study are obtained from, first, the subjects of research, namely individuals or groups of individuals who are at the centre of attention or the target of research (Arikunto, 2006, p. 145). They are the primary data sources. The subjects of this research include the couples who had their divorce outside the court, not through hearings in the Religious Court. The selection of research subjects is conducted randomly and based on the adequacy of data. In the search phase of the research subjects, researchers got ten couples that had their divorce not through the Religious Court. However, there is a specific difficulty to meet exhusbands, because they no longer live in Nagari Koto Tuo. The second source is informants, that are, the persons who provide the information. With this definition, informants can be also called respondents, if the information is obtained through the request by researchers. A respondent is a person who is asked to give information about a fact or opinion. Informants are widely used in qualitative research (Arikunto, 2006, p. 145). Informants are used as primary data sources. The informants referred to in this study are the certain individuals interviewed by the researchers (Bagong and Sutinah, 2006, p. 172 There are several methods of data collection in this study, namely observations and in-depth interviews. In this study, interviews were conducted in a flexible, informal, intimate and relaxed setting. Interviews were conducted on an ongoing basis. To obtain a fixed validity, researchers use data triangulation techniques, that are data validity techniques using external materials for comparison (Moleong, 2007, p. 330). The method used in this approach is descriptive-analytical that is used to describe the issue of the off-court divorce.
The analytical steps are as follows: 1) Data collection: Researchers record objectively and as they are following the results of observations and interviews in the field. Data collection in this study was conducted through observations, interviews, and documentation on written data sources; 2) Data reduction: Data reduction is conducted upon the results of interviews with research subjects (divorced wives) from informants who are not tied to the focus of research and upon the main focus of the interview from the improvisation organically growing during the interview. After the selection is made, the description is formulated, and eventually ends with drawing the conclusion; 3) Data presentation: The data that has been reduced or classified in the previous phase is then presented in the form of text or narrative description based on the possible systematics, in order to be drawn from it the conclusions following the problems presented in the study; 4) Drawing conclusions / verification: From the data that has been compiled, then researchers conclude the phenomenon of off-court divorce in Nagari Koto Tuo.

Divorce in Islamic Classical Jurisprudence (fiqh) and Its Procedures
Talak is an Arabic word that is " ْ ‫ق‬ َ ‫ْال‬ ‫ط‬ ِ ‫."إ‬ From an etymological point of view, talāq means to release or leave (Sabiq, 1982, p. 7). The term refers to the breaking of a marriage bond and the end of a marital relationship. Lexically, talāq means to release and to set something free. (Tihami and Sahrani, 2010, p. 229). Talak as a terminology is associated with the breakup of the marriage, because with it between husband and wife have been separated, or each of the two is free from another. From the terminological point of view, the majority of jurists do not differ much in formulating the definition of talāq. It is to relinquish the marriage bond with divorce's expression or the likes or to untie the marriage in an instant effect (divorce ba'in) or the future (after the end of 'iddah talak raj'i) with a specific expression (Syarifuddin, 2011, p. 198).
In the formulations presented by the jurists in fiqh literature, three keywords indicate the nature of divorce. First: the word "let go" or "open or leave" means that the divorce is releasing something that has been bound, namely the bonds of marriage. Second: the word "marital bond" means that the divorce ends the marriage relationship that a couple had had. If marriage allows sexual encounters between husbands and wives, divorce makes it ḥarām (forbidden). Third: the phrase "with divorce's expression or the likes" means that the breakup of marriage should be effective through a declaration or a statement.
The declaration in this context is the specific declaration affecting divorce. It is not talāq if the breakup of marriage does not go through a declaration, such as for the death of one of the spouses. Because talāq removes the bonds of marriage, then after the loss of the marriage bond the wife is no longer has any legal binding to her husband.
In principle, the origin legal status of talāq is makruh (Tihami and Sahrani, 2010, p. 249) hadith of the Prophet SAW, as follows: reunite would only be re-opened after the ex-wife has married another man. This is stated in Q.S al-Baqarah verse 230.
Al-Baqarah verse 229 explains the gradual procedure of divorce. The husband should declare his divorce statements one after another. Furthermore, the divorce procedure is stipulated in Q.S At-Talāq verse 1 as follows: This verse explains that ideally divorce should be conducted in a situation in which the wife can proceed to her ʿiddah immediately. The wife can proceed to her ʿiddah immediately if she is not on her period during which she has not had sexual intercourse with him.
In Q.S. At-Talāq verse 2, Allah explains that in the time of ʿiddah, the husband has the opportunity to reunite (al-rujūʿ) with his wife in a right manner.
Even if a divorce should happen, it should be in the right manner as wall. That is the general description of the divorce procedure. No further explanation found in the classical jurisprudence concerning the divorce proceedings before the Court of Religion.

