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Wednesday, 28 March 2018 07:37

Fathering Illegitimate Child in Indonesia

Fathering illegitimate child can happen when you're in a relationship with your legally wedded spouse. It means you're committing an adulterous relationship. An adultery is a crime in Indonesia under Article 284 of Criminal Code. We called it Delik Aduan, meaning that it's an absolute complaint offence. They can only bring you to justice if your spouse file charges against you. The definition of an adultery is sexual intercourse committed by a married man or a married woman, must be consensual, and either of you are not legally free to marry. Your spouse may file charges against you, but he/she is the only one that may revoke it. 

The child, should you want to keep it, is an out of wedlock child. It means he/she is born out of legal marriage. Under the 1999 Human Rights Law, the child has the rights to know his/her parents, to be nurtured and raised by his/her own parents. So, keeping the child alive is a good choice. It's your flesh and blood. Abortion is the last thing you want to do. So don't do it, for God sake! Don't do the abortion. Do the DNA test. If the child was yours, acknowledge it and proceed with child legalization.

According to the ruling from the Constitutional Court number 466/PUU-VIII/2010 and since the verdict was reached on Feb. 17, 2012, child born out of wedlock has legal relationship not only with its mother and her family, but also with its father and his family. Claims towards the child must be consented by the mother. This must be done before you pursue child legalization. Going further with child legalization requires DNA test, and must be supported by other evidentiary proof to support it.

The birth certificate for a child born out of wedlock has mother's name only. You won't see your name as the father before you're conducting child acknowledgment and child legalization thereafter. When you're taking a DNA test, you need to make sure that the results of the test is being signed by the accredited medical practitioner in the business. You need to make sure no clause that may prevent or lies legal constraint during the proceeding of child legalization.

 

 

In Indonesia, a husband is considered as the bread maker in the family. The Marriage Law considers a wife as a full-time house wife. She's taking care her husband and the children. Your main responsibility is to support your wife and the children financially. Article 34 of the Marriage Law imposed that a husband is obliged to protect his wife and provide all the necessities of living household according to his ability. This condition is also applicable in the event of divorce. Even though your wife is also working, and making more money than you. 

In the even of divorce, the court may determine the spousal support that must be paid by the husband. The spousal support is one of the consequences of getting divorce in Indonesia. So, this is only applicable after the marriage has previously been dissolved by the court. Article 41 (c) of the Marriage Law gives the court the authority to impose financial obligation of the husband in regards to his spousal support payment that must be made to his wife. The ongoing divorce proceedings may not be used as an excuse of not making the daily living support to your wife. This is also applicable to your obligation to your children. You may not be allowed to abandon the children due to the ongoing case in court of law.

Furthermore, for Moslem couples, the Islamic Compilation Law stipulated in Article 80 (2) and (4) that the financial obligation provided by the husband is including but not limited to: 

  1. Spousal maintenance, and marital residence for your wife;
  2. household expenses, medical expenses for your wife and children;
  3. Education expenses for your children.

The stipulation regarding spousal support also imposed by the Civil Code in Article 107 as follows: "The husband is obligated to accommodate his wife in the house that he occupies. He is obligated to protect her, and to provide her with necessities, in accordance with his position and capacity." See? We have complete ruling from all over the place: civil law, Islamic law, and the marriage law. The whole nine yards.

The terms and condition for spousal support is indeed very general, but may be applicable to you in the event you meet the criterias. Basically, it's you who throw the numbers on the table. You need to keep the standard of living that has been maintained during the course of your marriage. In the field of practise, we have two types of spousal support. The short one, and the long one. The first one is as short as three months. The long one is as long as 12 (twelve) months to 24 (twenty four) months. But indeed, you don't have to support her until she remarries. This won't be the case here in Indonesia. 

