Displaying items by tag: Marriage in Indonesia with a Prenup

Monday, 21 October 2019 13:53

Dissolving a Foreign Marriage in Indonesia

Getting divorce in Indonesia is not easy, especially if you were married abroad, but is still doable. You can rely on the court in Indonesia to dissolve your foreign marriage. This is not the case that they usually see on daily basis. This is about making Indonesia as your primary jurisdiction. Some regular legal issues in terms of divorcing in Indonesia may not be applicable to your case. For example, the marriage must be registered or reported to the marriage registry in Indonesia, you must possess a marriage certificate issued from the marriage registry in Indonesia, or none of you are Indonesian national. Those things are not required to exist in your case. This is a foreign divorce case. It's part of the international civil law in Indonesia. 

There are several legal principles that may able to used to support your foreign divorce. They are principle of connection point, Lex Fori, and Lex Causae. Those are the basic legal principle that in order to examine how the court will handle your case. The connection point principle consist of two parts i.e. Primary and secondary connection point. Some called it Minimum Contact. Your case must have minimum contact with the laws where the court has its jurisdiction. Primary connection point is the facts that establish the connection between your divorce case with the place where you will find it has jurisdiction over your case. At Wijaya & Co., we always pay attention to the details of our clients' case portfolio. At Wijaya & Co, we always pay attention to details of our client’s case. 

The component supporting primary connection point are as follows:

  1. The nationality. Both spouses nationality is part of the primary connection point that establish the case between you and your spouse.

  2. Domicile. You must live in the territory of Indonesia and both you and your spouse are residents. This is where you establish the bonafide residence in order to have a minimum contact with the court jurisdiction in the area where you live.

  3. The venue. The venue is the exact place where you intend to dissolve the marriage and shall try your case according to the prevailing laws in Indonesia.

As for the secondary connection point in your case is the applicable law under your nationality. If you belongs to the state of California, United States, the court in Indonesia shall use family law in the state of California, especially to establish legal grounds for divorce, spousal and child support. The judge will compare those laws with the same thing that applicable under the Indonesian laws. They need to come to examination where none of the stipulation in California laws do not contradict anything under the Indonesian laws. This is to meet the requirements of keep the public order. Indonesia definitely confirm that they have jurisdiction over the case like this under a very ancient stipulation of Article 16 Algemene Bepalingen (AB). It's an ancient law that still exist in Indonesia. It came from Dutch ruling ages ago, but still exist up until now. In fact, it created the framework of our legal system. 

Under Article 207 of Civil Code, a petition for divorce is to be filed with the court of justice, within whose jurisdiction the husband, at the time of the filing of the petition has his main residence, or in the absence thereof, has taken up actual residence.  In the event the husband does not have any known principal residence or actual residence within Indonesia, the petition is to be filed with the court of justice at the location where the wife, at that time, actually resides. So, the actual residence of both spouses may be used in order to establish connection with the court jurisdiction in Indonesia. This is the principle Lex Fori that the laws in Indonesia shall be referred to in terms of determination of the court responsible to try the case.

The above is the legal technicality in relation to the divorce proceeding in the event you are a resident of Indonesia. Please contact me should you want me to explain in plain language about how we can do to assist you with your foreign marriage dissolution. Please contact me should you wish to discuss any further about this.

 

 

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

Wednesday, 16 October 2019 10:11

How to Dissolve Your Foreign Marriage in Indonesia?

Getting divorce in Indonesia is not easy, especially if you were married abroad, but is still doable. You can rely on the court in Indonesia to dissolve your foreign marriage. This is not the case that they usually see on daily basis. This is about making Indonesia as your primary jurisdiction. Some regular legal issues in terms of divorcing in Indonesia may not be applicable to your case. For example, the marriage must be registered or reported to the marriage registry in Indonesia, you must possess a marriage certificate issued from the marriage registry in Indonesia, or none of you are Indonesian national. Those things are not required to exist in your case. This is a foreign divorce case. It's part of the international civil law in Indonesia. 

There are several legal principles that may able to used to support your foreign divorce. They are principle of connection point, Lex Fori, and Lex Causae. Those are the basic legal principle that in order to examine how the court will handle your case. The connection point principle consist of two parts i.e. Primary and secondary connection point. Some called it Minimum Contact. Your case must have minimum contact with the laws where the court has its jurisdiction. Primary connection point is the facts that establish the connection between your divorce case with the place where you will find it has jurisdiction over your case. At Wijaya & Co., we always pay attention to the details of our clients' case portfolio. At Wijaya & Co, we always pay attention to details of our client’s case. 

The component supporting primary connection point are as follows:

  1. The nationality. Both spouses nationality is part of the primary connection point that establish the case between you and your spouse.

  2. Domicile. You must live in the territory of Indonesia and both you and your spouse are residents. This is where you establish the bonafide residence in order to have a minimum contact with the court jurisdiction in the area where you live.

  3. The venue. The venue is the exact place where you intend to dissolve the marriage and shall try your case according to the prevailing laws in Indonesia.

As for the secondary connection point in your case is the applicable law under your nationality. If you belongs to the state of California, United States, the court in Indonesia shall use family law in the state of California, especially to establish legal grounds for divorce, spousal and child support. The judge will compare those laws with the same thing that applicable under the Indonesian laws. They need to come to examination where none of the stipulation in California laws do not contradict anything under the Indonesian laws. This is to meet the requirements of keep the public order. Indonesia definitely confirm that they have jurisdiction over the case like this under a very ancient stipulation of Article 16 Algemene Bepalingen (AB). It's an ancient law that still exist in Indonesia. It came from Dutch ruling ages ago, but still exist up until now. In fact, it created the framework of our legal system. 

Under Article 207 of Civil Code, a petition for divorce is to be filed with the court of justice, within whose jurisdiction the husband, at the time of the filing of the petition has his main residence, or in the absence thereof, has taken up actual residence.  In the event the husband does not have any known principal residence or actual residence within Indonesia, the petition is to be filed with the court of justice at the location where the wife, at that time, actually resides. So, the actual residence of both spouses may be used in order to establish connection with the court jurisdiction in Indonesia. This is the principle Lex Fori that the laws in Indonesia shall be referred to in terms of determination of the court responsible to try the case.

The above is the legal technicality in relation to the divorce proceeding in the event you are a resident of Indonesia. Please contact me should you want me to explain in plain language about how we can do to assist you with your foreign marriage dissolution. Please contact me should you wish to discuss any further about this.

 

 

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

Getting marry is going to be the best decision you'll ever made. It is a simple decision with the a future lying ahead of you. They said the marriage is the foundation to everything in your life, among other, property. Both husband and wife are to have joint property ownership after the marriage, if they did not sign anything like a prenuptial agreement. Sometime, you don't get one just because you thought you did not need one. But now, the Constitutional Court revised the Article 29 (1) of the Marriage Law that the marital agreement may be entered as well during the course of marriage. The verdict number 69/PUU-XII/2015 officially created a postnuptial agreement on October 27, 2016 as one of the legal instrument in management of your assets in the marriage. Now, you can have one when you feel you need one.

The ideas behind this decision to officially allow the postnuptial agreement for married couples were to create separation of property and assets between husband and wife. Their separate assets are protected. No drama in fighting for property division. The same idea also applicable to debts. Husband and wife shall responsible for debts they created. The postnup therefore shall create separation of liability during the course of marriage. Furthermore, no consent is required from each of the party in the marriage in the event they want to sell their own separate assets. As for loan application with the bank, neither party is required to obtain consent from their spouse in putting their separate assets as a mortgage. In view of the above, the court wants both parties are totally independent in managing their assets. This is a fine legal reasoning. The Constitutional Court, they keep-up with the contemporary developments within the society in Indonesia. Awesome!

