Last will is a legal instrument to distribute your assets to your next of kin after you’re gone. This is a very important document, and you want to do it the right way and properly. It’s because the property of the deceased belongs to the heirs, as long as there was no valid decision made in this matter.
The decision you’re making on the testament will determine who gets what. Basically, it is a statement of your last will to the surviving persons at your disposal. It is also revocable when you’re still alive to do so. It’s totally under your control. The last will is your official statement to nominate several administrators to administer your assets with the terms and conditions according to your own preferences.
You see, let’s find out what is the official definition of a last will. Article 875 of Civil Code stipulates that: “A testament or last will is a deed, containing a statement of an individual's wishes and intents to take effect following his death, and which deed can be revoked.” The deed must specify a clarity regarding the assets and the heirs who will receive them. The terms and conditions written on your last will must prevent disputes from taking place between your heirs.
Prenup or Postnup
You also need to have a prenup or to consider signing a postnup prior to writing a last will. You need to make sure that you have full control and authority in disposing of your assets, as they may be part of your joint property with your spouse. Your last will can not violate stipulations in the Marriage Law because it may be voidable. Your heirs may challenge it at the court, and things can go messy.
The reason why you need to have a prenup or postnup before you write a last will is because you need to make sure that the assets you dispose of in your last will are totally yours. Not part of community property with your husband or wife. If they do, at least you need their consent. You can not dispose of a disputed asset on your last will.
So, check again if your prenup got you covered for this. Otherwise, please consider getting a postnup before you write a last will.
You may dispose of your own separate assets on your last will. This is doable. Things like your assets acquired from your parents, inheritance, or from other third parties. They are disposable in your last will.
Under Article 36 (2) of the Marriage Law that stipulates: “In the matter of separate assets of husband and wife, they have full authority in committing legal action for their own property.”
Keep On Updating It
You need to update your last will to become recent and current. You may keep updating it according to your need to reflect your current situation. You may do so as long as you live. Your last will may only be executed when you’re pass-away.
I can't stress how important it is for your last will to get updated in regards to the terms and conditions, your heirs, and the administrator or executors nominated on your last will.
The Best Type
There are three types of last will in Indonesia, but the best one is an Open Testament. It is being kept as an authentic deed so when you pass-away, the probate process will be able to determine your wishes and they can be easily executed.
I would not recommend the Closed Testament. This type is to conceal the terms and condition of your last will. Potential disputes may arise in the future. Your heirs may file a lawsuit to revoke your last will. It’s the last thing you need.
My name is Asep Wijaya. Thank you for reading my posts!
Foreign marriage in Indonesia is a marriage between two foreign nationals. It must be conducted under the laws of the Republic of Indonesia. Their marriage must be performed according to their religions and belief. They must have the same religion before they can perform the marriage. After that, they can register their marriage with the marriage registry in Indonesia. We have Civil Registry in the event the couple is non Moslem. We have Office of Religious Affairs in the event they are a Moslem couple.
In order to register your marriage in Indonesia, you need to supply the following supporting documents:
Basically, marriage in Indonesia is under monogamous principle. A husband can only have one wife, and a wife can only have one husband. In the event that you wish to take a second wife, you need to have a court order and the court may impose that your first wife to appear at the court for giving the consent.
In 2019, the legal age to get married both for man and woman is 19 (nineteen) years old. In the event both the bride and groom are younger than 21, they need to have the consent from their parents.
The stipulation of the legal age is according to the law number 16 of 2019 regarding the Amendment of the Marriage Law number 1 of 1974. The basis for this amendment is the Constitutional Court decision in 2017 number 22/PUU-XV/2017. The court ruled that the amendment to the relevant law must be issued within 3 (three) years since they issued the decision in 2017.
This legal age also applicable to foreigners that perform their marriage here in Indonesia.