If you failed to provide spousal support, you are considered comitting domestic violence under 2004 Domestic Violence Act stipulated as follows: "Everyone is prohibited to neglect a person within the scope of his household even though according to the law applicable to him or because of his consent it is obliged to provide life, care, or maintenance to that person." This is the last thing you want. You don't want the court in Indonesia reached the verdict with the figures you can't afford. If she's smart enough, she will use it as a mirror order to nail you wherever you are. It happened once. They were having this proceeding at the South Jakarta Court. The husband thought the court can't touch him because he lives and works in Singapore. The last thing he knew was he was served by the Singapore Supreme Court because of the complaints filed by his wife. So, take my word for it. Face it and get it over with. You need to hire the best in the business. 

On the other hand, in the event your wife left you and the children. She left the house without your consent, the law thinks that she's not entitled to a spousal support. This is applicable according to the Islamic Compilation Law. They called it Nusyuz. It means she is being rebelled, and did not obey her husband. Nevertheless, this does not waive her rights in property division. It doesn't sound fair. I know. This is the sad part of our legal system. A precedence about this issue has been reached by the Supreme Court, and remain valid until now. 

My name is Asep Wijaya. Thank you for reading my posts.

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.

Friday, 02 March 2018 07:41

Child Born Out of Wedlock in Indonesia

Child born out of wedlock in Indonesia has legal relationship with its biological mother and her family only. This principle is reflected on the child's birth certificate. It means the birth certificate of a child born out of legal wedlock cannot include the name of its father. That was ancient regulation before we have a breakthrough from the Constitutional Court. Nowadays, children born out of wedlock has legal relationship with the acclaimed biological father. The claims must be supported with the scientific evidence such as DNA test, among others. 

Article 43 (1) of 1974 Marriage Law has been recently amended to include the biological father as parent of the child born out of wedlock. This ruling was meant to protect the child’s basic right. Just because we recognize the legal relationship between the father and his child born out of wedlock, it doesn’t mean to attack the legal marriage and its legitimate children. The relationship does not automatically entitles the child to the legal rights as if it was born into the legal marriage. Nevertheless, it may be the basis to create "the bridge" between the acclaimed father and the child in regard to the child's rights in claiming child supports, education, inheritance, etc. Well, at least you need to start somewhere, right? 

The legal proceedings under the amended Article 43 (1) of the Marriage Law is very useful for the children born outside of the legal marriage. This is because they can have a birth certificate with complete names of the parents. Both names of the father and mother printed on its birth certificate. This is a milestone to a new world of opportunities for them. This is similar to child legalization proceeding. Without the proceeding, the child may entitle to a birth certificate with mother’s name only. They said our legal system legally bastardizing them. They won't be, as long as you as the father would like to recognize them. It's your flesh and blood anyway. So, give them what they need: the birth certificate with the full names of the parents.

The best thing about this, it does not have to come with the marriage of the parents. Do I mention something about tying the know at some point? No. It's up to you! Sometimes, messy things between the two of you doesn't have to make your "champ" suffers. All you need is to talk to each other, sit down in the same table with your Indonesian lawyer and get the ball rolling. Well, I am not the guy who against the spiritual and emotional bonds like they do have in those married couples. What's important is the father's acknowledgment. It does really matters to your child. What a simplified legal system, huh? We make things simple. It's up to you to keep it simple, or the otherwise. All you have to do is to supply the evidence. This is the most convenient way, considering the absence of your marriage certificate.

Well, let me completely be honest with you. I understand that you may not be able to supply the marriage certificate due to various reasons. You did perform the marriage, but it may not performed properly according to the marriage regulation. It's called unregistered marriage. In Indonesia, some called it "Nikah Siri." Or, you never get marry before and the child conceived out of the adulterous relationship. A marriage is one thing, and a child is another thing. I am not going to cast a stone at you. You don't have to do it if the marriage is not a scenario. So, you can do this proceeding under the Article 43 (1) of the Marriage Law without getting marry first.

I dedicate this article to a Swiss-Indonesian couple whose child born out of wedlock. They got rejected everywhere. At the civil registry. Even at the court. I do understand your frustration. Well, the system is not attacking you. Don't take it personally.  You just have to look further. Good luck, and God speed!

My name is Asep Wijaya. Thank you for reading my posts.

