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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!

Prenuptial agreement in Indonesia is an agreement you sign with your partner before performing the marriage. The date when you execute it must shows clearly that it is being entered on or before the legal marriage date. I have reason to believe that your legal marriage date may be different than the solemnization date. It because the marriage in Indonesia is considered legal when you perform the religious marriage prior the civil ceremony, unless of course, if you were married in Moslem rites. The latter requires no civil marriage registration. So, the prenuptial agreement must be entered into before the date of the civil marriage, the legal one. 

Let’s have a look what the law said about it in Article 119 of Civil Code stipulates that 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 pre-nuptial agreement. There you go, the prenuptial agreement must be executed before the marriage. Beside, if you did not sign any prenup, you will have joint property ownership. This condition is preventing your Indonesian spouse to keep owning a property after she/he married to you. At Wijaya & Co, we always pay attention to details of our client’s case. 

In the event you are a foreigner planning to marry to an Indonesian, the prenup have certain issues that must be addressed to. First, we have many types of the prenup, You need to get the right one. Failure to do so will affect the ability of property ownership in your mixed marriage. You need to get a prenup with total separation of property. This is applicable to both the assets and debts of the couple. Don't use the one that suggesting joint property ownership. This one is the last thing you need. They have an old Dutch term for this: "Gronds verponding verbood." Forgive my rusty Dutch. The idea of having this type of prenup is because the laws forbid foreigners to own lands in Indonesia. Article 26 (3) of Basic Agrarian Law imposed that in the event by marriage, inheritance, or by any other means she/he loses the citizenship of Indonesia, he/she must transfer the title of the land to other third party or the state will take possession. Please contact me should you wish to draw-up a more suitable prenuptial agreement that just right for you!

In terms of mixed-marriage, I would say the above situation only applicable if you marry to a foreigner and your status in owning the property is legally affected by your foreign spouse. Since the property falls into the definition of joint property, both of you co-own the assets and therefore require consent from each other. This is not good. In any way, the consent may not be retrieved because the foreigner is not in the legal position to own the property in the first place. At Wijaya & Co., we always pay attention to the details of our clients' case.

Second, legal constraints as set-out by Article 21 of Basic Agrarian Law certified that an Indonesian is precluded to own a freehold title after she married to you as a foreigner, without any prenup. In the event, the Indonesian spouse is pass-away, you may keep the property for 12 (twelve) months. Unless, if you transfer the title to other Indonesian. Transfer means you can sell it, give it away or inherit to your child, provided she/he is an Indonesian, of course. Standard tax rate is applicable for this transaction.  

The third one, you should consider to get yourself a last will and testament for the property in Indonesia that you acquired during the marriage. Inheritance issues in Indonesia are referred to a person’s religious affiliation. If you were in Moslem family, the people in layer one, the next of kin in the event one passes-away, are very crowded. If you want the assets distributed to just the surviving spouse and the children, and prevent the other extended families to even touch them, you should consider a last will. Seriously. 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!

Monday, 07 October 2019 10:30

Real Estate Transaction in Indonesia (1)

When you're purchasing a land and/or a house in Indonesia, you're dealing with a seller or the representative of the seller. You must deal with the owner of the property in order to protect your future investment. The owner must have legal rights to own the property that you are looking to buy. When he has the legal rights in the property, he must has the title of ownership that can be transferrable to you as the buyer.

He must be able to present his certificate of title to prove his ownership. The certificate is issued by the government of the Republic of Indonesia. The authorized government agency that responsible for issuing a certificate of title called Badan Pertanahan Nasional (National Land Registry), so called the BPN. They have offices in every city in Indonesia.

The certificate of title for the house you are going to buy is issued by the land registry office where the property located. The property such as land, houses, apartments are classified under the category of Immovable Property. The legal owner of the immovable property is the person whose name printed on the title certificate. 

Ownership of the Property

The ownership of immovable property is different with the movable ones, such as cars, etc. The legal owner of this type of property is the one whose name(s) printed on the certificate of title. If the ownership has passed-away, his next of kin is the property’s legal owner. They usually consist of the surviving spouse, and his/her children. So, if the owner of the property has gone, make sure you’re dealing with the right person.

As for the movable assets such as cars, the person that controls the property can be considered as the owner, although you might want to check the ownership of the certificate as well. At Wijaya & Co, we always pay attention to details of our client’s case. 

