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Asep Wijaya

Asep Wijaya

Postnuptial agreement is legally recognized in Indonesia. It is a legal instrument from the decision of the Constitutional Court. It's quite a breakthrough but it has some prerequisite requirements in order to be valid. Some of them must come from you as the parties of the contract. Some come from the contract itself, including the formalities from the government institution supervising the proceeding.

You Must be a Husband and Wife

Postnuptial agreement in Indonesia is an agreement signed by a husband and a wife after their legal marriage. The marriage must be properly registered at a registry, such as civil registry, if they were married in Non Moslem, or Office of Religious Affairs (so called "KUA"), if they were a Moslem couple. This is related to one of the legal requirements imposed by the laws in getting a recognised post-marital agreement.

You must be a legally-wedded husband and wife in order to sign a postnuptial agreement. The marriage must have been performed, both the civil marriage and the religious ceremony. In Indonesia, you can't have a civil marriage  without performing religious ceremony. So, both of them must be completed before the postnup is being signed. Therefore, you must be able to present the marriage certificate/book for processing the postnup.

Dual Language

The draft of your postnup is available in Indonesian language. An English translation may be provided for mutual understanding. But the version with the legal precedent is the Indonesian. A good postnup certifies this situation in order to give you an informed consent before you said OK to this.

Your legal expert must offer a dual language questionnaire to gather all the required input from you and your wife of what should be included into your postnuptial agreement. Many legal aspects in your marriage that you can't afford to left behind. Therefore, a questionnaire is crucial. At Wijaya & Co, we offer our clients with a questionnaire in order to give you any idea what's your postnup is about.

From Joint to Separation

The regime of property ownership in your postnup will be changed drastically, from joint ownership to total separation. Each spouse will have independent control of his/her own property. This will take effect since the date you signed the postnup. Therefore, each property belongs to each spouse, and they require no assistance from the other. This is a favourable situation when the two of you are a mixed-marriage couple.

This regime will allow the Indonesian spouse to maintain his/her ownership in any immovable property located in Indonesia. Without this situation, she/he will be precluded to own a property under Hak Milik (Freehold Title), let alone to dispose it. If you need a bank's loan to finance the purchase of your assets, chances are they may not be able to offer you one. Many of our clients experience this constraint. A successful application was made after a good and legally recognized postnuptial agreement is incorporated with us.

What If You Can't Come to Indonesia

The Covid-19 pandemic forbids you to travel to Indonesia. You can't come down here to sign the postnup, both you and your spouse. In that case, you need to make sure if the country you live in has diplomatic relationship with Indonesia. If they do have an embassy or a consulate there, you can take the postnup to the embassy/consulate, and get your signatures attested by the consular officers.

We'll take it from there!

Court-Approved

I always advise my clients to get a court approval to their postnup contract. You see, the postnup is changing the situation, from joint to separation of property. This is changing of legal situation. The only thing that can do this is a court of law. The process may take a little bit longer. It may costs you a little bit. But, this is going to be the strongest legal instrument you ever make in terms of your property protection in Indonesia. 

You need to consider this if you own quite significant assets or planning to buy an assets based on the postnuptial agreement. Make sure you have strong legal basis in order to move forward ahead. If you're in this situation, I strongly suggest you get one of this type of postnuptial agreement. Please call me or email me if you need any further information or requires any assistance with this.

My name is Asep Wijaya. Thank you for reading!

A guardian is a person or legal entity that perform the duty of child custody as a parent toward a child. He/she is entitled to represent it in or outside the court. The idea of having a guardian is to protect the child rights and to fulfil their basic necessities as well as to manage their assets to the best interests of the child. 

The Subject

The legal age in Indonesia is 18 years old. Any child under that age is under a guardianship of its parents or guardian. In the event its parents are unable to take that responsibility, any other party may step forward in carrying the job. Other family members may be able to replace the parents's job by meeting certain criteria. 