The validity of the postnup shall be initiated as soon as you’ve signed it. It is applicable since you entered it, and it is advisable not retroactively backward. It is applicable on actual date. This is to avoid any conflict of interests with any third party, because since the marriage date the couple might have been created jointly owned marital assets. It is very difficult to differentiate which property belongs to separate or joint property. You may potentially jeopardize the third party’s interests such as banks, and other investors in your marital assets. If you should retroactively draw the postnup back to the marriage date, at least you need to have the properties included into the exhibit and make sure they are mortgage-free. Apart from the ones listed in the exhibit, they belong to both of them. The couple is to have equal shares. This will also include the creditor(s) having a portion in the unlisted properties for the part that a mortgage has been put under. You may want to contact me here to discuss any further about this matter. At Wijaya & Co, we always pay attention to details of our client’s case. 

The postnup created under the verdict from the Constitutional Court has potential challengeable issues. The verdict put a notary as the party that legalize the postnup. According to the civil law procedures doctrines, this is not a proper ruling. They put the role of a notary to substitute the authority of a judge. You see, having a prenup and not having a prenup is a big deal, because it creates a property separation during the course of marriage. This situation is full of potential issues because when you're having a property, whether you like it or not, it involves other third party(ies) too, not just you and your spouse. The other third party such as bank as the lender if the property under mortgage, the government through the BPN (Badan Pertanahan National/National Land Registry), and other party that may have interest in your assets acquired during the marriage. At Wijaya & Co., we always pay attention to our clients' details and therefore issues are identified before they become potential hiccoughs. 

By having a notary legalizes a postnup, they are driven to declare some new legal situation. Last time I checked, this is the domain of a court through their legal instruments i.e. court decree. They called it a Declaratory Verdict. It creates a new legal facts, a new situation. For instance, declaring from joint property ownership to separation of ownership. As far as I concern, the court have a very established sets of law in civil procedures. Before finally reaching the verdict, the court must conduct a cross examination. This is a very important phase in civil legal system. If you were not happy with the verdict, you may file an appeal to the higher court within 14 (fourteen) days since the date the verdict reached. If there was nothing within that set of time-frame, the court finds that you are happy with the verdict, and everybody can get on with their lives. Your Indonesian attorney may proceed to draft a postnup for you.

You can't have those situations if a notary is to legalise the postnup. The convert from joint property to separate property, is not legally assessed with substantial rule of evidence, like the one they're doing it at a court proceeding. If one of the spouses was not happy, or seek any potential leeway that may benefit them in a divorce case, they might want to revoke the prenup. I would say they may be able to do that. Therefore, the postnup as its final outcome, is challengeable, and may be voidable. I would suggest you should consider it with full discretion. If your situation is full with substantial marital property, you should decide if any further reasonable action may be taken to secure your interests. Please contact me should you wish to discuss any further about this.

 

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

Marriage performed outside of Indonesia is not automatically legal and recognized. You must willing to go through the extra mile in order to gain recognition under the laws in Indonesia. We called it reporting of foreign marriage. This thing has substantial implication to you and your family. The marriage indeed is the foundation to everything important in our lives i.e. the children, property, inheritance, etc. You make a mess with the marriage, you're messing with your own life. Not to mention your children. So, whatever you do, always think twice. 

The foreign marriage reporting has a set of time frame as imposed by the prevailing laws. You need to comply with it. They said don’t put till tomorrow what you can do today. This must be the reason why they put such a time frame in place. The reporting must be made within 30 (thirty) days since you return in Indonesia after the marriage. The older version of the law sets more leeway to report it i.e. one year. They use the new rule, without revoking the old one. The old one is the 1974 Marriage Law, and the new one is the 2003 Administration of Population Law. The old law is considered as general regulation, and the new one is a very specific law governing certain issues. The marriage registry in Indonesia, they tend to use the 2003 for governing your foreign marriage reporting. At Wijaya & Co., we alway identify the issues before they can potentially turns into a problem. At Wijaya & Co, we always pay attention to details of our client’s case. 

There are two conditions or requirements that must be fulfilled in order to create legal recognition with the foreign marriage in Indonesia. First, formal requirement. The marriage is legal according to the local rules and regulation where it is performed and registered. So, when you’re married, you’re married. The laws in Indonesia will mirror anything that takes place in the country where the marriage performed and registered. Second, material requirements. This conditions applicable absolutely to the Indonesian citizen. It must refer to the prevailing laws and regulations in Indonesia especially regarding marriage. Issue under this criteria is, among others, the minimum age requirements to get marry. Mixed religion is also part of the material requirements. Failure to meet this requirement, the marriage may be voidable. It may be challengeable at the court of law. There’s a slight possibility that the marriage may be legal in the country where you register it, but it might not be recognized under the laws in Indonesia. It’s a quite tricky situation, please contact me should you wish to discuss any further about this. Things may be overlooked. This potentially can turn into something inevitably unpredictable. This can be used as one of the grounds for an annulment. See, there's more to this than meet the eyes. 

Article 56 (1) of the Marriage Law imposed strict requirements as well as time frame for foreign reporting marriage to the Indonesia’s government. This law was retrieved from the Principle of Nationality that every Indonesian citizen submit themselves to the laws of the Republic of Indonesia, wherever they are. You see, this is the interesting part of your foreign marriage. The idea behind the issue is an ancient government ruling took place from the colonial government back in 18 century. It was the Algemene Bepalingen ("AB") in the Article 16. This ruling is still there until today and become the basic law of how we determine our individuals can access the legal system wherever they are. We proud ourselves that the laws of Indonesia is always prevail in the life of every Indonesian, even if they are not on the Indonesian soil. 

So, the other inevitable legal consequences for getting marry in a foreign country is, among others, without you even realize, you’re inviting other foreign law elements into your marriage life. Not to mention, if your spouse is non-Indonesian. Another foreign law element is joining the club. You know, two is a company. Three is a crowd. You even have higher potential that you may overlook things. But remember, things can be mitigated with the help from the experienced international civil law in Indonesia. Please contact me should you wish to discuss any further about this.

 

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

Thursday, 12 September 2019 09:05

Getting Marry in Indonesia

Indonesia, according to the 1974 Marriage Law, the marriage is legal if it is performed according to your religion affiliation. You need to have the same religion with your partner. If you have two different religions, either of you must convert. It sounds awkward, but we find the religion plays important role in the success of your marriage. That’s why the Law requires you to have the same religion marriage. It is imposed by Article 2 (1) of the Marriage Law. So, if you want to do it legally, you need to do it according to your religion. It is either Moslem or Non Moslem.

You need Into perform the marriage and it must be registered with the marriage registry. This is to have a legal recognition to your marriage. You see, the marriage is the foundation of everything in your life. When you’ve decided to get marry, you’ve just made a big decision. You’re starting a new page in your life. If you want to live your life the right way, get your marriage legally registered. It’s the right thing to do. It is imposed by Article 2 (2) of the Marriage Law. The marriage registry will in turn issue marriage license for you. It is the evidence that your marriage has been officially registered.

Furthermore, the Marriage Law imposed more requirements for you before you can perform the marriage. They are:

  1. Consents from both parties. Both of you must love each other. You can’t force your partner to marry you. It takes two to tango!
  2. You need to be old enough to get marry in Indonesia. You need to be at least 21 years old. This is the minimum age requirement. Otherwise, you need to have consent from your parents. 
  3. In the event both parents are no longer complete, for example one of them passed-away or legally incapacitated, consent from either parent is enough. 
  4. In the event both parents are not available, you need consent from your guardian. This guardian must have blood relationship with you. That person can be, among others, your grand-parents, if they still alive. They must also have legal capacity to do so.
  5. You need to get a court order, if there’s dispute between parents, grand-parents, or marriage guardian, in procuring the consent for marriage.

In order to get marry legally in Indonesia, you must submit the Notice of Marriage Intention to the marriage registry. There’s 10 (ten) working days as waiting period. You can get marry after the 10 (ten) days waiting period is over. I mean, you can get marry on the eleventh day. This is imposed by the Government Regulation number 9 of 1975 regarding the Implementation of Marriage Law.

As for supporting documents required to register your marriage are as follows:

  1. If you are a foreigner: copy of your passport, copy of your birth certificate, copy of your divorce decree, photos, and Certificate of Non-Impediment (so called it "CNI") Letter printed on your embassy’s letterhead.
  2. If you are an Indonesian: copy of KTP, family card, birth certificate, N-forms, photos, and original divorce decree and certificate.

