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What I want My Foreign Partner to Do with Prenuptial Agreement

Monday, 14 October 2019
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Prenuptial agreement in Indonesia is highly recommended for mixed-couples in Indonesia. This is the only way to get around the legal issues exist in your matrimony as imposed by the prevailing laws in Indonesia. What exactly is that? Simple, they don't want foreigners to really own a piece of property in Indonesia. At least, under Hak Milik. It is similar to freehold title that you can keep it for good, no expiry date, and you can inherit it to your children in the event you pass-away.

Literally, they want property ownership for Indonesian citizen only. So, when you're marry to a local partner, and you want your spouse to maintain her/his rights to property ownership in Indonesia, prenup is advisable. Get a good one! Something that could protect you, and not to make you jumpy when you executed it to secure a property purchase. At Wijaya & Co., we always pay the details of our clients' case.

The idea behind a valid prenuptial agreement for mixed-marriage couples is to avoid joint property ownership. Your prenup must promote separation of assets in order to meet the situation required by the Indonesia's Basic Property Law. If you have no prenup, it means there is a joint property ownership in your mixed-marriage. If such thing exists it means that there's foreign ownership in the property. The Indonesian spouse is effected as both the husband and wife co-own the assets. Please contact me to identify the dos and don'ts regarding a valid prenuptial agreement in Indonesia.

When you co-own the assets with your foreign partner, you need to retrieve consent from him/her, which is not possible to get. You need it but he won't be able to give it to you because he is not in the legal position to own a property in Indonesia in the first place. The legal constraints come from the Article 21 of 1960 Basic Agrarian Law stipulates that an Indonesian married to a foreigner is precluded to own a property in Indonesia.

A prenup in Indonesia is governed under contract laws. In order to enter into a valid one, you need to make sure you meet all the requirements for contract eligibility as set-out by Civil Code 1320, as follows:

  1. You must have consent. Both you and your prospective spouse must agree to enter into a prenuptial agreement, and the consent must be voluntary.
  2. Both of you must have capacity to enter into an obligation arise under the prenuptial agreement you're about to sign. Each of you are authorized to conclude agreements, unless you have been declared incompetent by law. The individuals incompetent to conclude agreements are, among others minors, and individual under guardianship. In order to have a competency to sign a contract in Indonesia, you must at least aged 21 years old. You need consent from your parents when you're younger.
  3. Your prenuptial agreement must have as specific subject matter. Furthermore, the law stipulates that only tradable properties may form the subject matter of the agreements. Your prenup is about property ownership such as land, house, apartment, etc. They are immovable property and it is tradable.
  4. Your prenuptial agreement must have a permitted cause. Any agreement without a cause, or concluded pursuant to a fraudulent or prohibited cause, is not be enforceable. 

The contents of your prenup must not include reduction or limitation to several rights of the husband, wife, and the children born into their marriage. Your prenup must not have a clause that limits the authority of a husband. The agreement does not interfere with the rights, which originate from the man, in such capacity, and with the paternal rights, neither will it interfere with the rights which the law has granted to the longest living spouse. They are also entitled to stipulate, that, notwithstanding the legal community property, the immovable assets, the recordings of State debts, other negotiable instruments and indebtedness, attributable to the wife, or those, which, during the course of the marriage, will be added to the community property as her share, will not be transferred or encumbered by her husband without her consent.

Your prenup must not consist a clause that limits the authority as parents. The agreement must not prejudice the rights afforded to the man, as head of the legal union; without prejudice to the rights of the wife to control the management of her movable and immovable assets, and to enjoy her personal income freely.

The rights of a surviving spouse may not be limited. It must not reduce the rights of surviving spouse and the children born into their marriage to inherit the deceased spouse. The prospective spouses, may not in the prenuptial agreement, renounce their legal obligation regarding the inheritance of their descendants. In addition, they cannot regulate the inheritance of their descendants in the prenup. You need to write a separate last will to distribute assets in the even you're pass-away.

You may not to draw-up a clause in your prenup that either party has larger portion in a debt or loan. They may not enter into an agreement to the effect  that one is liable for a larger portion of the joint marital property debts than the other. That just not fair!

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

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