Article 50 (1) of the Marriage Law imposed that children who are not under the age of 18 or have never entered into a marriage, that are not under the authority of the parents, are under the authority of a guardian. The guardianship concerning the child's private matter and its property. Furthermore, the guardian has the responsibility in taking care the child as well as its property at his best by respecting the child's religion and belief. 

Are You Qualified?

Furthermore, according to the Procedures of Guardian Appointment of 2019, you may be a guardian of a child only if you meet the following capacity:

  1. Family of the child;
  2. Relatives;
  3. Other parties; or 
  4. Legal entities. 

The above parties can only become the guardian in the event the parents of the child are not longer available to do the job, their whereabout is unknown, or due to any specific reason they are unable to perform their duties. Those parties may step forward in the event the case meet the above situation.

The family of the child shall become the first priority to be appointed as the guardian. In this case, the family shall refer to as the smallest unit in society consisting of husband and wife, or husband and wife and children, or father and child, or mother and child, or blood relatives in a straight line up or down to the third degree. The relatives of the child may replace child's family in the event they are not willing to take the job, unknown, or they are not qualified as a family of the child. The same way goes to the next party.

Required Consent

The consent required is from the Social Ministry in the form of a recommendation. This requirement is similar when you're conducting an adoption application. The social worker will perform assessment to the person or legal entity being appointed to become a guardian. 

This may be the bottleneck in application for the guardianship at the court. But it may be a new standard operating procedures to monitor the duties of guardians. The state presence is reflecting in reviewing, and supervising the duties performed by the guardian. Regular reports and updates serve as the monitoring instrument in conducting the guardianship duties.

The End of It

The guardianship end when your case meet the following situation:

  1. The child reaches the age of 18;
  2. The child passes-away;
  3. The guardian passes-away;
  4. The legal entity guardianship files for bankruptcy.

 Your authority as the guardian, may also be revoked by the court. The revocation is due to the situation as follows:

  1. Neglecting your obligations as a guardian. As a guardian, your authority may be revoked if you're neglecting the child under your care;
  2. You're incompetent in performing any legal action. The incompetency must be reviewed by the court and an application must be submitted so they are able to reconsider your position as a guardian. This is a big case. You need to make sure you have enough evidence to turn back the ruling;
  3. Abusing your authority as a guardian. This has something to do with the management of the child's assets. This is a serious violation. They may not be able to revoke you as the guardian, but may also file complaint against you;
  4. Committing acts of violence against children under his/her care. Conducting duties as a guardian is not easy. This is similar with becoming a parent. They said it's the hardest job you'll ever love. But do you? 
  5. Parents are considered able to carry-out the obligation. When the child's parents are back on their feet and able to do the their jobs, the guardianship may be revoked and the court return the authority to them. 

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

If you think divorce is the best possible solution for you, many things that should be included into a consideration. In Indonesia, you need to determine court jurisdiction responsible to dissolve a marriage. We have two courts here i.e. district court, and religious court. You file your divorce application at a district court if you're married in Non Moslem ceremonies. Application for your divorce should be filed at the religious court, if you're married in Moslem ceremony. 

Talaq or Divorce Application

Article 38 of Marriage Law imposed that a marriage can be dissolved due to death, divorce and a court decree. As for Moslem couples, a marriage dissolution via divorce can be done with Talaq or divorce application. They are the same. One of a kind. It consists about your marital situation that can lead the judge to dissolve your marriage. The only difference is the first one filed by a husband. The latter lodged by a wife.

Remember, this is for the couples married in Moslem ceremony. Talaq is an oral statement in front of the presiding judges. Your submission of divorce for talaq application must be supported with valid reasons why the court may dissolve your marriage. They must also meet legal requirements in divorce application, both in general rules or religious court procedures.

Legal Grounds for Divorce

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:

  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.

