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Asep Wijaya

Asep Wijaya

When you have decided to file for a divorce against your spouse, one of the legal issues that you should pay attention to is court jurisdiction. I mean you must know what and which court that responsible for your case. Failure to do so will cause your divorce petition rejected. Therefore, it is the first important thing you should know before you proceed any further.

Type of Courts

There are two (2) type of courts related to divorce cases i.e. religious court (so called “pengadilan agama”) and district court (so called “pengadilan negeri”). Most of the courts located in every town which in Indonesia also known as “walikotamadya” or “kabupaten”. We call this differentiation as Absolute Court Jurisdiction.

How to determine?

The type of your ceremony when you got marry is to determine which court is responsible for your case. If you were married in Moslem, then your marriage was registered with the Office of Religious Affairs (so called KUA/Kantor Urusan Agama). Therefore, when you’re filing for divorce, your divorce petition must be registered at the local religious court. If you were married in Non-Moslem ceremony i.e. Christian, Hindu, or Budhist, then your marriage was registered with the civil registry office. Therefore, your divorce petition must be registered at the local district office.

Court jurisdiction is one of the things that related to your divorce case in Indonesia. For further information, you must consult an attorney with experience handling family and matrimonial law in Indonesia.

Thursday, 03 September 2009 08:45

Nulla Osta for an Indonesian Married in Italy

Definition

Nulla Osta is an Italian terms of the Non-Impediment Letter, a certificate certify that you are legally free to marry and there is no objection to your proposed marriage.

Registering a Marriage in Italy

If you are registering your marriage in Italy, you need to get a Certificate of Singlehood from your local Civil Registry Office in Indonesia. The certificate must be legalized by the Ministry of Law and Human Rights (so called “Ministry of Justice”), and the legalized by the Foreign Affairs Ministry, and lastly by the Italian Embassy in Jakarta. Thereafter, you need to make an exchange for a Nulla Osta at the nearest Indonesian Consulate to where you are getting married in Italy.

Time Frame

You must not set-up a marriage date before you can get complete and legalize singlehood certificate. There are too many surprises down the line. You need to work with government institutions and bureaucracy that sometime delays the time. Not to mention ridiculous supporting documents that you must supply before hand. You need to allow a month or two before you finally set the date and register the marriage in Italy.

Embassy of Indonesia

You need also to consult the Indonesian Embassy in Rome before initiating any actions. Sometime they only require legalizations with Ministry of Justice and Foreign Ministry. You are not required to secure Italian Embassy legalization or even Italian translation of your singlehood certificate.

Collect More Information

Most important of all, you need to collect more information from the very beginning. Securing lots information can sometime put you in the in right track. Information sometime can be very expensive, and access to it cannot be verified instantly. Therefore, you may ask an expert or local Indonesian lawyer to consult about the issues.

Good luck with your marriage!

In accordance with Compilation of Islamic Law, there are two (2) type of premarital agreement for Moslem couples. They are:

  1. Taklik talak; and
  2. Other agreement in line with Islamic law.

Taklik Talak consist of two words. Taklik means depending. Talak means divorce. Literally, Taklik Talak means divorce depends on something. I would prefer to refer it as conditional divorce. In Islamic Law, Taklik Talak considered as premarital agreement. What is Taklik Talak, and where you can find it? It is also known as “Sighat Taklik”. It is the wording that a husband must read out loud after performing the marriage ceremony. Ring a bell? OK, I will refresh your memory. The following is an English version of standard Indonesian wording:

Sighat Taklik

After performing the marriage ceremony, I am [Husband’s name] son of [Name of Husband’s Father], I herewith promise truthfully that I will fulfill my obligation as a husband and I will treat my wife named [Name of Wife] daugther of Mr. [Name of Wife’s Father] kindly  according to the teaching of Islamic religion.

Furthermore, I read this sighat taklik  for my wife as mentioned as follows:

Anytime I:

  1. leave my wife two (2) years continuously;
  2. or I don’t provide compulsory necessities of life for three (3) months long;
  3. or, I hurt my wife’s physically;
  4. or, I neglect my wife for six (6) months long;

Then my wife is not willing and she complains about the matter to the religious court, and her complain is accepted by the court, and my wife pays money in the amount of Rp. 10,000 (ten thousand Rupiah) as iwadh (substitute) to me, then falls my once divorce to her.

