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Asep Wijaya

Asep Wijaya

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. 

The Definition

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.

Separate Assets

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!

In Indonesia, we have two types of marital agreement: Prenuptial Agreement, and Postnuptial Agreement. Both of them are valid, legally recognized, and provide strong protection in terms of property ownership. In the event those terms are new to you, let me explain a little bit. Prenuptial agreement is a contract or an agreement entered into between husband and wife before they get married. Postnuptial agreement is a contract or an agreement signed by husband and wife after they got married, or during the course of their marriage. 

Those agreements, both prenup and postnup,  are also giving you some sort of extra protection.  You might think you don’t need it in the early course of your marriage, but if a divorce occurs, you are strongly protected. The agreements that are drafted by our Indonesian lawyers, either prenup or postnup, are upheld by the court, all the way from the Republic of Indonesia to the United States. This is a recent testimonial from a client. A very pleasant surprise indeed. 

Stay tuned, and I will tell you some more!

Property in Your Marriage

Basically, properties acquired during the course of marriage are joined. They are becoming community property. You and your spouse own them together. You guys own them 50:50. It’s quite a beautiful thing, having something that you can call “Ours.”

Here’s the legal ground for that opinion, the definition of Community Property according to the Civil Code in Indonesia under Article 119 is: "From the moment of execution of the marriage, it shall arise by law joint marital property between the spouses to the extent that no other stipulations have been made in the prenuptial agreement." 

This is the ancient legal basis for the prenuptial agreement within the legal system in the Republic of Indonesia. So, that’s the thing, if you want to create a prenuptial agreement, it must be done before the marriage date. You need to execute it before or on the date of your marriage. That’s the least you can do. 

Now, in the modern era, we have Marriage Law enacted in the year of 1974. We called it Law number 1 of 1974 regarding Marriage. This one also governs marital property acquired during the course of your marriage.  

The Marriage Law stipulates in Article 35 as follows: 1. The property acquired during the course of marriage is joint marital property; 2. Separate property of husband and wife, and  property acquired respectively as a gift or inheritance are under the control of each party as long as the parties do not specify otherwise. 

What Is It About?

When you’re dealing with a marital agreement such as prenup and postnup, mostly they are involving property and other issues related to property. It’s the basic issue that can be included into your prenup or postnup. 

The legal ground to support that opinions is Article 139 of Civil Code that stipulates as follows: 

“The prospective spouses, may, pursuant to a prenuptial agreement deviate from the rules stipulated in relation to legal community property, provided that they do not contravene proper morals or public order and that they comply with the following provisions.” 

Basically, marital agreement both prenup and postnup are about property, including but not limited to property related issues. 

Legal Ground 

In Indonesia, both prenuptial and postnuptial agreements are governed by Article 29 (1) of the 1974 Marriage Law and the Verdict of Constitutional Court number 69/PUU-XIII/2015 as follows: 

“At the time, prior to taking place or during the marriage knot, both parties with mutual consent can enter into a written agreement which is legalized by the marriage registrar, after which the contents also apply to third parties as long as the third party is involved.”

The legal ground has been amended in 2015 in order to include marital agreement that is being executed during the course of marriage: postnuptial agreement. So, the above definition is the most recent and updated with the current situation. 

Types of Marital Agreement

Therefore, according to the definition in the Civil Code, there are three (3) basic types of prenuptial agreement, they are:

  1. Full separation of property. This is the most complete version that includes separation on the property, and joint in loss and profit. 
  2. Separation on separate property. This type of marital agreement is only applicable to property acquired before the marriage, as well as to gift and inheritance. Any property acquired during the marriage shall be joint and become community property. 
  3. Separation of profit and loss. This is the type of marital agreement that covers only joint profit. In terms of loss to the assets, it is a separate loss retained by each party within the marriage. 

It’s a Contract!

I believe a marital agreement, especially a prenuptial agreement can do just more than a property. It can include anything as long as it’s a legal cause. It’s something legal that does not violate the laws and the rights of other people. This is what they called the conditions that are required for the validity of agreements. So, pretty much you can include anything into your prenup: custody of the child, among others. 

On one occasion, I offered a clause in our prenuptial agreement to a fun loving couple. Something that they didn’t think they needed: joint custody of their child in the event of divorce. Both of them didn’t refuse. They agreed to my offer. Love was in the air. I could almost smell it.  

Sadly, they got divorce. They have one child. She wanted to keep the child for herself, so she committed child abduction. She kidnapped the child and brought him overseas. Our drafted prenup was upheld by the courts in South Jakarta and  one of the states in the US. The father was entitled to joint custody as well as the mother. But since the mother closed the access to the other parent, which is against the law, her custody right has been revoked by the court. 

