Kontestasi Hibah dan Faraidh dalam Sengketa Waris: Analisis Normatif dan Praktik Peradilan Agama di Indonesia

Abstract

The increasing use of hibah (inter vivos gifts) as an alternative mechanism for inheritance distribution has become a growing phenomenon in Indonesia. Many Muslim families transfer property while still alive to prevent inheritance disputes after death. Although socially motivated, this practice raises critical legal and ethical questions regarding its conformity with fiqh al-muʿāmalah principles and Indonesia’s positive law, especially when hibah is used to bypass the heirs’ rights prescribed in faraidh. This study aims to examine the role of hibah as an instrument for transferring inheritance within the framework of Islamic legal theory and national law, as well as its implications for justice and legal certainty among heirs. Using a qualitative juridical-normative and empirical approach, the research analyzes primary Islamic legal sources—Qur’an, Hadith, and classical jurisprudence—together with national legal provisions such as the Compilation of Islamic Law (KHI) and the Civil Code. Empirical data from community practices and court decisions are descriptively and analytically reviewed to reveal convergence and divergence between fiqh al-muʿāmalah and Indonesian law. Findings indicate that hibah functions as a culturally adaptive and socially preventive means to maintain family harmony and avoid inheritance conflicts. However, legal inconsistencies often occur when hibah lacks formal documentation or fairness among heirs. While both Islamic and national legal systems legitimize hibah, they differ in regulating its limits and implications for inheritance rights. Therefore, harmonization between fiqh al-muʿāmalah and positive law is essential to ensure hibah operates as a fair, transparent, and legally valid instrument of wealth transfer in Indonesia.