A very interesting part about one of the supporting documents, some countries called it "the CNI" (Certificate of Non Impediment), like the US Embassy in Jakarta. But other countries may have different title such "the NOC." It stands for the No Objection Certificate. Both of them serve the same purpose. They certify that you are legally free to marry. The procedures in retrieving them are also varies. This is very interesting as some countries just require you to make an appointment, fill a form, pay a fee.  They will release the form to you, after they took your oath.

Some countries would require you to submit a supporting document from your home country certifying that you are legally free to marry, before they can issue the NOC to you. What's important is that Indonesia's law imposed that either the CNI or the NOC printed on the embassy's letterhead. At least, signed and sealed by the authorized officer at your embassy in Jakarta. Some countries via their embassy even refuse to issue such document for their citizen.  Well, this is the tricky part that you will have to deal with before tying the knot. As the Indonesians said it: "Indah Pada Waktunya." 

In most of the cases, the marriage registry may issue the marriage evidence on the same day of the marriage. The marriage licenses from Indonesia's marriage registries are worldwide recognized. Most major countries such as United States, United Kingdom, Australia, China, and Canada are familiar with Indonesia's marriage documents. I know this when I work with K-3 visa, a spousal visa for the spouse of a U.S. citizen.

So, consider Indonesia as venue of your marriage because getting marry in Indonesia is simple, legal, and hassle-free. Good luck, and welcome aboard!

 

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

When you're married, you're married. Most people wants the marriage for once in a life time. But at some point, you want to "undo" the decision and "reinstate" the status. From married to single. This is doable with the marriage annulment. Although permitted under strict requirements, the application for marriage annulment must be lodged to the court within the territory of the Republic of Indonesia. This is the procedures to turn the clock around under civil law in Indonesia. This has several legal consequences to your marital status. Shall be go over the rest of them? Read on!

Marriage annulment in Indonesia is a court litigation proceedings, similar with divorce application. It requires litigation skills by lawyers who specialize in civil law, family law or international civil law to assist you to navigate with the sophisticated legal system. The proceeding may be conducted with the same chamber of court other family law cases, but some may not be familiar with the proceedings as this one is one of a kind. 

The application for annulment of marriage must meet the following criterias:

  1. It must be made within six (6) months since the marriage date. They have strict time-frame. If you stay in the marriage for for that six months, they think you're accepting the marriage, and you might enjoy tying the not with your spouse. 
  2. Must be made to the court according to your jurisdiction. They set-out a very strict ruling with the court jurisdiction. This is understandable as the legal system needs to provide legal certainty for those who committed with the sacred bond of matrimony. 

The parties that may apply for the marriage annulment are as follows:

  1. Upper line family members of husband, or wife. They include your parents, your grand parents, etc. 
  2. Husband or wife. They must step forward and tell the truth. After all, this is the life they're about to go through;
  3. The authorized officer before the marriage dissolved;
  4. Any party that has legal interest to the marriage, but only after the marriage has been dissolved. This may be related to the the property acquired during the marriage i.e. mortgage with the bank, etc. This thing make things get complicated. Other third parties may be involved in the marriage because finally they are affected as well;
  5. Any person related to the bride or groom under the marriage relationship. The children of either spouse may be included in this category. They are the person that may be suffer more than anybody else if a marriage turns to sour.

One of the main requirements to conduct the annulment that the marriage must be originally performed and registered in Indonesia. It doesn't matter if it was a Moslem or Non-Moslem marriage. It must be registered and recognised under the Indonesia's Marriage Law. The marriage must have proof of registration from the marriage registry in Indonesia. It doesn't matter your nationality, whether you're an Indonesian or not. 

The court upon receipt of the marriage annulment shall hold a litigation proceedings, and the procedures shall be set-up according to the applicable divorce litigation proceedings. Some pointers that you need to anticipate is that the court may require two (2) witnesses to testify. They need to come to the court and supply the information to the judge. The court will take their oath in order to be used as evidence. This is a substantial part of the case and therefore you must have some family members to be support you if you want to go ahead with the case.

Although, the marriage annulment may reverse your marital status, but it will not, in anyway, take effect to the children born into the marriage, property, debt and other financial consequences. This is according to the Article 28 of the Marriage Law. The annulment of a marriage applicable after the court order legally binding. You see we have 14 (fourteen) days waiting period for you to file for an appeal. If they don’t receive any appeal from either party within that period, the annulment will be legally binding.

 

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

Saturday, 08 June 2019 16:16

Why People Like to Get Marry in Indonesia

Marriage in Indonesia is a choice of legality, simplicity, and hassle-free. The reason I put legality first is because the marriage laws protects your marriage, and a little family you raise. The laws require you to perform the marriage according to your religion belief, and recorded at a marriage registry. You need to understand that Indonesia does not recognize only civil marriage. You need to conduct religious ceremony first, before your marriage is legally recognized. In another words, solemnization first, then civil marriage, then reception party.

Bonafide of Your Marriage

The marriage registry in Indonesia will issue marriage license to both you and your spouse as proof that you are legally married. For Moslem couples, they will receive two marriage books. One original copy for each spouse. The colours of the books are brown, and green. They have the same biographic information, and both of them have your pictures too. As for Non-Moslem couples, you will receive two marriage certificates. Each spouse gets one certificate. Both certificates represents the groom and bride information and their picture together. At Wijaya & Co, we always pay attention to details of our client’s case.

The marriage license from Indonesia, both being the marriage book and the marriage certificate are legally recognized worldwide. Major countries like the United States, United Kingdom, China, and some other major European countries recognize and may be able to be used as one of the supporting documents for immigration spousal sponsorship.

Ten (10) Days Waiting Period

In order to obtain legal recognition under the marriage law in Indonesia, you need to allow ten (10) days waiting period. This time frame was meant to give time to the public to recognize you, whether you are legally free to marry or not, You need to meet the marriage requirements in Indonesia, otherwise it is challengable at the court of law. You may face annulment claim by one of the relevant parties. Please see here for further details of how you can avoid your marriage being nullified.

Simplicity

You can perform a marriage in Indonesia with a simple, but yet legal. We cherish a marriage because it is one of the good things in life. If you can show that you are legally free to marry and have no legal impediment why the two of you should wed, our marriage registry will register your marriage and issue a marriage license. One of the most important documents to register your marriage in Indonesia ia Non-Impediment Letter. Some call it Certificate of the Non Impediment ("CNI"). Some event call it Certificate In Lieu of the Non Impediment, because this thing does not exist in a country like Canada. Since they are required to issue one, the issue it anyway.

Please give me a call or drop me an email, should you wish to talk of how I can assist you in any way you need!

 

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

Marriage legalization is applicable to Moslem couples in Indonesia. It is to legalize the marriage previously conducted under religious rites, but not legal according to the state law yet. It may be happened for so many reasons like one of the spouse was ready to make a new commitment with you, but he/she was not legally divorce yet. This can be a burden socially to you, your spouse, and your family. So, you decided to performed the religious marriage. Consuming a marriage life like this is the same thing as if cohabitation. It is the life without legal recognition. The marriage laws in Indonesia are not applicable to you, yet. Not until you legalize the marriage.

Having a marriage legalization means you are legally recognizing the marriage previously conducted. Your official marriage date would be the date you performed the marriage. They may issue you a marriage license and the issuing date of the documents may be recent. That's fine, as it is only to show the issuing date of the documents only. When they do that, your marriage to your spouse is legally registered with the registry database. The marriage law, and family law in Indonesia are applicable normally to you, your spouse, and to your children. This is why the marriage legalization in Indonesia means for you, and your family. At Wijaya & Co, we always pay attention to details of our client’s case.

The thing is, a marriage only legally recognized when it meets two requirements i.e. it is performed according the couple’s religion affiliation, and it must be registered according to the prevailing laws. Article 7 (1) of Compilation of Islamic Law stipulates that a marriage book issued by the marriage registrar is an evidence of a legal marriage. So, the marriage legalization is applicable to the marriage that does not meet this stipulation. It means you can perform the legalization of marriage for getting your marriage registered and issued a marriage book.

