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Asep Wijaya

Asep Wijaya

Saturday, 19 August 2017 23:17

Property Ownership in Your Marriage

Law  on community property in Indonesia is very simple. It refers to the Article 35 of 1974 Marriage Law that stipulates: “Property acquired during the marriage shall become community property. Separate property of husband and wife acquired as gift or inheritance shall be under each party’s control, as long as the parties did not govern otherwise.” Governing otherwise means both you and your wife sign and entered into any prenuptial agreement.

If you signed a Prenup, that we should take a look at what your Prenup what have to say. The stipulation by the law was pretty simple. How you going to do about it? Dig deeper and see what the court said about it. We call it Precedence. It’s a Supreme Court ruling on issues and shall serve as reference for lower courts in trying similar cases. Some of the verdicts were major breakthrough. Some of them were detailed explanation of what the law had to say about the issue.

The Supreme Court have had categorized Community Property in various verdicts on issues on property in a matrimony. They are as follows:
  1. Property acquired during the marriage.  It doesn’t matter who bought it, husband or wife. It doesn’t matter who holds the property title. As long as it was bought within a legitimate marriage, then it shall be classified as Community Property. This was retrieved from the verdict of Supreme Court number 803K/Sip/1970. Of course, there was an exception when the money to acquire such property came from the proceeds of separate property, or from the saving of each party acquired before the marriage, then the property will be her/his separate property. The exception was retrieved from the verdict number 151K/Sip/1974.What do you need this for? You need this for to determine the definition of separate property while you’re writing your prenuptial agreement, or when you’re drafting your divorce settlement, or when you are in the proceedings of community property division in your divorce case.
  2. Property acquired after divorce financed by community property. Like for example, you and your ex-spouse have money in your joint account. One of the parties dried-up the account, and start making purchases like houses, cars, etc. Those properties are classified as Community Property. Nevertheless, you need to prove that the money comes from the joint account. You need to show a clear flow of the money. You’re bringing the motion, you ought to prove it. The legal doctrine was retrieved from the verdict of the Supreme Court number 803K/Sip/1970.The law in Indonesia can touch that, and you need to make sure that who ever took the money from the joint account can’t get away with it.
  3. Each and every property acquired during the marriage classified as the Community Property. You need to work hard to prove it. Regardless, who the title holder is, as long as you can withdraw a clear line and bring a bunch of evidence to the court that show the flows of the money, supporting documents, then the law can help you. As long as it’s happening during the marriage, the property is your community property. The Supreme Court had this case and took it as the precedence in verdict number 806K/Sip/1974.
  4. Income of husband and wife during the marriage. Their incomes are community property. Even though only one party is working, like for example, husband. In that case, his income shall be classified as community property. This is in line with the spirit when the law maker enacted the 1974 Marriage Law in Indonesia: husband is the bread maker in the family. Wife is the housewife. But things are changed now. We have equal rights. It means we want to be treated equal, right?
Community property is your property together with your spouse, regardless the contribution. Being together in a matrimony is something special. You’re not only focus on “I” or “you” but rather to promote “we” thing. Last night, I sat together with my wife in our living room. She wanted to buy some dining set, and she asked my opinion about it. Well, it is something simple. It wasn’t that expensive. For a second I thought, why don’t you just buy it and tell me about it afterward. I sat closer and pay attention to whatever she had to say about those china dining set. I asked her which one she liked, and we came to the conclusion to which dining set we’re buying. The one she liked, of course. Apart from that, something simple like a dining set can come to a powerful meaning for us to something that we can call: ours.
 
I am Asep Wijaya writing for Wijaya on the Access. Thank you for visiting my blogs, and reading the posts.
Prenuptial agreement in Indonesia requires two registrations. Registration at a district court, and registration at marriage registry. Indonesian legal system divides marriage registry into two. Civil registry for Non-moslem individuals, and Office of Religious Affairs (so called “Kantor Urusan Agama/KUA”) for Moslem individuals. Those two registrations are very crucial as each of them takes effect to the legality of your Indonesian prenup.
 
