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.

Child custody in Indonesia is one of the consequences of a divorce between a husband and a wife, Divorce may be the solution for both of you. It may be your best way out, but the law suggets it can only be used as a last resort. It means both of you should work hard to keep your marrriage intact. In Indonesia, you should have enough reason to dissolve your marriage. You just can’t say: “I have enough of you! Let’s get divorce!” They won’t allow you to get divorce on this ground. Article 39 (2) of the Marriage Law stipulated that in order to get a divorce, both husband and wife must have enough reason that they will not be able to live in harmony.

There are legal grounds of filing for divorce that every divorce lawyer in Indonesia has to advise his clients with, and they have been regulated in the Marriage Law, which are, in the event one of the parties:

1. has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;
2. has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;
3. has been sentenced to imprisonment for five (5) consecutive years or a longer period;
4. has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;
5. has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or
6. has irreconcilable differences.

For couples married in Moslem ceremony, Article 166 of Islamic Compilation Law added two more legal ground to get divorce. They are:  a. You may get divorve in the event a husband broke his taklik talak. It’s a marriage vow soon after the Moslem couples performed the marriage. If you forget about it, you may want to check the back page of your marriage book; b. Apostate.  In the event your spouse convert back to his/her previous belief, other than Islam. The above legal grounds are optional. I mean, your divorce case doesn’t have to meet all of the legal grounds. You just have to include ome of them, and supply two witnesses to take the stand at the court room. 

As for the child custody, the decision follows after the marriage has been dissolved. The custody of a child under the age of 12 belongs to the mother. Article 105 of Islamic Compilation Law imposed that a child aged 12 (twelve) has a freedom to choose between its mother or father. They tend to give the custody to the mother because they think women is the best figure to nurture the child. They are more compassionate than men. They think women can do it better than men. In short, they think the Islamic Compilation Law has maternal preference. It's also has sole custody principle that allow one parent to be a custody holder, and the other parent is a non-custody parent. But, in the field of practice those things are not always happen. They don't always do their jobs. They can be either mentally unstable, committing adultery, leaving the child at home during night time to meet friends, hang out and partying all night, or even jeopardizing the child's well-being. Those are the circumstances where you as the father may take over the custody of your child. You can’t just say that you’re financially better than your wife, and you think you deserve the custody. Our Marriage Law considered husband is a bread maker in the family. You have the obligation to support your children. This is the universal value every where, I supposed.

The ultimate consideration of having a child custody is for the best interests of the child. It's imposed by the 2002 Child Protection Law. The judges assess and measure your ability in providing what’s best for your child. Factors included in the assessments are physical and mental health, intellectuality, independence, and utmost good faith in allowing his/her ex-spouse to have parenting and visitation. In another words, you still need to talk to you ex-spouse even though you are no longer married to each other. This is for the best interests of the child. The one that meets the requirements is the most eligible to serve as custody holder of the child.

I would like to bring your attention to the court verdict number 110K/AG/2007 issued by the Supreme Court in December 2007. The holding from the court was, among others, the ultimate consideration of having child custody (Hadhanah in Arabic term) is for the best interests of the child, not merely the most normatively entitled to. The court further stipulated that even though the child was only 7 (seven) years, and the mother frequently travelling overseas and leave the child all alone by herself, while the father actually always be there for the child giving her steady and stable life, so therefore they found the father was entitled to the custody of the child. This is one of the most brilliant court's products in Indonesia, and considered as "jeopardizing" the maternal preference since the Islamic Compilation Law enacted in 1991. But I mean, apart from that, you know, you can really lose your rights in getting child custody, even though the law prefers you due to gender preference. As parents, I believe we must put ourselves behind the children's interests and put them as our priority in life. I am sure we're all love our children so very much. 

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

Child born out of wedlock in Indonesia may include its biological father on its birth certificate. The only way to do this is by getting the father acknowledge the child. They must support the claim with a DNA test, and backed by at least two witnesses. Furthermore, the legalization of a child must be court-approved. Otherwise, the civil law relationship between the father and his child will not be established. It is very important because this is where it all begins. 

The civil law relationship between the father and his child begins with a birth certificate. When you see his name on his child’s birth certificate, you will see they have something between them. This the truth lies in the amended Article 43 (1) of the Marriage Law. The legal protection given by the Constitutional Court with its breakthrough verdict. They are giving the child an identity printed on its birth certificate with full names of mom and dad. This is the real truth. You get the legal protection for the child in the form of a birth certificate. Nothing less, nothing more. Therefore, you need to do something about it for the sake of your child's future. 

