Displaying items by tag: Postnuptial Agreement in Indonesia

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In Indonesia, we have two types of marital agreement: Prenuptial Agreement, and Postnuptial Agreement. Both of them are valid, legally recognized, and provide strong protection in terms of property ownership. In the event those terms are new to you, let me explain a little bit. Prenuptial agreement is a contract or an agreement entered into between husband and wife before they get married. Postnuptial agreement is a contract or an agreement signed by husband and wife after they got married, or during the course of their marriage. 

Those agreements, both prenup and postnup,  are also giving you some sort of extra protection.  You might think you don’t need it in the early course of your marriage, but if a divorce occurs, you are strongly protected. The agreements that are drafted by our Indonesian lawyers, either prenup or postnup, are upheld by the court, all the way from the Republic of Indonesia to the United States. This is a recent testimonial from a client. A very pleasant surprise indeed. 

Stay tuned, and I will tell you some more!

Property in Your Marriage

Basically, properties acquired during the course of marriage are joined. They are becoming community property. You and your spouse own them together. You guys own them 50:50. It’s quite a beautiful thing, having something that you can call “Ours.”

Here’s the legal ground for that opinion, the definition of Community Property according to the Civil Code in Indonesia under Article 119 is: "From the moment of execution of the marriage, it shall arise by law joint marital property between the spouses to the extent that no other stipulations have been made in the prenuptial agreement." 

This is the ancient legal basis for the prenuptial agreement within the legal system in the Republic of Indonesia. So, that’s the thing, if you want to create a prenuptial agreement, it must be done before the marriage date. You need to execute it before or on the date of your marriage. That’s the least you can do. 

Now, in the modern era, we have Marriage Law enacted in the year of 1974. We called it Law number 1 of 1974 regarding Marriage. This one also governs marital property acquired during the course of your marriage.  

The Marriage Law stipulates in Article 35 as follows: 1. The property acquired during the course of marriage is joint marital property; 2. Separate property of husband and wife, and  property acquired respectively as a gift or inheritance are under the control of each party as long as the parties do not specify otherwise. 

What Is It About?

When you’re dealing with a marital agreement such as prenup and postnup, mostly they are involving property and other issues related to property. It’s the basic issue that can be included into your prenup or postnup. 

The legal ground to support that opinions is Article 139 of Civil Code that stipulates as follows: 

“The prospective spouses, may, pursuant to a prenuptial agreement deviate from the rules stipulated in relation to legal community property, provided that they do not contravene proper morals or public order and that they comply with the following provisions.” 

Basically, marital agreement both prenup and postnup are about property, including but not limited to property related issues. 

Legal Ground 

In Indonesia, both prenuptial and postnuptial agreements are governed by Article 29 (1) of the 1974 Marriage Law and the Verdict of Constitutional Court number 69/PUU-XIII/2015 as follows: 

“At the time, prior to taking place or during the marriage knot, both parties with mutual consent can enter into a written agreement which is legalized by the marriage registrar after which the contents also apply to third parties as long as the third party is involved.”

The legal ground has been amended in 2015 in order to include marital agreement that is being executed during the course of marriage: postnuptial agreement. So, the above definition is the most recent and updated with the current situation. 

Types of Marital Agreement

Therefore, according to the definition in the Civil Code, there are three (3) basic types of prenuptial agreement, they are:

  1. Full separation of property. This is the most complete version that includes separation on the property, and joint in loss and profit. 
  2. Separation on separate property. This type of marital agreement is only applicable to property acquired before the marriage, as well as to gift and inheritance. Any property acquired during the marriage shall be joint and become community property. 
  3. Separation of profit and loss. This is the type of marital agreement that covers only joint profit. In terms of loss to the assets, it is a separate loss retained by each party within the marriage. 

It’s a Contract!

I believe a marital agreement, especially a prenuptial agreement can do just more than a property. It can include anything as long as it’s a legal cause. It’s something legal that does not violate the laws and the rights of other people. This is what they called the conditions that are required for the validity of agreements. So, pretty much you can include anything into your prenup: custody of the child, among others. 

On one occasion, I offered a clause in our prenuptial agreement to a fun loving couple. Something that they didn’t think they needed: joint custody of their child in the event of divorce. Both of them didn’t refuse. They agreed to my offer. Love was in the air. I could almost smell it.  

