Child born out of wedlock in Indonesia has only legal relationship with its mother, and her family. This situation reflects in the child's birth certificate where you won't see the father's name on it. Without the marriage to the mother, the alleged father will not be able to retrieve custody privilege.
Apart from the marriage, the father may also acknowledge the child in order to create relationship with the child. The father must acknowledge the child as his flesh and blood. According to Article 280 of Civil Code that stipulates the acknowledgement of a natural child creates a civil relationship between that child and his father or mother.
The father's acknowledgement requires consent from the biological mother, otherwise it won't be legal. This is a statutory requirement as set-out by the prevailing laws. So, you know, it takes two to tango!
On another subject, you need to perform a DNA test too. This is to prove the child is yours, scientifically. The evidence that created according to the science and technology, and shall be required by the court in order to legalize the child born out of wedlock in Indonesia. Make sure you get the right version of DNA test, not the otherwise. The court may not accept your application just because you have incorrect test results.
Under the latest enforcement from the Constitutional Court in Indonesia, a marriage is not required to gain custody privilege of a child. You need to acknowledge it only, and get a court approval before your acknowledgment is legal recognized. Participation of the child's mother is required. If you're not in good terms, you need to talk to her and get her to sign the consent papers. You need to make her happy. This is the only way. Courtesy of nine months pregnancy.
We have a lot of portfolio in this case. We have high successful rate in getting legalization of child born out of wedlock in Indonesia. Talk to me or email me. I am happy to help.
My name is Asep Wijaya. Thank you for reading my posts!
Divorce in Indonesia for foreign couples is doable. The terms of foreign divorce refer to the fact that both of the spouses are foreigners, and none of them are an Indonesian citizen. Their marriage was performed and registered outside of territory of the Republic of Indonesia. None of the spouses report the marriage to the authority in Indonesia.
So how can they get divorce in Indonesia? How do they dissolve their marriage? Do they event have any access to the court in Indonesia? Please read on!
You Must Meet a Legal Ground
They may be able to get divorce in Indonesia and dissolve their marriage at a district court. You see, in order to divorce your spouse, you need to meet one of the legal grounds as set-out by the 1974 Marriage Law. You cannot just say that I don't love her anymore and that's it. That's not going to happen here.
You need to convince the court that your marital background history is meeting one of the legal grounds. Remember, you just have to meet one of them. If you think your marriage is rotten enough to have more than one legal grounds, bring it on!
Let me take this from the Government Regulation of 1975 where they imposed the legal grounds to dissolve a marriage in Indonesia. This is where your divorce case must begin. Your Indonesian lawyer must know this because if your case is not meeting them, chances are, it will be rejected. You waste your time and money. Not to mention emotional sacrifices involved in this thing.
There are legal grounds of filing for divorce that have been regulated in the Marriage Law, which are, in the event one of the parties:
has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;
has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;
has been sentenced to imprisonment for five (5) consecutive years or a longer period;
has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;
has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or
has irreconcilable differences.
Let me give you a clue: the last one is the most commonly used here in Indonesia. You fight a lot. You argue anything with your spouse: from financial issues, how you run your life, career, and how you guys choose the color of the bedsheet. Probably. Any tiny issue motivates conflict in your marriage.
You need to submit evidence such as pictures, letters, documents, etc. You name it, they want it. Evidence such as original of your marriage certificate is highly required. This is to prove that a legal marriage is exist according to the laws of the country when it was performed. Remember, we are going to dissolve a marriage. The first you need to do is to convince the court that it is a legal marriage. No legal marriage, no legal divorce.
The same thing goes with the birth of your child. You need to make sure that you can supply birth certificate to prove that a child has born into your legal marriage. Your child's name must be printed together with your names as the parents. It proves the blood relationship in your family.
Two Witnesses are Required
Your Indonesian lawyer needs to establish a strong case. You need to supply at least two (2) witnesses. They must come to the court. They cannot just write something on a piece of paper, and sign it. Forget it!
We need them to take a stand at the court, and informing the judge that you have issues with your marriage. They need to make sure that divorce is the best possible way to the couple. It's quite complicated process indeed. Our country discouraged divorce because we think that you can do something about it to make it works. You should try everything, because you only fail when you quit trying.
