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 Jakarta Higher Court confirms that a marital agreement signed during the course of marriage in Indonesia is legal. 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.

The law on validity of marriage is governed by the 1974 Marriage Law and its implementation rules. Indonesian law has no provision for no-religious civil marriages. The mixed-marriage coupes needs to pay attention to the legal issues. If something happen down the line, lack of legal requirements in your marriage will put you into unfavorable conditions. No law recognition to your marriage, will be considered no marriage at all. It will take effect to your divorce, division of marriage property, child custody, and alimony.

Religious Marriage

Indoensia's 1974 Marriage Law stipulates that marriage can be legally recognized if it is performed according to the religion of the couple. It makes Indonesia as the country that put religion as the main issue in marriage. Mixed-religion marriage is not allowed in Indonesia. Both spouses must have the same religion in order to get marry legally.

Once you have made the decision to marry in Indonesia, you must choose the type of religious ceremony that you intend to have. For Non-Moslem, you must hold church (or temple) ceremony first, and then record the marriage with Civil Registry Office. The Couple will experience two types of ceremonies. The religious part will first be performed followed by a civil ceremony. The civil registry will in turn issues a marriage certificate which is evidence that you are legally married. A Non-Moslem wedding which is not recorded with Civil Registry is not considered legal. There will be two certificates presented at the end of ceremony, one from the  church/temple, and the other from the Civil Registry Office.

If you have decided the marriage in Moslem ceremony, you must register you marriage at the local Office of Religious Affairs. Person wedded in a Moslem ceremony and issued a Marriage Book need not record their marriage with Civil Registry Office.

Civil Wedding

Considering Indonesian law has no provision for no-religious civil marriages, the couple who wish o perform civil wedding should provide the religious marriage certificate (i.e. Certificate of Marriage Solemnization) which means that they have done the religious marriage in their country(ies). Many foreigner tourists having their vacatioon and/or honeymoon in Indonesian, choose this route.

International Recognition

Mixed-marriage couple married in Indonesia should pay attention to this issue also, especially if they have married in Moslem Ceremony. The Moslem Marriage Book is accepted in United States and United Kingdom. But it is not accepted in several countries, to mention one of them is the Netherlands.

The immigration rules in Netherlands will require the Certificate of Attestation from Civil Registry Office. This is the certificate to show that the marriage has been registered with Civil Registry Office in order to register at the Civil Registry Office in  the Netherlands. In order to obtain this certificate, you need to submit supporting documents such as passport and visa, marriage books, and photograph (with groom on the right side).

Theoretically, this is may sounds very funny. Office of Religious Affairs and Civil Registry Office is the government institutions that have the same authorities in recording the marriage. But, in the field of pratice, you might face the walls if you don't have any clues at all. Otherwise, your plan to stay and live in overseas will not come together.

For example, if you go to the Surabaya Civil Registry Office, they will not willing to issue the Certificate of Attestation for Moslem Marriage Book, They don't even want to provide the letter of rejection. They find Office of Religious Affairs have the same position with them. So, it is not their authority to issue such certificate. I have seen a couple separated just because of this obstacle. Of course, we can not put pressure on Surabaya Office. According to the Regional Autonomy Law of 2004, the regulation for civil registry and population services is the sole resposible of local municipal. So, it is the authority of Surabaya Municipal that considers the Religious Affairs and Civil Registry have the same position. Legal breakthrough must be achieved if you want your case succeeded. A comprehensive study on Indonesian legal system must be perfomed. You can check with your Indonesian law specializing in mixed-marriage legal assistance regarding this case.

Other things you need to bring to your attention is document legalization. Immigration related documents require certifications or legalizations or authentications in order to be recognized internationally. The legalizations rules are different for different countries. Not all information is provided clearly and many regulations are different to other countries. This conflicting information is not a personal attack on you, it's typical of government bureaucracy all over the world. As we aware, the US rules specify that your certificate(s) should be less than a year old. As for the Netherlands rules, the certificate(s) should be less that five years. The process usually complicated and, in many cases the lack of time or expertise causes you delays and valuable time is lost. We can only begin to imagine how you must be feeling with the delays and the conflicting information from all involved. This is very distressing for you.