Originally, the Article 43 (1) was not allow you to include the father’s name on the child’s birth certificate. It only recognize the relationship between the child and its biological mother. Some thinks that it’s not fair. Some thinks that it’s legally bastardizing the child. Other thinks we need to allow them to use both parents’ name on the child’s birth certificate, even though the marriage of the parents is still illegitimate. So, the amendment of this article is also about giving the child what they deserve and not to punish them for something what their parents did. The Civil Code furthermore imposed that as long as the child was acknowledged by the father and the mother, he/she may inherit from the parents. But the child may only have legal relationship with the person that acknowledge it. No further relationship with the rest of the family. In general, if a parent have legitimate children, a wife or a husband, the out of wedlock child entitles to only 1/3 of the legitimate child's share. 

As for Moslem couples, you need to dig this a little deeper as the amended Article 43 (1) will not create other consequences such as inheritance, and nasab relationship, as they thought they will have those two in the area of civil law. In Islamic Laws, if you’re conceiving a child outside of religious marriage, even though the father acknowledge it, the nasab relationship will not be established, even the father voluntarily acknowledge his child. Nasab relationship is parental relationship between the father and his child, created only through legitimate marriage betwen the father and the child's mother. Without it, there won’t be a nasab even the father acknowledges his child. This one of the inconvenient truths retrieved from the child legalization proceeding under the amended Article 43 (1) of the Marriage Certificate. 

If you're a Moslem, and you have an out of wedlock child, you need to refer further to the Islamic Compilation Law. This special civil law for Moslem couples governing activities like marriages, divorces, inheritances, and other issues related to family law. As for Non-moslem couples, you need to refer further to the Civil Code. According to those laws, both the Islamic Compilation Law, and the Civil Code, they imposed that child born out of wedlock can't inherit from the father, even though he acknowledges his child. This is a further legal consequences of child legalization as amended by the Article 43 (1). It seems to me, the amendment by the Constitutional Court was only to provide the child with a birth certificate with full parents' name. The ruling stops there. It does not solve any further complication regarding the issues related to the status of being an out of wedlock child. As parents of child born out of wedlock, you must not allow this to happen to you child. You need to do something. I would suggest you draw-up a last will and testament. This is the only possible solution to protect your child from the legal limbo regarding this issue in Indonesia

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

Child born out of wedlock in Indonesia doesn’t have its father’s name printed on the birth certificate. He/she can only have relationship with its mother and her mother’s family. The child doesn’t have any relationship with the biological father. Not until you as the father acknowledges it or legalizes it into his marriage to the child ‘s mother. You must support your acknowledgment with a DNA test, and the two witnesses taking the stand at the court of law. This proceeding is conducted in order to prove blood relationship between the child and the father. It will then creates legal relationship between the two of them. This is the essence of the rule in Article 43 (1) of the Marriage Law as amended by the Constitutional Court number 46/PUU-VIII/2010 dated Feb. 17, 2012.  

Furthermore, the amended Article 43 (1) stipulates as follow: "The child born out of wedlock has legal relationship with the biological mother and her family, and has legal relationship with the alleged father proven with scientific evidence and/or other evidence according to the laws that they have blood relationship, including civil law relationship with the father's family."

You don’t need to fix the legality of the marriage in order to acknowledge the child born out of wedlock. This is about getting a child legalized. It’s about getting to know the child’s origin by having the father and the mother’s names printed on the child’s birth certificate. It’s not about getting a marriage legalization. Those are two different things. When you as the father acknowledges the child, the legal relationship between the child and the father will be created as stipulated by Article 280 of Civil Code.  

The legalization of child born out of wedlock is to give legal protection to all the children in this matter. The law must protect the children and make sure they get what they deserve, even though the marriage of the parents is still in question. The protection must be implemented in the form of birth certificate with all the parents’ names printed on it. Article 55 of Marriage Law stipulates that the origin of a child can only be supplied by authentic birth certificate. This is the basic rights that the child must be able to have. The certificate is very useful when the child is applying for the school, passport for travelling, and other basic rights for her/his nurturing needs.

The birth certificate of an out of wedlock child does not include the father's name. Only name of the mother. It says something like is: "Premarital son/daughter of a woman named [insert mother's name]." It's because when the child was born, it only related to the mother and her family legally. When a birth certificate does not include complete names of the parents, it does not tell you the origin of the child. It doesn't comply with Article 55 (1). In order to include the name of the father on the birth certificate, a father must acknowledge the child with the consent from the biological mother. Without it, the court may not be able to approve the legalization. So, in order to legalize your child born out of wedlock, you need to present a case with complete evidence. Otherwise, they may reject the case and your child remain illegitimate child for good. As the father, you won’t be able to have access to the child legally. You can’t have joint custody of the child. Many cases like this where fathers lost cases in the court fighting for the custody of their children. You have to be careful, because you only have one bite of the apple. You better make it works.

