• +62 8128 2128 999
  • aw@wijayaco.id
  • +62 8128 2128 999
  • aw@wijayaco.id

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!

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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!

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Getting marry is going to be the best decision you'll ever made. It is a simple decision with the a future lying ahead of you. They said the marriage is the foundation to everything in your life, among other, property. Both husband and wife are to have joint property ownership after the marriage, if they did not sign anything like a prenuptial agreement. Sometime, you don't get one just because you thought you did not need one. But now, the Constitutional Court revised the Article 29 (1) of the Marriage Law that the marital agreement may be entered as well during the course of marriage. The verdict number 69/PUU-XII/2015 officially created a postnuptial agreement on October 27, 2016 as one of the legal instrument in management of your assets in the marriage. Now, you can have one when you feel you need one.

The ideas behind this decision to officially allow the postnuptial agreement for married couples were to create separation of property and assets between husband and wife. Their separate assets are protected. No drama in fighting for property division. The same idea also applicable to debts. Husband and wife shall responsible for debts they created. The postnup therefore shall create separation of liability during the course of marriage. Furthermore, no consent is required from each of the party in the marriage in the event they want to sell their own separate assets. As for loan application with the bank, neither party is required to obtain consent from their spouse in putting their separate assets as a mortgage. In view of the above, the court wants both parties are totally independent in managing their assets. This is a fine legal reasoning. The Constitutional Court, they keep-up with the contemporary developments within the society in Indonesia. Awesome!

The validity of the postnup shall be initiated as soon as you’ve signed it. It is applicable since you entered it, and it is advisable not retroactively backward. It is applicable on actual date. This is to avoid any conflict of interests with any third party, because since the marriage date the couple might have been created jointly owned marital assets. It is very difficult to differentiate which property belongs to separate or joint property. You may potentially jeopardize the third party’s interests such as banks, and other investors in your marital assets. If you should retroactively draw the postnup back to the marriage date, at least you need to have the properties included into the exhibit and make sure they are mortgage-free. Apart from the ones listed in the exhibit, they belong to both of them. The couple is to have equal shares. This will also include the creditor(s) having a portion in the unlisted properties for the part that a mortgage has been put under. You may want to contact me here to discuss any further about this matter.

The postnup created under the verdict from the Constitutional Court has potential challengeable issues. The verdict put a notary as the party that legalize the postnup. According to the civil law procedures doctrines, this is not a proper ruling. They put the role of a notary to substitute the authority of a judge. You see, having a prenup and not having a prenup is a big deal, because it creates a property separation during the course of marriage. This situation is full of potential issues because when you're having a property, whether you like it or not, it involves other third party(ies) too, not just you and your spouse. The other third party such as bank as the lender if the property under mortgage, the government through the BPN (Badan Pertanahan National/National Land Registry), and other party that may have interest in your assets acquired during the marriage. At Wijaya & Co., we always pay attention to our clients' details and therefore issues are identified before they become potential hiccoughs. 

By having a notary legalizes a postnup, they are driven to declare some new legal situation. Last time I checked, this is the domain of a court through their legal instruments i.e. court decree. They called it a Declaratory Verdict. It creates a new legal facts, a new situation. For instance, declaring from joint property ownership to separation of ownership. As far as I concern, the court have a very established sets of law in civil procedures. Before finally reaching the verdict, the court must conduct a cross examination. This is a very important phase in civil legal system. If you were not happy with the verdict, you may file an appeal to the higher court within 14 (fourteen) days since the date the verdict reached. If there was nothing within that set of time-frame, the court finds that you are happy with the verdict, and everybody can get on with their lives. Your Indonesian attorney may proceed to draft a postnup for you.

You can't have those situations if a notary is to legalise the postnup. The convert from joint property to separate property, is not legally assessed with substantial rule of evidence, like the one they're doing it at a court proceeding. If one of the spouses was not happy, or seek any potential leeway that may benefit them in a divorce case, they might want to revoke the prenup. I would say they may be able to do that. Therefore, the postnup as its final outcome, is challengeable, and may be voidable. I would suggest you should consider it with full discretion. If your situation is full with substantial marital property, you should decide if any further reasonable action may be taken to secure your interests. 

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

 

Disclaimer:
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. 
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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.

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