To the afore-mentioned court, I authorize to receive the substitute money and then to hand it over to the Directorate General Guidance of Islamic Society Cq Directorate of Religious Affairs and Shari’ Guidance for the need of social devotion.

 

Divorce by Taklik Talak is not automatically granted. Divorce petition to the religious court would require to be submitted to cross examine whether there is any violation against conditions in Taklik Talak.

The Taklik Talak is not a compulsory to be performed, nevertheless once it has been performed, it can never be revoked. In the field of practice, many religious court dissolved marriages based on the 1974 Marriage Law and Compilation of Islamic Law, even tough the divorce petitions were filed based on violation of Taklik Talak.

The purpose of Taklik Talak is meant to protect women against men’s discrimination and to put them in equal position with men in all family affairs.

When applying for your mixed-child Indonesian citizenship to the Ministry of Law and Human Right in Jakarta, your overseas marriage must prior be registered with the Civil Registry Office in Indonesia. In turn, they will issue “Marriage Reporting Certificate” (so called “Laporan Perkawinan” or “Tanda Bukti Lapporan Perkawinan”). Your overseas marriage shall be legally recognized by the Indonesian laws. Failure to do so might jeopardize your child’s application. The Ministry would send request for additional evidence, and therefore will delay the process for months.

Application for child’s citizenship can be made either at the nearest Indonesian embassy or consulate or in your home country in Indonesia. In support to your application, you must provide Indonesian spouse’s domicile evidence such as national ID Card (so called “KTP”) and family card (so called “kartu keluarga”). Based on our experience, officials would require your child to be listed on the family card as member of the family, but some just don’t require so. You may submit the application by yourself or you may authorize other third party who have enough experience handling such case.

Saturday, 29 October 2016 12:59

Post Marital Agreement in Indonesia

Postnuptial agreements, also known as post-marital agreements, are agreements entered into after a marriage has taken place. There are many reasons why a mixed-nationality married couple might wish to draw-up a postnuptial agreement. Among others, a couple that did not sign a prenuptial agreement before marriage may later determine that they want to have some sort of financial plan in place in the event of death or divorce. Additionally, a major change in the financial circumstances of the couple, such as a major career change or inheritance, may alter the financial landscape, requiring a change to the terms of the couple's existing prenuptial agreement to reflect their current wishes, such as the intention of purchasing property in Indonesia.
 
Indonesia’s 1974 Marriage Law only recognizes prenuptial agreements, ("prenup" for short), a written contract created by two parties before they are married. The 1974 enacted law only discussed the matrimonial agreement that must be drawn-up prior to marriage. Indeed, the law regarding the validity and enforcement of post-marital agreements is not well developed in Indonesia.
 
But if we dig a little bit deeper, Indonesian Civil Code provides a special provision concerning property division in the course of marriage. The postnup is a product of the ancient Civil Code. It’s been there for many decades. So, some couples have been using these provisions. It just that the postnup is not as popular as its related document, the prenup. In my personal opinion, the postnup is like a fine wine. It’s being kept in the dark, until it matures enough to become something you would like to have dinner with.
 
What’s Postnup?
 
First of all, a postnup is not a back-dated prenup. It is signed and dated after your marriage. When you’re married, you’re married. There’s no way you can turn the clock back after you are already married and get a prenup or even back-date a prenup. That would be illegal under Indonesian law! The harsh reality is that the courts tend to assume that a prenup is always valid, but they have the opposite reaction to the back-dated prenup. The assumption is, in the majority of cases, that this type of agreement is not valid.
 
You can’t find a postnup mentioned in the 1974 Marriage Law. Nevertheless, just because the Marriage Law doesn’t say anything about the postnup, it doesn’t mean it’s not legal.  It’s already exists in the Civil Code. This is can be the ultimate solution for mixed-couples in Indonesia who did not sign a prenuptial agreement before their marriage. This also may preserve the rights of the Indonesian to own property in Indonesia, even though they are married to a foreigner.
 
