Prenuptial agreement in Indonesia is highly recommended to mixed-marriage couples. They are the ones with different nationalities i.e. Indonesian and foreigner. This matter has been an issue since 1960 as governed by the Basic Property Law. The only legal way to get around this issue is by having a prenuptial agreement. This document allows you, the mixed-marriage couples, to own property in Indonesia. The ownership title is under Hak Milik (Freehold Title). It is the strongest title and can only be owned by an Indonesian national.
Every marriage registered under the laws in Indonesia will automatically have joint property. This situation is applicable to all the properties acquired during the course of marriage. As for the assets acquired before the marriage, gifts from third parties, and inheritance, they are under the control of each party. This is not a favourable condition for mixed-marriage couples as the Indonesian spouse is precluded to own a freehold property. It simply because the marriage to his/her foreign spouse and the matrimonial regime the Marriage Law created. Article 35 of 1974 Marriage Law imposed that the parties may create different arrangements, and it is legally acceptable. The arrangement made by the parties before they get marry is called prenuptial agreement. Both parties are allowed to create such different terms and conditions in the property ownership effective since the date of the marriage. At Wijaya & Co, we always pay attention to details of our client’s case.
We have three (3) types of prenuptial agreement in Indonesia. The first one is the type that creates separation for the assets acquired before the marriage, and joint the assets during the course of marriage. The second one is the type that shares the benefits or profits during the course of marriage, but not the loss and its related liabilities incurred down the line. The last one, here's the best part, this is the type of total separation both before the marriage and after the marriage. The separation takes place both to the profits, benefits as well as the loss and liabilities arising out of the assets acquired before they get marry, and after they tie the knot. This situation gives both parties, including the Indonesian spouse in the mixed-nationalities marriages, to act freely and therefore require no consent from his/her foreign spouse to dispose the assets.
The prenup will take legal effect upon the marriage of the parties. In the event they cancel the marriage, the prenup will not be valid. You need to make sure that your prenup is being registered with the court. This is to meet the third parties' legal interests in your property ownership in the marriage. Without it, your prenup will not be recognized legally. I'd say it's challengeable. We'll discuss later about it. Apart from that, it must also be registered at the marriage registry. You need to make sure the contract can be legally upheld between the two of you, husband and wife. I've seen many prenups missing those two important thing. You should consult your experienced family law attorney for further inquiry on this matter. Some of those missing items may require further legal proceedings with the court.
The arrangement to enter into a prenuptial agreement for mixed-marriage couples is according to the stipulation that a husband has an obligation to protect his wife. He also has the obligation to provide her needs according to his financial ability. By doing the property separation in the prenup, the husband allows his wife to hold the property under her own name. It's preserving her/his rights as an Indonesian in owning freehold title. This may a big deal for some men, but the ones that doing it are the one that set aside ego and put his family interests first. Article 34 (1) of the Marriage Law imposed that failure in performing his obligation may be used by his wife to file for marital dissolution to the court of law. The application may be carried-out under the ground of abandonment. So, having a prenup is something that you might want to do that. It protects your family, giving your Indonesian spouse a chance to preserve his/her rights in owning the property in Indonesian soil. 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!