The certificate of title in real estate property is a strong evidence that serves as proof of ownership, as well as proof of registration from the local land registry. Article 19 of Basic Agrarian Law certified that the government of Indonesia is conducting land registration in order to provide legal privilege to the owner whose name printed on the certificate of title. You will automatically be included within the land registry database and therefore are subject to the prevailing laws and regulation in Indonesia. 

Background Check

It is very important to conduct a background check before you’re making any further transaction with the seller of the real estate property. This will give you sufficient information about the current status of the property, as well as its title. The information is enough to get you to decide whether you want to proceed with the sale and purchase transaction.

You will see if there’s any mortgage put on the property. If yes, you need to make sure the owner to remove the mortgage first, before making any further transaction with you as the buyer. You will also find out if the property is under any potential dispute or no. The background check is extremely important and I would suggest not to proceed with the transaction before the background check has been finalized. 

Transfer of Title

You need to perform a proceeding of title transfer when you purchase a real estate property. Your name must be registered as the latest owner of the property after you executed the sale and purchase agreement, and remit the payment to the seller. They will include the details of the agreement you executed with the seller of the property, as well as the date when you entered the agreement.

They will print your name as the current owner of the property on the certificate of title. This proceeding involving the local land registry where the real estate property is located. You will be recognized as the legal owner after the proceeding completed. 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!

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!

Friday, 16 August 2019 11:10

Police Clearance Certificate in Indonesia

Police clearance certificate in Indonesia also known as Surat Keterangan Catatan Kepolisian (so called “SKCK”). This is the police certificate that certifying your crime record. Previously, known as Good Conduct Certificate (Surat Keterangan Kelakuan Baik/SKKB) certifies that you are not involve in a crime until certain period of time.

The police clearance certificate valid for six (6) months since date of issuing. You may submit a renewal application when you think you need a longer timeframe. At Wijaya & Co, we always pay attention to details of our client’s case. 

If you stay in Indonesia for more than six (6) months, according to our experience, the following countries would require a police clearance from Indonesia:

  1. Italy;
  2. Canada;
  3. Australia;
  4. New Zealand;
  5. United States (Spouses applying for a green card within the United States have to lodge police records instead of police clearance certificate).

Terms and Conditions

Police clearance in Indonesia can only be issued if you stay in Indonesia under a KITAS (Kartu Ijin Tinggal Terbatas/Limited Stay Permit). This is your residency permit as issued by the local immigration office in Indonesia. The KITAS can only obtained through sponsorship of employment or spousal.

Supporting Documents

If you are a foreigner, the required supporting documents for the application of police clearance are as follows:

  1. Copy of your passport;
  2. Copy of your KITAS;
  3. Copy of police report such as SKLD
  4. Fingerprints form;
  5. Power of Attorney.

Some people might not have all complete supporting documents that cover the period of your stay in Indonesia, or you just don't have the required documents but the police clearance is imposed on you by the immigration authorities. This is not a personal attack on you. This is what happen if you're working with bureaucracy everywhere. Please contact me and we'll discuss how you can move forward with your application.

If you are an Indonesian, the police require the following supporting documents:

  1. Attestation from the local Kelurahan/Kecamatan;
  2. Copy of your KTP and family card;
  3. Copy of your birth certificate;
  4. Photograph 4 x 6 cm.

Prerequisite Requirements

The police headquarters require you to supply the police clearance from your local Polres (local police precinct) in the city where you live, before they can issue you one that valid internationally. The reason behind this is because the Polre may know better about your background than the headquarters.

Fingerprints Formula

The police clearance certificate from Indonesia is very complete and has the details of your biographic information, including your fingerprints formula. Each person has very specific fingerprints and non-identical from others. Just like DNA. It consist of number and letters that represent pattern of your fingerprints. This is the reason they may require you to present at the police precinct.

 

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

Real estate transaction in Indonesia is simple, but yet tricky and requires a little knowledge. It is very interesting to dig a little bit of this. Just to make sure you have the big picture. When you're purchasing a land and/or a building, you're dealing with a seller or the representative of the seller. You must deal with the owner of the property in order to protect your future investment. The owner must have legal rights to own the property that you are looking to buy. He/she must be able to present his certificate of title to prove his/her ownership. The certificate is issued by the government of the Republic of Indonesia. The authorized government agency that responsible for issuing a certificate of title called Badan Pertanahan Nasional (National Land Registry), so called the BPN. They have offices in every city in Indonesia. The certificate of title is issued by the land registry office where the property located. The property such as land, houses, apartments are classified under the category of Immovable Property. The legal owner of the immovable property is the person that his/her name printed on the title certificate. 
 