If you are a Moslem couple, you need to make sure your bride has her own marriage guardian. The guardianship is imposed under the Article 14 of Islamic Compilation Law. This is the law for marriage in Indonesia especially for Moslem couples. The marriage guardian is one of the legal requirements to perform a marriage in Indonesia:
Two witnesses. They must be men and grown-ups. If you're getting married in Moslem, you can't have a female witness;
Ijab dab Kabul (Consent by the groom and the guardian).
Your guardian for the marriage is strictly limited to these person only: your biological father, your biological grand father, and your brother from patrilineal line. If none of them does not exist, you're in need of a help from the judge.
As foreigners, you may or may not have a resident permit in Indonesia.
If you do, this determine the jurisdiction of your marriage registry. If you did not have one, you may register your marriage according to the place where your marriage takes place.
Since you're married under the laws in Indonesia, your property is subject to our laws too. Any property acquired during the marriage is subject to joint property. Anything acquired before the marriage date belongs to each spouse. They have their power to manage the property according to their will.
I suggest you sign the prenup. Even if both of you are foreigners and the assets are located outside of Indonesia. The prenuptial agreement signed under the laws in Indonesia shall be mirrored by the court where your assets are located. If you did not sign any prenup, anything acquired during the course of your marriage shall be join.
I advised American-Russian spouse married in Bali couple of years. Having a prenup under Indonesian laws sound simple. You might think it is not necessary as well. But this is important. This is going to test smartest move you will ever done in your assets protection.
What else you need to know about the marriage in Indonesia? Oh ya, the Children!
If you have a child born before your legal marriage registered in Indonesia, you need to have it legalized. This is simply building a relationship between the child and the father. You guys shall establish paternity privilege between those two persons. This is very important for claiming citizenship for your child. I did this for Australia, Swedish, American, and British couples before. Great people!
The proceeding called legalization of child born out of wedlock. Certain things you need to do before the child legally recognized. Give me a call or drop me an email and we'll take it from there!
We have prenuptial agreement questionnaire, biographic information form, and notice for marriage intention. All the forms you need to start your new journey legally recognized in Indonesia.
My name is Asep Wijaya. Thank you for 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.
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!
Marriage performed outside of Indonesia is not automatically legal and recognized. You must willing to go through the extra mile in order to gain recognition under the laws in Indonesia. We called it reporting of foreign marriage. This thing has substantial implication to you and your family. The marriage indeed is the foundation to everything important in our lives i.e. the children, property, inheritance, etc. You make a mess with the marriage, you're messing with your own life. Not to mention your children. So, whatever you do, always think twice.
The foreign marriage reporting has a set of time frame as imposed by the prevailing laws. You need to comply with it. They said don’t put till tomorrow what you can do today. This must be the reason why they put such a time frame in place. The reporting must be made within 30 (thirty) days since you return in Indonesia after the marriage. The older version of the law sets more leeway to report it i.e. one year. They use the new rule, without revoking the old one. The old one is the 1974 Marriage Law, and the new one is the 2003 Administration of Population Law. The old law is considered as general regulation, and the new one is a very specific law governing certain issues. The marriage registry in Indonesia, they tend to use the 2003 for governing your foreign marriage reporting. At Wijaya & Co., we alway identify the issues before they can potentially turns into a problem.
There are two conditions or requirements that must be fulfilled in order to create legal recognition with the foreign marriage in Indonesia. First, formal requirement. The marriage is legal according to the local rules and regulation where it is performed and registered. So, when you’re married, you’re married. The laws in Indonesia will mirror anything that takes place in the country where the marriage performed and registered. Second, material requirements. This conditions applicable absolutely to the Indonesian citizen. It must refer to the prevailing laws and regulations in Indonesia especially regarding marriage. Issue under this criteria is, among others, the minimum age requirements to get marry. Mixed religion is also part of the material requirements. Failure to meet this requirement, the marriage may be voidable. It may be challengeable at the court of law. There’s a slight possibility that the marriage may be legal in the country where you register it, but it might not be recognized under the laws in Indonesia. It’s a quite tricky situation, please contact me should you wish to discuss any further about this. Things may be overlooked. This potentially can turn into something inevitably unpredictable. This can be used as one of the grounds for an annulment. See, there's more to this than meet the eyes.