Remember, two witnesses or nothing. The more the merrier, the better. But two people who knows anything about your background history is enough. They must experience for themselves. They must see for themselves. They must hear for themselves. No hearsay! The court will take their oats to make it official.
My name is Asep Wijaya. Thank you for reading my posts!
Prenuptial agreement in Indonesia is a marital agreement that signed before the couple enter into a legal marriage. The marital contract is recognized under the laws in Indonesia, both the Marriage Law, and the Civil Code. You can write any content of your prenup as long as subject to law and regulation, religious values, appropriateness values, and morality.
Most people, they treat their assets, both movable and immovable and their own debts as separate property free from claim from the other spouse. Other type of property that falls into this definition are gifts, and inheritance. The prenup serves as the law between husband and wife, and other third party as long as they are relevant thereto.
There are several legal grounds in relation to a prenup in Indonesia. Article 119 of Civil Code and Article 35 of the Marriage Law. Both laws are the very basic legal ground for getting a prenuptial agreement legally incorporated.
Article 119 of Civil Code stipulates as follows: "From the moment of execution of the marriage, it shall arise by law joint marital property between the spouses to the extent that no other stipulations have been made in the pre-nuptial agreement." So, the prenuptial agreement is the specific terms and conditions entered into and executed by the couples before they get married. Without any prenup, their marriage will have joint property regime.
Article 29 of the Marriage Law stipulates that before, on the marriage, or during the marriage, both parties in the marriage may enter into a mutually agreed agreement that also may be applicable to any third parties. It is valid since the beginning of the marriage, unless otherwise specified. During the course of marriage, the prenuptial agreement may not be altered or revoked, unless by mutual consent of both husband and wife.
During the marriage, both husband and wife may have property acquired during the course of their marriage, as well as the property acquired prior to the marriage date. Those property may be regulated within the prenuptial agreement in Indonesia. The properties are the object of the agreement signed by the husband and wife.
Article 35 of the Marriage Law further imposed that the property shall be classified as joint property, and separate property. The joint marital property is the assets that acquired during the course of the marriage of husband and wife. As separate property is the assets acquired or owned before the marriage date, or a gift from any third party or inheritance, shall be under each party's control and therefore free from claim that may be made by the other spouse by reason of their marriage.
As for commingling property, they may combine their assets and form a new property that exist after their marriage. Although this type of property may not favorable, but doing so is possible and the ownership of the parties shall be according to each party's contribution. The capital gain, the increase of the investment during the course of time, is subject to 50:50 You need to expressly specified this term and condition in your prenuptial agreement in order to eliminate any potential conflict. It is also recommended to write any specific details about the assets on your prenup.
Other Terms and Conditions
Your prenup may have other terms and conditions relevant to your marriage. It can be a freedom to manage your assets and liable for your own debts. The freedom to manage your assets and requires no assistance from your spouse is a very important term and condition in the event you are running your own business, posses a hefty assets from previous marriage, have children from any previous relationship, and in the even that both of you are mixed-marriage couple.
Mixed marriage couple is man and woman that have different nationalities and married under the laws of the Republic of Indonesia, or their marriage recognized by the laws in Indonesia. The freedom to manage your assets is very important as the Indonesian spouse will be affected by his/her foreign spouse in owning the property, should they did not have any prenup. With the prenup that give you the freedom to manage your assets, you requires no assistance from your foreign spouse, and therefore the co-siging is not required. Consent to dispose the assets are no longer required and therefore the Indonesian spouse can freely act on his/her behalf. Please contact me should you require any further assistance about this term and condition particularly applicable to you and your spouse.
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.
What is Guardianship?
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 such as property, inheritance, other legal matters such as immigration, passport and visa application, schooling, etc. You practically a parent already, minus motherhood. This slightly easier as it does not involve emotion, but still with the same chemistry.
It Is Transferable
The good news is, the guardianship of a child is transferrable. 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. It is the most beautiful thing and yet the hardest job in the world. 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 transferable to other family member. A guardian may be appointed to do the job. They must be same blood family to three degrees upline, such as grand father, grand mother. They can also be three level down line.