Owner of the Property
The ownership of immovable property is different with the movable ones, such as cars, etc. The legal owner of this type of property is the one whose name(s) printed on the certificate of title. If the ownership has passed-away, his next of kin is the property’s legal owner. They usually consist of the surviving spouse, and his/her children. So, if the owner of the property has gone, make sure you’re dealing with the right person. As for the movable assets such as cars, the person that controls the property can be considered as the owner, although you might want to check the ownership of the certificate as well. At Wijaya & Co, we always pay attention to details of our client’s case. 
 
The certificate of title in real estate property is the strong evidence that serves as proof of ownership, as well as proof of registration from the local land registry. Article 19 of Basic Agrarian Law that the government of Indonesia is conducting land registration in order to provide legal privilege to the owner as per certificate of title. You will automatically be included within the land registry database  and therefore are subject to the prevailing laws and regulation in Indonesia. 
 
Background Check
it is very important to conduct a background check before you’re making any further transaction with the seller of the real estate property. This will give you information about the current status of the property title. The information is enough to get you to decide whether you want to proceed with the sale ans purchase transaction.
You will see if there’s any mortgage put on the property. If yes, you need to make sure the owner to remove the mortgage first, before making any further transaction with you as the buyer. You will find out if the property is under any potential dispute or no. The background check is extremely important and I would suggest not to proceed with the transaction before the background check has been finalizee.
 
Transfer of Title
You need to perform a proceeding of title transfer when you purchase a real estate property. Your name must be registered as the latest owner of the property after you agree to make the payment to the seller. They will include the Sale and Purchase Agreement signed by you as the buyer, and the seller of the property, as well as the date when you entered the agreement. They will print your name as the current owner of the property on the certificate of title. This proceeding involving the local land registry where the real estate property is located. You will be recognized as the legal owner after the proceeding completed. 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!

The origin of a child is a legal proceeding conducted with the child born out of wedlock in Indonesia. This is to create a relationship between the child and the biological father. It happens when you conceived a child before your marriage legally registered. This may be happen for so many reasons, among others; either of you are not legally divorce when the child was born, you're both legally free to marry but think that the marriage is not for you; or you performed the religious marriage, but not the civil one. So the child comes first, and then the marriage thereafter. By law, the child has only relationship with the mother and her family. You need some extra efforts to establish the connection between the child and its father. The laws in Indonesia has set-out the way forward and it's up to you if you're willing to go the extra mile. Other people have done it, and now it's time for you to do it.

We have Article 43 (1) of Marriage Law certifying that the child has the legal relationship between both the mother, and the father as well as their families. Nevertheless, such claim must be supported with scientific evidence, and other related evidence to prove their blood connection, including civil law relationship with the family of its father. The revised version of this Article has been amended by the Constitutional Court with the verdict number 46/PUU-VIII/2010 on February 17, 2012. In another words, you need to retrieve a DNA test. The results must be 99.9999% that you are not excluded as the father of the child. Take a test of you and the child. They will take your saliva with a tiny cotton bud. It will take less than 30 (thirty) minutes, and then you can call it a day. They will let you know within approximately three (3) weeks. Nervous? You tell me. 

The idea behind the verdict was not only because the marriage between the biological mother and the man that gets her pregnant, but also because the blood connection between the child and the alleged father. Apart from the marriage between the two of them, the child must be legally protected. Therefore, the birth of your child must be reported to the civil registry office within 60 (sixty) days. The strict time-frame is imposed according to Article 27 of Law number 24 of 2013 regarding Administration of Population Law. You will see only the name of the child and its mother, but it is a starting point to initiate the process. The civil registry is to register the birth of your child. They don’t have any authority to prove the relationship between you and your child. You will have to do it in the court of law. Your Indonesian attorney knows technicality like this. Get one with experience in this field. You'll get hicough-free processing case. 