Article 56 (1) of the Marriage Law imposed strict requirements as well as time frame for foreign reporting marriage to the Indonesia’s government. This law was retrieved from the Principle of Nationality that every Indonesian citizen submit themselves to the laws of the Republic of Indonesia, wherever they are. You see, this is the interesting part of your foreign marriage. The idea behind the issue is an ancient government ruling took place from the colonial government back in 18 century. It was the Algemene Bepalingen ("AB") in the Article 16. This ruling is still there until today and become the basic law of how we determine our individuals can access the legal system wherever they are. We proud ourselves that the laws of Indonesia is always prevail in the life of every Indonesian, even if they are not on the Indonesian soil.
So, the other inevitable legal consequences for getting marry in a foreign country is, among others, without you even realize, you’re inviting other foreign law elements into your marriage life. Not to mention, if your spouse is non-Indonesian. Another foreign law element is joining the club. You know, two is a company. Three is a crowd. You even have higher potential that you may overlook things. But remember, things can be mitigated with the help from the experienced international civil law in Indonesia.
My name is Asep Wijaya. Thank you for reading my post!
Fathering illegitimate child can happen when you're in a relationship with your legally wedded spouse. It means you're committing an adulterous relationship. An adultery is a crime in Indonesia under Article 284 of Criminal Code. We called it Delik Aduan, meaning that it's an absolute complaint offence. They can only bring you to justice if your spouse file charges against you. The definition of an adultery is sexual intercourse committed by a married man or a married woman, must be consensual, and either of you are not legally free to marry. Your spouse may file charges against you, but he/she is the only one that may revoke it.
The child, should you want to keep it, is an out of wedlock child. It means he/she is born out of legal marriage. Under the 1999 Human Rights Law, the child has the rights to know his/her parents, to be nurtured and raised by his/her own parents. So, keeping the child alive is a good choice. It's your flesh and blood. Abortion is the last thing you want to do. So don't do it, for God sake! Don't do the abortion. Do the DNA test. If the child was yours, acknowledge it and proceed with child legalization. Please contact me at Wijaya & Co. for getting this thing done the right way.
According to the ruling from the Constitutional Court number 466/PUU-VIII/2010 and since the verdict was reached on Feb. 17, 2012, child born out of wedlock has legal relationship not only with its mother and her family, but also with its father and his family. Claims towards the child must be consented by the mother. This must be done before you pursue child legalization. Going further with child legalization requires DNA test, and must be supported by other evidentiary proof to support it.
The birth certificate for a child born out of wedlock has mother's name only. You won't see your name as the father before you're conducting child acknowledgment and child legalization thereafter. When you're taking a DNA test, you need to make sure that the results of the test is being signed by the accredited medical practitioner in the business. You need to make sure no clause that may prevent or lies legal constraint during the proceeding of child legalization. According to the ruling from the Constitutional Court, the DNA test is one of the two significant evidence used in getting the child's legal recognition. In fact, this is the utmost significant evidence used by the court in determining parental relationship between you and the child. It's a tricky thing that you should do with the laboratory conducting your child's DNA test. Failure in doing so might end-up the court rejects your motion. This is the last thing you want. You need to be very careful about this one.
Call us or email at Wijaya & Co. us to find out how we can assist you in getting you to the right direction of this proceeding. I am sure you want to do the right thing with the right way.
My name is Asep Wijaya. Thank you for reading my posts.
In Indonesia, a husband is considered as the bread maker in the family. The Marriage Law considers a wife as a full-time house wife. She's taking care her husband and the children. Your main responsibility is to support your wife and the children financially. Article 34 of the Marriage Law imposed that a husband is obliged to protect his wife and provide all the necessities of living household according to his ability. This condition is also applicable in the event of divorce. Even though your wife is also working, and making more money than you.