When you live with a child and it's not yours, and the parents of the child are still alive, and they don't live with the child physically, legally you are his/her guardian. Local government may require you to have a guardianship document because legally you are responsible for his/her wellbeing. You need to do this to avoid any potential abduction charges incurred from the local rules and regulations. Therefore, you must qualify for a guardianship in the event one of the child's parents is an Indonesian citizen.
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 required to supply their opinions about how he/she may be able to perform his/her duty as the child’s guardian. They also have the responsibility to choose the right guardian because everybody knows everybody. This is the beauty of family emotional bonding.
It Takes a Village
They said it takes a village to raise a child. Well, I guess they were right. Hillary Clinton once wrote a book with this topic when she was the first lady of the United States. I read a part of it when I was younger. Such as an interesting book indeed! Please contact me if you wish to discuss this issue any further. Not about Hillary's book, but the guardianship issues I mean. I have some successful portfolios that you can use as reference in this field of law.
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 furnishing of immigration paperworks. She represents the child 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.
Child custody in Indonesia is a family issue that may come into subject matter of the court if you're filing for a divorce. This is something normal in relation to the divorce case. Both parents claim that they are the best for the custody of their children. But do they? How the laws in Indonesian govern something like this? Read on!
Nowadays, fathers are getting more engaged in the child upbringing in Indonesia. They take the children to school everyday before they go to work. Fathers read with their children at night, teach them and get involved with their everyday's schooling works. Some of them also take them for taking a bath, feed them and get them dressed decently. You can't ignore this phenomenon. This is happening everywhere. They are doing this because they think fathers can do it too. They can even do it better in getting involved with their child's upbringing in Indonesia.
Just because your wife is working and have a career, it doesn’t mean that she can’t nurture the child. Just because she’s busy with work, it does not mean she may be able to lose custody of a child if a divorce case in session.
Husband and wife are equal in the marriage life. Both of them have the same rights in their career and business. According to Article 31 of Marriage Law imposed that both husband and wife have the rights to earn a living. Even sometime, just sometime, wife’s making more money than her husband.
Custody of a Child
When you’re still married, they called it parental authority. If you’re divorced, they called it custody. Pretty much the same issues. It just in Indonesia, we recognized custody parent, and non-custody parent. But this is in theory as in the law books. There's more to it than meet the eyes. The judges are happy as long as you and the child are happy.
According to Article 105 of Compilation of Islamic Law, child under 12 (twelve) years old, the custody belongs to the mother. For the child above 12, he may choose his custody parent holder. Supreme Court’s ruling number 210/K/AG/1999 imposed that a mother’s privilege for child custody may be revoked if she’s committing apostate and practise other religion beside Islam.
Other Supreme Court’s precedence number 376/PK/Pdt/2011 regarding this matter is also applicable when the female spouse was committing apostate and turned Moslem. Nevertheless, the male spouse was charged with criminal sentence for abandoning their child. So, the judges favor the party with less liability in order to raise the child.
How to Win the Custody
It’s simple: the best interest of the child! That’s the keywords. It does sounds simple, but might not be easy to do it. Many people knows it, but many of them also fail. Getting yourself involved in school with the children, and teaching them with their English reading are a good start. Really good start. Keep up the good work!
You don’t say that you are richer than your spouse and therefore makes you a better parent. You need to prove that you are better because you put the child first. You need to promote yourself, and destroy the credibility of the opposing party. It sounds cruel, but it's a divorce case anyway. The moment you lodged the case to the court, both of you are opponents. No longer husband and wife. After all, you're doing it for the child. You need to to do it in order to win the custody of the child. But hey, remember this: it's not about you. It's about the child. Read my lips, put the child first. Please contact me when you need any further assistance with this issue. We have previous portfolios that you can use as your reference.
My name is Asep Wijaya. Thank you for reading my posts!
