Tag: Prenuptial Agreement

Prenuptial Agreement in Mixed Marriage

Posted by Irfan Disnizar, SH. on with 0 Comment

Many of our clients, especially foreigners who are getting married or already married to Indonesians, ask whether before marriage they have to make a Prenuptial Agreement and what is the Prenuptial Agreement for?

Therefore, we will first discuss the Prenuptial Agreement, Prenuptial Agreement found in Article 29 Paragraph 1 of Law No. 1 of 1974 concerning Marriage which states: “At the time or before the marriage is held both parties a party with a joint agreement can submit a written agreement that is legalized by a marriage registrar, after which the contents also apply to the third party involved.”

The prenuptial agreement contains the separation of property, for foreigners the Prenuptial Agreement is very important especially for immovable objects such as land, houses, shop houses, office houses, apartment units and other properties that cannot be owned by foreigners, referring to Article 26 Paragraph (2) of Law No. 5/1960 concerning Basic Regulations for Agrarian Principles states: “Property rights cannot be owned by foreigners and the transfer of property rights to foreigners is prohibited under the threat of null and void.” In this principle, it is emphasized that foreigners cannot own land in Indonesia and only Indonesian citizens can own land in Indonesia. Meanwhile, at the time of marriage, there will automatically be a mixture of assets contained in Article 35 Paragraph 1 of Law No.1 of 1974 concerning Marriage which states that: “Assets acquired during the marriage become joint assets.” Thus, all assets in the form of movable and immovable objects will automatically become collective assets. However, back again to Article 26 Paragraph (2) of Law No. 5 of 1960 concerning Basic Agrarian Principles that foreigners cannot have ownership rights to land, so couples of different nationalities in Indonesia must make a prenuptial agreement to separate their property, especially immovable objects so that the husband/wife Indonesian citizens can purchase immovable property in the form of land, houses, shop houses, office houses, apartment units, and other properties.

Then when should a prenuptial agreement be made? This agreement should be made before the marriage takes place and be registered at the time the marriage takes place.

But what if a couple from different countries before and after marriage have not made a Prenuptial Agreement? Referring to the Decision of the Constitutional Court of the Republic of Indonesia Number: 69 / PUU-XIII / 2015, it is stated that: “A marriage agreement can be made at the time, before it is held (marriage) or while in a marriage bond and both parties with consent – can jointly submit an agreement. written which is legalized by a marriage registrar or notary public, after which the contents also apply to Third Parties as long as the Third Party is involved. ” And in Article 29 Paragraph 1 of Law No.1 of 1974 concerning Marriage which states:” At or before the marriage takes place both parties based on mutual consent may submit a written agreement that is legalized by the marriage registrar, after which the contents also apply to the third party involved.”

Therefore, a Prenuptial Agreement (Marriage Agreement) can be signed after marriage and has the same legal effect as a Prenuptial Agreement signed before marriage.

Prenuptial Agreement on Indonesia

Posted by Dr. Guan Yue on with 0 Comment

Prenuptial Agreement namely agreement made by prospective husband and wife about their marriages, the contents of which depend on the agreement between the two parties provided that it does not conflict with the Law.

According to Indonesian civil law expert Wirjono Prodjodikoro, the word Prenuptial Agreement is defined as a legal relationship regarding property of wealth between two parties, in which one party promises or is considered promising to do something, while the other party has the right to demand the implementation of the agreement. The goal is to protect the assets of each bride and groom where the parties can determine their respective assets.

In general, Prenuptial Agreements are made to separate the assets and debts that are owned by both parties, but in the development of Prenuptial Agreements not only made for the separation of assets, many couples enter questions of interest in the Marriage Agreement. For example, still allowed to pursue his or her hobbies or collect luxury items. Couples can balance each other and remind the family financial stability not to be disturbed.

In principle, the parties determine the contents of the marriage agreement freely to make a deviation from the Indonesian Civil Code’s rules on the union of assets but with the following restrictions:

  1. The agreement may not conflict with decency and legal issues concerning the authentic deeds of public order (Article 139 of the Indonesian Civil Code).
  2. In the Agreement no promises made are deviated from:
    a. Rights arising from the authority of the husband: for example to determine the place of residence or the right of the husband to take care of the union of marital assets;
    b. Rights that arise from the power of parents: for example the right to take care of children’s wealth or children’s education;
    c. Law-determined rights for husband and wife who live the longest: for example being a guardian or appointing a guardian (Article 140 of the Indonesian Civil Code).
  3. There is no promise that contains the release of rights to the inheritance of the people who lowered it (Article 141 of the Indonesian Civil Code).
  4. They should not promise that one party must pay a portion of the debt which is greater than the portion in the union profit (Article 142 of the Indonesian Civil Code).
  5. No promises can be made that their marriage will be governed by foreign law (Article 143 of the Indonesian Civil Code).