Legally speaking, those two (2) registrations comes from different source of law. The registration at the marriage registry imposed by the Marriage Law. The law needs the couples to register it with the marriage registry in order to make the agreement legally binding between them, and applicable to each spouse. The 1974 Marriage Law in Article 29(1) stipulates that: “At the time of or before the marriage took place, with the mutual consent of both parties, they may enter into an agreement approved by the Civil Registrar of marriage…” As for the registration at a district court, it is required by the Civil Code. Article 152 of Civil Code states: “No stipulations in the prenuptial agreement which deviate entirely or partially from the provisions regarding legal community property shall apply to third parties, earlier than from the date of copying such stipulations in a public register, which shall be done with the court clerk at the court of justice, within whose legal jurisdiction the marriage was executed.” The idea is to keep the prenup can be upheld and legally binding against other third party. Who’s the third party? It’s the husband and wife. The third party can be anybody beside those two. It can be either the banks they loan money to, it can be either other people that may purchase their properties. So, the two registration are required in order to have a conclusive legal binding prenup.
 
What if, for some reason, your marriage couldn’t be performed and registered in Indonesia. It must be conducted overseas, outside Indonesia. May be the place has sentimental meaning for some individuals. But they may consider Indonesia as the place to get marry in Indonesia if they knew what will happen to their Indonesia prenup if they get marry abroad. Well, registering their marriage overseas might cause their prenup lose one registration, which is registration at a marriage registry. Reporting your overseas marriage is not the same with registering your marriage abroad. On the reporting marriage certificate certifies that it’s not a marriage certificate. It means that your Indonesian prenup cannot be registered the same time you report your foreign marriage at a marriage registry.
 
What does this mean? It means that your prenup is voidable. By whom? By either party in the prenup. By husband or wife. Either you or your wife may submit any motion to the court and ask them to legally annul it. If the motion application for prenup annulment is granted, then your marriage falls under the definition of joint property ownership. The Marriage Law shall applicable to your marriage. When the prenup is cancelled, the “shield” is open, and you’re exposed. This is not good. Therefore, make sure that every formalities required by the prevailing laws are met. I am Asep Wijaya writing for the Wijaya Law Review. Thank you for reading.
Tuesday, 27 June 2017 13:22

Marriage Legalization in Indonesia

Marriage legalization is for Moslem couples only. It applicable for those who were married in an Islamic ceremony. You know, the one that required you to convert into the same Moslem religion with your partner in order to get marry. If that rings a bell now, yes, this one is for you. This is regulated under the Indonesia's Compilation of Islamic Law. It was introduced in June 1991. Since then, the legal proceeding is more and more required by the laws in order to secure the legality of the marriage by Moslem couples in Indonesia. 

You see, the marriage is the foundation of someone's life. If it's fragile, legally questionable, you might end-up in a fiasco. The marriage legalization is the legal way to fix your foundation. It might not sounds popular to some people, but it gives you the answer you and your family need. The marriage legalization is to legalize the earlier performed marriage. It has the legal power of retroactively legalize the past in order to get recognition in the future, such as the birth of the baby, property division during the course of marriage, prenuptial agreement, custody, inheritance, immigration issues, and even divorce. This is quite complicated motions as not every marriage legalization lodged gets approved by the court of law. You need to present facts and legal grounds fair enough to support your petition, instead of getting denied. Our Indonesian lawyers will guide you step by step in order to accomplish the mission. Cases I've handled so far gave me clear and pristine lessons that each court, each judge might have different idea why your case must be tried, and approved.