Guardianship of a child in Indonesia is a challenging issues. Not only this is the most important part in family and matrimonial law practice, such as adoption cases, divorce cases, and custody disputes. It also plays substantial role in general civil law, such as how a judge determine a child's guardian in representing him/her in all of her legal affairs. Article 47 of 1974 Marriage Law stipulated that children under 18 years old or have never been married, are under their parent’s authority. The parent represent them in and outside of the court room. The parental authority may be revoked by the court or may also be removed voluntarily and assigned to other individual. Parental authority is the term set-out in the laws in Indonesia. It also known as Child Custody. Different terms but discussing the same thing in common. The terms have a very broad meaning: representing the child inside or outside of the court room. This include the whole legal matters involving the child's life. 

When parent is no longer in the position to perform his/her job, other people, preferably family members may replace them as a guardian of the child. The guardianship of the child may voluntarily appointed by the parent. The person may accept it or he/she may refuse it. Being a parent indeed is not an easy job. So, you're excused if you think you won't be able to do it properly. Child Protection Law of 2002 stipulates that in the event of a parent is absent, or unknown, or for some reasons unable to perform his/her duty and responsibility, the job is transferrable to other family member. A guardian may be appointed to do the job. They must be same blood family up to three degrees upline, such as grand father, grand mother. They can also be three level down line.

The laws further imposed how a guardian must meet criterias. He/she must at least 18 years of age, physically and emotionally healthy, fair, honest and having a good behavior. Other family members must also be supply their opinions about how he/she may be able to perform his/her duty as the child’s guardian. They also have the responsibilty to choose the right guardian because everybody knows everybody. This is the beauty of family emotional bonding.

At Wijaya & Co, we handled cases like this: transferring the children guardianship from their parents to their grand mother. Both of them are busy with their works and the grand mother lives in a different country. The guardianship order serves as an immigration clearance as well that allow the grand mother to have parental rights in regards to the furnihsing of immigration paperworks. She represents the children and have the legal power to decide on the parent’s behalf, as if having someone to trust to take care of your children, legally.

i am Asep Wijaya. Thank you for reading my posts.

The laws in Indonesia legally recognized marital agreement as a contract entered by a husband and wife, either before or during the course of marriage. Having a marital contract, either a prenup or postnup 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 prenuptial agreement(so called “Prenup”) 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. 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 marital agreement prior to your marriage, 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.

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 postnuptial agreement (so called “Postnup”) 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. A Postnup in Indonesia is legal and recognized.  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 is legally recognized and totally can be upheld in the court of law. 

Using a postnuptial agreement 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 this to protect their marital assets, and the laws allow the wife to submit a motion for postnuptial agreement. 

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 an Indonesian postnuptial agreement in order to prevent that from happening, and list your business enterprise as one of your separate assets. 

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 prenup or postnup contract in Indonesia 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." It’s a universal legal terms. 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 without any Indonesian prenup or postnup, 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 prenuptial or postnuptiall agreement may redefines 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.

I am Asep Wijaya. Thank you for visiting my blogs and reading my posts.

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 anywhere in this article nor in this website. 

Wednesday, 27 September 2017 13:29

Dissolving Foreign Marriage in Indonesia

Foreign marriage may be dissolved in Indonesia under very specific terms and conditions that must be met by the couple. This usually happens to couple who live in Indonesia and both of them are expats. If you're experiencing this issue, you need to pay attention to a couple of important legal aspects. First, minimum contact of the spouses in Indonesia. This is to see if the court in Indonesia has jurisdiction. Second, reporting/registration of the foreign marriage. Three, how Indonesian law can rule in your divorce case. Divorce in Indonesia must meet at least one of the legal grounds.  

In order to secure your access to the Indonesia's legal system, you need to have a minimum contact of at least one (1) year. You and your wife must maintain 12 (twelve) months residency before the court in Indonesia may be able to consider your divorce case. Having a child born or school in Indonesia is even better. You have better connection and stronger contact with our legal system. If you're employed by the the company in Indonesia, the chance of getting your marriage dissolved by the court here is even higher. 