Indonesia is not a part of the Hague Convention, a group of nations joined to create a simplified method of legalizing documents for universal recognition, then you will need an Embassy Legalization to be valid internationally.

As a non-member of Hague Convention, the documents must full-fill certain requirements before the Embassy can legalized your documents. The documents should pass the procedures at the related government institutions in Indonesia, such as Notary Public certification, Civil Registry, Department of Justice, Department of Foreign Affairs, and/or Department of Religion.

Marriage Legalization

The mixed-couple who have decided to get marry abroad, will not exempted by the law. The Marriage Law of 1974 stipulates that within one year after return to Indonesia, you must report the marriage to Civil Registry Office. You will then received a Surat Tanda Bukti Laporan Perkawinan (STBLP) or Overseas Marriage Registration.

This certificate is very important and will make your marriage recognized by the Indonesian laws. Even if you have decided not to stay in Indonesia, this certificate is a must-have document. You never knwo what will happen in the future and something make you move back again to Indonesia. By then, it will arise complication to your case. You need to get a court decree in order your marriage can be recorded at civil registry office. It will give you more hassles if your are deliverng a baby in Indonesia. You can not get the Foreign Birth Certificate for the baby if you do not possess STBLP. In addition to STBLP, it is also very important document if you would like to have property in Indonesia. Notary public will require Indonesian marriage certificate, whether it's an STBLP or regular marriage certificate. Your overseas marriage certificate will not be accepted because your marriage is not recognized by the Indonesian laws.

Marriage carried-out before 1974

The marriage carried-out before the year of 1974 was governed by Indonesian Civil Code. It is the Dutch ancient rules which divide people into classes i.e. Europe, Indonesian native (pribumi), Chinese, and Far Eastern (Arab and India).

This law was meant to be very specific according to who you are and where you come from. It did not treat people equal. The law sees the people through race, customs, and classes. Ubelievably, many of them are still valid and have not been revoked yet by the Indonesian government.

If you're married outside of the Republic of Indonesia, and one of the spouses in the matrimony is an Indonesian, your marriage is not legal yet. Not until you conduct several proceedings afterward. The burden of conducting the proceeding lies on both spouses, regardless the nationality. It doesn't have to be the Indonesian who files the report for the foreign marriage. 

This has been imposed by several laws in Indonesia. So, it's a statutory requirement in order to make your marriage legally recognized in Indonesia. You see, the marriage is the basic foundation in your life. Without any legally-recognized marriage, anything comes afterward will not be legally recognized as well, such as the birth of a child, etc. 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 a reporting of the foreign marriage in Indonesia, if you were married abroad. Furthermore, it will also take effect to the inheritance issues.

Consider the following highlights in order to make your foreign marriage  valid and legally recognized as well  in Indonesia with the assitance from our experienced Indonesian attorneys:

1. Experienced Indonesian attorneys handling international documents;
2. High success rates in previous similar cases handled by our attorneys that will also contribute to your success;
3. Simple, legal, and hassle-free.

Call or email us in getting your marriage performed abroad legally valid  in Indonesia with the assistance of dedicated attorneys in the international civil law practice in Indonesia.

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

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Foreword

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-marriage 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, like simple thing as the intention of owning property in Indonesia.

Indonesia’s 1974 Marriage Law only recognises prenuptial agreements, ("prenup" for short), a written contract created by two people before they are married. The 1974 enacted law only discussing 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 special provision concerning property division in the course of marriage. The postnup is a product of our ancient Civil Code. It’s been there for many decades. So, some couples have been using it all along. It just the postnup is not as popular as his other sibling, the prenup. As to my personal opinion, the postnup is like a wine. It’s being kept in the dark, until they mature enough into something you would like to have dinner with. 

What’s Postnup?