In the even of divorce, the court may determine the spousal support that must be paid by the husband. The spousal support is one of the consequences of getting divorce in Indonesia. So, this is only applicable after the marriage has previously been dissolved by the court. Article 41 (c) of the Marriage Law gives the court the authority to impose financial obligation of the husband in regards to his spousal support payment that must be made to his wife. The ongoing divorce proceedings may not be used as an excuse of not making the daily living support to your wife. This is also applicable to your obligation to your children. You may not be allowed to abandon the children due to the ongoing case in court of law.
Furthermore, for Moslem couples, the Islamic Compilation Law stipulated in Article 80 (2) and (4) that the financial obligation provided by the husband is including but not limited to:
The stipulation regarding spousal support also imposed by the Civil Code in Article 107 as follows: "The husband is obligated to accommodate his wife in the house that he occupies. He is obligated to protect her, and to provide her with necessities, in accordance with his position and capacity." See? We have complete ruling from all over the place: civil law, Islamic law, and the marriage law. The whole nine yards.
The terms and condition for spousal support is indeed very general, but may be applicable to you in the event you meet the criterias. Basically, it's you who throw the numbers on the table. You need to keep the standard of living that has been maintained during the course of your marriage. In the field of practise, we have two types of spousal support. The short one, and the long one. The first one is as short as three months. The long one is as long as 12 (twelve) months to 24 (twenty four) months. But indeed, you don't have to support her until she remarries. This won't be the case here in Indonesia.
If you failed to provide spousal support, you are considered comitting domestic violence under 2004 Domestic Violence Act stipulated as follows: "Everyone is prohibited to neglect a person within the scope of his household even though according to the law applicable to him or because of his consent it is obliged to provide life, care, or maintenance to that person." This is the last thing you want. You don't want the court in Indonesia reached the verdict with the figures you can't afford. If she's smart enough, she will use it as a mirror order to nail you wherever you are. It happened once. They were having this proceeding at the South Jakarta Court. The husband thought the court can't touch him because he lives and works in Singapore. The last thing he knew was he was served by the Singapore Supreme Court because of the complaints filed by his wife. So, take my word for it. Face it and get it over with. You need to hire the best in the business.
On the other hand, in the event your wife left you and the children. She left the house without your consent, the law thinks that she's not entitled to a spousal support. This is applicable according to the Islamic Compilation Law. They called it Nusyuz. It means she is being rebelled, and did not obey her husband. Nevertheless, this does not waive her rights in property division. It doesn't sound fair. I know. This is the sad part of our legal system. A precedence about this issue has been reached by the Supreme Court, and remain valid until now.
My name is Asep Wijaya. Thank you for reading my posts.
The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.
Child born out of wedlock in Indonesia has legal relationship with its biological mother and her family only. This principle is reflected on the child's birth certificate. It means the birth certificate of a child born out of legal wedlock cannot include the name of its father. That was ancient regulation before we have a breakthrough from the Constitutional Court. Nowadays, children born out of wedlock has legal relationship with the acclaimed biological father. The claims must be supported with the scientific evidence such as DNA test, among others.
Article 43 (1) of 1974 Marriage Law has been recently amended to include the biological father as parent of the child born out of wedlock. This ruling was meant to protect the child’s basic right. Just because we recognize the legal relationship between the father and his child born out of wedlock, it doesn’t mean to attack the legal marriage and its legitimate children. The relationship does not automatically entitles the child to the legal rights as if it was born into the legal marriage. Nevertheless, it may be the basis to create "the bridge" between the acclaimed father and the child in regard to the child's rights in claiming child supports, education, inheritance, etc. Well, at least you need to start somewhere, right?
The legal proceedings under the amended Article 43 (1) of the Marriage Law is very useful for the children born outside of the legal marriage. This is because they can have a birth certificate with complete names of the parents. Both names of the father and mother printed on its birth certificate. This is a milestone to a new world of opportunities for them. This is similar to child legalization proceeding. Without the proceeding, the child may entitle to a birth certificate with mother’s name only. They said our legal system legally bastardizing them. They won't be, as long as you as the father would like to recognize them. It's your flesh and blood anyway. So, give them what they need: the birth certificate with the full names of the parents.