I am Asep Wijaya. Thank you for reading.

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Child born out of wedlock in Indonesia has some key issues in its proceedings. If you have a child born out of legitimate marriage, you should know these and make sure you don't get conflicted by our legal system. First, we have now amended Article 43 (1) of the Marriage Law stipulates that child born out of wedlock not only has civil relationship with its mother and her family, but the child also have civil relationship with the biological father, and his family as well.

The starting point to draw a fine line between the child and the father, is by having the father to acknowledge the child. According to the Article 280 of Civil Code, the acknowledgment is to create the civil law relationship with the child, and its father or mother. After the acknowledgement, you may draw anything between the two of them. You may establish a child support, parenting and visitation. The child is also entitled to use your family name. He/she might be able to claim as your heir in the inheritance matters.

Furthermore, the amended Article 43 (1) imposed that a claim made in order to acknowledge the child and his father must be supported with a scientific evidence, like DNA test, as well as two witness that willing to take a stand at the court of law. The acknowledgment of an out of wedlock child must be approved by the court of law. The court verdict must shows the origin of the child, the acknowledgment made by the father, and the consent by the biological mother. This is an integrated paperworks. 

The idea to come-up with the amended Article 43 (1) is to provide legal protection for the child born out of wedlock. It is the duty of the state to issue a document regarding the origin of the child with full names of the parents and printed on a birth certificate. 

My name is Asep Wijaya. Thank you for reading my posts.

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Guardianship of a child in Indonesia is a challenging issues. Not only this is the most important part in family and matrimonial law practice, such as adoption cases, divorce cases, and custody disputes. It also plays substantial role in general civil law, such as how a judge determine a child's guardian in representing him/her in all of her legal affairs. Article 47 of 1974 Marriage Law stipulated that children under 18 years old or have never been married, are under their parent’s authority. The parent represent them in and outside of the court room. The parental authority may be revoked by the court or may also be removed voluntarily and assigned to other individual. Parental authority is the term set-out in the laws in Indonesia. It also known as Child Custody. Different terms but discussing the same thing in common. The terms have a very broad meaning: representing the child inside or outside of the court room. This include the whole legal matters involving the child's life. 

When parent is no longer in the position to perform his/her job, other people, preferably family members may replace them as a guardian of the child. The guardianship of the child may voluntarily appointed by the parent. The person may accept it or he/she may refuse it. Being a parent indeed is not an easy job. So, you're excused if you think you won't be able to do it properly. Child Protection Law of 2002 stipulates that in the event of a parent is absent, or unknown, or for some reasons unable to perform his/her duty and responsibility, the job is transferable to other family member. A guardian may be appointed to do the job. They must be same blood family up to three degrees upline, such as grand father, grand mother. They can also be three level down line.

The laws further imposed how a guardian must meet criterias. He/she must at least 18 years of age, physically and emotionally healthy, fair, honest and having a good behavior. Other family members must also be supply their opinions about how he/she may be able to perform his/her duty as the child’s guardian. They also have the responsibility to choose the right guardian because everybody knows everybody. This is the beauty of family emotional bonding.

At Wijaya & Co, we handled cases like this: transferring the children guardianship from their parents to their grand mother. Both of them are busy with their works and the grand mother lives in a different country. The guardianship order serves as an immigration clearance as well that allow the grand mother to have parental rights in regards to the furnishing of immigration paperworks. She represents the children and have the legal power to decide on the parent’s behalf, as if having someone to trust to take care of your children, legally.

I am Asep Wijaya. Thank you for reading my posts.

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Child born out of wedlock in Indonesia has legal relationship with its biological mother and her family only. This principle is reflected on the child's birth certificate. It means the birth certificate of a child born out of legal wedlock cannot include the name of its father. That was ancient regulation before we have a breakthrough from the Constitutional Court. Nowadays, children born out of wedlock has legal relationship with the acclaimed biological father. The claims must be supported with the scientific evidence such as DNA test, among others.