First of all, 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 around and get a prenup, or even back-date a prenup. That’s awful, and illegal of course! 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 in the 1974 Marriage Law. It’s not there. Nevertheless, just because the Marriage Law didn’t say anything about the postnup, it doesn’t mean it’s not legal. It’s 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 postmarital 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 exist prior to the postnup, you need to determine them. It means that it has to be separated as well. 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 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 the legality of the postnup before signed by husband and wife.

Legal Implications of the Postnup

Legal implications will occur due to property division in the course of marriage to the parties in the postnup (i.e. husband and wife), to the property in the marriage, and other related third party. Both husband and wife shall be bound by the legal binding force as affected by 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 Civil Code stipulating that: “All the contracts legally drafted shall serves as the law to the parties involved.” 

The postnup also take effect to the third party. The further implementation in regards to creditors, it must be specified according to the time frame. The community property shall be liable as collateral in the event the mortgage exist prior to the postnup date. On the other hand, if one spouse getting 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 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-marriage household in Indonesia. By marrying a foreigner, the Indonesian spouse will be precluded to own a property, which is her/his right as an Indonesian citizen. Her/his entitlements in owning a property in Indonesia may be endangered. 

There are many mixed-marriage couples in Indonesia that did not incorporate 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 either of you would require consent from the other for every transaction involving the immovable property in Indonesia. The implementation of consent if to co-sign of every transaction documents. In terms of mixed-marriage, such consent cannot be retrieved from the foreign spouse because a foreigner is now allowed to own property in Indonesia. An Indonesian will not be able to retrieve such consent from her spouse because he is not in the legal position to own the property in the first place. So, the Indonesian position is stuck. This is where a prenup is essentials. 

Since there are too many mixed-couples out there without a 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 some business they see every day. Instead of getting a silly back-dated prenup, I certainly think the postnup is legally worth a shot. They can get a postnup. 

The postnuptial agreements most often used to settle financial matters, including property ownership in mixed-marriage. The postnup is very useful when spouses failed to create a prenuptial but want to protect their assets. It is not something usual in Indonesia because the law thinks that you should’ve get the prenup in the first place. Therefore, requirements to get a postnup are stricter than getting a prenup. The contract must be created with full disclosure of assets, be entered voluntarily by both parties, and have terms that are fair and equitable.

Why Should You get the Postnup?

Because it is dated after your marriage, and because it is legal. The postnup is about admitting that you did not realize that you need a prenup in order to own property in Indonesia right before you got marry to a foreigner. It’s about being honest to yourself, and to the public institution where the postnup will be registered. Back-dated prenup is about manipulating facts of your marriage date, and the date when you sign the prenup.

Postnup is the most favorable choice for the limbo situation of having no prenup in the first place. Some mixed-marriage couples have resorted to questionable measures, such as making purchases using fake ID cards, or risky purchases, such as buying real property using their relatives’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. You have the power and the authority in making the purchase without affected by the legal constraints anymore. Sounds good, huh? 

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, the property shall be separated since the date of the postnup takes effect legally.

Each and every spouse in your matrimony shall be independent and will not require any consent from the other spouse, including to conduct property transactions. The best part is the Indonesian spouse will no longer affected by his/her foreign spouse. There you have it! The rights of an Indonesian in owning the property is preserved as if you had a prenup in the beginning of your marriage.

Reinstatement of the Community Property

This is the proceedings if you want to go back to the joint property regime, because may be, the laws have changed. For example, the Indonesian is no longer affected by getting married to a foreigner in owning any 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 the spouses. The reinstatement of community property must be made public by the spouses. Third parties shall not be affected by the reinstatement until the public announcement has been made.

I am Asep Wijaya. Thank you for visiting my blog, and reading my posts.

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Mixed-Marriage in Indonesia: Legal Services Package

Mixed-marriage in Indonesia is always full of legal complications. Mixed-couples should consider legal assiatance from the very beginning in order to avoid hassles down the line. It's down hill if you do. Our Indonesian law firm will assist you in related legal issues which might arise in your marriage, with the following services:

Prenuptial Agreement

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

Marriage in Indonesia is pretty straight forward, simple, and most of all, legal. Consider Indonesia as a venue for your marriage registration. Indonesia's marriage certificate is world-wide recognized. Every marriage document issued by the marriage registry in Indonesia is in dual language i.e. Indonesian, and English. All you need to do is send us your personal details and picture of the two of you. Wijaya & Co can be your registration representative of your marriage at a marriage registry in Indonesia. You don’t have to queue-up for a registration and confined in a registration bureaucracy. Your marriage will be recognized by the Indonesian laws, and obtained worldwide recognition at the same time.