The recent three cases I've handled were in Tangerang, Brebes, Central Java; and Cikarang, West Java. The first one, the case was so incredibly difficult where the marriage finally legalized one month before the couple's baby due. The second one was a unique situation where the couple was already divorce by the time the marriage legalized. The incredible one was when we filed the case with one of the spouses was already dead. His wife was the Petitioner. They need the legality of their marriage for the immigration issues they face back in the United States. Article 7 of Indonesia's Compilation of Islamic Law stipulates that the marriage legalization can be carried-out by either husband or wife, and their children. Even her husband has passed-away, his wife still have the right to file for the legalization of their marriage in Indonesia. The final outcome of this proceeding may be a stipulation regarding the marriage legalization. It is also advisable to forward the court's holdings by filing it separately to the Marriage Registry. It doesn't come automatically as it is requires manual application to different government institutions. Normally, a stipulation from the court that the marriage has been legalized is enough and legally acceptable.

On another subject, the marriage legalization is not the same with marriage registration. These proceedings are under Indonesia’s 1991 Compilation of Islamic Law. The court of law is the government institution for the proceedings. This is not the same as if you perform the marriage, and register it with a marriage registry. The latter refers to marriage registration under the 1974 Marriage Law. The thing is, under this proceeding you will not receive any marriage booklet. The marriage legalization is meant to legalize the marriage previously conducted. If you were to do marriage registration now, you will have new marriage date. The actual date when you perform the marriage. So, on another words, those two things are similar but have different legal impacts both to your marriage, and your beloved family.
 
You see, this is all about turning the clock around and fixing things. Things that might left behind. Important enough to turn around to, the future of your family. I am Asep Wijaya, writing for Wijaya on the Access. Thank you for reading.
Friday, 28 April 2017 13:58

Marriage in Indonesia

 
Marriage registration in Indonesia can be done after fulfiling ten days waiting period. You must have the same religion in order to get marry in Indonesia. We don't recognize mixed religion registration. Any marriage performed according to the couple's religion affiliation is legal in Indonesia. For non-Moslem couples, after they performed religious ceremonies, they must register their marriage with the civil registry in order to make it legally recognized. Under the current law, it must be done at the same jurisdiction with their domicile. Otherwise, the civil registry will not be able to accept their marriage registration. As for Moslem couples, their marriage must be registered with the Kantor Urusan Agama (KUA). They will receive a passport-sized marriage book colored in brown and green. The English term for this government institution is Office of Religious Affairs. Marriages registered with the KUA is legal and recognized, even without registration with the civil registry.  
 
The marriage ceremony can be done at the office of the marriage registry, or it can also be done at your place i.e. hotel, apartment. They can also come to your house. The marriage books or marriage certificate will be presented to you after the  ceremony. If you sign a marital agreement before the marriage, the details of your prenup shall also be printed on the marriage book/certificate. So is with the prenup, it will have the registration details from the Marriage Registry. This is to meet publicity requirements as set-out by the Marriage Law. The marital agreement must also be registered with a court. Both of registrations will be shown in your marital contract. You need to do this in order to create a legally binding marital contract, and a bonafide marriage. I strongly suggest you do so.
 
During the proceeding of the marriage, you may also conduct a child legalization. This involves the child birth certification to include his/her relationship with the biological father. Nowadays, they need you to supply a DNA test to support your parental claim. Two witnesses are required in order to support the birth registration of the child. At this point, you need to perform a court litigation. This is quite tricky situation. This may also involves citizenship issues if the alledged father is an Indonesian. The child birth certificate will show his/her nationality(ies). This is a civil document to prove the legal identity of the child. This is the last thing you want to mess up with.
 
As you can see, the marriage is the foundation of your life. It affects so many aspects in your life, and your loved ones. When you're doing things rights, and you're doing it the right way, you'll be fine. Everyone will be alright. Wijaya & Co can assist you in registering your marriage by going through the administrative procedures and government bureaucracy, so you don't have to. Our lawyers know how to get you tie the knot with your partner legally.
 
My name is Asep Wijaya. Thank you for reading my posts, and visiting my blogs.
 
Friday, 24 June 2016 20:46

Marriage in Indonesia

Tuesday, 18 March 2014 20:42

Postnup vs Back dated Prenup

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