Married couples in Indonesia now have leeway option in getting the contract entered into during the course of marriage. It is now possible to for them to sign a marital contract called postnuptial agreement. Thanks to the breakthrough verdict from the Constitutional Court number 69/PUU-XII/2015.
The court decision is to amend the Article 29 of 1974 Marriage Law. They said it gives the married couple who did not sign any prenuptial agreement a second chance, and the signing of the contract is doable during the course of marriage. Other terms and conditions are similar with the prenuptial agreement. It just to allow you to do it after you're legally married. At Wijaya & Co, we always pay attention to details of our client’s case.
The new amended Article 29 of the Marriage Law stipulates that before, on the marriage, or during the marriage, both parties in the marriage may enter into a mutually agreed agreement that also may be applicable to any third parties.
The Parties in the Postnup
Like any other normal agremeent, postnup require two parties in the contract. Husband and wife are the parties in the agreement. But is there any other related party to your postnup? Yes, of course. What can I say, two is a company, three is a crowd.
Just because you're married to your spouse, it doesn't mean that other third party is not related to your assets. The postnup is also applicable to other third parties as long as it is relevant, for example banks, creditors, and government. You see, the more the merrier!
Therefore, since the public has interests in your assets, I would suggest to register your postnup with the court. This is to meet the publicity requirement, and to avoid the failure to access the public funds from the bank, should wish to get finance and get a loan for your investment.
Why You Need Postnup?
Because you did not sign a prenup. That's a good reason to have a postnup in the first place. Apart from that, postnup is a good legal instrument to protect your family just in case something come-up down the line. For example, the business go bankrupt, and the assets are not enough to cover its liabilities. The postnup may be able to cover you up.
Land ownership for mixed marriage couples is also important when you wish to purchase an immovable property in Indonesia. The Indonesian spouse is precluded to own the property just because they are married to a foreigner. This is a hiccough that you can overcome with a postnup. You should be able to own a title under Hak Milik. It's similar to a freehold title. It's a title that you can keep for good, and you can inherit to your next of kin.
How Does It Works?
The postnup creates property separation during the course of marriage. It changes the situation of your property ownership regime from joint marital to separate property. At least, that's what the postnup should do to enable you to own assets in Indonesia.
You see, the things that the postnup can do is remarkable. The contract has super power by declaring a new situation of the property regime in a marriage. Something that in normal life can only be retrieved from a court order. They put a notary, and a marriage registrar to get the postnup legalize. This is something that never happen before. When there's a potential liability arise from the newly executed postnup, who will be liable for it? The parties, the officers who legallze it, or else? You tell me.
I am not saying that this is not a legal instrument. It is! I cherish the new legal developments but there are something missing. They did not create a thorough examination before they finally reached the verdict. They may not conduct any comparison study enough to minimise the inherent vice. The Netherlands for example, the postnup application must be made to the court, and there is public announcement before a postnup take effect legally. Please contact me should you require any further assistance about this term and condition particularly applicable to you and your spouse.
Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!