There would be no legal protection for the marriage without any registration. The marriage book itself is an evidence that the marriage exists. The registration is protecting your spouse, and children born into your marriage. You see, the marriage is the very basic foundation in your life. As a father, your name will not appear on your child’s birth certificate. Your spouse may not be able to prevail as your next of kin, nor your children. Your assets may not be distributed according to your wishes, and your family may not receive the benefits of your estate. This is the last thing you want.

Article 7 (2) of Compilation of Islamic Law further states that a marriage legalization application may be lodged to the court in the event you’re unable to prove the marriage with a marriage book. The court responsible for your case may have to cross examine all the evidence you submitted together with the witnesses in this matter. There's no guarantee that the court may approve your application, therefore the attempt to legalize the marriage must be done with enough supporting documents, and compliance to the prevailing procedures with the legal system.

The outcome from the proceeding of the marriage legalization in Indonesia will give your spouse, and your children legal protection. Both of them is legally recognized both their rights and obligations according to the laws in Indonesia. Upon completion of the proceedings, your marriage will be recognized, and the court verdict is the proof of your marriage. It consist of some pages of court decision. It may not be practical, but at least it give you protection you and your family need. Please contact me should you wish to discuss any further about this.

 

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

Marriage in Indonesia is a spiritual bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family (household) based on belief to one and only God. We take marriage a very serious matter. We require both religious and civil marriage to be conducted in order to gain legal recognition. The marriage is legal if you perform the religious marriage before the civil one. We have two types of marriage ceremony in Indonesia i.e. Moslem marriage, and Non-Moslem marriage. Both types of ceremony must go through religious marriage. As for Moslem marriage, they don't require civil registration as it is legally recognized. 

Getting marry in Indonesia is simple, legal, and hassle-free. We encourage people to marry because we think running a marriage is the same thing as if you're  worshiping God. That may be the reason why the require religious marriage comes first before the civil one. Apart from that, there are ten (10) piece of marriage checklist that you must meet with before lodging the notice of intention to get marry. At Wijaya & Co, we always pay attention to details of our client’s case.

Minimum Age to Marry

In September 2019, the Indonesia's parliament passed a bill on revising the 1974 Marriage Law regarding the minimum age to get marry. You must be at least 19 (nineteen) years of age to be able to get marry legally. The minimum age limit applicable both to bride and groom. 

Waiting Period

You must wait at least 10 (ten) days waiting period in order to perform the marriage. This is to meet the publicity requirement. During this period, the marriage registry will publish the notice of the marriage intention to the public to see the if they have any objection to their marriage. Any objection why the two should not be married must be made within this waiting period. Therefore, speak now or forever hold your peace. 

Marriage Registry

Since Indonesia has two types of marriage ceremony, we have also two marriage registries. Office of Religous Affairs (so called "Kantor Urusan Agama" / KUA) for Moslem couples, and Civil Registry for Non-Moslem couples, such as Christian, Buddhist, Hindu, etc. Your marriage registry must have jurisdiction according to your legal domicile. Your actual residence may not be the same with your legal domicile. Therefore, always check your paperworks before lodging any marriage intention.

Legally Free to Marry

You must legally free to marry to your partner. You must supply a certificate of singlehood, if you're single. Your divorce must be absolute, if you're a divorcee. Your divorce certificate must be surrendered in order to get marry and a marriage license will be presented as your new status. If you're a foreigner, you need to supply a certificate of non-impediment letter. It certifies that you are legally free to marry. It must print your name and the name of your fiance(e). 

Bride and Groom

A legal marriage must have a bride and groom to perform the marriage. You must be present during the ceremony. The bride is a female, and the groom must be a male. Indonesia does not recognize same-sex marriage. It is illegal in Indonesia. Straight only!

Witnesses

You must provide at least two (2) witnesses to testify during the marriage. They're must be adult and aged above 19 years of age to be a witnesses. As for Moslem marriage ceremony, the witnesses must be men. They can be either from your family members, common friends, coworker, etc. 

Marriage Guardian

You need a marriage guardian to get marry. You need to have his blessing. If you were to marry in Moslem ceremony, the marriage guardian must meet certain requirements. The guardian is the bride's biological father. If he passed-away, her grand father must replace his place. If both of them are gone, you need her biological brother from the paternity line to replace both of them and perform the ritual of marriage.

Prenuptial Agreement

It is highly recommended to sign a prenuptial agreement before the marriage. It is very useful to secure your financial interests in order to protect your family future from unwanted business risks, preclusion to own property in Indonesia for mixed-marriage couples, etc. Please contact me for further information regarding the prenuptial agreement. Our prenup is the best product in the market. It protects you and your family future.

Dowry

The dowry is a present you give to the bride for accepting the marriage to you. The presents usually in the form of jewellery, such bracelet, necklace, etc. This symbolize the bond of the marriage between the two persons.

Feast

You need to celebrate the marriage with at least a small feast. It is advisable to provide at least snacks and drinks to people who come to your wedding.

Those are the ten pieces of marriage checklist that must exist in your marriage in Indonesia. As I told you, we take marriage very serious. One item missing from your marriage proceedings may cause you marriage challengeable. 

 

Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!

Monday, 26 February 2018 10:11

Foreign Marriage Registration

Getting marry abroad is a romantic decision to make, among other considerations taking into account. Indonesian who married abroad must pay attention to certain registry requirements imposed by the prevailing laws. Registration of marriage must be conducted with the authorized local marriage registry. When registration with the local registry completed, marriage reporting must be made with the nearest Indonesian Embassy or Consulate. This is a temporary reporting requirements until you return to Indonesia.

There are two (2) prevailing laws governing overseas marriage legalization and reporting i.e. 1974 Marriage Law and 2006 Administration of Population. The first one stipulates that overseas marriage must be legalized and reported within 12 months since the date of your return to Indonesia. The other one stipulates that you must legalize and report the marriage within 30 days since your return, and it has been implemented under the 2008 Government Regulation in April 2008. Both laws are conflicting but the latter is the particular law governing this particular circumstances.

Civil registries all over Indonesia are in the process of transition to the new law. Therefore, it is a wise thing to do to pay attention to the arrival date in your passport. Failure to meet the reporting requirements shall be fined for IDR 1,000,000 equivalent to about USD 100 Other civil registries categorized the failure of meeting the time frame as an "Important Event" which means only a district court may order the civil registry to record your overseas marriage.

You are required to obtain a court decree prior to legalize and record your marriage. You need to submit civil petition at the local district court.  Approximately within 30 days, and upon receipt of completed supporting documents, the court will set-up a hearing to cross-examining all the supporting evidence.  You may be required to provide two witnesses. Usually the hearing will only take place once. After the hearing, the court will issue a court decree to order civil registry to record your marriage. Based on the court decree, the civil registry will issue an STBLP (Surat Tanda Bukti Laporan Perkawinan/Marriage Reporting Certificate).

An STBLP is a very useful certificate. Your overseas marriage will not be legally recognized by the Indonesian laws. It is the same as if no marriage at all. No marriage means no divorce. Children born in the marriage shall be categorized as out of wedlock. Claiming Indonesian citizenship for your child born before August 2006 will require an STBLP, if you were married abroad. Furthermore, it will also take effect to the inheritance issues. It seems the 2006 enacted-law sending  a message the importance of marriage legalization and reporting by imposing more strict time frame. It is more likely people would fail to meet the 30 days reporting requirements as it is too short!

I am Asep Wijaya. Thank you for visiting my blog, and reading my posts.
 
****
 
Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Tagged under
Monday, 26 February 2018 09:46

Post Marital Agreement in Indonesia

Postnuptial agreements, also known as post-marital agreements, are agreements entered into after a marriage has taken place. There are many reasons why a mixed-nationality married couple might wish to draw-up a postnuptial agreement. Among others, a couple that did not sign a prenuptial agreement before marriage may later determine that they want to have some sort of financial plan in place in the event of death or divorce. Additionally, a major change in the financial circumstances of the couple, such as a major career change or inheritance, may alter the financial landscape, requiring a change to the terms of the couple's existing prenuptial agreement to reflect their current wishes, such as the intention of purchasing property in Indonesia.
 
