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Prenuptial Agreement in Indonesia

Discover How a Prenuptial Agreement Redefines Your Marriage

Excuse Me, Your Prenuptial Agreement is Not Working!

18 March 2018 Asep Wijaya 711 times

When you married to your spouse, you joint her in a matrimony. In Indonesia, you will joint your spouse not only in the same residence, but will also have joint income and loss, property, and even joint tax returns. Since the date of your marriage, everything will be joint. Article 119 of Civil Code stipulates that from the time of marriage, there is a comprehensive joint property between husband and wife, as long as there is no other provision in the marriage agreement governing otherwise. Such joint property, during the course of marriage, shall not be abolished or changed without any consent from both the husband and wife.

Couples sign prenuptial agreement in Indonesia for various reasons. They sign a prenup in order to protect assets acquired before the marriage. They also sign a prenup to protect their family and the future of their children from their business risk. They sign a prenup in order to enable their Indonesian spouse to still own property in Indonesia. A prenuptial agreement in Indonesia must meet certain requirements before it is valid and recognized legally. Without fulfilling them, their prenup may not be able to work properly. The last thing you want is to have a worthless piece of papers that do you no good.

Recently, I work with a Belgian client married to an Indonesian wife. He came to my office, and show me their prenup. He said it's not working for them. The bank won't loan them the money to finance their property purchase. I said what happened? He wanted me to look at the prenup, and tell them why.  So, here's the reasons why your prenup might not work for you. 

The prenup was written in dual language i.e. Indonesian, and English. Well, I see no problem with that. As long as the Indonesian version is the one that has precedence, it should be fine. The version written in Indonesian language is the official version, and shall be legally recognized in the event it is being contested at the court. This is inline with the Law number 24 of 2009 regarding Flag, Language and State Symbol and National Anthem. So, from this legal perspective, their prenup is fine. As for English, it is considered as the language used for mutual understanding between both parties. 

The choice of forum must be one of the courts in Indonesia, and the choice of law is Indonesian laws. You may not submit yourself to the other jurisdiction, for example English law, or it becomes automatically invalid. The choice of forum may be determined according to your wife's ID card. This is to comply with the publicity requirements because your prenup is a public document, and it must be accessed easily. The failure to meet this requirement will make your prenup end-up worthless piece of paper. 

We have many types of prenup, and you must know that. By the time you're meeting your Indonesian lawyer, you must raise the question: what type of prenup that suitable for you? For your marriage, and for your situation. Here's a little clue from me: never lie to your lawyer, and to your priest. Tell him everything. Don't misconceal a thing. A good prenup is meant to support you, not against you. The last thing you want is to hire another lawyer to get a good prenup for you. So, you better make it count. We have total separation of assets, and joint assets prenup, among others. There are many other types of prenup. I can go on forever, but I don't want to waste your time. Those are the most important types and most people use them for their legal affairs. 

Our thanks to Asep 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 innformation found within this article nor in this website. 

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