Having your marriage performed outside of Indonesia, doesn't mean you have to report or even register your marriage in Indonesia. You or your wife doesn't have to do that. Some laws in Indonesia requires the parties in the marriage to report the marriage to government authorities, but it only applicable in the event one of you is an Indonesian citizen, or both of you are Indonesian. Since both of you are non-Indonesian, the reporting obligation is not applicable to you. Article 56 of the 1974 Marriage Law, it is not for you and your wife. So, don't bother!

Dissolving a marriage in Indonesia, we have the legal grounds to do that. It's not really printed on the Marriage Law. It's in the 1975 Government Regulation. You know, the legal instrument implementing the Marriage Law in more details. You can't have it dissolved by mutual consent. It's not legal here. There are factual situations that must be met with the legal grounds. Your domestic situation at least must meet one of the legal grounds for dissolving a marriage. They have been regulated in the 1975 Government Regulation, which are, in the event one of the parties:

  1. has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;

  2. has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;

  3. has been sentenced to imprisonment for five (5) consecutive years or a longer period;

  4. has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;

  5. has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or

  6. has irreconcilable differences.

You have to present witnesses to the court. Well, at least two. Unfortunately, it's not one of the CSI movies where you can supply scientific evidence, without any single human being taking a stand at the court room. They want a person, in a flesh and blood, supplying information and describing what happened to your marriage. Yes, I know. It's a conventional civil procedures law we have been using for more than one millennium. It's our legal system, and you have to work with it if you want it to dissolve your foreign marriage in Indonesia. You will have to start looking for them. Your witnesses. They can be everyone. Your domestic staffs, colleagues, common friends, and whoever knows anything about your domestic background. They will have to do you a quite simple job: to tell the truth, the whole truth, and nothing but the truth. The most sacred job of being a human, and they will have to do it on a witness bench. The loneliest place on earth.

I am Asep Wijaya. Thank you for visiting my blogs and reading my posts.

The provisions concerning dissolution of marriage and its legal consequences are generally regulated in Marriage Law, which is further stipulated in Government Regulation Number 9 Year 1975 regarding the Implementation of Marriage Law. As for Moslem-married couples, the divorce proceedings are being regulated further according to the Compilation of Islamic Law.

A marriage may be terminated due to several reasons among others death, divorce, and court decisions. A marriage terminated by a divorce may occur due to talak or divorce suits. The last two were regulated under Compilation of Islamic Law. If you're a husband, and you're thinking to divorce your wife, you have a talak right. So you may submit a divorce application to the court in order to set-up a talak hearing. On another hand, if you're a wife, and you're thinking to divorce your husband, you may also file a divorce against him under divorce suit. We call it "Gugatan." Basically, this is pretty much the same thing, and has equal position in front of the law. A talak must be performed in front of the court of law in order to have effect in dissolving your marriage. Otherwise, it won't take legal binding. 

As for talak, it's the divorce oath of a husband before a court session at the Religious Court. The oath is being recited by the husband to his wife, by requesting both verbal and written to the Court in the jurisdiction of the wife in order to request for a court session for the purpose of reciting the divorce oath or talak. The legal term for this is talak divorce application. As a husband, you're the Petitioner, and your wife serves as the Respondent. You see, your titled changed as soon as you file your divorce. You're no longer a loving husband and wife. You're opponents. This is what the law said about it: "Talak is the oath of a husband before a court session in the Religious Court, which is one of the reasons for terminating a marriage..." The law is Article 117 Compilation of Islamic Law. Therefore, with reference to the law, divorce by talak must be conducted in front of the Religious Court. You just can't say "talak" for three times to get divorce. It won't take legal effect in a country like Indonesia. You've got to do it formally by registering a case to a court clerk, and obtain a case number.