Marriage in Indonesia is a choice of legality, simplicity, and hassle-free. The reason I put legality first is because the marriage laws protects your marriage, and a little family you raise. The laws require you to perform the marriage according to your religion belief, and recorded at a marriage registry. You need to understand that Indonesia does not recognize only civil marriage. You need to conduct religious ceremony first, before your marriage is legally recognized. In another words, solemnization first, then civil marriage, then reception party.
Bonafide of Your Marriage
The marriage registry in Indonesia will issue marriage license to both you and your spouse as proof that you are legally married. For Moslem couples, they will receive two marriage books. One original copy for each spouse. The colours of the books are brown, and green. They have the same biographic information, and both of them have your pictures too. As for Non-Moslem couples, you will receive two marriage certificates. Each spouse gets one certificate. Both certificates represents the groom and bride information and their picture together.
The marriage license from Indonesia, both being the marriage book and the marriage certificate are legally recognized worldwide. Major countries like the United States, United Kingdom, China, and some other major European countries recognize and may be able to be used as one of the supporting documents for immigration spousal sponsorship.
Ten (10) Days Waiting Period
In order to obtain legal recognition under the marriage law in Indonesia, you need to allow ten (10) days waiting period. This time frame was meant to give time to the public to recognize you, whether you are legally free to marry or not, You need to meet the marriage requirements in Indonesia, otherwise it is challengable at the court of law. You may face annulment claim by one of the relevant parties. Please see here for further details of how you can avoid your marriage being nullified.
You can perform a marriage in Indonesia with a simple, but yet legal. We cherish a marriage because it is one of the good things in life. If you can show that you are legally free to marry and have no legal impediment why the two of you should wed, our marriage registry will register your marriage and issue a marriage license. One of the most important documents to register your marriage in Indonesia ia Non-Impediment Letter. Some call it Certificate of the Non Impediment ("CNI"). Some event call it Certificate In Lieu of the Non Impediment, because this thing does not exist in a country like Canada. Since they are required to issue one, the issue it anyway.
Please give me a call or drop me an email, should you wish to talk of how I can assist you in any way you need!
My name is Asep Wijaya. Thank you for reading my posts!
Marriage legalization is applicable to Moslem couples in Indonesia. It is to legalize the marriage previously conducted under religious rites, but not legal according to the state law yet. It may be happened for so many reasons like one of the spouse was ready to make a new commitment with you, but he/she was not legally divorce yet. This can be a burden socially to you, your spouse, and your family. So, you decided to performed the religious marriage. Consuming a marriage life like this is the same thing as if cohabitation. It is the life without legal recognition. The marriage laws in Indonesia are not applicable to you, yet. Not until you legalize the marriage.
Having a marriage legalization means you are legally recognizing the marriage previously conducted. Your official marriage date would be the date you performed the marriage. They may issue you a marriage license and the issuing date of the documents may be recent. That's fine, as it is only to show the issuing date of the documents only. When they do that, your marriage to your spouse is legally registered with the registry database. The marriage law, and family law in Indonesia are applicable normally to you, your spouse, and to your children. This is why the marriage legalization in Indonesia means for you, and your family.
The thing is, a marriage only legally recognized when it meets two requirements i.e. it is performed according the couple’s religion affiliation, and it must be registered according to the prevailing laws. Article 7 (1) of Compilation of Islamic Law stipulates that a marriage book issued by the marriage registrar is an evidence of a legal marriage. So, the marriage legalization is applicable to the marriage that does not meet this stipulation. It means you can perform the legalization of marriage for getting your marriage registered and issued a marriage book.
There would be no legal protection for the marriage without any registration. The marriage book itself is an evidence that the marriage exists. The registration is protecting your spouse, and children born into your marriage. You see, the marriage is the very basic foundation in your life. As a father, your name will not appear on your child’s birth certificate. Your spouse may not be able to prevail as your next of kin, nor your children. Your assets may not be distributed according to your wishes, and your family may not receive the benefits of your estate. This is the last thing you want.
Article 7 (2) of Compilation of Islamic Law further states that a marriage legalization application may be lodged to the court in the event you’re unable to prove the marriage with a marriage book. The court responsible for your case may have to cross examine all the evidence you submitted together with the witnesses in this matter. There's no guarantee that the court may approve your application, therefore the attempt to legalize the marriage must be done with enough supporting documents, and compliance to the prevailing procedures with the legal system.