Your situation must meet one of the above legal grounds. Otherwise, they will throw your case and deny your application. You only have one shot bite at the apple! Just make it count.

Indonesia's Supreme Court ruled that every divorce-related case must go through any mediation. It's like a last call before you decide to give a go to your divorce. They will want you to come and meet a court-appointed mediator. This is a-must-go session. They will be asking questions why you want to dissolve your marriage in a first place. It's not everyone's favourite moments, but you have to be there just once. After that they will call it a day.

Evidence

The court would require you to submit evidence that there is indeed a situation where your marriage meets a legal ground to get divorce. Our law would require you to submit documents as well as witnesses in the same time.

They must support your divorce application. First, you need to be able to submit a marriage certificate, birth certificate of your children, and some other background information about your marriage. Second, you must have witnesses. They must come to the court, and take a stand in the court room. 

Divorce Verdict

When the court reached the verdict, a divorce application made by a wife will legally binding within 14 days. As for the talaq application made by a husband, it will not be so within give time. Not until you as a husband show-up to the court and perform the talaq statement. You will have repeat after the judge. Before that, you have to make sure you paid the spousal support to the court for your ex-wife. Otherwise, you can't perform the talaq ceremony.

Your marriage dissolution becomes legally binding after you conducted the talaq statement. Within approximately 14 days. They will issue a court decree regarding your divorce. Failure to do so, the divorce decree made upon your talaq application is void. The divorce is not valid, and you're stilll legally married to your wife. You will have to do it again.

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

A testament in Indonesia is the right instrument to reflect your last will about your assets, and other things that you want your successor to do for you. This is a very serious business as you need to make sure the person you trust as your administrator to execute those wishes after you're gone. 

In order to valid legally, you need to make sure your last will is being written in a recognized testament. You should know that according to the Indonesian laws on inheritance, anything you own while you are alive belongs to your heir, as long as you have not made any withstanding legal stipulation. Some terms and conditions are applicable in order to create the last will that works for you, not against you. 

One Testament for One Person

You and your spouse may have the same thing in mind. You love each other, spend your lives together, and think that it's now to pass everything to your loved ones. Both of you are thinking to write a last will to make sure they are getting everything after you passed-away.

It's a good idea! But you've got do it on a separate testament. Just because you're a husband and wife, you can't do it on the same document. You have to do it on a different deed. It's a last will, not a prenup.

Our Civil Code imposed the stipulation in Article 930: "A last will cannot be made by two or more individuals in one deed, whether it is in favor of a third party, mutual or reciprocal arrangement."

Types of Last Will

Your last will can be made by holographic. It means you can write it with your hand. It is a handwritten and testator-signed document. It is recognized in Indonesia, but it must be drawn-up with a deed of safekeeping. As the testator you must sign it at the bottom of your last will. It must also be signed in front of the two witnesses.  

With the deed of safekeeping, such holographic last will have the same validity as a last will made by official deed, without having regard to the noted date on the last will. At all times, you may reclaim your holographic testament. It is then shall be regarded as revocation of your last will.Even though Indonesian laws on inheritance recognized this type of testament, nevertheless, I would suggest you to make time to draw-up a formally-drafted deed.

Your last will can also be made by official deed. It shall be executed in the presence of two witnesses. The deed must be signed by you as the testator, and his/her witnesses. If you're intend to make a private or confidential statement, you are required to put your signature beside each of your stipulations, either written by yourself, or those that were written by somebody else.

Criteria of the Witnesses

In order to write your last will, you need to have two witnesses present. This is mandatory requirement as imposed by all inheritance laws in Indonesia. The primary criteria to serve as witness that they must present at the time that last wills are made, shall be of age, and shall be resident in Indonesia. 

Another criterias for serving as witness that you must meet capacities set-out by the law. No heirs, legatees, nor their blood relatives or relatives by marriage up to and including the fourth degree, nor their children or grandchildren, nor blood relatives in the same degree,  shall be permitted to be witnesses of a last will, made in the form of an official deed.