The best thing about this, it does not have to come with the marriage of the parents. Do I mention something about tying the know at some point? No. It's up to you! Sometimes, messy things between the two of you doesn't have to make your "champ" suffers. All you need is to talk to each other, sit down in the same table with your Indonesian lawyer and get the ball rolling. Well, I am not the guy who against the spiritual and emotional bonds like they do have in those married couples. What's important is the father's acknowledgment. It does really matters to your child. What a simplified legal system, huh? We make things simple. It's up to you to keep it simple, or the otherwise. All you have to do is to supply the evidence. This is the most convenient way, considering the absence of your marriage certificate.
Well, let me completely be honest with you. I understand that you may not be able to supply the marriage certificate due to various reasons. You did perform the marriage, but it may not performed properly according to the marriage regulation. It's called unregistered marriage. In Indonesia, some called it "Nikah Siri." Or, you never get marry before and the child conceived out of the adulterous relationship. A marriage is one thing, and a child is another thing. I am not going to cast a stone at you. You don't have to do it if the marriage is not a scenario. So, you can do this proceeding under the Article 43 (1) of the Marriage Law without getting marry first.
I dedicate this article to a Swiss-Indonesian couple whose child born out of wedlock. They got rejected everywhere. At the civil registry. Even at the court. I do understand your frustration. Well, the system is not attacking you. Don't take it personally. You just have to look further. Good luck, and God speed!
My name is Asep Wijaya. Thank you for reading my posts.
Guardianship of a child in Indonesia is a challenging issues. Not only this is the most important part in family and matrimonial law practice, such as adoption cases, divorce cases, and custody disputes. It also plays substantial role in general civil law, such as how a judge determine a child's guardian in representing him/her in all of her legal affairs. Article 47 of 1974 Marriage Law stipulated that children under 18 years old or have never been married, are under their parent’s authority. The parent represent them in and outside of the court room. The parental authority may be revoked by the court or may also be removed voluntarily and assigned to other individual. Parental authority is the term set-out in the laws in Indonesia. It also known as Child Custody. Different terms but discussing the same thing in common. The terms have a very broad meaning: representing the child inside or outside of the court room. This include the whole legal matters involving the child's life.
When parent is no longer in the position to perform his/her job, other people, preferably family members may replace them as a guardian of the child. The guardianship of the child may voluntarily appointed by the parent. The person may accept it or he/she may refuse it. Being a parent indeed is not an easy job. So, you're excused if you think you won't be able to do it properly. Child Protection Law of 2002 stipulates that in the event of a parent is absent, or unknown, or for some reasons unable to perform his/her duty and responsibility, the job is transferrable to other family member. A guardian may be appointed to do the job. They must be same blood family up to three degrees upline, such as grand father, grand mother. They can also be three level down line.
The laws further imposed how a guardian must meet criterias. He/she must at least 18 years of age, physically and emotionally healthy, fair, honest and having a good behavior. Other family members must also be supply their opinions about how he/she may be able to perform his/her duty as the child’s guardian. They also have the responsibilty to choose the right guardian because everybody knows everybody. This is the beauty of family emotional bonding.
At Wijaya & Co, we handled cases like this: transferring the children guardianship from their parents to their grand mother. Both of them are busy with their works and the grand mother lives in a different country. The guardianship order serves as an immigration clearance as well that allow the grand mother to have parental rights in regards to the furnihsing of immigration paperworks. She represents the children and have the legal power to decide on the parent’s behalf, as if having someone to trust to take care of your children, legally.
i am Asep Wijaya. Thank you for reading my posts.
The laws in Indonesia legally recognized marital agreement as a contract entered by a husband and wife, either before or during the course of marriage. Having a marital contract, either a prenup or postnup in Indonesia, there is more to it than meets the eyes. You can see how it redefines your marriage, regardless your nationalities.
Are You In It for Love?
A prenuptial agreement(so called “Prenup”) in Indonesia definitely can protect your assets. When you're considering to marry someone, you need to know if she/he's marrying you for love or for money. One could never tell, but the marital agreement could always do. Take my word for it. If she/she says yes, even after the prenup has been executed, then he/she's the one. No matter what.