The outcome from the proceeding of the marriage legalization in Indonesia will give your spouse, and your children legal protection. Both of them is legally recognized both their rights and obligations according to the laws in Indonesia. Upon completion of the proceedings, your marriage will be recognized, and the court verdict is the proof of your marriage. It consist of some pages of court decision. It may not be practical, but at least it give you protection you and your family need.
My name is Asep Wijaya. Thank you for reading my posts!
Child legalization in Indonesia is a very important issues. This is the proceeding to legalize the child born outside of a legal marriage. He/she has legal relationship with the mother and her family only. In order to obtain a custody privilege, the alleged father must conduct child legalization. No legal relationship will be established between the father and the child without the consent from the biological mother.
Under the laws in Indonesia, the relationship between the child and the father is not recognized when it comes to the inheritance matters. At least, if you compare it with the legitimate child. The thing is, inheritance is some arrangements that will only be done when you're gone. You don't know whether your assets are being distributed according to your wishes and whether the child entitled to them or not. This is why the legalization of child born out of wedlock in Indonesia really matters, especially if you're from a Non Moslem family.
As you probably aware, the inheritance issues are referred to the person's religion affiliation. We have Compilation of Islamic Law for Moslem families, and Civil Code. Since the issues of child born out of wedlock is very familiar with the civil law, there the law defines the child into three (3) categories as follows:
Civil Code has a very distinctive ruling on inheritance for child born out of wedlock in Indonesia. The law refer the child born out of wedlock as a "natural child." It is comprehensive and detailed. It avoids conflict between the heirs. In the event that the deceased has left legally acknowledged natural children, the inheritance shall be implemented as the following manners: According to the Article 863 and Article 865.
Article 863 stipulated that in the event the deceased has left any legal descendants or a spouse, the natural children is inherit one third of the share, which they would be entitled to if they were legal; they is inherit one half of the estate, if the deceased does not have any descendants, or spouse, but has blood relatives in the ascending line, or brothers and sisters or their descendants; and three quarters if the only remaining family is related in a more distant degree. If the legal heirs of the deceased are related in unequal degrees, the closest relative in one line is stipulate the amount of the share to which the natural child shall be entitled, even with respect to those who are in the other line.
The child born out of wedlock may inherit all the assets in the event his father (the deceased) passed-away without any other legal heir. Article 865 imposed that if the deceased has not left any legal heirs, then the natural children shall be entitled to the entire inheritance.
The above stipulation is not applicable for the child born due to incest, and adultery. The aforementioned stipulations in Article 863 and Article 865 are not applicable to children conceived through adultery or incest. This imposed by the Article 867 of the Civil Code. On another words, the child must be conceived through
As I said, the legalization of the child born out of wedlock is really matter. In fact, it's a big deal. It protects your child from the claims that may be made by other family members. Without the legalization, he only deserve 1/3 of the portion of the legitimate child. You need to do something to protect your flesh and blood. We both know that as parents we want the best for our children, and in this case, the legalization of the child born out of wedlock does really matters.
I am Asep Wijaya. Thank you for reading my posts!
Marriage in Indonesia is a spiritual bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family (household) based on belief to one and only God. We take marriage a very serious matter. We require both religious and civil marriage to be conducted in order to gain legal recognition. The marriage is legal if you perform the religious marriage before the civil one. We have two types of marriage ceremony in Indonesia i.e. Moslem marriage, and Non-Moslem marriage. Both types of ceremony must go through religious marriage. As for Moslem marriage, they don't require civil registration as it is legally recognized.
Getting marry in Indonesia is simple, legal, and hassle-free. We encourage people to marry because we think running a marriage is the same thing as if you're worshiping God. That may be the reason why the require religious marriage comes first before the civil one. Apart from that, there are ten (10) piece of marriage checklist that you must meet with before lodging the notice of intention to get marry. At Wijaya & Co, we always pay attention to details of our client’s case.