The postnuptial agreement may be useful to couples seeking to enter into a post marital agreement after a significant financial change or a period of marital conflict. It is signed and entered into in contemplation of an existing, ongoing, and viable marriage. This agreement allows married couples to legally pre-determine how property will be divided, if the couple divorces.
 
The postnup creates property separation in your marriage since the signing date, and therefore the community property regime, shall not exist any further. As for the property in existence prior to the postnup, you would need to determine what that encompasses. It has to be separated as well. Then, you need to appoint one spouse as the property holder.
 
Nevertheless, please take a note that signing a postnup is not the only phase required to create a separation of property during the course of your marriage. Your Indonesian lawyer needs to work on other legal issues such as taking prior legal measures to make sure of the legality of the postnup before it is signed by the husband and wife.
 
Legal Implications of the Postnup
 
Legal implications will occur due to property division in the course of the marriage in terms of the two parties in the postnup (i.e., husband and wife), the property in the marriage, and other possible related third parties. Both husband and wife shall be bound by the legal binding force in effect from the Postnup. As it is a legally binding contract, therefore it shall serve as the law between both contracting parties; husband and wife. This is in line with Article 1338 of the Civil Code stipulating that: “All contracts legally drafted shall serve as the law to the parties involved.”
 
The postnup also takes effect upon third parties. In regards to creditors, the further implementation must be specified in accordance with the time frame. Community property shall be liable to serve as collateral in the event a mortgage exists prior to the postnup date.  On the other hand, if one spouse gets a loan from a bank after the postnup date, his/her separate assets shall be in liability to any debts he/she might have created.
 
Postnup for Mixed-Marriage Couples
 
In accordance with Article 186 (1) of the Indonesian Civil Code, the wife may, in the course of marriage, request a division of assets, in the following circumstances: "...wife is in imminent danger of losing the security of her dowry and her entitlements pursuant to the law…, and also if ...  in the management of the community property, such property might be endangered." This is totally applicable to the circumstances in every no-prenup mixed-nationality married household in Indonesia. By marrying a foreigner, the Indonesian spouse will be precluded to own property, which is her/his right as an Indonesian citizen. Therefore, his/her entitlements to own property in Indonesia may be endangered.
 
There are many mixed-nationality married couples in Indonesia that did not sign a prenuptial agreement prior to their marriage. In the absence of a prenuptial agreement, by law, their marriage has joint property regime because the Marriage Law - automatically assuming joint property regime within their marriage. This means that either spouse would require consent from the other spouse for every transaction involving immovable property in Indonesia.
 
Consent is implemented if both parties co-sign every transaction document. In terms of a mixed-nationality marriage, such consent cannot be retrieved from the foreign spouse because a foreigner is not allowed to own property in Indonesia. An Indonesian will not be able to retrieve such consent from their spouse because the foreign spouse is not in the legal position to own the property in the first place. So, the Indonesian spouse is stuck. This is where a prenup is essential to prevent this dilemma.
 
Since there are many mixed-nationality couples without a valid prenup, then a postnup may be used as one of the options. Writing a postnup, just because you didn’t have a prenup, is not a routine document. Instead of creating an illegal back-dated prenup, I certainly think the postnup is legally worth considering.
 
Postnuptial agreements are most often used to settle financial matters, including property ownership in mixed-nationality marriages. The postnup is very useful when spouses failed to create a prenuptial but want to protect their assets. It is not something that is common in Indonesia because the law thinks that you should have gotten a prenup in the first place. Therefore, the requirements to establish a postnup are stricter than for establishing a prenup. The contract must be created with full disclosure of all assets, be entered into voluntarily by both parties, and have terms that are fair and equitable.
 
Why should you get a Postnup?
 
Because it is dated after your marriage and because it is a legal document. The postnup is about admitting that the Indonesian spouse did not realize that they needed a prenup in order to own property in Indonesia before they married a foreigner. It’s about being honest with yourself and to the public institution where the postnup will be registered. Back-dated prenups are about manipulating the facts of your marriage date, and the date when you signed the prenup.
 
Postnup are the most favorable choice for the difficult situation of having no prenup in the first place. Some mixed-nationality married couples have resorted to questionable measures, such as making purchases using fake ID cards, or risky purchases, such as buying real property using their relative’s name.  You may be trust them, but trust is not the only issue here.
 
