Di Balik Dispensasi Kawin: Perlindungan Hukum Anak Dari Pemaksaan Perkawinan Oleh Orang Tua

Abstract

Child marriage constitutes a complex legal protection issue, particularly when an application for marriage dispensation is submitted by parents who also exercise authority over the child’s personal decisions. This situation raises legal concerns regarding the position of the child’s consent, the limits of parental authority, and legal protection when the child’s will is confronted with pressure to enter into marriage. This study aims to examine the position of children’s consent within the marriage dispensation mechanism, the limits of parental authority from the perspectives of child protection law and Islamic family law, and the legal protection framework against forced marriage from a criminal law perspective. This study uses normative legal research and draws on statutory, conceptual, and Islamic legal approaches. The analysis applies the principles of the best interests of the child, legal protection theory, the concept of free and informed consent, and maqāṣid al-usrah. The findings demonstrate that marriage dispensation does not constitute consent and cannot legitimize forced marriage. A child’s consent must be substantively assessed based on freedom of will, understanding of the consequences of marriage, and the absence of coercion. Parental authority is protective rather than absolute, while ijbar cannot be equated with coercion. Forced marriage, including child marriage, may entail criminal consequences where the conduct fulfills the elements of an offense under the Sexual Violence Crime Law. Therefore, the marriage dispensation mechanism should ensure that children are recognized as legal subjects whose will and best interests must be protected.