Sadly, they got divorce. They have one child. She wanted to keep the child for herself, so she committed child abduction. She kidnapped the child and brought him overseas. Our drafted prenup was upheld by the courts in South Jakarta and  one of the states in the US. The father was entitled to joint custody as well as the mother. But since the mother closed the access to the other parent, which is against the law, her custody right has been revoked by the court. 

So, I should refer to the Article 1338 of Civil Code that is imposed: “All valid agreements apply to the individuals who have concluded them as law.” The prenup is the law of the game between the two of you. Therefore, make sure you get a valid one. The above story can be shown as proof that a piece of paper can protect you, even in a foreign country.

 

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

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Postnuptial agreement is legally recognized in Indonesia. It is a legal instrument from the decision of the Constitutional Court. It's quite a breakthrough but it has some prerequisite requirements in order to be valid. Some of them must come from you as the parties of the contract. Some come from the contract itself, including the formalities from the government institution supervising the proceeding.

You Must be a Husband and Wife

Postnuptial agreement in Indonesia is an agreement signed by a husband and a wife after their legal marriage. The marriage must be properly registered at a registry, such as civil registry, if they were married in Non Moslem, or Office of Religious Affairs (so called "KUA"), if they were a Moslem couple. This is related to one of the legal requirements imposed by the laws in getting a recognised post-marital agreement.

You must be a legally-wedded husband and wife in order to sign a postnuptial agreement. The marriage must have been performed, both the civil marriage and the religious ceremony. In Indonesia, you can't have a civil marriage  without performing religious ceremony. So, both of them must be completed before the postnup is being signed. Therefore, you must be able to present the marriage certificate/book for processing the postnup.

Dual Language

The draft of your postnup is available in Indonesian language. An English translation may be provided for mutual understanding. But the version with the legal precedent is the Indonesian. A good postnup certifies this situation in order to give you an informed consent before you said OK to this.

Your legal expert must offer a dual language questionnaire to gather all the required input from you and your wife of what should be included into your postnuptial agreement. Many legal aspects in your marriage that you can't afford to left behind.

From Joint to Separation

The regime of property ownership in your postnup will be changed drastically, from joint ownership to total separation. Each spouse will have independent control of his/her own property. This will take effect since the date you signed the postnup. Therefore, each property belongs to each spouse, and they require no assistance from the other. This is a favourable situation when the two of you are a mixed-marriage couple.

This regime will allow the Indonesian spouse to maintain his/her ownership in any immovable property located in Indonesia. Without this situation, she/he will be precluded to own a property under Hak Milik (Freehold Title), let alone to dispose it. If you need a bank's loan to finance the purchase of your assets, chances are they may not be able to offer you one.

What If You Can't Come to Indonesia

The Covid-19 pandemic forbids you to travel to Indonesia. You can't come down here to sign the postnup, both you and your spouse. In that case, you need to make sure if the country you live in has diplomatic relationship with Indonesia. If they do have an embassy or a consulate there, you can take the postnup to the embassy/consulate, and get your signatures attested by the consular officers.

Court-Approved

The postnup is changing the situation, from joint to separation of property. This is changing of legal situation. The only thing that can do this is a court of law. The process may take a little bit longer. It may costs you a little bit. But, this is going to be the strongest legal instrument you ever make in terms of your property protection in Indonesia. 

You need to consider this if you own quite significant assets or planning to buy an assets based on the postnuptial agreement. Make sure you have strong legal basis in order to move forward ahead. If you're in this situation, I strongly suggest you get one of this type of postnuptial agreement.

 

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

Thursday, 06 February 2020 11:01

Postnup: Another Marital Contract in Indonesia

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Postnuptial agreement  is another marital contract recognized under the laws and regulation in the Republic of Indonesia. It is a contract entered into by husband and wife within the course of their marriage. It is not valid retroactively and only applicable to property acquired after the contract legally executed.

As to other contracts under the legal system in Indonesia, both Article 1320 and 1338 of Civil Code are applicable to the postnuptial agreement. Those two articles are the basic rules for contracts in Indonesia, both for marital agreement as well as non-marital agreement.