The proceeding for divorce, both under talak or under legal suit carried-out by a wife, are the same. They use national Civil Procedures Code, which takes approximately ten sessions. You're looking at five to six months processing time. Both of them are implementing mediation to stall the process. This is imposed by our Supreme Court in order to reduce the number of litigation cases in our court system. Yes, it takes time to get divorce in Indonesia, but when you have a case number, step by step it'll take you there. They implement strict time frame under the principles of simple, costs-effective and speedy trials. Some experts said mediation is not applicable for divorce cases, because you can't stop people for getting divorce. I would say you can. You can give each other a chance. A second chance. A third chance. Whatever. It takes two to tango. The thing is, you have to keep on trying. Never give up. Don't ever quit for your marriage. Because you're only fail when you stop trying. I am Asep Wijaya, writing for Wijaya Law Review. Thank you for reading.

Monday, 04 September 2017 16:03

Legal Age for Getting Marry in Indonesia

Getting marry in Indonesia must meet age requirements as set-out by the prevailing laws and regulations. It is the age where the laws think that you have the capabilities in taking action on your behalf to tie the knot with someone. Performing the marriage legally, requires emotional maturity, and therefore such decision may not be able to be taken by a youngster.  There are many prevailing laws about the minimum legal age for getting marry, but the Marriage Law is the most relevant one, and therefore shall be referred to for such cases.

The Marriage Law stipulates that the minimum age for getting marry is 16 (sixteen) years old for a woman, and 19 (nineteen) years for a man. If you are so young, performing the marriage shall requires the consent from their parents. You don't need any parental consent when you're 21 (twenty one) years old. If you're not old enough, you need to get either a consent from your parents, or get the court of law to approve your marriage. 

We have also Civil Code that stipulates the minimum age for getting marry is 18 (eighteen) for a man, and 15 (fifteen) years of age for a woman. An approval from the President is required when you are younger. Special permission is usually granted under the circumstances such as pregnancy before performing the marriage. 

The other prevailing laws governing minimum legal age to get marry is Islamic Law, and also customary law. But national law refer to the Marriage Law, and is applicable for Indonesian citizen, and all couples getting marry under the laws of the Republic of Indonesia, regardless your nationality. 

Saturday, 19 August 2017 23:17

Property Ownership in Your Marriage

Law  on community property in Indonesia is very simple. It refers to the Article 35 of 1974 Marriage Law that stipulates: “Property acquired during the marriage shall become community property. Separate property of husband and wife acquired as gift or inheritance shall be under each party’s control, as long as the parties did not govern otherwise.” Governing otherwise means both you and your wife sign and entered into any prenuptial agreement.

If you signed a Prenup, that we should take a look at what your Prenup what have to say. The stipulation by the law was pretty simple. How you going to do about it? Dig deeper and see what the court said about it. We call it Precedence. It’s a Supreme Court ruling on issues and shall serve as reference for lower courts in trying similar cases. Some of the verdicts were major breakthrough. Some of them were detailed explanation of what the law had to say about the issue.