Last Will During Pandemic

Last will creating during pandemic where all relations have been prohibited due to plagues or other contagious diseases, can make their last will in the present of two witnesses. You as the testator must sign it in front of the witnesses.

In the event the testator or one of the witnesses declares that he is unable to write or has been prevented from signing, then such declaration including the cause of the impediment shall be expressly referred to in the deed. All the circumstances, which have resulted in the last will being made shall be stated in the deed.

The last wills shall be invalid, if the testator dies six months after the circumstances which resulted in the wills being drawn up in such a format no longer exist.  The last will shall be invalid, in the event that the testator dies six months after the date of the deed.

The formalities of the last will must be carefully observed in order to meet the stipulation according to the inheritance law. If you fail to do so, will render them invalid. 

Testamentary Gift

In Indonesia, we recognized this as "Hibah Wasiat." It is a special testament, under which the testator bestows onto one or more persons his properties of a certain kind, for example, all of his properties, movable or immovable, or the usufruct rights over the entire or part of his estate.

Each recipient of the testamentary gift must claim the transfer of the gifted properties against the successor or the testament recipient, who must transfer such properties. All taxes, under whatever name, payable to the state for each gift, is borne by the recipient unless otherwise stated in the testament.

Revocation and Expiration 

A last will cannot, either in its entirety or partly, be revoked in any manner other than by a subsequent last will, in which the testator declares the full or partial revocation of his earlier last will.

The revocation, either express, or implied, in a subsequent last will, shall be fully enforceable, notwithstanding that the subsequent deed is rendered invalid due to the incompetence of the nominated heir or legatee, or by their refusal to accept the inheritance.

Executor and Administrator

A testator, may, by last will, appoint one or more executors of his last will. He may also nominate several individuals, to succeed one another in the event of unavailability. They have very important jobs to make the last will properly implemented. 

The executors of a last will is to seal the inheritance. In the event that the heirs are minors under conservatorship, who, at the death of the testator have not been provided with guardians or conservators, or in the event that such heirs are not represented or are not present in person.

They prepare an estate description of the properties in the inheritance, in the presence of the heirs following the proper summons of those who reside within Indonesia. They ensure that the last will of the deceased shall be implemented. In the event of dispute, they can appear in court to maintain the validity of the last will.

The executors of last wills, including the administrator, may be discharged for the same reasons applicable to discharge of guardians. 

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

Origin of a child in Indonesia is a procedure to legalize your offspring and you through a strict legal mechanism in order to recognize the child legally. This is the procedures that protected by our 1945 Constitution as imposed on Article 28B (2): "Every child has the right of survival, growth, and development, participating and entitled to protection from violence and discrimination as well as civil rights and freedoms."

The implementation of the constitutional protection for the child is with the Child Protection Law of 2014 stipulates that the child has the right to know its parents. If you were married in a legal and recognized way, the child will not be having difficulties to access its rights under the laws. Nevertheless, if you were not legally married, the child will have problems in recognizing its rights and their access will be denied.

Before we go further in getting to review the offspring origin within Indonesia's legal system, you need to identify the type of child status according to our prevailing laws and regulation, as follows:

Legitimate Child

Article 42 of 1974 Marriage Law stipulates that a legitimate child is a child born within or as a result of a legitimate marriage. A legitimate child can also be born of the results of both spouses actions outside of his wife's womb.

The latter is pretty advanced ruling as this may be interpreted to include babies born using an artificial uterus or womb or even through a surrogate mother. Although, the last one is not considered legal yet according to the health regulation in Indonesia.

I am here not to discuss methods of how babies are born. That's not really my department. I am putting those mechanism just to bring those to your attention that such things exist and what the laws think about it.

Let's carry on!