If both you and your fiance(e) are Christian, Buddhist or Hindu, you must hold the religious solemnization or ceremony first, then record the marriage with the Civil Registry. The Civil Registry will in turn issue a Marriage Certificate which is evidence that you are legally married. A Non-Moslem marriage which is not recorded by the Civil Registry is not considered legal. There is normally a ten-day waiting period in order to register your marriage with the Civil Registry in Indonesia. If your fiance(e) is Moslem, the ceremony should be registered at the Kantor Urusan Agama (“KUA”) or the Office of Religious Affairs.  These offices will issue a Marriage Book, which is evidence that you have legally married. Persons getting marry in a Moslem ceremony and issued a Marriage Book need not record their marriage with the Civil Registry. For foreign citizens, the documents required are copy of your passport, and a Non-Impediment Letter certifying that you are legally free to marry from your embassy in Jakarta. A Biographic Information is available to gather your personal information for getting your marriage registered in Indonesia.

Marriage in Indonesia is considered as a spiritual bond between a man and a woman. Therefore, Indonesia has no provision for mixed-religion marriage as the religion plays important role in your marriage life. Both partner must have the same religion. Otherwise, one of you must convert, if you have mixed-religion issue in your relationship. We can also assist you in religion converting and it can be carried-out within less than 30 (thirty) minutes before the marriage conducted.

These are the reasons why you need to choose our services:

1. Worldwide recognition;
2. A Biographic Information Form is available to gather your personal information;
3. You can get marry within 10 (ten) calendar days;
4. Religion conversion can be done at the same time with marriage ceremony;
5. Dual language marriage documents i.e. Indonesian, and English;
6. Simple, legal, and hassle-free. 

Call or send us an email now for getting your marriage registered in Indonesia, and live happily ever after. Cheers!

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

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.

They said mixed-marriage in Indonesia is always full of legal complications. If you pay attention to legal issues, the mixed-marriage should be practical since people get marry in order to look for  a life of happiness. Foreigners who married to Indonesian spouses should be consider legal assistance from the very beginning. If you wish to get marry in Indonesia, you must pay attention to the religion of yours and your fiancee. If you are Moslem than you must hold Moslem ceremony with Office of Religious Affairs. If you are Non-Moslem, you must perform religious ceremony and register your marriage with Civil Registry Office. When you have decided to get marry abroad, you need to report your marriage with Indonesian Civil Registry Office.

Prior to marriage, don't forget to get a prenuptial agreement. 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 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.

When your Indonesian wife delivering a baby in Indonesia, you must report the birth within 10 days to get Foreign Birth Certificate. Otherwise, Civil Registry Office requires Court Decree. Afterwards, you need to get your baby passport from your embassy in Indonesia and apply KITAS with Immigration Department. If you have decided to stay in Indonesia, you need to get Family Card from Civil Registry Office. In the past, the baby was born in mixed-marriage with foreign father, the baby's nationality goes to that father. Under the old law, citizenship could only be handed down via an Indonesian father. So children born to an Indonesian woman and a foreigner could not be citizens. They could only live in Indonesia on temporary permits. The new law considered as landmark law on citizenship. It provides for, among others, children from the mixed-marriage  to have dual citizenship until they reach 18 years of age or more when they have to choose one citizenship, either Indonesian or the other.

Under this new law, the child does not automatically lose his or her Indonesian status. Indonesian women are not automatically follow their husbands' citizenship status and can be sponsors for their husbands to turn status to Indonesian citizens. The new law also states that foreigners who have been living in the country for 5 (five) years will be able to apply for Indonesian citizenship, but they must give up their original citizenship and be able to speak Indonesian, among other conditions. It also stipulates that  Indonesian Chinese, who make up 4 per cent of the country's 209 million people, will no longer need to produce proof of their citizenship or undergo the naturalisation process, provided they were born to Indonesian parents. The law also makes it punishable if officials do not treat them on a par with other citizens.

