Customary marriage and child protection in Islamic family Law : A xcomparative study of Indonesia and South Africa

Febrianty, Yenny and Jayawinangun, Roni and Cusa, Jonathan Rey and Larasati, Rindiana and Ahmad, Asmida (2026) Customary marriage and child protection in Islamic family Law : A xcomparative study of Indonesia and South Africa. International Journal of Nusantara Islam, 14 (1). pp. 291-306. ISSN 2355-651X

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Abstract

Customary marriage functions as a social institution under numerous legal systems; yet, its implementation often poses significant obstacles to the safeguarding of children's rights, especially when performed without official registration or involving minors. This paper investigates the normative boundaries of customary marriage within the context of Islamic family law, emphasizing child protection via a comparative examination of Indonesia and South Africa. This study uses normative legal research methods—integrating legislative, conceptual, and comparative approaches—to analysecustomary marital patterns, child protection norms, and judicial reactions in both countries. The findings indicate that Islamic family law acknowledges custom (‘urf) only under the condition that it aligns with the objectives of Sharīʿah (maqāṣid al-sharīʿah), specifically the safeguarding of progeny (ḥifẓ al-nasl), the mitigation of harm (dar’ al-mafāsid), and the attainment of justice (‘adl). The prevalence of unregistered traditional marriages and lenient marriage dispensation norms in Indonesia compromises children's legal identification, parental responsibility, and access to civil rights. Conversely, South Africa enforces more stringent normative regulations via compulsory registration and judicial measures to amend customary behaviors detrimental to children. This paper normatively asserts that child safety is an essential requirement for the legality of customary marriage and illustrates how Islamic family law serves as an internal corrective mechanism within diverse legal systems.Keywords:customary marriage law; child rights protection; human rights standards; South African Comparative LawIntroductionMarriage, as defined by the Qur'an and Hadith, originates from the phrases an-nikhdan azziwaj, including connotations associated with traveling, advancing, climbing, and participating in sexual intercourse. In contrast, marriage originates from the term Adh-dhammu, which signifies to condense, unite, and gather, as well as to exhibit a congenial temperament. Marriage originates from the phrase aljam'uyang, which means "to gather or combine."In fiqh terminology, marriage is denoted as (زواج) and (نكاح), both derived from Arabic. In Arabic, marriage signifies two concepts: الوطء (intercourse) and الضم (constraining).

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