Child Born Out of Legal Marriage

According to the decision from the Constitutional Court number 46/PUU-VIII/2010 dated 17 February 2012 on the amendment of 1974 Marriage Law especially Article 43 (1) imposed that a child born out of wedlock has civil law relationship with its mother and her family as well as with the alleged man as the father to the extent of the scientific evidence and/or other evidence according to the laws have blood relationship, including civil relationship with his family.

According to the records of the court, the marriage of the parent was not registered or recorded. It means, the marriage was not legal. But previous marriage has been conducted but did not performed legally according to the Marriage. Therefore, the couple did not receive any marriage book or marriage certificate. 

As for the evidence, you need to supply DNA test that shows you are not excluded as the biological father. It must shows 99.99%. Well, you can put as many as "number 9" on the results. It just give you more bonafidity as the alleged father. So, the more "number 9" on the DNA certificate, the better.

Child Born of Adulterous Relationship

The relationship between the woman and the man who got her pregnant is without any marriage. The child has no legal relationship with the father and his family. Its only has relationship with its mother and her family. Therefore, the child is not able to inherit from its father, nor its can inherit to its father.

On the other hand, the man who got its mother pregnant has legal obligation in supporting the child financially, and to facilitate the child to inherit from his own last will.

In the event the woman is in marital relationship with her husband, and the man who got her pregnant claims the child as his, the law imposed that the child belongs to the woman's husband. Unless, if he denies the child. He may file an application to the court to deny the child and declare the child born of its mother's adulterous relationship.

Those three types of child legal status determine your situation and its level of difficulties in working with the legal system. I am not to say that one child may be better than the other. They have every rights to be legally protected, and the protection starts when you are there as their parents to support them, to feed them, to nurture them, to educate them, to teach them to get back on their feet after they felt, and to teach them to stand on their own.

You know, all the things a father would do for his child. 

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

We take marriage very serious in Indonesia. You need to meet certain requirements, terms and conditions in order to get legally married. Once you have been issued a marriage certificate, or a marriage book for Moslem couples, your marriage is legally recognized. The terms and conditions for a person to get legally married in Indonesia are, among others:

  1. Consents by both parties; bride and groom;
  2. They must be aged 21 years. They must obtain parents' approval, or either parent if one of them has passed-away, or from their guardian in the even both of them have passed-away.

Consents by both parties are required in order to avoid forced-marriage, or arranged marriage. Both bride and groom must love each other without any force to enter into a matrimony. This is in accordance with our philosophy that marriage 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. This aim most likely will not be met without consents of both parties.

The idea of having the couples aged 21 years old to get married without parents' consent, among others, is to have matured spouses in the matrimony as it requires emotional as well as physical efforts. 

The Applicant 

If you think a marriage does not meet the above terms and conditions, you may file a cancellation to the court of law. An application may be submitted to the court with a jurisdiction as governed by the 1974 Marriage Law. In order to file an annulment application, you must be either:

  1. You are one of the parties in the marriage, either wife or husband;
  2. You are the parents of the groom or the bride;
  3. You are the authorized officer as governed by the Marriage Law;
  4. Any party related with legal interest to the marriage. This can be, among others, a wife whose husband is getting married again without her approval for committing bigamy.

You need to pay attention to the time frame for filing the annulment with the ground that the marriage conducted under a threat. You have only six  (6) months to file for the annulment application to the court. After that, the law will see you accept the situation, and annulment is no longer the case. 

Legal Consequences

The marriage annulment will not take affect to your children's legal status. They are legitimate one, and therefore shall have the legal relationship with their father. The rights and obligations within parental relationship are still in place even the marriage has been canceled. 

As for the property, since the marriage declared annulled and therefore it's not legally recognized since day one, the property division is not applicable between the husband and wife that is not legally free to marry. This may happen especially when the previous marriage still exists and is not yet to be dissolved.