The postnup is about making sure that you control your own property without have to rely on someone else’s mood. With the postnup, you have the power and the authority to make the purchase without being affected by the legal constraints.
 
What’s Your Marriage Like after the Postnup?
 
The postnup serves as the law for both contracting parties; husband and wife. After both of you signed the postnup, property shall be separated upon the legal effective date of the postnup. Both spouses shall be independent and will not require consent from the other spouse, including to conduct property transactions. The best part is the Indonesian spouse will no longer be affected by his/her foreign spouse. The rights of an Indonesian to own property are preserved as if you had a prenup from the beginning of your marriage.
 
Reinstatement of Community Property
 
You would use these proceedings, if you want to return to the joint property regime, because perhaps the laws may have changed. For example, the Indonesian spouse is no longer affected by being married to a foreigner regarding the ownership of property in Indonesia.
 
In the event where community property is reinstated, matters relating thereto shall be afforded the same status as that applicable prior to separation, without prejudice to the result of acts carried out by the wife which took place in the interim between separation and reinstatement. Agreement providing for reinstatement of community property by the spouses for any reasons other than those already specified shall be deemed void.
 
The community property which is dissolved by separation of assets may be reinstated with the consent of both spouses. The reinstatement of community property must be made public by both spouses. Third parties shall not be affected by the reinstatement until the public announcement has been made.
 
Endorsements from the Jakarta Higher Court
 
Recent developments related to the postnup have been very important. The latest updates from the Jakarta Higher Court regarding the marital agreement entered into after the marriage. The endorsement from the Higher Court is  subject to the following terms and conditions, among others:
  1. As long as the postnup entered into by husband and wife in accordance with Article 1338 Civil Code, then it serves as the law to both of them. Therefore, the parties in the postnup must  perform their rights and obligations as specified in their postnup. In the event one party fails to do so, then the other party may file a complaint to the court of law.
  2. Furthermore, the Jakarta Higher Court stipulates that the postnup must be dated with an actual date. So, why should you back-dating the prenup in the first place, while you can have an actual-date postnup and legally endorsed by the Higher Court?
  3. No need to record the postnup on your marriage certificate. Unlike the prenup, the postnup does not require registration at the marriage registry to take effect legally between husband and wife. The postnup automatically valid legally when you covenant and agree to execute its terms and conditions. This must be done freely and voluntarily and free from coercion, duress or pressure of any kind, and they have an adequate opportunity to read and study the postnup.
Legally Recognized by the National Land Registry 
 
In Indonesia, government agency responsible for the titles management of immovable properties in Indonesia is the National Land Registry (so called the BPN/Badan Pertanahan Nasional). Recently, our postnup has been recognized by the BPN. A mixed-marriage couple, a British husband and an Indonesian wife, they were married in July 1993. In the year 2008, she received an inheritance from her father, a house worth more than 15 bio IDR, but was unable to hold it because they didn’t sign any prenup. She nominated her older sister to hold the title of the house. In August 2015, the couple signed our postnup. It took a couple of months for transferring the title. In January 2016, the name of the Indonesian wife was printed on the house ownership certificate. The title of the house is Hak Milik (Freehold Title) and the transfer proceedings were conducted on the certificate of ownership (SHM/Sertifikat Hak Milik) by the BPN in South Jakarta.
 
So, the BPN recognized her rights as an Indonesian to hold the estate as it is vested by our postnup they signed during the course of marriage. This is of course a very good news for married couples without any prenuptial agreement in Indonesia. I do believe the married couples can thrive in owning the property even without a prenup, and I can say that our postnups have definitely been enriched with the recent developments.
Friday, 25 October 2013 00:00

Postnuptial Agreement in Indonesia

Foreword

Postnuptial agreements, also known as post-marital agreements, are agreements entered into after a marriage has taken place. There are many reasons why a mixed-marriage couple might wish to draw-up a postnuptial agreement. Among others, a couple that did not sign a prenuptial agreement before marriage may later determine that they want to have some sort of financial plan in place in the event of death or divorce. Additionally, a major change in the financial circumstances of the couple, such as a major career change or inheritance, may alter the financial landscape, requiring a change to the terms of the couple's existing prenuptial agreement to reflect their current wishes, like simple thing as the intention of owning property in Indonesia.