Minimum Age to Marry
In September 2019, the Indonesia's parliament passed a bill on revising the 1974 Marriage Law regarding the minimum age to get marry. You must be at least 19 (nineteen) years of age to be able to get marry legally. The minimum age limit applicable both to bride and groom.
You must wait at least 10 (ten) days waiting period in order to perform the marriage. This is to meet the publicity requirement. During this period, the marriage registry will publish the notice of the marriage intention to the public to see the if they have any objection to their marriage. Any objection why the two should not be married must be made within this waiting period. Therefore, speak now or forever hold your peace.
Since Indonesia has two types of marriage ceremony, we have also two marriage registries. Office of Religous Affairs (so called "Kantor Urusan Agama" / KUA) for Moslem couples, and Civil Registry for Non-Moslem couples, such as Christian, Buddhist, Hindu, etc. Your marriage registry must have jurisdiction according to your legal domicile. Your actual residence may not be the same with your legal domicile. Therefore, always check your paperworks before lodging any marriage intention.
Legally Free to Marry
You must legally free to marry to your partner. You must supply a certificate of singlehood, if you're single. Your divorce must be absolute, if you're a divorcee. Your divorce certificate must be surrendered in order to get marry and a marriage license will be presented as your new status. If you're a foreigner, you need to supply a certificate of non-impediment letter. It certifies that you are legally free to marry. It must print your name and the name of your fiance(e).
Bride and Groom
A legal marriage must have a bride and groom to perform the marriage. You must be present during the ceremony. The bride is a female, and the groom must be a male. Indonesia does not recognize same-sex marriage. It is illegal in Indonesia. Straight only!
You must provide at least two (2) witnesses to testify during the marriage. They're must be adult and aged above 19 years of age to be a witnesses. As for Moslem marriage ceremony, the witnesses must be men. They can be either from your family members, common friends, coworker, etc.
You need a marriage guardian to get marry. You need to have his blessing. If you were to marry in Moslem ceremony, the marriage guardian must meet certain requirements. The guardian is the bride's biological father. If he passed-away, her grand father must replace his place. If both of them are gone, you need her biological brother from the paternity line to replace both of them and perform the ritual of marriage.
It is highly recommended to sign a prenuptial agreement before the marriage. It is very useful to secure your financial interests in order to protect your family future from unwanted business risks, preclusion to own property in Indonesia for mixed-marriage couples, etc. Please contact me for further information regarding the prenuptial agreement. Our prenup is the best product in the market. It protects you and your family future.
The dowry is a present you give to the bride for accepting the marriage to you. The presents usually in the form of jewellery, such bracelet, necklace, etc. This symbolize the bond of the marriage between the two persons.
You need to celebrate the marriage with at least a small feast. It is advisable to provide at least snacks and drinks to people who come to your wedding.
Those are the ten pieces of marriage checklist that must exist in your marriage in Indonesia. As I told you, we take marriage very serious. One item missing from your marriage proceedings may cause you marriage challengeable.
I am Asep Wijaya. Thank you fo reading my posts!
Prenuptial agreement in Indonesia is an agreement you sign with your partner before performing the marriage. The date when you execute it must shows clearly that it is being entered on or before the legal marriage date. I have reason to believe that your legal marriage date may be different than the solemnization date. It because the marriage in Indonesia is considered legal when you perform the religious marriage prior the civil ceremony, unless of course, if you were married in Moslem rites. The latter requires no civil marriage registration. So, the prenuptial agreement must be entered into before the date of the civil marriage, the legal one.
Prenup: The Beginning
Let’s have a look what the law said about it in Article 119 of Civil Code stipulates that from the moment of execution of the marriage, it shall arise by law joint marital property between the spouses to the extent that no other stipulations have been made in the pre-nuptial agreement. There you go, the prenuptial agreement must be executed before the marriage. Beside, if you did not sign any prenup, you will have joint property ownership. This condition is preventing your Indonesian spouse to keep owning a property after she/he married to you.