So, I should refer to the Article 1338 of Civil Code that is imposed: “All valid agreements apply to the individuals who have concluded them as law.” The prenup is the law of the game between the two of you. Therefore, make sure you get a valid one. The above story can be shown as proof that a piece of paper can protect you, even in a foreign country.

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:

  1. Certificate of Non Impediment Letter from your embassies in Jakarta;
  2. Birth certificates from both partners. This document is a civil certificate. So, it is required in order to deal with civil matters in Indonesia. 
  3. Copy of your passports;
  4. Certificate of domicile, in the event you are a Kitas holder.

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. 

Legal Age

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. 

Marriage Guardian 

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:

  1. A groom;

  2. A bride;

  3. Marriage guardian;

  4. Two witnesses. They must be men and grown-ups. If you're getting married in Moslem, you can't have a female witness;

  5. 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. 

Residency Permit

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.

Marital Property

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.

Prenuptial Agreement

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!

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!

Child legalization in Indonesia is the only way to recognize your child born out of wedlock. This proceeding is a must-have in order to build a relationship between a father and the child. It's giving him a paternity privilege. This thing means a lot to both of them, and covers so many aspects in their lives. The proceeding is to get a DNA test as the primary scientific instrument to take a stand in the court litigation. On one side, it shall be the legal basis for the paternity claim to the court of law in Indonesia. But on the other side, DNA tests may become the potential shadowing procedure in getting a child legalized by a father. 

Read on and I will tell you what you should know.

Your Marriage First

According to Article 2 (1) Marriage Law number 1 of 1974, your marriage will only be legally recognized if it was officially registered. We have two marriage registries in Indonesia i.e. Civil Registry, and Office of Religious Affairs. The date when your marriage is officially registered will be the date of your marriage. In the event your child’s date of birth was before the marriage date, she/he is an out of wedlock child, even though she/he was born after the religious ceremony. It is the registration date that counts. Therefore, your marriage is not legally recognized according to state law. Any child conceived shall be an illegitimate one. 

So, your marriage must come first before the child, and it must be officially registered with the government's marriage registry. Therefore, your marriage is the foundation of your family. Just like what they said: your marriage first!

Your Child Comes Thereafter

In the event your child was born before the marriage officially registered, legally speaking she/he is an illegitimate child. The child is not a legitimate one according to Article 42 of the Marriage Law. A legitimate child is one who was born into its parent legal marriage. 

In another word, your child is an out of wedlock and therefore will only have a legal relationship with its mother and her family. No paternity privilege being established under this situation. Not yet. This is governed under Article 43 (1) of the Marriage Law. The only way to do so is through the biological mother. She needs to consent the child legalization. 

The Procedures

The Civil Code has imposed that in order to legitimize the child, both husband and wife need to perform child legalization. Article 274 of Civil Code further stipulates that the same rules and regulations shall be applicable to both the legitimate and illegitimate after the legalization proceeding is fully completed. 

The procedures started by getting an acknowledgment of the child by the father. He acknowledges the child as his flesh and blood, and therefore shall be willing to accept the responsibilities as a father. As part of the acknowledgement, he also allowed the child to use his family name. In some parts of the world, you need to use the same last name in order to be entitled to some privileges. 

On the other hand, the mother consents the legalization proceedings. She also needs to confirm that the child receives support from the father on a daily basis. The most important part is that she needs to confirm that the child is his. This is essential as her affidavit shall be supported with a DNA test. This is the primary procedure that has been shadowing the child legalization proceedings.

What If You’re Not Married?

If you’re not married, you can also conduct child legalization. You need to get a court to approve this case. This is quite a tricky process as you only have one bite of an apple. You need to get the process a success in the first place, otherwise they will throw the case out and you’re stuck in limbo.

Your child also needs legal protection by getting legal recognition by his/her parents. It’s reflected on his/her birth certificate with the complete parents’ name. The child born out of wedlock, they cannot have this. The child only has his/her mother’s name on it. This is awkward because you must have both parents otherwise it won’t work. The fact is, a father’s name is not printed on the birth certificate. You need to have your name as a father otherwise your child is not recognized legally. 

Article 43 (1) of 1974 Marriage Law allows the child born outside of legal marriage to have paternity relationship with the alleged man as his/her father. Thanks to the breakthrough decision by the Constitutional Court in 2010. I have assisted more than a dozen cases in doing so during my time as an attorney. This is not something you see everyday, but it’s happening here in our lives, and our legal system is perfectly well in getting the proceeding completed. 

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

 

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!

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