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Prenuptial agreement in Indonesia is highly recommended for mixed-couples in Indonesia. This is the only way to get around the legal issues exist in your matrimony as imposed by the prevailing laws in Indonesia. What exactly is that? Simple, they don't want foreigners to really own a piece of property in Indonesia. At least, under Hak Milik. It is similar to freehold title that you can keep it for good, no expiry date, and you can inherit it to your children in the event you pass-away.

Literally, they want property ownership for Indonesian citizen only. So, when you're marry to a local partner, and you want your spouse to maintain her/his rights to property ownership in Indonesia, prenup is advisable. Get a good one! Something that could protect you, and not to make you jumpy when you executed it to secure a property purchase. At Wijaya & Co., we always pay the details of our clients' case.

The idea behind a valid prenuptial agreement for mixed-marriage couples is to avoid joint property ownership. Your prenup must promote separation of assets in order to meet the situation required by the Indonesia's Basic Property Law. If you have no prenup, it means there is a joint property ownership in your mixed-marriage. If such thing exists it means that there's foreign ownership in the property. The Indonesian spouse is effected as both the husband and wife co-own the assets. Please contact me to identify the dos and don'ts regarding a valid prenuptial agreement in Indonesia. At Wijaya & Co, we always pay attention to details of our client’s case. 

When you co-own the assets with your foreign partner, you need to retrieve consent from him/her, which is not possible to get. You need it but he won't be able to give it to you because he is not in the legal position to own a property in Indonesia in the first place. The legal constraints come from the Article 21 of 1960 Basic Agrarian Law stipulates that an Indonesian married to a foreigner is precluded to own a property in Indonesia.

A prenup in Indonesia is governed under contract laws. In order to enter into a valid one, you need to make sure you meet all the requirements for contract eligibility as set-out by Civil Code 1320, as follows:

  1. You must have consent. Both you and your prospective spouse must agree to enter into a prenuptial agreement, and the consent must be voluntary.

  2. Both of you must have capacity to enter into an obligation arise under the prenuptial agreement you're about to sign. Each of you are authorized to conclude agreements, unless you have been declared incompetent by law. The individuals incompetent to conclude agreements are, among others minors, and individual under guardianship. In order to have a competency to sign a contract in Indonesia, you must at least aged 21 years old. You need consent from your parents when you're younger.

  3. Your prenuptial agreement must have as specific subject matter. Furthermore, the law stipulates that only tradable properties may form the subject matter of the agreements. Your prenup is about property ownership such as land, house, apartment, etc. They are immovable property and it is tradable.

  4. Your prenuptial agreement must have a permitted cause. Any agreement without a cause, or concluded pursuant to a fraudulent or prohibited cause, is not be enforceable. 

The contents of your prenup must not include reduction or limitation to several rights of the husband, wife, and the children born into their marriage. Your prenup must not have a clause that limits the authority of a husband. The agreement does not interfere with the rights, which originate from the man, in such capacity, and with the paternal rights, neither will it interfere with the rights which the law has granted to the longest living spouse. They are also entitled to stipulate, that, notwithstanding the legal community property, the immovable assets, the recordings of State debts, other negotiable instruments and indebtedness, attributable to the wife, or those, which, during the course of the marriage, will be added to the community property as her share, will not be transferred or encumbered by her husband without her consent.

Your prenup must not consist a clause that limits the authority as parents. The agreement must not prejudice the rights afforded to the man, as head of the legal union; without prejudice to the rights of the wife to control the management of her movable and immovable assets, and to enjoy her personal income freely.

The rights of a surviving spouse may not be limited. It must not reduce the rights of surviving spouse and the children born into their marriage to inherit the deceased spouse. The prospective spouses, may not in the prenuptial agreement, renounce their legal obligation regarding the inheritance of their descendants. In addition, they cannot regulate the inheritance of their descendants in the prenup. You need to write a separate last will to distribute assets in the even you're pass-away.

You may not to draw-up a clause in your prenup that either party has larger portion in a debt or loan. They may not enter into an agreement to the effect  that one is liable for a larger portion of the joint marital property debts than the other. That just not fair! 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 laws and regulation in Indonesia recognize two (2) types of public and private adoption. Public adoption is applicable in the event, the child was abandoned or neglected by his/her birth family, and raised by a foster care institution managed by the government. The relevant institution in this matter is Ministry of Social Affairs. As for the private adoption, the proceeding takes place between the biological parents and the adopting parents directly. 

Adopting your step child in Indonesia can bring your family close together. You adopt your spouse's child, and legally you are family as if the child was born into your marriage. Your spouse may insist you to do it, but your willingness to do it that keep the marriage intact. You know, things a man do for his wife and his family.  At Wijaya & Co, we always pay attention to details of our client’s case. 

There are some pointers that you need to be aware of regarding the adoption of your step-child, they are:

Consent Required

Consent is required from the biological parents, both the child's father and mother, if the child was born into a legal marriage. In the event the child was born out of wedlock, the consent from the child's mother is a must. The mother has full authority as vested by the Civil Code as related to the child, including when the alleged father wish to acknowledge the child. The authority of the mother solely comes from the Article 284 of the Civil Code: "No acknowledgment of a natural child is, during the lifetime of the mother, notwithstanding that she may be of Indonesian descent or descended from a similar indigenous group, be accepted, if the mother does not approve the acknowledgment." I am not saying that as the alleged father of the child you don't have any right at all, you do. The Constitutional Court confirmed your rights, but you must willing to go the extra mile in order to do that. 

The Best Interest of the Child

The adoption proceeding that you are conducting is promoting the interests and welfare of the child. You must be able to prove this by supplying information that you are doing everything in your power to provide the child. You need to prove that the aim of the adoption is obtaining the welfare and protection of the child. You need to enter into a declaration that you are willing to be responsible for supporting the child on daily basis.

Habitual Residence

Basically, we pride ourselves with our nationality principle that all the Indonesian men are subject to the Indonesian law, wherever they are. This is the basis from the continental legal system. If you were married to a foreigner, your foreign spouse must use the Indonesian partner's jurisdiction and therefore a choice of forum is applicable. You may choose the jurisdiction of your Indonesian spouse through her/his domicile. This can be seen on his/her ID card. Article 14 of Administration of Population Law certifies that the ID card (so called KTP/Kartu Tanda Penduduk) is the official identity of a resident and is valid within the entire territory of the Republic of Indonesia. So, this is your jurisdiction as well as our laws do not require you to have a habitual residence to perform an adoption of your step-child in Indonesia.

Indonesia is not one of the Common Law countries that imposed you to have a minimum contact by having a residency at least for six (6) months. Nevertheless, you need to further consider about the requirements from your country of origin if they require you to have a residency in Indonesia. You may retrieve a spousal dependent visa in order to meet the requirement imposed on you regarding the habitual residence during the adoption proceeding. 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!

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!

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