The validity of a prenup begins when you and your partner sign it and register it with the marriage registry. The laws said it is valid when the officer at the marriage registry is to legaize the prenup. So, they are actively legalising the document. While in fact, they are only conducting registration of the prenup together with the registry of your marriage. This is extremely important because this action giving you a legal recognition to make the prenup valid between you and your spouse. Without this, your marital agreement is nothing but worthless piece of paper. It has no legal effect and won't do any good for your mixed-marriage life in owning a property in Indonesia. The registration of the prenup applicable to all the marriages performed and registered under the laws of the Republic of Indonesia, in accordance with the Circular Letter of Civil Registry Directorate General number 472.2/2017 for Non-Moslem, and Circular Letter of Ministry of Religion Number B.2674/DJ.III/KW.00/9/2017 for Moslem couples.
I am an old-fashioned guy, so I would recommend to register the prenup with a district court. This is to make your prenup valid legally against third party. Your property ownership involves other third party such as the government, banks, creditors, etc. The publicity requirement is met when you're registering the prenup with a court. Please refer to Article 152 of Civil Code that states: "No stipulation in the prenuptial agreement which deviate entirely or partially from the provision 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 those legal jurisdiction the marriage was executed."
One item missing in your prenup might cause it challengeable. This can be a potential loophole you don't want to miss. At Wijaya & Co, we always pay attention to details of our client’s case. You better have an umbrella when it does not rain, instead of you don't have one and it gets rain. Indeed, it won't stop the rain, but at least it will make you stand in the rain.
Which Prenup is for You?
In the event you are a foreigner planning to marry to an Indonesian, the prenup have certain issues that must be addressed to. First, we have many types of the prenup, You need to get the right one. Failure to do so will affect the ability of property ownership in your mixed marriage. You need to get a prenup with total separation of property. This is applicable to both the assets and debts of the couple. Don't use the one that suggesting joint property ownership. This one is the last thing you need. They have an old Dutch term for this: "Gronds verponding verbood." Forgive my rusty Dutch. The idea of having this type of prenup is because the laws forbid foreigners to own lands in Indonesia. Article 26 (3) of Basic Agrarian Law imposed that in the event by marriage, inheritance, or by any other means she/he loses the citizenship of Indonesia, he/she must transfer the title of the land to other third party or the state will take possession. Please contact me should you wish to draw-up a more suitable prenuptial agreement that just right for you!
In terms of mixed-marriage, I would say the above situation only applicable if you marry to a foreigner and your status in owning the property is legally affected by your foreign spouse. Since the property falls into the definition of joint property, both of you co-own the assets and therefore require consent from each other. This is not good. In any way, the consent may not be retrieved because the foreigner is not in the legal position to own the property in the first place. The ideal situation is no consent is required from either party to execute any property transaction. Either party is independently to act on his/her behalf. The idea is to keep the land with the Indonesian only.
The Assets Transfer
Second, legal constraints as set-out by Article 21 of Basic Agrarian Law certified that an Indonesian is precluded to own a freehold title after she married to you as a foreigner, without any prenup. In the event, the Indonesian spouse passes-away, you may keep the property for 12 (twelve) months. Unless, if you transfer the title to other Indonesian. Transfer means you can sell it, give it away or inherit to your child, provided she/he is an Indonesian, of course. Standard tax rate is applicable for this transaction.
You can also to downgrade the title from Hak Milik (freehold title) to Hak Pakai (Leasehold). It valids for twenty years or so. You can renew it after. This can be the smart solution if you want to keep the property for quite a while. Until you know what to figure out next.
Next of Kin
The third one, you should consider the inheritance to you next of kin. Inheritance issues in Indonesia are referred to a person’s religious affiliation. If you were in Moslem family, the people in layer one, the next of kin in the event one passes-away, are very crowded. If you want the assets distributed to just the surviving spouse and the children, and prevent the other extended families to even touch them, you should consider a last will. Seriously.
You can specify your spouse as an administrator of your assets after you're gone. You can also nominate the other person, like your sister acting as one of the other administrator, should your surviving spouse is not available or is not able to execute your last will. This is what we called estate planning. This has to be done correctly and with the right way. Please contact me should you wish to discuss any further about this. You can drop me an email or give me a call to have a free assessment of how can you move forward with the solution available for you.
My name is Asep Wijaya. Thank you for reading my posts!