Wijaya & Co can assist you with the complications arise in your mixed-marriage. Our Indonesian lawyers have assisted many international clients with their legal matters at Civil Registry Office and Immigration Department.

Legalization of Moslem marriage in Indonesia is strictly governed by the Islamic Law for Moslem couples. This proceeding may only be carried-out under special and very limited conditions, among others, to legalize the previous performed Moslem marriage without any registration at the Moslem Marriage Registry (so called KUA/Kantor Urusan Agama).

You may also to conduct the legalization of Moslem marriage, if you meet one of the requirements, as follows:

1. You need to get divorce, but you can't prove the legality of the marriage because you didn't receive any marriage book;
2. You've lost your marriage book. The KUA will not issue another copy because each couple only entitles to a set of marriage book;
3. You have any doubt regarding the legality of the marriage;
4. The marriage took place before the 1974 Marriage Law enacted;
5. To legalize the marriage of a couple with no legal impediment to marry, as governed by the 1974 Marriage Law. This is applicable when you're religiously married without any proper registration. No marriage book presented as proof of your marriage.  

This proceeding is very important when you're processing a probate case. The legalization of the Moslem marriage shall be used as a mirror order in any country where the probate is taking place.

Consider the following issues in order to establish the legality of the Moslem marriage  through a legal proceeding carried-out by our firm:

1. Experienced family law attorneys;
2. High success rates in previous similar cases handled by our attorneys that will also contribute to your success;
3. Conclusive legal binding;
4. World-wide legal recognition. The product of the proceeding may be used as a mirror order anytime anywhere in the world.

Call or email us to find out how you can move forward with the proceeding of the Moslem marriage legalization with the assistance of passionate family law practitioners in Indonesia.

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

Are You In It for Love?

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

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

Protection against Bigamy

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

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

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

Business as Usual

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

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

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

Preserving Your Inheritance

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

Back-to-Back: Foreign & Indonesian Prenup

Both of you are foreigners. Neither of you is an Indonesian citizen. But you have been residing in Indonesia for quite sometimes. You plan to get marry in one of our beautiful islands such as Bali, or Lombok. It means, you're registering your marriage under the laws of Indonesia. You're submitting yourselves to the legal system in Indonesia. There's a legal term called: "Minimum Contact." You and your husband have a minimum contact with the Indonesian laws because you live in Indonesia. The legal effect is minimum but it’s still a loophole. I am not saying you should get an Indonesian prenup but if you wish to have a safe-precaution, you should get one. Remember, the Indonesian laws on marriage is applicable also to foreigners live in Indonesia. This is the part of the international civil law that may expose you to the risks of having a regime of marital property. Doctrines on the international civil laws are very complicated. We don’t know which one the court will apply to your case. We never know which court will have jurisdiction to your situation. But the last thing you want is to left yourself, and your marriage open to the potential exposures of marital property regime in Indonesia. People spends tens of thousand of dollars fighting in divorce litigations, while they can avoid it with a piece of paper called a prenup. 

But hey! You're signing a foreign prenup. That's cool! You know what? Your foreign prenup is not recognized here. So, from the Indonesia's legal perspective you’re married but with no prenup. Therefore, you have joint property ownership regime. On the other hand, if you have the Indonesian prenup, and/or the Indonesian marriage, and/or you live here on the Indonesian soil, those are legal bonafide to you and your marriage. There’s no question in terms of the legality of your foreign prenup. It will even make things stronger. The Indonesian prenup shall serve as "the bridge" to your foreign prenup. So, everything is connected now. There's no missing link anymore.

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

Preserving the Indonesian

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

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

I am Asep Wijaya, Managing Director of Wijaya & Company. Thank you for visiting my blogs and reading my posts.

Disclaimer:

The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found anywhere in this article nor in this website.