Before you sign that paternity affidavit, you have to make sure that you have the consent from the biological mother. Otherwise, the process will turn sour and your application might be end-up in limbo. The consent from the mother is a statutory requirement in Indonesia. You need to secure that before the application lodged to the court. This proceeding requires both of you to work together for the best interests of the child. I am not saying that you should light the flame between the two of you again. Although this thing does not require you to get marry to each other, but at least you must be able to sit down together and talk without pointing fingers. Think you can do it? If you do, click here give me a call or drop me an email to get our legal review about your case. 

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!

Child legalization in Indonesia is a very important issues. This is the proceeding to legalize the child born outside of a legal marriage. He/she has legal relationship with the mother and her family only. In order to obtain a custody privilege, the alleged father must conduct child legalization. No legal relationship will be established between the father and the child without the consent from the biological mother.

Under the laws in Indonesia, the relationship between the child and the father is not recognized when it comes to the inheritance matters. At least, if you compare it with the legitimate child. The thing is, inheritance is some arrangements that will only be done when you're gone. You don't know whether your assets are being distributed according to your wishes and whether the child entitled to them or not. This is why the legalization of child born out of wedlock in Indonesia really matters, especially if you're from a Non Moslem family. At Wijaya & Co, we always pay attention to details of our client’s case.

As you probably aware, the inheritance issues are referred to the person's religion affiliation. We have Compilation of Islamic Law for Moslem families, and Civil Code. Since the issues of child born out of wedlock is very familiar with the civil law, there the law defines the child into three (3) categories as follows:

  1. A legitimate child, is the child born in the legal marriage of a man and a woman;
  2. A child born out of wedlock, but acknowledged by his father and/or his mother. The legal relationship is being established between the three (3) of them. They are now a family recognized by law, but it does not take effect to their extended families. The acknowledgement only applicable to the three of them. The law will consider the child as a legitimate one when the two of them are married to each other. 
  3. A child born out of wedlock. No acknowledgement made by the father as well as by the biological mother. Legally, he is an orphan. Poor child. No inheritance law applicable to him.

Civil Code has a very distinctive ruling on inheritance for child born out of wedlock in Indonesia. The law refer the child born out of wedlock as a "natural child." It is comprehensive and detailed. It avoids conflict between the heirs. In the event that the deceased has left legally acknowledged natural children, the inheritance shall be implemented as the following manners: According to the Article 863 and Article 865.

Article 863 stipulated that in the event the deceased has left any legal descendants or a spouse, the natural children is inherit one third of the share, which they would be entitled to if they were legal; they is inherit one half of the estate, if the deceased does not have any descendants, or spouse, but has blood relatives in the ascending line, or brothers and sisters or their descendants; and three quarters if the only remaining family is related in a more distant degree. If the legal heirs of the deceased are related in unequal degrees, the closest relative in one line is stipulate the amount of the share to which the natural child shall be entitled, even with respect to those who are in the other line.

The child born out of wedlock may inherit all the assets in the event his father (the deceased) passed-away without any other legal heir. Article 865 imposed that if the deceased has not left any legal heirs, then the natural children shall be entitled to the entire inheritance. 

The above stipulation is not applicable for the child born due to incest, and adultery. The aforementioned stipulations in Article 863 and Article 865 are not applicable to children conceived through adultery or incest. This imposed by the Article 867 of the Civil Code. 

As I said, the legalization of the child born out of wedlock is really matter. In fact, it's a big deal. It protects your child from the claims that may be made by other family members. Without the legalization, he only deserve 1/3 of the portion of the legitimate child. You need to do something to protect your flesh and blood. We both know that as parents we want the best for our children, and in this case, the legalization of the child born out of wedlock does really matters. 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!

Prenuptial agreement in Indonesia is an agreement you sign with your partner before performing the marriage. The date when you execute it must shows clearly that it is being entered on or before the legal marriage date. I have reason to believe that your legal marriage date may be different than the solemnization date. It because the marriage in Indonesia is considered legal when you perform the religious marriage prior the civil ceremony, unless of course, if you were married in Moslem rites. The latter requires no civil marriage registration. So, the prenuptial agreement must be entered into before the date of the civil marriage, the legal one. 

When a Prenup Begins

Let’s have a look what the law said about it in Article 119 of Civil Code stipulates that 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 pre-nuptial agreement. There you go, the prenuptial agreement must be executed before the marriage. Beside, if you did not sign any prenup, you will have joint property ownership. This condition is preventing your Indonesian spouse to keep owning a property after she/he married to you. 