Key Take-away

Marriage annulment has many aspects to meet. Failure to do so will make the court reject your application. Instead of filing for the annulment, I would suggest you to go with a divorce application. You have more leeways and options in pursuing your goals. We have one legal ground that commonly used in the field of practice i.e. irreconcilable differences. 

I am Asep Wijaya. Thank you for reading my blogs!

Postnuptial agreement  is another marital contract recognized under the laws and regulation in the Republic of Indonesia. It is a contract entered into by husband and wife within the course of their marriage. It is not valid retroactively and only applicable to property acquired after the contract legally executed.

As to other contracts under the legal system in Indonesia, both Article 1320 and 1338 of Civil Code are applicable to the postnuptial agreement. Those two articles are the basic rules for contracts in Indonesia, both for marital agreement as well as non-marital agreement.

Article 1320 of the Civil Code stipulates that in order to be valid, an agreement must satisfy the following four conditions: 1. there must be consent of the individuals who are bound thereby; 2. there must be capacity to enter into an obligation; 3. there must be a specific subject matter; 4. there must be a permitted cause. 

As for Article 1338 of Civil Code imposed that all valid agreements apply to the individuals who have concluded them as law. Such agreements are irrevocable other than by mutual consent, or pursuant to reasons stipulated by the law. They must be executed in good faith.

In view of the above two basic laws in recognizing the validity of the postnuptial agreement in Indonesia, married couples must abide those stipulation before they enter into the contract. Some required terms and conditions imposed by the Article 1320 of Civil Code are applicable thereto:

  1. No consent is valid if it is granted based on mistake or obtained by duress or fraud. So, you need to have an informed consent from your spouse in order to enter into a postnup. A mistake does not render an agreement invalid unless such mistake pertains to the substance of the subject matter of the agreement. Duress against an individual who has entered into an agreement, provides grounds for nullification of the agreement, even if it was committed by a third party who does not benefit from the agreement. Fraud is form grounds for nullification of an agreement, if the fraud by one party is of such nature that it is apparent that the other party would never have concluded the agreement were it not for such deceit. Fraud is not be presumed, but must be proven.
  2. Each individual is authorized to conclude agreements, unless he has been declared incompetent by law. The following individuals are incompetent to conclude agreements: 1. minors; 2. individuals under guardianship. Those individuals are incompetent to enter into agreements may claim for the nullification of the obligations, except for where the law excludes such power.
  3. An agreement must at least have as a subject a matter a property whose nature is determined. The quantity of the matter needs not be ascertained, insofar such quantity can be determined or calculated at a later date. Future properties may be the subject of an agreement. An individual may not however, relinquish an inheritance which has not occurred or conclude an agreement regarding such inheritance, notwithstanding that he has obtained the consent of the testator.
  4. Any agreement without a cause, or concluded pursuant to a fraudulent or prohibited cause, is not be enforceable. In the event that no cause is specified but that there is an existing permissible cause, or if there is a permissible cause other than the one specified, the agreement shall be valid. A cause is prohibited if it is prohibited by law, or if it violates morality or public order. 

As for the Article 1338 of Civil Code, the terms and conditions applicable to the postnuptial agreement are as follows:

All valid agreements apply to the individuals who have concluded them as law. In the postnuptial agreement, husband and wife sign the contract. So, the terms and conditions of the postnup applicable to both of them;

Such agreements are irrevocable other than by mutual consent, or pursuant to reasons stipulated by the law. You can't withdraw from the contract just because you changed your mind, and the contract no longer interests you. Your spouse consent in revoking the contract is required;

They must be executed in good faith. Agreements is bind the parties not only to that which is expressly stipulated, but also to that which, pursuant to the nature of the agreements, shall be imposed by propriety, customs, or the law. 

An agreement applies only to the parties thereto. An agreement cannot be detrimental to third parties; third parties cannot benefit from them. When you signed the contract, your parents are not included as one of the parties. You're an adult and you should take responsible for the thing you are doing.