Article 1320 of the Civil Code stipulates that in order to be valid, an agreement must satisfy the following four conditions: 1. there must be consent of the individuals who are bound thereby; 2. there must be capacity to enter into an obligation; 3. there must be a specific subject matter; 4. there must be a permitted cause. 

As for Article 1338 of Civil Code imposed that all valid agreements apply to the individuals who have concluded them as law. Such agreements are irrevocable other than by mutual consent, or pursuant to reasons stipulated by the law. They must be executed in good faith.

In view of the above two basic laws in recognizing the validity of the postnuptial agreement in Indonesia, married couples must abide those stipulation before they enter into the contract. Some required terms and conditions imposed by the Article 1320 of Civil Code are applicable thereto:

  1. No consent is valid if it is granted based on mistake or obtained by duress or fraud. So, you need to have an informed consent from your spouse in order to enter into a postnup. A mistake does not render an agreement invalid unless such mistake pertains to the substance of the subject matter of the agreement. Duress against an individual who has entered into an agreement, provides grounds for nullification of the agreement, even if it was committed by a third party who does not benefit from the agreement. Fraud is form grounds for nullification of an agreement, if the fraud by one party is of such nature that it is apparent that the other party would never have concluded the agreement were it not for such deceit. Fraud is not be presumed, but must be proven.
  2. Each individual is authorized to conclude agreements, unless he has been declared incompetent by law. The following individuals are incompetent to conclude agreements: 1. minors; 2. individuals under guardianship. Those individuals are incompetent to enter into agreements may claim for the nullification of the obligations, except for where the law excludes such power.
  3. An agreement must at least have as a subject a matter a property whose nature is determined. The quantity of the matter needs not be ascertained, insofar such quantity can be determined or calculated at a later date. Future properties may be the subject of an agreement. An individual may not however, relinquish an inheritance which has not occurred or conclude an agreement regarding such inheritance, notwithstanding that he has obtained the consent of the testator.
  4. Any agreement without a cause, or concluded pursuant to a fraudulent or prohibited cause, is not be enforceable. In the event that no cause is specified but that there is an existing permissible cause, or if there is a permissible cause other than the one specified, the agreement shall be valid. A cause is prohibited if it is prohibited by law, or if it violates morality or public order. 

As for the Article 1338 of Civil Code, the terms and conditions applicable to the postnuptial agreement are as follows:

All valid agreements apply to the individuals who have concluded them as law. In the postnuptial agreement, husband and wife sign the contract. So, the terms and conditions of the postnup applicable to both of them;

Such agreements are irrevocable other than by mutual consent, or pursuant to reasons stipulated by the law. You can't withdraw from the contract just because you changed your mind, and the contract no longer interests you. Your spouse consent in revoking the contract is required;

They must be executed in good faith. Agreements is bind the parties not only to that which is expressly stipulated, but also to that which, pursuant to the nature of the agreements, shall be imposed by propriety, customs, or the law. 

An agreement applies only to the parties thereto. An agreement cannot be detrimental to third parties; third parties cannot benefit from them. When you signed the contract, your parents are not included as one of the parties. You're an adult and you should take responsible for the thing you are doing.

 

“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.
 
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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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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.

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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 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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Thursday, 22 February 2018 11:31

Marriage in Indonesia

Marriage registration in Indonesia can be done after fulfiling ten days waiting period. You must have the same religion in order to get marry in Indonesia. We don't recognize mixed religion registration. Any marriage performed according to the couple's religion affiliation is legal in Indonesia. For non-Moslem couples, after they performed religious ceremonies, they must register their marriage with the civil registry in order to make it legally recognized. Under the current law, it must be done at the same jurisdiction with their domicile. Otherwise, the civil registry will not be able to accept their marriage registration. As for Moslem couples, their marriage must be registered with the Kantor Urusan Agama (KUA). They will receive a passport-sized marriage book colored in brown and green. The English term for this government institution is Office of Religious Affairs. Marriages registered with the KUA is legal and recognized, even without registration with the civil registry.
 
The marriage ceremony can be done at the office of the marriage registry, or it can also be done at your place i.e. hotel, apartment. They can also come to your house. The marriage books or marriage certificate will be presented to you after the  ceremony. If you sign a marital agreement before the marriage, the details of your prenup shall also be printed on the marriage book/certificate. So is with the prenup, it will have the registration details from the Marriage Registry. This is to meet publicity requirements as set-out by the Marriage Law. The marital agreement must also be registered with a court. Both of registrations will be shown in your marital contract. You need to do this in order to create a legally binding marital contract, and a bonafide marriage. I strongly suggest you do so.
 
