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752
Edunity
Volume 2 Number 7, July 2023
p- ISSN 2963-3648- e-ISSN 2964-8653
Doi: https://doi.org/10.57096/edunity.v2i7.125
https://edunity.publikasikupublisher.com/index.php/Edunity/index
MANAGEMENT OF PROPERTY OF MINORS UNDER
GUARDIANSHIP
Syelvia Margretha
1*
, Benny Djaja
2
Tarumanagara University, Grogol Jakarta, Indonesia
Email: [email protected]
1*
, [email protected]ntar.ac.id
2
ABSTRACT
Abstract: Management of guardianship of minors is the provision of services in the case of
minors under the power of guardians which includes supervision of the performance of
guardian duties over minors who are not under the control of parents and management of the
child's property or property as regulated by law. A person can also be determined to be the
guardian of a child through the determination/decision of the District Court or Religious Court.
Generally, child guardianship applications for Islamic religion are submitted to the Religious
Court, and for non-Muslim religions guardianship applications are submitted to the District
Court. In practice, however, applications for guardianship of children to be Muslim can be filed
with the District Court. Provisions regarding the appointment of a child's guardian through the
court can be seen in Articles 359 to Article 364 of the Civil Code. In addition, Article 107
paragraph (3) also stipulates "if the guardian is unable to do or neglects to carry out his
guardianship duties, the religious court may appoint one of the relatives to act as guardian at
the request of the relative".
Keywords: Guardianship; Minor; Property
Introduction
Inheritance is all wealth, both money and property of a person that is given to another
person based on a letter often called a will. Including if a parent dies, usually property
and all assets will be inherited by the child or relative, depending on the last message
from the owner (Marthianus, 2019). Then, what if the child is still a minor? Although
legally all the relics of the parents will belong to the child, this ownership is not legal
until the child enters the legal age of majority, which is 18 years (Dzaky, 2022). That way,
children need guardians or substitutes for parents responsible for all personal needs and
management of the child's property. This is by the contents of Article 50 paragraph (1)
of Law Number 1 of 1974 which discusses the Subject of Marriage, which reads "Children
who have not reached the age of 18 or have never held a marriage, who are not under
the power of parents, are under the power of guardians. The guardianship is about the
person of the child concerned as well as his property." (Rusyadi & Muliya, 2022)
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The rules regarding guardianship, including all its powers and prohibitions, are written
in Law Number 1 of 1974 concerning the Subject of Marriage Article 51 paragraphs (3)
to (5) (Utami & Indrawati, 2022a). Subsection (3) of this article explains, "The guardian
shall take proper care of the child under his control and his property concerning the
religion and beliefs of the child." Meanwhile, subsection (4) of Article 51 of this law
states: "The guardian shall make the property of the child under his control at the time
of commencement of office and record all changes in the property of the child or
children." Also, in paragraph (5), "The guardian is responsible for the property of the
child under his guardianship and any losses incurred due to his fault or negligence”.
(Utami & Indrawati, 2022b)
The prohibition that must be avoided by guardians or foster parents of the child based
on Article 52 of the Basic Law on Marriage is "The guardian may not transfer rights or
mortgage permanent property owned by children who are not 18 years old or have never
married, except when the interests of the child so desire". In addition to Law Number 1
of 1974, the rules regarding guardians for their care are also written in Law Number 23
of 2002 concerning Child Protection. Articles 33 and 34 of the law state that "A guardian
appointed by a court or court may represent a child to perform legal acts, both in and
out of court in the best interests of the child." In addition, paragraphs (2) and (3) of this
article also stipulate that "The guardian shall manage the property of the child concerned
for the benefit of the child in and out of court for the best interests of the child.
Research Method
Method of Approach
Regarding the type of research used, namely normative juridical research, the approach
used is statutory (statute approach). The statute approach reviews all laws and
regulations related to the legal issue being handled. The legislative approach is an
approach using legislation and regulation (Handoyo & SH, 2021).
Nature and Types of Research
Based on the formulation of the problem in compiling this research, the type of research
used is a type of normative or doctrinaire legal research. Normative or doctrinaire legal
research is a legal research method that uses secondary data sources or by examining
existing library materials. The nature of this research is analytical descriptive research.
Analytical descriptive research is a form of research aimed at describing existing
phenomena, both natural phenomena and man-made phenomena. Analytical
descriptive research is research that seeks to describe and interpret something, such as
existing conditions or relationships, opinions that develop, ongoing processes, effects or
effects that occur, or ongoing trends then analyzed and conclusions made.
Data Sources
The secondary data used in this study include the following:
a. Primary legal material, that is, a regulatory document that is binding and established
by the competent authority. This study Includes the Civil Law Kitan, the Compilation
[Management of Property of Minors Under Guardianship]
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Syelvia Margretha, Benny Djaja
of Islamic Law, Law Number 1 of 1974 concerning Marriage, and Law Number 23 of
2002 concerning Child Protection.
b. Secondary Legal Materials, namely all relevant documents such as books, seminars,
law journals, magazines, newspapers, scientific papers, and some sources from the
internet related to the material studied.
c. Tertiary legal materials, namely all documents that contain concepts and information
that support primary and secondary legal materials, such as dictionaries,
encyclopedias, and so on.