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

 

Legal Ground in General

In Indonesia, foreigners are not allowed to legally own freehold title (Hak Milik) in landed property.  In accordance with Article 21 (1) of  Law number 5 of 1960 regarding  Basic Agrarrian Law imposed that: “Only Indonesian citizens can have a hak milik.” In the event the Indonesian married to a foreigner, she will be precluded to legally own freehold title of a landed property. This stipulation also similar to the situation as if she lost her rights as an Indonesian citizen.

Furthermore, according to Art. 21 (3) stipulates as follows: “A foreigner who, following the entry into force of this Act, acquires a hak milik by way of inheritance without a will or by way of joint ownership of property resulting from marriage and an Indonesian citizen holding a hak milik who, following the entry into force of this Act, loses Indonesian citizenship is obliged to relinquish that right within one year following the date the hak milik is acquired in the case of the former or following the date upon which Indonesian citizenship is lost in the case of the latter. If following the expiry of the said timr periods, the right is not relinquished, then the siad right is nullified for the sake of law and the land falls to the State with the proviso that the rights of other parties which encumber the lands remain in existence.”

As for the Art. 21 (4) imposed as follows:  “As long as one with Indonesian citizenship concurrently holds foreign citizenship, he/she cannot have land with the status of a hak milik, and to him/her the provision as meant in paragraph 3 of this article shall apply."

Those are the legal grounds why you need to have a prenuptial agreement in the first place. The prenup is to separate your property acquired before and during the course of your marriage. This is the legal way to get around the issues of property ownership in mixed-marriage couples in Indonesia. 

Legal Ground from Banking Sector 

Some other legal ground comes from the banking sector. A prevailing regulations that apply to a bank imposed that a loan applicant must possesses a marital agreement for mix-marriage couples. The regulation of Bank Indonesia number 7/14/PBI 2005 regarding  Rupiah transactions and providing foreign currency credit by the bank for foreigners. The foreigners here are citizens who are licensed or permitted to stay Indonesia. For mixed-marriage couples, the Indonesian spouse will be precluded in applying for credit or a loan to the bank in the event she/he does not have any marital agreement governing the separation of their properties.

In the event no prenuptial agreement exists in your mixed-marriage, the Indonesian spouse will be considered to have join property with her/his foreign spouse. Therefore, the bank will not be able offer loans to the Indonesian spouse. This is because that she/he may require a consent from her/his foreign spouse to execute a property transaction. It is something that the foreigner will not be able to provide as he/she is not in the legal position to own any property in the first place. So, you are hitting a dead-end. 

  1. The regulation of Bank Indonesia number 7/14/PBI 2005 stipulates:  Banks are prohibited from conducting certain transactions with Foreign Parties as follows:
  2. Provision of Credit in rupiahs and/or foreign currencies;
  3. Placements in rupiahs;
  4. Purchase of rupiah-denominated Securities issued by Foreign Parties;
  5. Inter-Office Accounts in rupiahs;
  6. Inter-Office Accounts in foreign currency for provision of Credit outside Indonesia;
  7. Equity Participation in rupiahs;
  8. Rupiah Transfer to an account held by Foreign Parties and/or joint account held by a Foreign Party and non-Foreign Party at a domestic Bank;
  9. Rupiah Transfer to an account held by a Foreign Party and/or joint account held by a Foreign Party and non-Foreign Party at an overseas Bank.

Documents You Need

This is not a personal attack on you. This is the ruling from our legal system to protect the land in Indonesia only for Indonesian. No offence. Should you interested in moving forward with your own prenuptial agreement, have these documents ready so we can review them and provide the best possible terms and conditions for your situation:

  1. ID Card (KTP), for Indonesian; 
  2. Family Card or Kartu Keluarga, for Indonesian; 
  3. Copy of birth certificate, for Indonesian;
  4. Copy of passport and Kitas, for foreign spouse.