During the proceeding of the marriage, you may also conduct a child legalization. This involves the child birth certification to include his/her relationship with the biological father. Nowadays, they need you to supply a DNA test to support your parental claim. Two witnesses are required in order to support the birth registration of the child. At this point, you need to perform a court litigation. This is quite tricky situation. This may also involves citizenship issues if the alledged father is an Indonesian. The child birth certificate will show his/her nationality(ies). This is a civil document to prove the legal identity of the child. This is the last thing you want to mess up with.
 
As you can see, the marriage is the foundation of your life. It affects so many aspects in your life, and your loved ones. When you're doing things rights, and you're doing it the right way, you'll be fine. Everyone will be alright. Wijaya & Co can assist you in registering your marriage by going through the administrative procedures and government bureaucracy, so you don't have to. Our lawyers know how to get you tie the knot with your partner legally.
 
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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Tuesday, 20 February 2018 11:28

Marriage Legalization in Indonesia

Marriage legalization is for Moslem couples only. It applicable for those who were married in an Islamic ceremony. You know, the one that required you to convert into the same Moslem religion with your partner in order to get marry. If that rings a bell now, yes, this one is for you. This is regulated under the Indonesia's Compilation of Islamic Law. It was introduced in June 1991. Since then, the legal proceeding is more and more required by the laws in order to secure the legality of the marriage by Moslem couples in Indonesia. 

You see, the marriage is the foundation of someone's life. If it's fragile, legally questionable, you might end-up in a fiasco. The marriage legalization is the legal way to fix your foundation. It might not sounds popular to some people, but it gives you the answer you and your family need. The marriage legalization is to legalize the earlier performed marriage. It has the legal power of retroactively legalize the past in order to get recognition in the future, such as the birth of the baby, property division during the course of marriage, prenuptial agreement, custody, inheritance, immigration issues, and even divorce. This is quite complicated motions as not every marriage legalization lodged gets approved by the court of law. You need to present facts and legal grounds fair enough to support your petition, instead of getting denied. Our Indonesian lawyers will guide you step by step in order to accomplish the mission. Cases I've handled so far gave me clear and pristine lessons that each court, each judge might have different idea why your case must be tried, and approved.

The recent three cases I've handled were in Tangerang, Brebes, Central Java; and Cikarang, West Java. The first one, the case was so incredibly difficult where the marriage finally legalized one month before the couple's baby due. The second one was a unique situation where the couple was already divorce by the time the marriage legalized. The incredible one was when we filed the case with one of the spouses was already dead. His wife was the Petitioner. They need the legality of their marriage for the immigration issues they face back in the United States. Article 7 of Indonesia's Compilation of Islamic Law stipulates that the marriage legalization can be carried-out by either husband or wife, and their children. Even her husband has passed-away, his wife still have the right to file for the legalization of their marriage in Indonesia. The final outcome of this proceeding may be a stipulation regarding the marriage legalization. It is also advisable to forward the court's holdings by filing it separately to the Marriage Registry. It doesn't come automatically as it is requires manual application to different government institutions. Normally, a stipulation from the court that the marriage has been legalized is enough and legally acceptable.

On another subject, the marriage legalization is not the same with marriage registration. These proceedings are under Indonesia’s 1991 Compilation of Islamic Law. The court of law is the government institution for the proceedings. This is not the same as if you perform the marriage, and register it with a marriage registry. The latter refers to marriage registration under the 1974 Marriage Law. The thing is, under this proceeding you will not receive any marriage booklet. The marriage legalization is meant to legalize the marriage previously conducted. If you were to do marriage registration now, you will have new marriage date. The actual date when you perform the marriage. So, on another words, those two things are similar but have different legal impacts both to your marriage, and your beloved family.
 
You see, this is all about turning the clock around and fixing things. Things that might left behind. Important enough to turn around to, the future of your family.
 
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.

