KEPASTIAN HUKUM AKTA HIBAH TANAH TANPA PERSETUJUAN PASANGAN SAH ATAS HARTA BERSAMA

Abstract

Under the Indonesian Civil Code, a gift (hibah) is an agreement whereby a donor transfers an item gratuitously and irrevocably for the benefit of the recipient. The law recognizes only gifts made between living persons. Specifically regarding the gifting of joint marital property pursuant to Article 35, Paragraph (1) of Law Number 1 of 1974 concerning Marriage consent must be obtained from both parties (the husband and wife) in accordance with Article 36, Paragraph (1) of the same Law. The research addresses the legal consequences and legal certainty regarding a deed of gift for land involving joint marital property executed without the consent of the lawful spouse. The study employs the theory of legal consequences as articulated by R. Soeroso and the theory of legal certainty as proposed by Jan Michael Otto. The research method used in this study is a type of normative legal research, namely legal research with literature studies based on primary, secondary and tertiary legal sources. The research approaches used are the Legislation Approach, Conceptual Approach, Analytical Approach and Case Approach. The technique of collecting legal materials is carried out by identifying and inventorying positive legal rules, book literature, journals and other sources of legal materials. For the legal material analysis technique, it is carried out with grammatical interpretation, Systematic interpretation, Analogy Construction and legal refinement construction. The research concludes that a Land Deed Official (PPAT) is authorized to draft a deed of gift pursuant to Article 2, Paragraph (2) of Government Regulation No. 37 of 1998 concerning the Regulation of the PPAT Office; however, the absence of consent from a spouse regarding joint marital property as required by Article 36, Paragraph (1) of Law No. 1 of 1974 concerning Marriage results in the loss of the spouse's rights to that property. The legal certainty of a deed of gift involving joint marital property depends on the fulfillment of the requirements for a valid agreement under Article 1320 of the Civil Code and Article 36, Paragraph (1) of Law No. 1 of 1974 concerning Marriage; if these provisions are violated, the deed lacks binding legal force and is consequently null and void by operation of law.