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Prenuptial Agreement in Indonesia

Discover How a Prenuptial Agreement Redefines Your Marriage

How Prenuptial/Postnuptial Agreement in Indonesia Redefines Your Marriage, Regardless Your Nationalities

25 October 2017 Asep Wijaya 759 times

The laws in Indonesia legally recognized marital agreement, either a prenuptial or postnuptial 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. You need to get a prenuptial agreement in Indonesia. Prenup for short. 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 prenuptial agreement prior to your marriage in Indonesia, 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.

You don't have to be an Indonesian citizen to sign an Indonesian prenup. In the event both of you are foreigners, and you register your marriage in Indonesia, you must have a prenuptial agreement. Without an Indonesian prenup, you're exposed to the regime of a marital property or common property as imposed by the Marriage Law. This is applicable as imposed by the Article 35 (1) of 1974 Marriage Law. The article said: “Property acquired during the marriage is common property.” The laws of Indonesia are applicable for Indonesian citizens, wherever they are, and also applicable to foreigners living on Indonesian soil. Therefore, I would highly advise you to get a prenuptial or postnuptial agreement, even if you have a marital contract in your home country. We call this back-to-back prenup.

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. Postnup for short. 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 in Indonesia is legally recognized and totally can be upheld in the court of law. 

Using a postnuptial agreement in Indonesia 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 the Indonesian postnup to protect their marital assets, and the laws allow the wife to submit a motion for separation of property during the course of marriage. The postnuptial agreement, if you live in Indonesia and facing this kind of issue,  is a must choice for your situation. 

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. The type of marital agreement for this scenario is a postnuptial agreement.

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 are totally exposed,  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.

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.

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