Indonesia’s 1974 Marriage Law only recognizes prenuptial agreements, ("prenup" for short), a written contract created by two parties before they are married. The 1974 enacted law only discussed the matrimonial agreement that must be drawn-up prior to marriage. Indeed, the law regarding the validity and enforcement of post-marital agreements is not well developed in Indonesia.
 
But if we dig a little bit deeper, Indonesian Civil Code provides a special provision concerning property division in the course of marriage. The postnup is a product of the ancient Civil Code. It’s been there for many decades. So, some couples have been using these provisions. It just that the postnup is not as popular as its related document, the prenup. In my personal opinion, the postnup is like a fine wine. It’s being kept in the dark, until it matures enough to become something you would like to have dinner with.
 
What’s Postnup?
 
First of all, a postnup is not a back-dated prenup. It is signed and dated after your marriage. When you’re married, you’re married. There’s no way you can turn the clock back after you are already married and get a prenup or even back-date a prenup. That would be illegal under Indonesian law! The harsh reality is that the courts tend to assume that a prenup is always valid, but they have the opposite reaction to the back-dated prenup. The assumption is, in the majority of cases, that this type of agreement is not valid.
 
You can’t find a postnup mentioned in the 1974 Marriage Law. Nevertheless, just because the Marriage Law doesn’t say anything about the postnup, it doesn’t mean it’s not legal.  It’s already exists in the Civil Code. This is can be the ultimate solution for mixed-couples in Indonesia who did not sign a prenuptial agreement before their marriage. This also may preserve the rights of the Indonesian to own property in Indonesia, even though they are married to a foreigner.
 
The postnuptial agreement may be useful to couples seeking to enter into a post marital agreement after a significant financial change or a period of marital conflict. It is signed and entered into in contemplation of an existing, ongoing, and viable marriage. This agreement allows married couples to legally pre-determine how property will be divided, if the couple divorces.
 
The postnup creates property separation in your marriage since the signing date, and therefore the community property regime, shall not exist any further. As for the property in existence prior to the postnup, you would need to determine what that encompasses. It has to be separated as well. Then, you need to appoint one spouse as the property holder.
 
Nevertheless, please take a note that signing a postnup is not the only phase required to create a separation of property during the course of your marriage. Your Indonesian lawyer needs to work on other legal issues such as taking prior legal measures to make sure of the legality of the postnup before it is signed by the husband and wife.
 
Legal Implications of the Postnup
 
Legal implications will occur due to property division in the course of the marriage in terms of the two parties in the postnup (i.e., husband and wife), the property in the marriage, and other possible related third parties. Both husband and wife shall be bound by the legal binding force in effect from the Postnup. As it is a legally binding contract, therefore it shall serve as the law between both contracting parties; husband and wife. This is in line with Article 1338 of the Civil Code stipulating that: “All contracts legally drafted shall serve as the law to the parties involved.”
 
The postnup also takes effect upon third parties. In regards to creditors, the further implementation must be specified in accordance with the time frame. Community property shall be liable to serve as collateral in the event a mortgage exists prior to the postnup date.  On the other hand, if one spouse gets a loan from a bank after the postnup date, his/her separate assets shall be in liability to any debts he/she might have created.
 
Postnup for Mixed-Marriage Couples
 
In accordance with Article 186 (1) of the Indonesian Civil Code, the wife may, in the course of marriage, request a division of assets, in the following circumstances: "...wife is in imminent danger of losing the security of her dowry and her entitlements pursuant to the law…, and also if ...  in the management of the community property, such property might be endangered." This is totally applicable to the circumstances in every no-prenup mixed-nationality married household in Indonesia. By marrying a foreigner, the Indonesian spouse will be precluded to own property, which is her/his right as an Indonesian citizen. Therefore, his/her entitlements to own property in Indonesia may be endangered.
 
There are many mixed-nationality married couples in Indonesia that did not sign a prenuptial agreement prior to their marriage. In the absence of a prenuptial agreement, by law, their marriage has joint property regime because the Marriage Law - automatically assuming joint property regime within their marriage. This means that either spouse would require consent from the other spouse for every transaction involving immovable property in Indonesia.
 
Consent is implemented if both parties co-sign every transaction document. In terms of a mixed-nationality marriage, such consent cannot be retrieved from the foreign spouse because a foreigner is not allowed to own property in Indonesia. An Indonesian will not be able to retrieve such consent from their spouse because the foreign spouse is not in the legal position to own the property in the first place. So, the Indonesian spouse is stuck. This is where a prenup is essential to prevent this dilemma.
 
Since there are many mixed-nationality couples without a valid prenup, then a postnup may be used as one of the options. Writing a postnup, just because you didn’t have a prenup, is not a routine document. Instead of creating an illegal back-dated prenup, I certainly think the postnup is legally worth considering.
 
Postnuptial agreements are most often used to settle financial matters, including property ownership in mixed-nationality marriages. The postnup is very useful when spouses failed to create a prenuptial but want to protect their assets. It is not something that is common in Indonesia because the law thinks that you should have gotten a prenup in the first place. Therefore, the requirements to establish a postnup are stricter than for establishing a prenup. The contract must be created with full disclosure of all assets, be entered into voluntarily by both parties, and have terms that are fair and equitable.
 
Why should you get a Postnup?
 
Because it is dated after your marriage and because it is a legal document. The postnup is about admitting that the Indonesian spouse did not realize that they needed a prenup in order to own property in Indonesia before they married a foreigner. It’s about being honest with yourself and to the public institution where the postnup will be registered. Back-dated prenups are about manipulating the facts of your marriage date, and the date when you signed the prenup.
 
Postnup are the most favorable choice for the difficult situation of having no prenup in the first place. Some mixed-nationality married couples have resorted to questionable measures, such as making purchases using fake ID cards, or risky purchases, such as buying real property using their relative’s name.  You may be trust them, but trust is not the only issue here.
 
The postnup is about making sure that you control your own property without have to rely on someone else’s mood. With the postnup, you have the power and the authority to make the purchase without being affected by the legal constraints.
 
What’s Your Marriage Like after the Postnup?
 
The postnup serves as the law for both contracting parties; husband and wife. After both of you signed the postnup, property shall be separated upon the legal effective date of the postnup. Both spouses shall be independent and will not require consent from the other spouse, including to conduct property transactions. The best part is the Indonesian spouse will no longer be affected by his/her foreign spouse. The rights of an Indonesian to own property are preserved as if you had a prenup from the beginning of your marriage.
 
Reinstatement of Community Property
 
You would use these proceedings, if you want to return to the joint property regime, because perhaps the laws may have changed. For example, the Indonesian spouse is no longer affected by being married to a foreigner regarding the ownership of property in Indonesia.
 
In the event where community property is reinstated, matters relating thereto shall be afforded the same status as that applicable prior to separation, without prejudice to the result of acts carried out by the wife which took place in the interim between separation and reinstatement. Agreement providing for reinstatement of community property by the spouses for any reasons other than those already specified shall be deemed void.
 
The community property which is dissolved by separation of assets may be reinstated with the consent of both spouses. The reinstatement of community property must be made public by both spouses. Third parties shall not be affected by the reinstatement until the public announcement has been made.
 