Tuesday, 20 February 2018 10:14

Legal Age for Getting Marry in Indonesia

Getting marry in Indonesia must meet age requirements as set-out by the prevailing laws and regulations. It is the age where the laws think that you have the capabilities in taking action on your behalf to tie the knot with someone. Performing the marriage legally, requires emotional maturity, and therefore such decision may not be able to be taken by a youngster.  There are many prevailing laws about the minimum legal age for getting marry, but the Marriage Law is the most relevant one, and therefore shall be referred to for such cases.

The Marriage Law stipulates that the minimum age for getting marry is 16 (sixteen) years old for a woman, and 19 (nineteen) years for a man. If you are so young, performing the marriage shall requires the consent from their parents. You don't need any parental consent when you're 21 (twenty one) years old. If you're not old enough, you need to get either a consent from your parents, or get the court of law to approve your marriage. 

We have also Civil Code that stipulates the minimum age for getting marry is 18 (eighteen) for a man, and 15 (fifteen) years of age for a woman. An approval from the President is required when you are younger. Special permission is usually granted under the circumstances such as pregnancy before performing the marriage. 

The other prevailing laws governing minimum legal age to get marry is Islamic Law, and also customary law. But national law refer to the Marriage Law, and is applicable for Indonesian citizen, and all couples getting marry under the laws of the Republic of Indonesia, regardless your nationality.

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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The laws in Indonesia legally recognized Marital Agreement as a contract entered by a husband and wife, either before or during the course of marriage. Having a marital agreement in Indonesia, there is more to it than meets the eyes. You can see how it redefines your marriage, whatever your citizenship is.

Are You In It for Love?

A marital agreement in Indonesia definitely can protect your assets. When you're considering to marry someone, you need to know if she/he's marrying you for love or for money. One could never tell, but the marital agreement could always do. Take my word for it. If she/she says yes, even after the prenup has been executed, then he/she's the one. No matter what. 

By entering into a marital agreement prior to your marriage, you can protect your assets acquired prior to your marriage to him/her. The assets are legally free from the claim she/he can brought against you as if no marriage has been consummated. You're not legally liable for the debts prior the marriage. So, yes, with the marital agreement in Indonesia, you are in it for love. Not for the money.

Protection against Bigamy

This is sometime, just sometime, happens in countries like Indonesia: your husband is committing bigamy. Ouch! That's not good. Please don't get mad. Get everything! Yes, you read me right. Get everything, literally!

You should insist to enter into a marital agreement between you and your husband in order to protect your financial interest, your children's future, and your assets. Even though, each marriage to each wife and its assets is totally separated, but you never knew. Get yourself a cover. You can't risk yourself and the children exposed to any potential risks. In this case, you should get a postnuptial agreement. This is a type of marital agreement entered into a husband and wife during the course of marriage. With the breakthrough verdict from the Constitutional Court in 2016, the postnup is legally recognized and totally can be upheld in the court of law. 

Using a marital agreement to protect yourself from bigamy is exist long before the Court reach the verdict. The terms and conditions for this type of marital agreement is even exist in the Civil Code. Indonesian socialites have been using this to protect their marital assets, and the laws allow the wife to submit a motion for postnuptial agreement. 

Business as Usual

Practically, in Indonesia, your spouse is your business partner. Not to mention if she/he's actively contributing to the business enterprise on daily basis. Whether he/she is serving as a member of the board or not. Your spouse entitles to half of your share. Lovely, isn't it?

Article 157 Civil Code imposed that the profit you made out of your marital assets, retrieved from the community assets, income derived from joint assets, shall be considered as marital property or community property. Whatever you call it, your spouse entitle to it. Your profit, your income, exchanges of the existing property, among others, are part of the joint assets with your spouse. 

When the marriage ends with a divorce, your spouse gets half of the assets, both now in existence and its profits. So, consider signing a marital agreement in order to prevent that from happening, and list your business enterprise as one of your separate assets.

Preserving Your Inheritance

Say, you're expecting inheritance from your parents. Legally, inheritance and gift from a third party are separate property. Article 35 (2) of 1974 Marriage Law stipulates that if you otherwise determined, the inheritance may become joint property. It means, it may not be free from your spouse's claims. Putting the inheritance into a marital agreement can preserve the inheritance from your parents. It can't be touched legally. You may be clear describing the assets such as location, dimension, and other related description in the marital agreement.

