Horizontal Separation in Marital Property: Legal Implications of Building on Third-Party Land

Abstract

The division of marital property after divorce in Indonesia presents distinct complexities when jointly owned buildings are constructed on third-party land. While the principle of horizontal separation under Agrarian Law theoretically resolves property ownership, a significant research gap remains regarding how judicial practices reconcile this agrarian concept with family law to ensure equitable distribution. This study utilizes a normative juridical method, incorporating statutory, conceptual, and case study approaches. An analysis of recent Religious Court decisions reveals that although judges pragmatically apply horizontal separation by estimating the building's financial value for distribution, their rulings frequently fail to quantify non-financial domestic contributions and overlook the post-divorce residential security of the weaker party. The enforcement stage further exacerbates this issue, as delays in execution, high procedural costs, and unclear proof of ownership often disproportionately affect women and children. Consequently, the current legal framework struggles to deliver gender justice. This article concludes that existing legal constructions require immediate refinement. To achieve substantive justice in accordance with maqasid al-shari'ah, this study recommends implementing Supreme Court technical guidelines for valuing domestic contributions, execution-sensitive rulings, and the use of Building Rights (HGB) as an alternative compensation mechanism, rather than relying on comprehensive legislative reform.

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