Endorsements from the Jakarta Higher Court
 
Recent developments related to the postnup have been very important. The latest updates from the Jakarta Higher Court regarding the marital agreement entered into after the marriage. The endorsement from the Higher Court is  subject to the following terms and conditions, among others:
  1. As long as the postnup entered into by husband and wife in accordance with Article 1338 Civil Code, then it serves as the law to both of them. Therefore, the parties in the postnup must  perform their rights and obligations as specified in their postnup. In the event one party fails to do so, then the other party may file a complaint to the court of law.
  2. Furthermore, the Jakarta Higher Court stipulates that the postnup must be dated with an actual date. So, why should you back-dating the prenup in the first place, while you can have an actual-date postnup and legally endorsed by the Higher Court?
  3. No need to record the postnup on your marriage certificate. Unlike the prenup, the postnup does not require registration at the marriage registry to take effect legally between husband and wife. The postnup automatically valid legally when you covenant and agree to execute its terms and conditions. This must be done freely and voluntarily and free from coercion, duress or pressure of any kind, and they have an adequate opportunity to read and study the postnup.
Legally Recognized by the National Land Registry 
 
In Indonesia, government agency responsible for the titles management of immovable properties in Indonesia is the National Land Registry (so called the BPN/Badan Pertanahan Nasional). Recently, our postnup has been recognized by the BPN. A mixed-marriage couple, a British husband and an Indonesian wife, they were married in July 1993. In the year 2008, she received an inheritance from her father, a house worth more than 15 bio IDR, but was unable to hold it because they didn’t sign any prenup. She nominated her older sister to hold the title of the house. In August 2015, the couple signed our postnup. It took a couple of months for transferring the title. In January 2016, the name of the Indonesian wife was printed on the house ownership certificate. The title of the house is Hak Milik (Freehold Title) and the transfer proceedings were conducted on the certificate of ownership (SHM/Sertifikat Hak Milik) by the BPN in South Jakarta.
 
So, the BPN recognized her rights as an Indonesian to hold the estate as it is vested by our postnup they signed during the course of marriage. This is of course a very good news for married couples without any prenuptial agreement in Indonesia. I do believe the married couples can thrive in owning the property even without a prenup, and I can say that our postnups have definitely been enriched with the recent developments.
 
I am Asep Wijaya. Thank you for visiting my blog, and reading my posts.
 
****
 
Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Tagged under

Postnuptial agreements, also known as post-marital agreements, are agreements entered into after a marriage has taken place. There are many reasons why a mixed-nationality married couple might wish to draw-up a postnuptial agreement. Among others, a couple that did not sign a prenuptial agreement before marriage may later determine that they want to have some sort of financial plan in place in the event of death or divorce. Additionally, a major change in the financial circumstances of the couple, such as a major career change or inheritance, may alter the financial landscape, requiring a change to the terms of the couple's existing prenuptial agreement to reflect their current wishes, such as the intention of purchasing property in Indonesia.

Indonesia’s 1974 Marriage Law only recognizes prenuptial agreements, ("prenup" for short), a written contract created by two parties before they are married. The 1974 enacted law only discussed the matrimonial agreement that must be drawn-up prior to marriage. Indeed, the law regarding the validity and enforcement of post-marital agreements is not well developed in Indonesia.

But if we dig a little bit deeper, Indonesian Civil Code provides a special provision concerning property division in the course of marriage. The postnup is a product of the ancient Civil Code. It’s been there for many decades. So, some couples have been using these provisions. It just that the postnup is not as popular as its related document, the prenup. In my personal opinion, the postnup is like a fine wine. It’s being kept in the dark, until it matures enough to become something you would like to have dinner with.

What’s a Postnup?

First of all, a postnup is not a back-dated prenup. It is signed and dated after your marriage. When you’re married, you’re married. There’s no way you can turn the clock back after you are already married and get a prenup or even back-date a prenup. That would be illegal under Indonesian law! The harsh reality is that the courts tend to assume that a prenup is always valid, but they have the opposite reaction to the back-dated prenup. The assumption is, in the majority of cases, that this type of agreement is not valid.

You can’t find a postnup mentioned in the 1974 Marriage Law. Nevertheless, just because the Marriage Law doesn’t say anything about the postnup, it doesn’t mean it’s not legal.  It’s already exists in the Civil Code. This is can be the ultimate solution for mixed-couples in Indonesia who did not sign a prenuptial agreement before their marriage. This also may preserve the rights of the Indonesian to own property in Indonesia, even though they are married to a foreigner.

The postnuptial agreement may be useful to couples seeking to enter into a post marital agreement after a significant financial change or a period of marital conflict. It is signed and entered into in contemplation of an existing, ongoing, and viable marriage. This agreement allows married couples to legally pre-determine how property will be divided, if the couple divorces.

The postnup creates property separation in your marriage since the signing date, and therefore the community property regime, shall not exist any further. As for the property in existence prior to the postnup, you would need to determine what that encompasses. It has to be separated as well. Then, you need to appoint one spouse as the property holder.

Nevertheless, please take a note that signing a postnup is not the only phase required to create a separation of property during the course of your marriage. Your Indonesian lawyer needs to work on other legal issues such as taking prior legal measures to make sure of the legality of the postnup before it is signed by the husband and wife.

Legal Implications of the Postnup

Legal implications will occur due to property division in the course of the marriage in terms of the two parties in the postnup (i.e., husband and wife), the property in the marriage, and other possible related third parties. Both husband and wife shall be bound by the legal binding force in effect from the Postnup. As it is a legally binding contract, therefore it shall serve as the law between both contracting parties; husband and wife. This is in line with Article 1338 of the Civil Code stipulating that: “All contracts legally drafted shall serve as the law to the parties involved.”

The postnup also takes effect upon third parties. In regards to creditors, the further implementation must be specified in accordance with the time frame. Community property shall be liable to serve as collateral in the event a mortgage exists prior to the postnup date.  On the other hand, if one spouse gets a loan from a bank after the postnup date, his/her separate assets shall be in liability to any debts he/she might have created.

Postnup for Mixed-Marriage Couples

In accordance with Article 186 (1) of the Indonesian Civil Code, the wife may, in the course of marriage, request a division of assets, in the following circumstances: "...wife is in imminent danger of losing the security of her dowry and her entitlements pursuant to the law…, and also if ...  in the management of the community property, such property might be endangered." This is totally applicable to the circumstances in every no-prenup mixed-nationality married household in Indonesia. By marrying a foreigner, the Indonesian spouse will be precluded to own property, which is her/his right as an Indonesian citizen. Therefore, his/her entitlements to own property in Indonesia may be endangered.

There are many mixed-nationality married couples in Indonesia that did not sign a prenuptial agreement prior to their marriage. In the absence of a prenuptial agreement, by law, their marriage has joint property regime because the Marriage Law - automatically assuming joint property regime within their marriage. This means that either spouse would require consent from the other spouse for every transaction involving immovable property in Indonesia.

Consent is implemented if both parties co-sign every transaction document. In terms of a mixed-nationality marriage, such consent cannot be retrieved from the foreign spouse because a foreigner is not allowed to own property in Indonesia. An Indonesian will not be able to retrieve such consent from their spouse because the foreign spouse is not in the legal position to own the property in the first place. So, the Indonesian spouse is stuck. This is where a prenup is essential to prevent this dilemma.

Since there are many mixed-nationality couples without a valid prenup, then a postnup may be used as one of the options. Writing a postnup, just because you didn’t have a prenup, is not a routine document. Instead of creating an illegal back-dated prenup, I certainly think the postnup is legally worth considering.

Postnuptial agreements are most often used to settle financial matters, including property ownership in mixed-nationality marriages. The postnup is very useful when spouses failed to create a prenuptial but want to protect their assets. It is not something that is common in Indonesia because the law thinks that you should have gotten a prenup in the first place. Therefore, the requirements to establish a postnup are stricter than for establishing a prenup. The contract must be created with full disclosure of all assets, be entered into voluntarily by both parties, and have terms that are fair and equitable. 

Why should you get a Postnup?

Because it is dated after your marriage and because it is a legal document. The postnup is about admitting that the Indonesian spouse did not realize that they needed a prenup in order to own property in Indonesia before they married a foreigner. It’s about being honest with yourself and to the public institution where the postnup will be registered. Back-dated prenups are about manipulating the facts of your marriage date, and the date when you signed the prenup.

Postnup are the most favorable choice for the difficult situation of having no prenup in the first place. Some mixed-nationality married couples have resorted to questionable measures, such as making purchases using fake ID cards, or risky purchases, such as buying real property using their relative’s name.  You may be trust them, but trust is not the only issue here.

The postnup is about making sure that you control your own property without have to rely on someone else’s mood. With the postnup, you have the power and the authority to make the purchase without being affected by the legal constraints.

What’s Your Marriage Like after the Postnup?