Divorce in The Laws and Regulations in Indonesia
In This study limits its concern on talak divorce. On this kind of divorce, the Compilation of Islamic Law (KHI) in article 17 specifically defines talak as follows: "divorce is the husband's pledge before the court of religion which is one of the reasons for the breakup of marriage" (Syaifuddin, 2013, p. 18 The procedure for submitting divorce to the Court of Religion must be done by the husband if he divorces his wife. If the husband divorces his wife without the procedures stipulated by law, there would be adverse impacts on the wife and children. Divorce without legal procedure would also result in the disorganization of marriage. Therefore, it is necessary for any spouse intending for a divorce to submit their affair legally to the Religious Court.

The History of Nagari Koto Tuo, IV Nagari District, the Sijunjung Regency
The name Nagari Koto Tuo comes from the word "Koto Nan Tuo" (lit. a city which is old). According to the prevalent oral history and local historiography (tambo) the current Koto Tuo and its nearby village, Nagari Palangki, was previously named Nan Ampek Koto (lit. the four cities), namely:

People's Understanding of Off-Court Divorce in Nagari Koto Tuo
Before explaining the understanding of the people of Nagari Koto Tuo about divorce decisions outside the Religious Court, it is necessary to explain in advance what is meant by the understanding of the people/society. Pemahaman masyarakat (people's understanding) consists of two words, namely understanding (pemahaman) and the people/society (masyarakat). In the Indonesian dictionary, pemahaman comes from the word paham that is conflated with prefix-suffix pe and an. Etymologically, paham means tanggap (perceptive), mengerti benar (truly understand), pandangan (view), and ajaran (teaching) (Partanto, 2000, p. 279) Understanding (pemahaman) is the process of thinking and learning. Thus, understanding is reached through thinking and learning.
Understanding is a process, an act and a way to understand. As for the terminological perspective for understanding, it is "the ability of a person to understand something after it is known and memorized (Sudijono, 2010, p. 50) In other words, understanding is knowing something and being able to see it from many perspectives. Understanding is a cognitive level above recognition and memorization. Another way to define understanding is as a level of cognitive competency that enables people to comprehend the meaning or a 113 concept, a situation, and a fact of a matter they know (Purwanto, 2010, p. 44) In this case, the person who understands something does not only memorizes verbally but understands the concept of the problem or the fact in its entirety.
Thus, it can be concluded that a person who understands is not who memorises something, but who has the ability to capture meaning more deeply.
Masyarakat, on the other hand, in English is "society". The word comes from a Latin word, "socius" which means fellow/friend. The term masyarakat comes from the Arabic word "syāraka-yusyāriku-musyārakah" which means association, alliance, cooperation, and participation. In Arabic itself, the people are called mujtama'.
According to Ibn manzur in his Lisan al-Arab, society means the core of everything, that is a place where offsprings grow. Society is an assembly of various people. As for musyārakah, it means united, allied, and in cooperation.
Thus, it is understood that society is a group of different people but united in a cooperative bond and comply with the rules agreed together. In other words, society is some people united in constant contacts and common interests even though coming from different backgrounds. These people form a group that lives together and helps each other in their relationships or interacts with each other.
So society is a form of human grouping that shows the shared activities occurring from interactions among their members, where the needs of members of the group can only be met by interacting with other individuals. Accordingly, when the word "understanding" is juxtaposed with the word "society", it means the ability of the people in understanding particular problems, facts, ideas or implications truly and intelligently.
As the Muslim community, the people of Nagari Koto Tuo live with constant attempts to carry out the teachings of Islam correctly. It is also the case for the divorce affair; the understanding of the people in this region, in general, is formed from the classical Islamic jurisprudence. Generally, the divorcing husbands or the divorced wives understand that divorce is the husband's absolute right. As such, the husband can divorce his wife anywhere and anytime.
This understanding is a driving factor behind the tendency to resolve the divorce through familial deliberation, which means, the off-court divorce. It is considered sufficient and effective if the divorced is witnessed by ninik mamak; then the marriage between the husband and wife has broken up.
The people of Nagari Koto Tuo, especially the divorce married spouses, understand divorce as stipulated by the classical jurisprudence literature. These fiqh literatures explain that divorce (talak) is as follows:

‫الطالق‬ ‫ابلفظ‬ ‫النكاح‬ ‫قيد‬ ‫حل‬ ‫وحنوه‬
Meaning: the breakup of the marriage contract with divorce expression or the likes.
It is sufficient with the declaration of divorce from the part of the husband, then immediately the divorce is effective. Divorce is the husband's absolute right. Divorce is legally binding if consciously declared by a husband who is sedate and balīgh. Once he denounces divorce's expression towards his wife, then it immediately stands; they already got divorced. A husband or a wife does not have to deal with the Court, for according to the classical jurisprudence, divorce does not require written evidence such as the divorce certificate. The married couple would separate only by the divorce expression from the husband.
The right of divorce does not require anyone else in the process of its implementation. Such understanding of the concept of divorce is not only perceived by the divorced husbands and wives but also by local public figures such as bundo kanduang and ninik mamak (Besar, 2020) As a respected member of the community, some of ninik mamak, cadiak pandai, and bundo kanduang recognize that divorce should be filed to the court. However, this rule is considered non-binding, for the validity of the fiqh rules is deemed higher than the state's law over Muslims, especially the people of Nagari Koto Tuo. Fiqh allows unilateral divorce initiative on the part of the husband. Such understanding illustrates that the people of Nagari Koto Tuo consider that the religious jurisprudence has higher authority than the law of the state, because the religious law comes from God and his Messenger, whereas the laws of the state are made by man. This kind of view inhibits the enactment of the divorce law requiring the husbands to file their affair to the Religious Court from being effective between the people of Nagari Koto Tuo, even though the rule has generally been enacted for 46 years in Indonesia. The strong understanding of fiqh makes the wife powerless. Whether they are willing or not, they are forced to accept the reality of divorce from their husband.
In addition to the strong loyalty upon classical Islamic jurisprudence on divorce that stipulates divorce as the absolute right of the husband, off-court divorce cases between the people of Nagari Koto Tuo is also related to the trauma over the divorce from the part of the wives. This trauma makes them do not want to remarry. Hence, for them, there is no benefit of filing the divorce affair to the court whatsoever. The divorce certificate they would get from the court verdict should their case is handled through the court would not be of any use for them for their intention to not marry any longer in the future. They let the divorce be and surrendered even though they were not willing. Many of these divorced couples have not any children as well, for which reason, again, the divorce certificate would not be useful.
Justification by the wife for her husband's divorce is also due to the rejection of the wife for the presence of other women in her family (Ermayulis, 2020) The husband in this case had an extramarital affair with another woman without her knowledge. This had hurt her heart. As a result, upon the divorce, she decided not to remarry, and hence, saw no interest in taking her case into court.
In addition to the above reasons, the illegal divorce in Nagari Koto Tuo was also triggered due to economic conditions. Most of the Nagari Koto Tuo people works as farmers. In fact, not a few husbands that do not have permanent jobs. Hence, the family daily needs would not be covered, and it caused displeasure among the spouses (Riani, 2020) Eventually, the recurring arguments ended up with divorce between the two parties. Arguments are parts of marriage life. Yet, it quite rarely that the married couple can cope with them wisely.
Eventually, with heart heated with anger, a husband declared a divorce expression and immediately left his wife at home and has never return. The wife did not try to persuade the husband's family to return. The wife in this case showed selfishness as well, thus leading to no reconciliation.
Sometimes, the off-court divorce is also caused by the family intervention(Yanti and Erawati, 2020) Parents are too meddling in their children's household affairs, leading to an unhealthy relationship between the couple.
Eventually, divorce is inevitable.
Another reason for the off-court divorce is that the divorce declared at home is considered practical, quick, easy, and costless. The people of Nagari Koto Tuo think that the divorce conducted through the Religious Court takes a long time (Marleni, 2020) In court, they would undergo several series of trials. It is different from the divorce declared out of court; it is sufficient that the divorce is witnessed by mamak. When encountering a divorce case, Mamak would testify that the couple had really wanted a divorce. Although there would be a call for reconciliation on the part of Ninik Mamak, it rarely effective and would not last very long. The whole procedure of divorce would not take long and would not need many people involved. Additionally, there would not be any cost whatsoever.
This study suggests that those are the factors leading to divorces without legal procedures, namely filing it to the Court of Religion. It is sufficient that the husband declares a divorce expression at home, as justified by their perception of talak that is established from classical fiqh. The people feel that this way of divorce is a fixed religious law and hence must be obeyed. They tend not to accept the divorce rules regulated by the state because the rules of the state are considered violating the rules of religion. The public is not fully aware of the importance of legal certainty over a divorce by her husband. While the husband could immediately marry another woman right after the divorce, that is not the case for the wife for the trauma that she would get from the divorce. This trauma leads these divorced wive to consider that administrative benefits from official court verdict on divorce unuseful.

CONCLUSION
The people of Nagari Koto Tuo are Muslims. As pious Muslims, they commit to implementing Islamic law, including in the matter of divorce. The rules of divorce understood by the people of Nagari Koto Tuo are divorce rules stipulated by classical fiqh literature. These kinds of literature of jurisprudence describe divorce as the absolute right of the husband. The husband, with his absolute right, can divorce his wife whenever he wants. The husband's decision to divorce his wife does not require intervention from others or even the state.
That divorce should be filed into a state-created religious court is considered incompatible with the original concept of Islamic jurisprudence. Such understanding of the people of Nagari Koto Tuo seems rigid.
The entrenched understanding of the people of Nagari Koto Tuo about the absolute right of the husband to divorce was motivated by a rigid understanding of the rules of divorce in the classical fiqh. Additionally, public awareness of the adverse impact of the off-court divorce is minimum at best. The apathetic attitude of the divorced wives contributes as well to the practice of divorce occurring at home, not to mention the trauma they encounter for it. The intervention from the family of the spouses, upon which each of the husband or the wife cannot proportionately position themselves between a set of priorities, partly becomes a pushing factor for the divorce rate. Finally, the economic factor also plays a role in the occurrence of this kind of divorce.