Back-to-Back: Foreign & Indonesian Prenup

Both of you are foreigners. Neither of you is an Indonesian citizen. But you have been residing in Indonesian for quite sometime. You plan to get marry in one of our beautiful islands such as Bali, or Lombok. It means, you're registering your marriage under the laws of Indonesia. You're submitting yourselves to the legal system in Indonesia. But, hey you're signing a foreign prenup. That's cool!

But you know what? Your foreign prenup is not recognized here. So, from the Indonesia's legal perspective you’re married but with no prenup. Therefore, you have joint property ownership regime. On the other hand, if you have the Indonesian prenup, and the Indonesian marriage, those are legal bonafide to you and your marriage. There’s no hesitation in terms of the legality of the prenup. Your foreign prenup will even make thing stronger. The Indonesian prenup shall serve as "the bridge" to your foreign prenup. So, everything is connected now. There's no missing link anymore.

In the event of divorce, with the Indonesian prenup, your marriage will still have separation of property regime. This can be used as “mirror” just in case things get ugly, and any court in other country will refer to the Indonesian side.

Preserving the Indonesian

I like the term "preserving" better than "protecting" because your Indonesian spouse is entitled to the freehold property. She/he can own property under hak milik. The best thing about it is that you can keep it for good. You can even inherit to your children. But once you're married to a foreigner, the Indonesian shall be precluded in owning the property in Indonesia. She/he is the same legal position with his/her foreign spouse. The Indonesian prenup comes to preserve the rights of an Indonesian citizen, even though she/he's married to a foreigner. The right or entitlement in owning the property has already been there since the Indonesian spouse was born. So, nothing to be protected. It just a matter of preserving what's already been there.

Do you know any other way how an Indonesian marital agreement can redefine your marriage? Do you have something to discuss with? Please do not hesitate to contact me:This email address is being protected from spambots. You need JavaScript enabled to view it.

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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Monday, 19 February 2018 14:23

Postnuptial Agreement in Indonesia

Postnuptial agreement is a marital contract between husband and wife entered into when couple already married. The postnup basically is a contract governing certain issues like property separation, alimony, child support, and among other issues. 1974 Marriage Law doesn’t say anything about the postnup.

We can only see prenup in there. But that doesn’t make the postnup legally invalid. Although some argue about the validity of the postnup to take a stand at court, it turned out that the postnup works just fine, and legally of course.

The postnup serves like a prenup. Even better. Postnup moves forward and backward, while the prenup only moves forward. Postnup takes care everything retroactively, and consencually between husband and wife. In another words, postnup fix the problem behind you right before you sign it.

Certain requirements must be fulfiled before you can even sign the postnup. Both husband and wife must agree on the terms and conditions set-out in the agreement. Party in the postnup must not feel intimidated by the other. Although there is no legal requirement in Indonesia that each party must be represented by an attorney or a lawyer, a proper legal advise from a highly experience lawyer is indeed recommended.

The postnup can help you sort out the legal issues in your marriage in a way that you want it. Many married couple got it for themselves and walked out happy with big smiles in their faces when they left my office. So, it’s your turn now.

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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Monday, 19 February 2018 13:14

What should be included in Your Postnup?

Postnuptial agreement is for married couple in Indonesia. You don’t have to get divorce just because you forget to sign a prenup. It’s legal, and the good news is: it’s for real! Take my word for it! Courtesy of the legal system in Indonesia.

Postnup is like other agreement in Indonesia. You can always put anything into the contract. Things like separation of property during the course of your marriage, child support, alimony in case of divorce, are among other issues that can be included into the postnup.

Postnup must not limit the ability of a husband or even waive his obligation in providing support to his wife and children. A postnup that include such terms may be voidable by the court. Therefore,  separation of income must be avoided as part of your postnup’s terms and conditions. It’s because husband is the main bread-maker in the family. He has the responsibility to support his wife and children. I know these days women are also working. They make money as well. Sometimes they make bigger money than man. But the law is the law. Man still the head of the family. On the other subject, the parties must also avoid commingling property in their marriage. This may triger disputes in the future.

Last but not least, the postnup must work to support you and your marriage, not against you. It should be a collaborative process between you and your spouse. The idea is to avoid a conflict from happening rather than motivating disputes and jeopardizing your marriage. 

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.

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