Intestacy and Family Feuds are Squeezed by an Affidavit of Foreign Law in Indonesia

Have you ever wondered what happens when someone passes away without leaving a will? 

If you’re like me, you might imagine a scene straight out of a soap opera: relatives arguing, confusion over who gets what, and a family torn apart by disputes. 

In Indonesia, this situation called “intestacy,” can indeed lead to family feuds. But did you know that an affidavit of foreign law can help squeeze out much of this drama, especially when international elements are involved? 

Let’s explore how Indonesian law tackles intestacy, the potential for family conflict, and how an affidavit of foreign law can bring clarity and peace.

Understanding Intestacy in Indonesia

First, let’s break down what intestacy means. 

When someone dies without a valid will, their estate is distributed according to the rules of intestate succession. 

In Indonesia, these rules are primarily found in the Civil Code (Kitab Undang-Undang Hukum Perdata or KUHPerdata), the 1974 Marriage Law (Undang-Undang No. 1 Tahun 1974 tentang Perkawinan), and for Muslims, the Islamic Compilation Law (Kompilasi Hukum Islam or KHI).

The Civil Code: Who Gets What?

If you were to pass away without a will, the Civil Code would step in to decide who inherits your assets. The Civil Code divides heirs into several classes:

1. Descendants and spouse (children, grandchildren, and surviving spouse)
2. Ascendants and siblings (parents, siblings)
3. Other relatives (uncles, aunts, cousins)
4. The State (if there are no relatives)

The order is strict: if there are heirs in the first class, those in the second and third classes are excluded. The spouse and children share the inheritance equally. For example, if you have a spouse and two children, each gets one-third.

The 1974 Marriage Law: Protecting Spouses and Children

The 1974 Marriage Law adds another layer. It emphasizes the principle of joint property (harta bersama) acquired during marriage. If you are married, everything we earn together is considered joint property, unless otherwise agreed. Upon death, half of the joint property belongs to the surviving spouse, and the other half is distributed according to inheritance rules.

This law also recognizes customary and religious inheritance laws. So, if you’re Muslim, the Islamic Compilation Law may apply.

Islamic Compilation Law: The Muslim Perspective

For Muslims, the Islamic Compilation Law (KHI) governs inheritance. The KHI follows Islamic principles, where heirs are clearly defined and shares are fixed. For example, a son receives twice the share of a daughter, and parents, spouses, and children are all entitled to specific portions.

The KHI also recognizes the concept of Wasiat Wajibah (mandatory bequest), ensuring that adopted children or stepchildren can receive a portion of the estate, even if not explicitly mentioned in a will.

Family Feuds: Why Do They Happen?

Now, let’s talk about the elephant in the room: family feuds. Why do they happen so often in cases of intestacy?

1. Unclear Heir Status. Sometimes, it’s not clear who qualifies as an heir, especially in blended families or when there are children from different marriages.
2. Disputes Over Property. Joint property, separate property, and assets located abroad can create confusion.
3. Cultural Differences.  In Indonesia, different ethnic groups have their own customary inheritance rules, which can clash with national laws.
4. International Elements. If the deceased had assets or family members abroad, or was married to a foreigner, things get even more complicated.

These issues can turn a time of mourning into a battleground. But there’s a legal tool that can help: the affidavit of foreign law.

The Affidavit of Foreign Law: Squeezing Out the Drama

So, what is an affidavit of foreign law? 

Simply put, it’s a sworn statement by a legal expert like Wijaya & Co explaining how foreign law applies to a particular situation. In Indonesia, this is especially useful when the deceased or their heirs have connections to another country, say, dual citizenship, foreign marriage, or overseas assets.

Why Is It Important?

Imagine you’re the child of an Indonesian father and a Dutch mother. Your father passes away, leaving property in both Indonesia, Singapore and the Netherlands. Which law applies? Indonesian? Dutch? Singapore? Without clear guidance, family members might argue endlessly.

An affidavit of foreign law provides clarity. It explains, for example, how Indonesian inheritance law works, how it interacts with Singapore law, and what the likely outcome should be. Foreign courts often require such affidavits when foreign elements are involved, to ensure a fair and lawful distribution.

Legal Grounds for Using an Affidavit

Indonesian courts recognize the need to apply foreign law in certain cases, especially under Article 16 of the Algemene Bepalingen van Wetgeving voor Indonesië (AB), which states that inheritance is governed by the national law of the deceased. If the deceased was a foreign national, their home country’s law may apply to their estate in Indonesia.

The Civil Code also allows for the application of foreign law in certain circumstances, especially when it comes to international marriages and property. The 1974 Marriage Law recognizes marriages conducted abroad, and the KHI can be relevant if the deceased was Muslim, even if they lived overseas.

How Does It Work in Practice?

Let’s say you’re facing a family feud over an inheritance with international aspects. Here’s how an affidavit of foreign law can help:

1. Hire a Legal Expert. You or your lawyer hires a legal expert familiar with the relevant foreign law, like Wijaya & Co.
2. Prepare the Affidavit. The expert at Wijaya & Co prepares a detailed affidavit explaining how the foreign law applies to the inheritance.
3. Submit to Court. The affidavit is submitted to the foreign court handling the estate.
4. Court Decision. The court considers the affidavit, alongside Indonesian law, to make a fair decision.

This process can help prevent misunderstandings, reduce conflict, and ensure everyone gets their fair share.

Conclusion: Peace of Mind for You and Your Loved Ones

Intestacy can be a source of stress and conflict for families in Indonesia, especially when international elements are involved. But by understanding the legal framework, the Civil Code, 1974 Marriage Law, and Islamic Compilation Law, and using tools like the affidavit of foreign law, youcan help squeeze out the drama and bring peace to your families.

So, if you ever find yourself in this situation, remember: knowledge is power, and the right legal tools can make all the difference. Let’s keep our families united, even in the face of loss.

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