The postnup serves as the law for both contracting parties; husband and wife. After both of you signed the postnup, property shall be separated upon the legal effective date of the postnup. Both spouses shall be independent and will not require consent from the other spouse, including to conduct property transactions. The best part is the Indonesian spouse will no longer be affected by his/her foreign spouse. The rights of an Indonesian to own property are preserved as if you had a prenup from the beginning of your marriage.

Reinstatement of Community Property

You would use these proceedings, if you want to return to the joint property regime, because perhaps the laws may have changed. For example, the Indonesian spouse is no longer affected by being married to a foreigner regarding the ownership of property in Indonesia.

In the event where community property is reinstated, matters relating thereto shall be afforded the same status as that applicable prior to separation, without prejudice to the result of acts carried out by the wife which took place in the interim between separation and reinstatement. Agreement providing for reinstatement of community property by the spouses for any reasons other than those already specified shall be deemed void.

The community property which is dissolved by separation of assets may be reinstated with the consent of both spouses. The reinstatement of community property must be made public by both spouses. Third parties shall not be affected by the reinstatement until the public announcement has been made.

Endorsements from the Jakarta Higher Court

Recent developments related to the postnup have been very important. The latest updates from the Jakarta Higher Court regarding the marital agreement entered into after the marriage. The endorsement from the Higher Court is  subject to the following terms and conditions, among others:

  1. As long as the postnup entered into by husband and wife in accordance with Article 1338 Civil Code, then it serves as the law to both of them. Therefore, the parties in the postnup must  perform their rights and obligations as specified in their postnup. In the event one party fails to do so, then the other party may file a complaint to the court of law.
  2. Furthermore, the Jakarta Higher Court stipulates that the postnup must be dated with an actual date. So, why should you back-dating the prenup in the first place, while you can have an actual-date postnup and legally endorsed by the Higher Court?
  3. No need to record the postnup on your marriage certificate. Unlike the prenup, the postnup does not require registration at the marriage registry to take effect legally between husband and wife. The postnup automatically valid legally when you covenant and agree to execute its terms and conditions. This must be done freely and voluntarily and free from coercion, duress or pressure of any kind, and they have an adequate opportunity to read and study the postnup.

Legally Recognized by the National Land Registry 

In Indonesia, government agency responsible for the titles management of immovable properties in Indonesia is the National Land Registry (so called the BPN/Badan Pertanahan Nasional). Recently, our postnup has been recognized by the BPN. A mixed-marriage couple, a British husband and an Indonesian wife, they were married in July 1993. In the year 2008, she received an inheritance from her father, a house worth more than 15 bio IDR, but was unable to hold it because they didn’t sign any prenup. She nominated her older sister to hold the title of the house. In August 2015, the couple signed our postnup. It took a couple of months for transferring the title. In January 2016, the name of the Indonesian wife was printed on the house ownership certificate. The title of the house is Hak Milik (Freehold Title) and the transfer proceedings were conducted on the certificate of ownership (SHM/Sertifikat Hak Milik) by the BPN in South Jakarta.

So, the BPN recognized her rights as an Indonesian to hold the estate as it is vested by our postnup they signed during the course of marriage. This is of course a very good news for married couples without any prenuptial agreement in Indonesia. I do believe the married couples can thrive in owning the property even without a prenup, and I can say that our postnups have definitely been enriched with the recent developments.

Registration of the Postnups

On May 19, 2017, the Indonesian Ministry of Home Affairs issued a clarification of the Constitutional Court Decision No. 69 / PUU-XIII / 2015 dated October 27, 2016 by which Article 29 of the 1974 Marriage Law was declared unconstitutional. This clarification regarding the registration of postnuptial agreements is in the form of a letter concerning the Recording of Reports of Marriage Agreements No. 472.2 / 5876 / Dukcapil dated May 19, 2017 addressed to the Heads of the Departments of Population and Civil Registry in Regencies and Cities across Indonesia. This letter regognizes the legality of postnuptial agreements for separation of assets. The postnup agreement must be reported to the Marriage Registrar. This is the Civil Registry Office for non-Muslim couples and the KUA for Muslims.

The documents required to be submitted are:

  1. Photocopy of couple’s identity cards (KTP Elektronik);
  2. Photocopy of family card;
  3. Photocopy of notarial deed of marriage agreement that has been legalized by showing the original;
  4. Excerpts of marriage certificates of husband and wife. 

I am Asep Wijaya. Thank you for visiting my blog, and reading my posts.

****

Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Tagged under
Friday, 23 February 2018 15:52

Manfaat Perjanjian Pranikah Dibuat

Manfaat Perjanjian Pranikah Dibuat

Walaupun bagi sebagian orang perjanjian pranikah merupakan topik yang tabu dibicarakan dan banyak menuai pro kontra dari berbagai pihak, namun harus diakui bahwa ada banyak sisi positif yang bisa dipetik dari adanya perjanjian ini.

Beragam masalah yang timbul pada pernikahan yang akhirnya sering kali berujung pada perceraian membuat sebagian kalangan merasa perlu membuat perjanjian pranikah.

Prenuptial agreement atau lebih dikenal dengan sebutan perjanjian pranikah adalah perjanjian yang dibuat sebelum pernikahan dilangsungkan dan mengikat kedua belah pihak calon mempelai yang akan menikah. Perjanjian ini berlaku sejak pernikahan dilangsungkan dan isinya mengatur bagaimana harta kekayaan Anda berdua akan dibagi jika terjadi perceraian atau kematian dari salah satu pasangan.

Awalnya perjanjian pranikah banyak dipilih oleh kalangan atas yang memiliki warisan besar serta bagi duda atau janda yang hendak menikah lagi tapi ingin memberkan kekayaan pada anak dari hasil pernikahan sebelumnya. Keinginan orang untuk membuat perjanjian pranikah kian berkembang sejalan dengan makin banyaknya orang menyadari bahwa pernikahan merupakan sebuah komitmen.

Nikmati Manfaatnya

Dengan banyaknya kasus perceraian yang berujung masalah, tak ada salahnya jika kita mulai berpikiran terbuka terhadap fenomena perjanjian pranikah dan melihatnya dari sudut pandang yang berbeda. Adanya perjanjian pranikah justru diharapkan dapat memberikan batasan yang jelas mengenai apa yang harus dan tidak boleh dilakukan pasangan, sehingga kelangsungan pernikahan akan tercapai.

Lepas dari masalah pro dan kontra, sebenarnya cukup banyak manfaat positif yang didapat dari adanya perjanjian pranikah, antara lain bagi perempuan Indonesia yang menikah dengan lelaki WNA, dimana sebaiknya mereka memiliki perjanjian pranikah karena kalau tidak ia tidak akan bisa membeli tanah dan rumah atas namanya sendiri.

Akhir-akhir ini malah banyak pasangan yang lebih menitikberatkan hal lain diluar masalah finansial (pemisahan harta dan utang serta masalah pembiayaan anak-anak yang lahir dari hasil pernikahan tersebut) sebagai perjanjian pranikah, seperti kebebasan bekerja dan berkreasi termasuk disini menekuni olah raga, hobi, atau mengoleksi barang langka yang tergolong mahal yang dianggap mengganggu keuangan keluarga. Bahkan ada pula pasangan yang memasukkan soal kekerasan dalam rumah tangga (KDRT) sebagai bagian dari perjanjian pranikah.

Dengan berbagai pertimbangan, Anda dan pasangan tentu dapat menentukan sendiri perlu tidaknya perjanjian pranikah dibuat. Yang jelas, pastikan bahwa hal ini memberikan manfaat positif bagi Anda berdua dan tentunya dilegalisasi oleh hukum.

Sumber: Harian Kompas tanggal 9 Januari 2007.

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I am Asep Wijaya, Managing Director of Wijaya & Co. Thank you for visiting my blogs and reading my posts.

 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found anywhere in this article nor in this website. 

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Postnuptial agreement in Indonesia is 100 percent legal and recognized by the courts of law. In 2015, the Indonesia’s Constitutional Court issued a verdict saying that the marital agreement may be entered into before, after, and during the marriage. Many thinks that this ruling is a breakthrough verdict, but surprisingly, of course, it's not the first one to ever happened in Indonesia.