Article 43 (1) of 1974 Marriage Law has been recently amended to include the biological father as parent of the child born out of wedlock. This ruling was meant to protect the child’s basic right. Just because we recognize the legal relationship between the father and his child born out of wedlock, it doesn’t mean to attack the legal marriage and its legitimate children. The relationship does not automatically entitles the child to the legal rights as if it was born into the legal marriage. Nevertheless, it may be the basis to create "the bridge" between the acclaimed father and the child in regard to the child's rights in claiming child supports, education, inheritance, etc. Well, at least you need to start somewhere, right? 

The legal proceedings under the amended Article 43 (1) of the Marriage Law is very useful for the children born outside of the legal marriage. This is because they can have a birth certificate with complete names of the parents. Both names of the father and mother printed on its birth certificate. This is a milestone to a new world of opportunities for them. This is similar to child legalization proceeding. Without the proceeding, the child may entitle to a birth certificate with mother’s name only. They said our legal system legally bastardizing them. They won't be, as long as you as the father would like to recognize them. It's your flesh and blood anyway. So, give them what they need: the birth certificate with the full names of the parents.

The best thing about this, it does not have to come with the marriage of the parents. Do I mention something about tying the know at some point? No. It's up to you! Sometimes, messy things between the two of you doesn't have to make your "champ" suffers. All you need is to talk to each other, sit down in the same table with your Indonesian lawyer and get the ball rolling. Well, I am not the guy who against the spiritual and emotional bonds like they do have in those married couples. What's important is the father's acknowledgment. It does really matters to your child. What a simplified legal system, huh? We make things simple. It's up to you to keep it simple, or the otherwise. All you have to do is to supply the evidence. This is the most convenient way, considering the absence of your marriage certificate.

Well, let me completely be honest with you. I understand that you may not be able to supply the marriage certificate due to various reasons. You did perform the marriage, but it may not performed properly according to the marriage regulation. It's called unregistered marriage. In Indonesia, some called it "Nikah Siri." Or, you never get marry before and the child conceived out of the adulterous relationship. A marriage is one thing, and a child is another thing. I am not going to cast a stone at you. You don't have to do it if the marriage is not a scenario. So, you can do this proceeding under the Article 43 (1) of the Marriage Law without getting marry first.

My name is Asep Wijaya. Thank you for reading my posts.

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Custody and maintenance of children, like other family matters in Indonesia such as divorce, and inheritance; is governed by religious affiliation of the respective spouses. Some of you may find it absurd, but this relates to the belief that religion plays an important role in the family environment.

Child Custody for Moslem

The questions regarding who is entitled to custody or maintenance of children in the event of a divorce between a husband and wife who are Moslems, are subject to the provisions of the Compilation of Islamic Law, and also subject to the principles contained in the Religion of Islam. In the event of divorce, the maintenance of children who have not yet mumayyiz(under 12 year old) is their mother’s. In the case of mothers has died, then the position of woman as the holder of the rights can be replaced by the following persons: a). the women in a straight line upward from the mother, b). father, c). the women in a straight line upwards of the father; d). sister of the child concerned; or e). Blood relatives of women by the side line of the father. So, under normal circumstances, the law prioritizes custody to the mother of the child. Please take a note, under normal circumstances! If you think your particular situations are not even close, please continue reading.

For children who already mumayyiz, it is up to the child to choose between his father or mother as the holder of the right of maintenance. Nevertheless, the father of the child has the responsibility to provide child support according to his ability regardless who holds the custody.  He should provide child support at least until the child is able to take care of him/herself or have aged 21 years. This provision relates to the principle in Islam that the father is the bread-maker in the family. The fact that in this modern world where women are also working and making good career, it does not forbid the obligation of a father to provide the child support. Something we must realize is that other than as husband and wife, we all have other capacity that is as father and mother for children born in our marriage.

Child Custody for Non-Moslem

Child custody and maintenance for Non-Moslem is applicable for children under the age of 18 years old or unmarried. In case of divorce to both parents, the provision of child custody and maintenance can be found in 1974 Marriage Law, Child Protection Law, and Indonesia’s Civil Code.

The 1974 Marriage Law stipulates that in case of divorce, both parents are still obliged to maintain and educate their children until the child marries or able to support themselves. In the event of disputes, they are still obliged to maintain and educate their children until the child marries or able to support themselves. A district court may enter into a verdict on the disputes. The provision sends a message that child custody and maintenance in the event of divorce is still a part of the obligations and responsibilities of spouses. Furthermore, Child Protection Law provides that parents are obliged and responsible for caring, nurturing, educating, and protecting children, fostering the children in accordance with their abilities, talents, and interests, and should prevent the occurrence of early marriage.