Indonesias 1974 Marriage Law only recognises prenuptial agreements, ("prenup" for short), a written contract created by two people before they are married. The 1974 enacted law only discussing the matrimonial agreement that must be drawn-up prior to marriage. Indeed, the law regarding the validity and enforcement of post-marital agreements is not well developed in Indonesia. But if we dig a little bit deeper, Indonesian Civil Code provides special provision concerning property division in the course of marriage. The postnup is a product of our ancient Civil Code. Its been there for many decades. So, some couples have been using it all along. It just the postnup is not as popular as his other sibling, the prenup. As to my personal opinion, the postnup is like a wine. Its being kept in the dark, until they mature enough into something you would like to have dinner with. 

Whats Postnup?

First of all, postnup is not a back-dated prenup. It is signed and dated after your marriage. When youre married, youre married. Theres no way you can turn the clock around and get a prenup, or even back-date a prenup. Thats awful, and illegal of course! The harsh reality is that the courts tend to assume that a prenup is always valid, but they have the opposite reaction to the back-dated prenup. The assumption is, in the majority of cases, that this type of agreement is not valid.

You cant find a postnup in the 1974 Marriage Law. Its not there. Nevertheless, just because the Marriage Law didnt say anything about the postnup, it doesnt mean its not legal. Its in the Civil Code. This is can be the ultimate solution for mixed-couples in Indonesia who did not sign a prenuptial agreement before their marriage. This also may preserve the rights of the Indonesian to own property in Indonesia even though they are married to a foreigner. 

The postnuptial agreement, may be useful to couples seeking to enter into a postmarital agreement after a significant financial change or a period of marital conflict. It is signed and entered into in contemplation of an existing, ongoing, and viable marriage. This agreement allows married couples to legally pre-determine how property will be divided if the couple divorces.

The postnup creates property separation in your marriage since the signing date, and therefore the community property regime shall not exist any further. As for the property exist prior to the postnup, you need to determine them. It means that it has to be separated as well. You need to appoint one spouse as the property holder. 

Nevertheless, please take a note that signing a postnup is not the only phase required to create separation of property during the course of your marriage. Your Indonesian lawyer needs to work on other legal issues such as taking prior-legal-measures to make sure the legality of the postnup before signed by husband and wife.

Legal Implications of the Postnup

Legal implications will occur due to property division in the course of marriage to the parties in the postnup (i.e. husband and wife), to the property in the marriage, and other related third party. Both husband and wife shall be bound by the legal binding force as affected by the Postnup. As it is a legally binding contract, therefore it shall serve as the law between both contracting parties; husband and wife. This is in line with Article 1338 of Civil Code stipulating that: All the contracts legally drafted shall serves as the law to the parties involved.” 

The postnup also take effect to the third party. The further implementation in regards to creditors, it must be specified according to the time frame. The community property shall be liable as collateral in the event the mortgage exist prior to the postnup date. On the other hand, if one spouse getting a loan from a bank after the postnup date, his/her separate assets shall be in liability to any debts he/she might have created. 

Postnup for Mixed-Marriage Couples

In accordance with Article 186 (1) of Indonesian Civil Code, the wife may, in the course of marriage, request a division of assets, in the following circumstances: "...wife is in imminent danger of losing the security of her dowry and her entitlements pursuant to the law.., and also if ... in the management of the community property, such property might be endangered." This is totally applicable to the circumstances in every no-prenup mixed-marriage household in Indonesia. By marrying a foreigner, the Indonesian spouse will be precluded to own a property, which is her/his right as an Indonesian citizen. Her/his entitlements in owning a property in Indonesia may be endangered. 