Result And Discussion
The care and guardianship of minors are regulated in Law Number 1 of 1974 concerning
the Subject of Marriage in Article 45 paragraph (2), which states that "Parents are obliged
to maintain and educate children as well as possible until the child marries or can stand
alone, and that obligation continues even if the marriage between the two parents is
broken." This means that custody and guardianship of the child are entirely in the hands
of both parents, even if the father and mother are no longer together in a bond or are
divorced (Islami, 2019) d. Then, what is the guardianship and custody law if one or both
parents of the child die? Based on Article 105 paragraph (a) of the Compilation of Islamic
Law (KHI), "The maintenance of a child aged 12 years, or what is called mumayyiz shall
be the right of the mother. (Harahap, 2018)" This article states that in the event of a
divorce, the mother will fully become the foster parent or guardian of the child.
Similarly, if the father of the child dies. However, the mother must obtain official
permission from the court to fully become the guardian of the child (Dewi, 2020).
Furthermore, Article 105 paragraph (b) states that "The maintenance of a child who is of
legal age or mumayyiz shall be left to the child to choose between his father or mother
as the holder of his maintenance rights." If it turns out that both parents of the child have
died, then the child will be given the freedom to choose, whether to live with other
relatives or live independently alone. Also, every family or other person has the right to
be the guardian of the minor child. In Article 156 paragraph (c), it is written that "If the
holder of the Hashanah is found to be unable to guarantee the physical and spiritual
safety of the child, even though the cost of living has been met, then at the request of
relatives the Religious Court may transfer custody to other relatives."(Lubis, 2021) This
condition occurs when the mother who becomes the child's direct foster parent when
there is a divorce or the father of the child dies shows a bad attitude and triggers a bad
impact on the child's growth and development. If both parents of the child are found to
be dead, any relatives or other people who want to be guardians, need to apply to the
local Religious Court or District Court (Veronika et al., 2022).
The departure of parents must leave deep sorrow for children, especially if they are not
old enough and still need love and attention. Then, what are the rules if this happens?
Under the Code, the appointment of a minor's guardian must be based on the consent of
both parents. However, since in this case, the child's parents are gone, this consent can
be suspended (Asmayani, 2013). Usually, the appointment of a guardian will be based
on the contents of the will of the parents (Mashadi, 2018). This condition is by Article 355
paragraph (1) of the Indonesian Civil Code which states that "Each parent, who exercises
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parental power or guardianship for one or more children has the right to appoint a
guardian for those children if the guardianship is after he dies by law or because of the
determination of the Judge according to the last paragraph of Article 353, it does not
have to be done by the other parent (Maradona, 2018)." That way, each parent has the
right to appoint one guardian for the child as long as the position is still open, and later
the final decision on guardianship will be determined by the judge. All relatives or
people appointed by the child's parents have the right to be the guardian of the child.
Even so, this appointment can still be suspended if the appointed guardian does not
meet the guardianship requirements. As Article 332b (1) of the Criminal Code reads, "A
married woman may not receive guardianship without the written assistance and
permission of her husband." Even so, if the husband does not answer, then licensing can
be done from a legal entity.
Conclusion
Although it looks easy being a guardian for minors is not a trivial matter. Of course,
there are things a guardian can and cannot do for his foster child. All powers and
prohibitions for a guardian are regulated in applicable law. Authority and Prohibition
of Guardians of Minors Based on Laws and Regulations The rules regarding
guardianship, including all authorities and prohibitions, are written in Law Number 1
of 1974 concerning the Subject of Marriage Article 51 paragraphs (3) to (5). Subsection
(3) of this article explains that "The guardian shall take proper care of the child under his
control and his property concerning the religion and beliefs of the child." Meanwhile,
subsection (4) of Article 51 of this law states: "The guardian shall make the property of
the child under his control at the time of commencement of office and record all changes
in the property of the child or children." Also, in paragraph (5), "The guardian is
responsible for the property of the child under his guardianship and any losses incurred
due to his fault or negligence”.
The prohibition that must be avoided by guardians or foster parents of the child based
on Article 52 of the Basic Law on Marriage is "The guardian may not transfer rights or
mortgage permanent property owned by children who are not 18 years old or have never
married, except when the interests of the child so desire." In addition to Law Number 1
of 1974, the rules regarding guardians for their care are also written in Law Number 23
of 2002 concerning Child Protection. Articles 33 and 34 of the law state, “A guardian
appointed by a court or court may represent a child to perform legal acts, both in and
out of court in the best interests of the child." In addition, paragraphs (2) and (3) of this
article also stipulate that "The guardian shall manage the property of the child concerned
for the benefit of the child in and out of court for the best interests of the child."
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