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!