The validity of a prenup begins when you and your partner sign it and register it with the marriage registry. The laws said it is valid when the officer at the marriage registry is to legaize the prenup. So, they are actively legalising the document. While in fact, they are only conducting registration of the prenup together with the registry of your marriage. This is extremely important because this action giving you a legal recognition to make the prenup valid between you and your spouse. Without this, your marital agreement is nothing but worthless piece of paper. It has no legal effect and won't do any good for your mixed-marriage life in owning a property in Indonesia. The registration of the prenup applicable to all the marriages performed and registered under the laws of the Republic of Indonesia, in accordance with the  Circular Letter of Civil Registry Directorate General number 472.2/2017 for Non-Moslem, and Circular Letter of Ministry of Religion Number B.2674/DJ.III/KW.00/9/2017 for Moslem couples. 

I am an old-fashioned guy, so I would recommend to register the prenup with a district court. This is to make your prenup valid legally against third party. Your property ownership involves other third party such as the government, banks, creditors, etc. The publicity requirement is met when you're registering the prenup with a court. Please refer to Article 152 of Civil Code that states: "No  stipulation in the prenuptial agreement which deviate entirely or partially from the provision regarding legal community property shall apply to third parties, earlier than from the date of copying such stipulations in a public register, which shall be done with the court clerk at the court of justice, within those legal jurisdiction the marriage was executed."

One item missing in your prenup might cause it challengeable. This can be a potential loophole you don't want to miss. At Wijaya & Co, we always pay attention to details of our client’s case. You better have an umbrella when it does not rain, instead of you don't have one and it gets rain. Indeed, it won't stop the rain, but at least it will make you stand in the rain. 

One Prenup for Everyone

In the event you are a foreigner planning to marry to an Indonesian, the prenup have certain issues that must be addressed to. First, we have many types of the prenup, You need to get the right one. Failure to do so will affect the ability of property ownership in your mixed marriage. You need to get a prenup with total separation of property. This is applicable to both the assets and debts of the couple. Don't use the one that suggesting joint property ownership. This one is the last thing you need. They have an old Dutch term for this: "Gronds verponding verbood." Forgive my rusty Dutch. The idea of having this type of prenup is because the laws forbid foreigners to own lands in Indonesia. Article 26 (3) of Basic Agrarian Law imposed that in the event by marriage, inheritance, or by any other means she/he loses the citizenship of Indonesia, he/she must transfer the title of the land to other third party or the state will take possession. Please contact me should you wish to draw-up a more suitable prenuptial agreement that just right for you!

In terms of mixed-marriage, I would say the above situation only applicable if you marry to a foreigner and your status in owning the property is legally affected by your foreign spouse. Since the property falls into the definition of joint property, both of you co-own the assets and therefore require consent from each other. This is not good. In any way, the consent may not be retrieved because the foreigner is not in the legal position to own the property in the first place. The ideal situation is no consent is required from either party to execute any property transaction. Either party is independently to act on his/her behalf. The idea is to keep the land with the Indonesian only. 

Transferring the Property

Second, legal constraints as set-out by Article 21 of Basic Agrarian Law certified that an Indonesian is precluded to own a freehold title after she married to you as a foreigner, without any prenup. In the event, the Indonesian spouse passes-away, you may keep the property for 12 (twelve) months. Unless, if you transfer the title to other Indonesian. Transfer means you can sell it, give it away or inherit to your child, provided she/he is an Indonesian, of course. Standard tax rate is applicable for this transaction.  

You can also to downgrade the title from Hak Milik (freehold title) to Hak Pakai (Leasehold). It valids for twenty years or so. You can renew it after. This can be the smart solution if you want to keep the property for quite a while. Until you know what to figure out next.

The third one, you should consider the inheritance with you next of kin. Inheritance issues in Indonesia are referred to a person’s religious affiliation. If you were in Moslem family, the people in layer one, the next of kin in the event one passes-away, are very crowded. If you want the assets distributed to just the surviving spouse and the children, and prevent the other extended families to even touch them, you should consider a last will. Seriously. Please contact me should you wish to discuss any further about this. You can drop me an email or give me a call to have a free assessment of how can you move forward with the solution available for you.

 

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

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