Long before the ground breaking verdict, courts in Indonesia have been come up with similar rulings. From Jakarta to Malang, from Makassar to Tanjung Pandang. All of them are saying the same thing: postnup is legal. The way they see it, it's a contract between two parties entered into freely, with voluntarily consent, and without any duress. 

I managed to get some court orders gathered from a few places in Indonesia, such from Malang, Tanjung Pandan, Makassar, North Jakarta, Central Jakarta, and of course South Jakarta. Their considerations in reaching the verdicts were pretty similar. The courts tends to think that even though the marital agreement may only be entered before and on the marriage date, but as long as it does not violate the rules, religious norms, and moral, the amendment of marital agreement may take place during the course of marriage. This is where they allow postnuptial agreement. Mutual consent, and as long as the contract does not jeopardizing the third party, the courts are welcome with the marital agreement after the marriage.

The other legal reasoning is because the Marriage Law in Article 29 allows amendment to the marital agreement. This does not contradicts with the other provision that postnuptial agreement is forbidden. Furthermore, our Civil Code recognised post-married contract  in Aricle 139, and therefore, they allow postnuptial agreement to legally take effect without any hesitation. 

The only hi-cough was we didn't have any prevailing rules regarding registration at the civil registries. This is in order to meet the requirement as imposed by the Marriage Law that a marital agreement must be registered at a marriage registry in order to take effect legally between the two spouses. As the holding from the court does not say anything about registering the postnup with a marriage registry, it does not prevent the postnup from taking a legal stand within our legal system. But luckily, the circular letter from the Ministry of Interior breaks the ice. Marriage registries all over Indonesia have been instructed to receive registration for postnuptial agreements, and issued a certificate as proof of a registration. This heals the hi-coughs.

I am Asep Wijaya. Thank you for visiting my blog, and reading my posts.

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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

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Friday, 23 February 2018 11:01

Prenuptial Agreement in Indonesia

A Guide to Incorporate a Prenuptial Agreement in Indonesia Most people think of marriage as the ultimate emotional and spiritual bond. They are looking to a life of happiness. However, when faced with negotiating a premarital agreement, they realize that not only do they have to decide what will happen to them when they divorce or die, but thay they also have to negotiate these issues with their fiance(e). It's just not what people are thinking about when they are getting married. If you are foreign nationality and plan to marry an Indonesian spouse, you need to get a prenuptial agreement PRIOR to marriage. Considering foreigners are not allowed to have a property in Indonesia, and if you wish to take the quite sensible precaution of a prenuptial agreement for the purpose of protecting yourself and your properties in the event that one of you dies, a prenuptial agreement is a must-have choice.

The Agrarian Law stipulates that foreigner is not allowed to own property in Indonesia, and Indonesian who married to the foreigner will be precluded to own free-title property. The agrarian law refers to Indonesia's Marriage Law assuming joint property ownership in the marriage. Prenuptial agreement concerning separation of property in the marriage is the most possible solution to get around the issue.

The Indonesian government can, by law, take virtually everything away from the grieving party because they did not create such a protective document PRIOR to marriage. To avoid this trouble, it would be prudent to draft a prenuptial agreement complying with the Indonesian laws to ensure that your financial interest(s) will be up-held by the Indonesia court. As one of the Indonesian legal services working for family law cases, especially mixed-marriage cases, we will walk you through the proper procedures how the prenuptial agreement incorporated in Indonesia.

Legal AspectsThe 1974 Indonesian Marriage Law has a very simple provision of prenuptial agreement compared to the ancient Dutch Law, Civil Code. The law governing the prenuptial agreement only consist of one article. It stipulates that the agreement should be made prior to marriage. The agreement should be legalized by the marriage registry office. Civil Registry Office for Non-Moslem, and Office of Religious Affairs for Moslem.Both parties are free to determine the form of law, as long as abiding the law, religion, and moral consideration. The provision are indeed very general. The legislatures seem to let it so in order to make it flexible with the development of the religion, moral, and public order.

Other provision stipulates that the agreement can not be amended during marriage, except upon approval of both parties and do not cause disavantage to any third party.Person in Need of a PrenupConsider a prenuptial agreement if you suit with at least one of the following conditions: Person of foreign nationality wishing to marry to an Indonesian partner and wish to own property in Indonesia; Person who is bringing a lot of assets to the partnership, including all retirement account; Person who has his or her own business or is a partner in a company; Person on a fast career track who is likely to earn a hefty salary in the future; Person who has children from a prior marriage; Person who is paying for his or her spouse to get an advanced degree likely to result in significant future earnings. Making a Prenup Indonesian laws does not provide ready-made frameworks for prenuptial agreement. You and your Indonesian lawyer have more leeway to define your future legal relationship, although you are bound by law, religion, moral, and public order consideration in drafting the agreement.

Indonesian prenuptial agreement must be tailored to the particular needs of the spouses and sufficiently flexible to take into account changes in your future circumstances during the course of marriage. Beginning by collecting all the things you want to be included in the prenuptial agreement. Ask your Indonesian lawyer to draft the agreement and request for recommendation. But you need to take a note that the marriage property will be under your Indonesian spouse's name. Once again, foreigners of are not allowed to own a property in Indonesia. You just need to specify percentage of the property each spouse will get if the marriage was dissolved. Include in the agreement full disclosure of all assets and liabilities, including the value of each asset. Make sure that the terms of the agreement do not promote dissolution.

Keep all drafts of the documents by email so that there is  a record that you have reviewed every draft. Keep all the drafts, correspondence, and notes so that the file reflects the negotiations and the various resulting revisions. Name and number the drafts in consecutive order such as "draft number three". This record will be very helpful is the agreement is later contested.   After negotiating the agreement, make sure you understand its terms and the importance of abiding by them. An agreement followed by both parties is more likely to stand the test of time. Avoid commingling assets and to keep careful records. A qualified accountant and bookkeeper can assist you. Even if the agreement is set aside or revoked, careful bookkeeping will make it easier for the court to trace and will save you lots of money.

At Wijaya & Co, we provide client with prenuptial agreement questionnaire. The main purpose of this questionnaire is to gather facts and obtain client’s input on issues that should be incorporated into a prenuptial agreement. The questionnaire consists of the issues that should be considered when you enter into a prenuptial agreement. Some of you might not be ready to discuss every issue that listed on the questionnaire. Therefore, it is OK if you want the agreement is to be silent on the subject. When you are ready, the two of may sit down together, once again, to discuss the silent part(s). Legalized and Record the Agreement There are two registrations required for a prenuptial agreement. A premarital agreement must be recorded with the registrar’s office of the local district court, and marriage registry.

The agreement will take effect for the husband and wife when the marriage recorded at the Civil Registry or the Office of Religious Affairs and shall take effect against third parties upon the date of registration with the local district court where the marriage will take place. If the agreement is not recorded at the local district court, then the marriage will be considered as if there is no prenuptial agreement exists. Thus, your marriage will have joint-ownership in property. This is the same as if you don’t have a prenup.

Death to Either Party If your Indonesian spouse pass-away, you will have to transfer the property within one year. Transferring the property can be either sell it to other Indonesian or pass it to your children. Under 2006 Citizenship Law, children born into mixed-marriage will entitle to dual-citizenship. They can keep the two citizenships until the age of 18 years plus another 3 years to choose one. In the event they did not choose Indonesian citizenship; they will be treated as foreigner and therefore will not be able to hold the property any further. On the other hand, if the foreign spouse pass-away, the Indonesian can keep the property for good. Updating the PrenupIt is important to understand the need to keep the agreement up-to date.

Agreement should be designed to accommodate the passage of time and changes in  status, such as the birth of children, and increase or decrease in wealth, or the disability of either party. Since no agreement can take into account all possible eventualities, however, you need to review the agreement periodically, with an Indonesian lawyer, to keep it current.

I am Asep Wijaya. Thank you for visiting my blog, and reading my posts. 
 
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Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us! 
 

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website. 

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