The Supreme Court have had categorized Community Property in various verdicts on issues on property in a matrimony. They are as follows:
  1. Property acquired during the marriage.  It doesn’t matter who bought it, husband or wife. It doesn’t matter who holds the property title. As long as it was bought within a legitimate marriage, then it shall be classified as Community Property. This was retrieved from the verdict of Supreme Court number 803K/Sip/1970. Of course, there was an exception when the money to acquire such property came from the proceeds of separate property, or from the saving of each party acquired before the marriage, then the property will be her/his separate property. The exception was retrieved from the verdict number 151K/Sip/1974.What do you need this for? You need this for to determine the definition of separate property while you’re writing your prenuptial agreement, or when you’re drafting your divorce settlement, or when you are in the proceedings of community property division in your divorce case.
  2. Property acquired after divorce financed by community property. Like for example, you and your ex-spouse have money in your joint account. One of the parties dried-up the account, and start making purchases like houses, cars, etc. Those properties are classified as Community Property. Nevertheless, you need to prove that the money comes from the joint account. You need to show a clear flow of the money. You’re bringing the motion, you ought to prove it. The legal doctrine was retrieved from the verdict of the Supreme Court number 803K/Sip/1970.The law in Indonesia can touch that, and you need to make sure that who ever took the money from the joint account can’t get away with it.
  3. Each and every property acquired during the marriage classified as the Community Property. You need to work hard to prove it. Regardless, who the title holder is, as long as you can withdraw a clear line and bring a bunch of evidence to the court that show the flows of the money, supporting documents, then the law can help you. As long as it’s happening during the marriage, the property is your community property. The Supreme Court had this case and took it as the precedence in verdict number 806K/Sip/1974.
  4. Income of husband and wife during the marriage. Their incomes are community property. Even though only one party is working, like for example, husband. In that case, his income shall be classified as community property. This is in line with the spirit when the law maker enacted the 1974 Marriage Law in Indonesia: husband is the bread maker in the family. Wife is the housewife. But things are changed now. We have equal rights. It means we want to be treated equal, right?
Community property is your property together with your spouse, regardless the contribution. Being together in a matrimony is something special. You’re not only focus on “I” or “you” but rather to promote “we” thing. Last night, I sat together with my wife in our living room. She wanted to buy some dining set, and she asked my opinion about it. Well, it is something simple. It wasn’t that expensive. For a second I thought, why don’t you just buy it and tell me about it afterward. I sat closer and pay attention to whatever she had to say about those china dining set. I asked her which one she liked, and we came to the conclusion to which dining set we’re buying. The one she liked, of course. Apart from that, something simple like a dining set can come to a powerful meaning for us to something that we can call: ours.
 
I am Asep Wijaya writing for Wijaya on the Access. Thank you for visiting my blogs, and reading the posts.
Prenuptial agreement in Indonesia requires two registrations. Registration at a district court, and registration at marriage registry. Indonesian legal system divides marriage registry into two. Civil registry for Non-moslem individuals, and Office of Religious Affairs (so called “Kantor Urusan Agama/KUA”) for Moslem individuals. Those two registrations are very crucial as each of them takes effect to the legality of your Indonesian prenup.
 
Legally speaking, those two (2) registrations comes from different source of law. The registration at the marriage registry imposed by the Marriage Law. The law needs the couples to register it with the marriage registry in order to make the agreement legally binding between them, and applicable to each spouse. The 1974 Marriage Law in Article 29(1) stipulates that: “At the time of or before the marriage took place, with the mutual consent of both parties, they may enter into an agreement approved by the Civil Registrar of marriage…” As for the registration at a district court, it is required by the Civil Code. Article 152 of Civil Code states: “No stipulations in the prenuptial agreement which deviate entirely or partially from the provisions regarding legal community property shall apply to third parties, earlier than from the date of copying such stipulations in a public register, which shall be done with the court clerk at the court of justice, within whose legal jurisdiction the marriage was executed.” The idea is to keep the prenup can be upheld and legally binding against other third party. Who’s the third party? It’s the husband and wife. The third party can be anybody beside those two. It can be either the banks they loan money to, it can be either other people that may purchase their properties. So, the two registration are required in order to have a conclusive legal binding prenup.
 
What if, for some reason, your marriage couldn’t be performed and registered in Indonesia. It must be conducted overseas, outside Indonesia. May be the place has sentimental meaning for some individuals. But they may consider Indonesia as the place to get marry in Indonesia if they knew what will happen to their Indonesia prenup if they get marry abroad. Well, registering their marriage overseas might cause their prenup lose one registration, which is registration at a marriage registry. Reporting your overseas marriage is not the same with registering your marriage abroad. On the reporting marriage certificate certifies that it’s not a marriage certificate. It means that your Indonesian prenup cannot be registered the same time you report your foreign marriage at a marriage registry.
 
What does this mean? It means that your prenup is voidable. By whom? By either party in the prenup. By husband or wife. Either you or your wife may submit any motion to the court and ask them to legally annul it. If the motion application for prenup annulment is granted, then your marriage falls under the definition of joint property ownership. The Marriage Law shall applicable to your marriage. When the prenup is cancelled, the “shield” is open, and you’re exposed. This is not good. Therefore, make sure that every formalities required by the prevailing laws are met. I am Asep Wijaya writing for the Wijaya Law Review. Thank you for reading.
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