Your prenuptial agreement will be going places. They must be recognized by government institutions. Your supporting documents are the credentials to lodge the prenuptial agreement in the right database. The government is getting organized these days, which is good for you. All you've got to do is to comply. Cheers!

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

Monday, 30 December 2019 00:00

Real Estate Transaction in Indonesia (2)

Real estate transaction in Indonesia is pretty straight forward but yet tricky as well as interesting business practise. Several aspects blended in one single deal. It involves various legal fields such as property law, taxation law, inheritance law, as well as family law in general. In real estate transaction, the most familiar and usual one is sale and purchase transaction. It happens on daily basis. It just business as usual. 

The Basic Agrarian Law in Indonesia stipulates that sales and purchase transaction is the evidence that proves the transfer of title from the seller to the buyer. The law imposed that real estate transaction must be carried out and meet two criterias i.e. transparent and paid in full. It must be carried out in front of and under the supervision of the authorized officer. The law also imposed that it must be paid in full. In other words, the transaction cannot be executed if you have any shortfall in the payment. 

These are the things that you need to do before you proceed with the sale and purchase in real estate transaction in Indonesia:

Background Check

This is a must. No transaction can be carried-out without any formal background check. In order to do this, you need to supply us with the original certificate of ownership. The legal status of the property will be unable to be verified without any originals. 

The Seller's Information

You need to obtain the information from the seller that contain the following documents/information:

  1. Copy of Kartu Tanda Penduduk (So called "KTP"). If he's married, you need to obtain his spouse's KTP too. Chances are, the spouse will also require to sign the sale and purchase agreement with you. If they have no prenuptial agreement, it means the property you are buying is their marital asset, and therefore spousal consent is statutorily required. Otherwise, the transaction you're dealing with potentially illegal;
  2. Family card (so called Kartu Keluarga/KK). This document shows family members of the seller;
  3. Marriage certificate, if applicable. In the event, the spouse passed-away, you need to obtain his/her death certificate. In the event the seller is divorced, you need to obtain his divorce verdict and the property division certifying the property is being sold is hers or his;
  4. Original of certificate of land ownership;
  5. PBB tax payment. We called it SPPT PBB. This represents payment of the current of building and land tax. This document is important in order to identify the tax applicable in this transaction. You will find out how much the seller should pay, and how much tax you should pay as the buyer.
  6. Tax payer's number. So called "NPWP."

The Buyer's Information

If you're buying the property, you need to make sure you have the following documents available for the transaction:

  1. Copy of KTP. When you're married, you need to supply your spouse's KTP too. Unless, if you signed a marital agreement, like a valid prenuptial or postnuptial agreement. Please contact me for more details about thing thing. If you're a mixed-married couple, most likely you can't execute any transaction without this agreement;
  2. Family card. This would also be required in order to identify your next of kin legally. This document has your information on your Nomor Induk Kependudukan/NIK (Residency Registration Number) that will refer to your tax information. This is very important when we validate tax applicable to this transaction;
  3. Marriage certificate. We need to know your status, and how the state will treat the property under the current status i.e separate property or joint property. This certificate will have to come with the marital agreement, if applicable;
  4. NPWP. They need copy of your tax payer number in order to validate the tax applicable to this transaction. 

Sale and Purchase Agreement

Your intention to conduct sale and purchase transaction must be written in the form of agreement. We called it SPA (Sales and Purchase Agreement). Both the seller and the buyer must be present to sign the SPA. You must come with your spouse if you're married.

A valid document like a marital agreement must be presented as well in the event you have a separation of property in your marriage. A prenup or postnuptial can serve as the document that you require no assistance from your spouse. With this document, your spouse doesn't have  to come with you to sign the SPA.

A valid SPA must be lodged to the land registry office in order to transfer the title from the seller to the buyer. One thing you need to be aware of payment of the current year taxation must be settled before the title is being transferred. A tax validation will be carried-out before title transferred is being conducted. 

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

 

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!

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