The Civil Code stipulates that the legal consequences of a divorce may end the parental authority (ouderlijke macht) and turns into guardianship (voogdij). When the marriage dissolved by the court, there should also be regulated on the guardianship of the underage children. The guardianship shall be determined after the judge hears family from both parents with close relationship with the child.  Determination guardian also may be reviewed by a judge at the request of the father or the mother based on changing circumstances.

How Can You Lose the Custody?

Being a holder of child custody and maintenance is not permanent. A father or a mother could lose child custody and maintenance in the event he/she cannot guarantee the child’s physical and spiritual safety.

If You’re Moslem

At the request of child’s relatives concerned, the religious court may transfer the custody rights to other relatives who have rights of custody as well. Although child custody is a right of a mother, but sometime she could lose the rights due to special factors. There are factors that can impede her rights in obtaining child custody, among others, are:

1. Ar-Riqqu. Literally, it means that the person concerned has status as a slave. I believe this is no longer applicable as we recognized equal status to all human being. Nevertheless, this can be further interpreted that the person has no freedom at her will. Don’t get me wrong! For example, you are working abroad and you cannot attend the child on daily basis in Indonesia. You need help from your family in Indonesia to take care of the child. On the other hand, your husband resides in Indonesia. Instead of giving the custody to you as the mother of the child, or giving a way the custody to wife’s parent; the father of the child will prevail and shall be the most appropriate parent to hold the custody and maintenance of the child.
2. The Fasiq. She conducts immoral behaviors such as having an affair with other man, or even worse, committing adultery. Can we trust her with the responsibility of parenting?  When the court found her committing adultery, she will no longer entitle to child custody. How come? If she still has the custody, she will educate the child in accordance with her bad habits. Remember, our children learning by examples of their parents. The Islamic Law finds that the Fasiq will give negative impact to the children.
3. The Kafir, means Non-Moslem person. The Islamic Law finds that they should not be entrusted with the parenting right of a Moslem child. Furthermore, the Islamic Law finds that they have the possibility in deceiving the child and removing it from the religious beliefs of Islam.
4. A woman re-married with another man. On the issues of parenting, a mother holds primary rights to child custody and maintenance. However, the right will be automatically revoked when she married to another man with no family relationship with the child (ajnabi). On the other hand, if she married to a man with ties of kinship with the child, the mother custody is not lost.  The revocation of the custody right shall be on the ground of religious court’s order.  In this particular situation, I would like to refer to the Hadits of Prophet of Muhammad:

أَنْتِ أَحَقُّ بِهِ مَا لَمْ تَنْكِحِي

“You have more right to nurture him/her as long as you are not married.”

When the impediment factors are disappearing, for example the mother divorced again, she will get her custody right back. Some women don’t know about these rules when they got divorce. When our firm work for a case in a religious court in Bali, we advised our client to resign from her employment abroad to avoid her losing the custody. Nevertheless, such decision sometimes cannot always be accepted by everyone. Having a custody means that you have a responsibility to raise the child. When you and your ex do not cooperate, you will face difficulties in doing the job. After all, it’s not easy being a single parent.

If You’re Non-Moslem

Every child has the right to be taken care of by their parents, unless there is a reason and/or valid legal rules indicate that the separation with the parent is in the best interests of the child and should be taken as the final consideration. However, court decisions remain to decide custody of parents against children when one of their parents behave poorly and neglect their obligations towards the child. Nevertheless, someone who holds child custody and maintenance must be of the same religious affiliation with the child. The existence of this provision will ensure the parent will provide religious education for the child properly.

The Child Protection Law further stipulates that parental authority of one or both parents may be revoked at the request of the other parent or adult siblings or authorized officer based on the court verdict due to neglecting the duty towards the child and behave badly. Let me be more specific on the definition of other parent. It can be either grandmother of the child from the father’s line, grandfather of the child from the mother’s line, and the child’s family in straight line upward (grandfather or grandmother of the child). The first one is being prioritized in the event both parents are being revoked by the court.

In view of the above and regardless who have the custody, I believe you and your ex must work together in raising the child. Both of you still have obligations and responsibilities even if you’re not married anymore. Set aside the ego, and work side by side for your flesh and blood’s upbringing. I know it is easier said than done, but it is worth to try.

Well, I hope you get the whole picture about this issue and most important is that you have enough access to the legal system that protects your rights.  At Wijaya & Co, we are helping people with their legal issues and assisting them to have access to the legal system in Indonesia. This information is to help them to gain the access and please feel free to forward it to others who might need the information.

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!

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.

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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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.

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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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.