By entering into a marital agreement prior to your marriage, you can protect your assets acquired prior to your marriage to him/her. The assets are legally free from the claim she/he can brought against you as if no marriage has been consummated. You're not legally liable for the debts prior the marriage. So, yes, with the marital agreement in Indonesia, you are in it for love. Not for the money.
Protection against Bigamy
This is sometime, just sometime, happens in countries like Indonesia: your husband is committing bigamy. Ouch! That's not good. Please don't get mad. Get everything! Yes, you read me right. Get everything, literally!
You should insist to enter into a postnuptial agreement (so called “Postnup”) between you and your husband in order to protect your financial interest, your children's future, and your assets. Even though, each marriage to each wife and its assets is totally separated, but you never knew. Get yourself a cover. You can't risk yourself and the children exposed to any potential risks. In this case, you should get a postnuptial agreement. A Postnup in Indonesia is legal and recognized. is a type of marital agreement entered into a husband and wife during the course of marriage. With the breakthrough verdict from the Constitutional Court in 2016, the postnup is legally recognized and totally can be upheld in the court of law.
Using a postnuptial agreement to protect yourself from bigamy is exist long before the Court reach the verdict. The terms and conditions for this type of marital agreement is even exist in the Civil Code. Indonesian socialites have been using this to protect their marital assets, and the laws allow the wife to submit a motion for postnuptial agreement.
Business as Usual
Practically, in Indonesia, your spouse is your business partner. Not to mention if she/he's actively contributing to the business enterprise on daily basis. Whether he/she is serving as a member of the board or not. Your spouse entitles to half of your share. Lovely, isn't it?
Article 157 Civil Code imposed that the profit you made out of your marital assets, retrieved from the community assets, income derived from joint assets, shall be considered as marital property or community property. Whatever you call it, your spouse entitle to it. Your profit, your income, exchanges of the existing property, among others, are part of the joint assets with your spouse.
When the marriage ends with a divorce, your spouse gets half of the assets, both now in existence and its profits. So, consider signing an Indonesian postnuptial agreement in order to prevent that from happening, and list your business enterprise as one of your separate assets.
Preserving Your Inheritance
Say, you're expecting inheritance from your parents. Legally, inheritance and gift from a third party are separate property. Article 35 (2) of 1974 Marriage Law stipulates that if you otherwise determined, the inheritance may become joint property. It means, it may not be free from your spouse's claims. Putting the inheritance into a prenup or postnup contract in Indonesia can preserve the inheritance from your parents. It can't be touched legally. You may be clear describing the assets such as location, dimension, and other related description in the marital agreement.
Back-to-Back: Foreign & Indonesian Prenup
Both of you are foreigners. Neither of you is an Indonesian citizen. But you have been residing in Indonesia for quite sometimes. You plan to get marry in one of our beautiful islands such as Bali, or Lombok. It means, you're registering your marriage under the laws of Indonesia. You're submitting yourselves to the legal system in Indonesia. There's a legal term called: "Minimum Contact." It’s a universal legal terms. You and your husband have a minimum contact with the Indonesian laws because you live in Indonesia. The legal effect is minimum but it’s still a loophole. I am not saying you are totally exposed without any Indonesian prenup or postnup, but if you wish to have a safe-precaution, you should get one. Remember, the Indonesian laws on marriage is applicable also to foreigners live in Indonesia. This is the part of the international civil law that may expose you to the risks of having a regime of marital property. Doctrines on the international civil laws are very complicated. We don’t know which one the court will apply to your case. We never know which court will have jurisdiction to your situation. But the last thing you want is to left yourself, and your marriage open to the potential exposures of marital property regime in Indonesia. People spends tens of thousand of dollars fighting in divorce litigations, while they can avoid it with a piece of paper called a prenup.
