This has been discussed previously disproportionate parental grants, and because of that, it is very possible that family polemics will occur, either at that time or in the future when the parents have died. So on this occasion, we will discuss how to respond and resolve this polemic, both in reviewing Islamic law and positive law in Indonesia.
Limitation of one third of assets
In both Islamic jurisprudence and the Compilation of Islamic Law (KHI) in Indonesia, there is a limitation that gifts cannot exceed one third (1/3) of the total assets owned by the grantor. This aims to protect the rights of the heirs who will receive the inheritance after the testator dies.
Article 210 paragraph (1) Compilation of Islamic Law states that people wishing to make a donation must meet the requirements: at least 21 years old, of sound mind, and without coercion. Objectively, donations are limited to a maximum of one third of total assets and must be carried out in the presence of two valid witnesses.[1]
Gifts can be counted as inheritance
Article 211 KHI confirms that gifts from parents to children can be counted as part of the inheritance (inheritance first). This provision becomes very important when the gift given exceeds reasonable limits and harms the rights of other heirs. [2]
Mechanism for resolving grant disputes in court
Grounds for cancellation of gift by court
Courts can cancel disproportionate grants on several grounds:
Firsta gift that is detrimental to the absolute share of other heirs. Supreme Court in Decision No. 198 PK/Pdt/2019 confirmed that the grant violated the provisions valid part (the absolute share of the heir) can be cancelled. [3]
Seconda gift that exceeds the limit of one third of the heir’s entire assets. In the Decision No. 76 K/AG/1992The Supreme Court stated that the area of the donated land must not exceed one third of the area of the heir’s land, because it is contrary to legal provisions. [4]
Application of article 211 KHI as special law
In disputes over gifts that violate the rights of heirs, Article 211 KHI can be applied as special law (special law) to correct inequality. The mechanism is as follows:
- If the value of the gift exceeds the portion of the inheritance that should be received, then the excess is withdrawn and transferred to other heirs who are disadvantaged.
- If the value of the gift is lower than the inheritance rights, then the deficiency can be added from the inheritance.
Supreme Court Decision No. 391 K/Sip/1969 states that gifts from heirs that harm other heirs are invalid and must be canceled for the sake of justice. [5]
Maqashid shari’ah in grant restrictions
From perspective maqashid shari’ah (shariah objectives), restrictions on disproportionate grants aim to safeguard:
1) Hifzh al-mal (protecting property): Preventing unfair transfer of property that could harm the rights of other parties.
2) Hifzh an-nasl (protecting offspring): Maintaining harmony in family relationships and preventing hostility between siblings due to parental injustice.
3) Hifzh al-‘aql (maintaining reason): Prevent the emergence of malice, jealousy and prolonged conflict which can disrupt the mental health of family members.
The rules of jurisprudence state:
Resisting evil takes precedence over achieving good.
“Avoiding harm is more important than attracting benefits.”
In the context of grants, preventing family conflict (sorry) more important than the absolute freedom of parents in dividing assets (problem individual).
Solutions and recommendations
To avoid disputes in the future, several preventive steps can be taken:
1) Family consultation: Parents should discuss the grant plan with all children to reach a mutual agreement.
2) Valid documentation: The gift should be stated in a notarial deed and witnessed by the heirs to avoid lawsuits in the future.
3) Principle of justice: If there is a reason syar’i to give priority to some children (for example because of special needs), it should be accompanied by the consent of the other children.
Conclusion
Disproportionate parental grants to some children are an action that is contrary to the principles of justice in Islam. Although there are differences of opinion among the ulama—some prohibit it and some make it unlawful—all agree that justice is highly recommended and discrimination without reasons justified by the Shari’a is reprehensible.
From a positive legal perspective, gifts that exceed the limit of one third of assets or harm the rights of other heirs can be canceled through the courts. The Supreme Court has repeatedly emphasized this principle in its various decisions. Therefore, every Muslim should be careful in giving donations and always prioritize the principles of justice in order to maintain family harmony.
By Allah, Ta’ala. Hope it is useful.
Also read:
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Writer: Junaidi Abu Isa
Article Muslim.or.id
Footnote:
[1] Marinews.mahkamahagung.go.id
[2] Ibid.
[3] Hukumonline.com
[4] Ibid.
[5] Marinews.mahkamahagung.go.id
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