But hey! You're signing a foreign prenup. That's cool! You know what? Your foreign prenup is not recognized here. So, from the Indonesia's legal perspective you’re married but with no prenup. Therefore, you have joint property ownership regime. On the other hand, if you have the Indonesian prenup, and/or the Indonesian marriage, and/or you live here on the Indonesian soil, those are legal bonafide to you and your marriage. There’s no question in terms of the legality of your foreign prenup. It will even make things stronger. The Indonesian prenup shall serve as "the bridge" to your foreign prenup. So, everything is connected now. There's no missing link anymore.
In the event of divorce, with the Indonesian prenup, your marriage will still have separation of property regime. This can be used as “mirror” just in case things get ugly, and any court in other country may refer to the Indonesian side.
Preserving the Indonesian
I like the term "preserving" better than "protecting" because your Indonesian spouse is entitled to the freehold property. She/he can own property under hak milik. The best thing about it is that you can keep it for good. You can even inherit to your children. But once you're married to a foreigner, the Indonesian shall be precluded in owning the property in Indonesia. She/he is the same legal position with his/her foreign spouse. The Indonesian prenup comes to preserve the rights of an Indonesian citizen, even though she/he's married to a foreigner. The right or entitlement in owning the property has already been there since the Indonesian spouse was born. So, nothing to be protected. It just a matter of preserving what's already been there.
I am Asep Wijaya. Thank you for visiting my blogs and reading my posts.
The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found anywhere in this article nor in this website.
The provisions concerning dissolution of marriage and its legal consequences are generally regulated in Marriage Law, which is further stipulated in Government Regulation Number 9 Year 1975 regarding the Implementation of Marriage Law. As for Moslem-married couples, the divorce proceedings are being regulated further according to the Compilation of Islamic Law.
A marriage may be terminated due to several reasons among others death, divorce, and court decisions. A marriage terminated by a divorce may occur due to talak or divorce suits. The last two were regulated under Compilation of Islamic Law. If you're a husband, and you're thinking to divorce your wife, you have a talak right. So you may submit a divorce application to the court in order to set-up a talak hearing. On another hand, if you're a wife, and you're thinking to divorce your husband, you may also file a divorce against him under divorce suit. We call it "Gugatan." Basically, this is pretty much the same thing, and has equal position in front of the law. A talak must be performed in front of the court of law in order to have effect in dissolving your marriage. Otherwise, it won't take legal binding.
As for talak, it's the divorce oath of a husband before a court session at the Religious Court. The oath is being recited by the husband to his wife, by requesting both verbal and written to the Court in the jurisdiction of the wife in order to request for a court session for the purpose of reciting the divorce oath or talak. The legal term for this is talak divorce application. As a husband, you're the Petitioner, and your wife serves as the Respondent. You see, your titled changed as soon as you file your divorce. You're no longer a loving husband and wife. You're opponents. This is what the law said about it: "Talak is the oath of a husband before a court session in the Religious Court, which is one of the reasons for terminating a marriage..." The law is Article 117 Compilation of Islamic Law. Therefore, with reference to the law, divorce by talak must be conducted in front of the Religious Court. You just can't say "talak" for three times to get divorce. It won't take legal effect in a country like Indonesia. You've got to do it formally by registering a case to a court clerk, and obtain a case number.
The proceeding for divorce, both under talak or under legal suit carried-out by a wife, are the same. They use national Civil Procedures Code, which takes approximately ten sessions. You're looking at five to six months processing time. Both of them are implementing mediation to stall the process. This is imposed by our Supreme Court in order to reduce the number of litigation cases in our court system. Yes, it takes time to get divorce in Indonesia, but when you have a case number, step by step it'll take you there. They implement strict time frame under the principles of simple, costs-effective and speedy trials. Some experts said mediation is not applicable for divorce cases, because you can't stop people for getting divorce. I would say you can. You can give each other a chance. A second chance. A third chance. Whatever. It takes two to tango. The thing is, you have to keep on trying. Never give up. Don't ever quit for your marriage. Because you're only fail when you stop trying. I am Asep Wijaya, writing for Wijaya Law Review. Thank you for reading.