There are many mixed-marriage couples in Indonesia that did not incorporate a prenuptial agreement prior to their marriage. In the absence of a prenuptial agreement, by law, their marriage has joint property regime because the Marriage Law automatically assuming joint property regime within their marriage. This means either of you would require consent from the other for every transaction involving the immovable property in Indonesia. The implementation of consent if to co-sign of every transaction documents. In terms of mixed-marriage, such consent cannot be retrieved from the foreign spouse because a foreigner is now allowed to own property in Indonesia. An Indonesian will not be able to retrieve such consent from her spouse because he is not in the legal position to own the property in the first place. So, the Indonesian position is stuck. This is where a prenup is essentials. 

Since there are too many mixed-couples out there without a prenup, then a postnup may be used as one of the options. Writing a postnup, just because you didnt have a prenup, is not some business they see every day. Instead of getting a silly back-dated prenup, I certainly think the postnup is legally worth a shot. They can get a postnup. 

The postnuptial agreements most often used to settle financial matters, including property ownership in mixed-marriage. The postnup is very useful when spouses failed to create a prenuptial but want to protect their assets. It is not something usual in Indonesia because the law thinks that you shouldve get the prenup in the first place. Therefore, requirements to get a postnup are stricter than getting a prenup. The contract must be created with full disclosure of assets, be entered voluntarily by both parties, and have terms that are fair and equitable.

Why Should You get the Postnup?

Because it is dated after your marriage, and because it is legal. The postnup is about admitting that you did not realize that you need a prenup in order to own property in Indonesia right before you got marry to a foreigner. Its about being honest to yourself, and to the public institution where the postnup will be registered. Back-dated prenup is about manipulating facts of your marriage date, and the date when you sign the prenup.

Postnup is the most favorable choice for the limbo situation of having no prenup in the first place. Some mixed-marriage couples have resorted to questionable measures, such as making purchases using fake ID cards, or risky purchases, such as buying real property using their relativesname. You may be trust them, but trust is not the only issue here.

The postnup is about making sure that you control your own property without have to rely on someone elses mood. You have the power and the authority in making the purchase without affected by the legal constraints anymore. Sounds good, huh? 

Whats Your Marriage Like after the Postnup?

The postnup serves as the law for both contracting parties; husband and wife. After both of you signed the postnup, the property shall be separated since the date of the postnup takes effect legally.

Each and every spouse in your matrimony shall be independent and will not require any consent from the other spouse, including to conduct property transactions. The best part is the Indonesian spouse will no longer affected by his/her foreign spouse. There you have it! The rights of an Indonesian in owning the property is preserved as if you had a prenup in the beginning of your marriage.

Reinstatement of the Community Property

This is the proceedings if you want to go back to the joint property regime, because may be, the laws have changed. For example, the Indonesian is no longer affected by getting married to a foreigner in owning any property in Indonesia. 

In the event where community property is reinstated, matters relating thereto shall be afforded the same status as that applicable prior to separation, without prejudice to the result of acts carried out by the wife which took place in the interim between separation and reinstatement. Agreement providing for reinstatement of community property by the spouses for any reasons other than those already specified shall be deemed void. 

The community property which is dissolved by separation of assets may be reinstated with the consent of the spouses. The reinstatement of community property must be made public by the spouses. Third parties shall not be affected by the reinstatement until the public announcement has been made. 

***

Friday, 13 May 2011 00:00

Foreign Marriage Registration

Getting marry abroad is a romantic decision to make, among other considerations taking into account. Indonesian who married abroad must pay attention to certain registry requirements imposed by the prevailing laws. Registration of marriage must be conducted with the authorized local marriage registry. When registration with the local registry completed, marriage reporting must be made with the nearest Indonesian Embassy or Consulate. This is a temporary reporting requirements until you return to Indonesia.

There are two (2) prevailing laws governing overseas marriage legalization and reporting i.e. 1974 Marriage Law and 2006 Administration of Population. The first one stipulates that overseas marriage must be legalized and reported within 12 months since the date of your return to Indonesia. The other one stipulates that you must legalize and report the marriage within 30 days since your return, and it has been implemented under the 2008 Government Regulation in April 2008. Both laws are conflicting but the latter is the particular law governing this particular circumstances.

Civil registries all over Indonesia are in the process of transition to the new law. Therefore, it is a wise thing to do to pay attention to the arrival date in your passport. Failure to meet the reporting requirements shall be fined for IDR 1,000,000 equivalent to about USD 100 Other civil registries categorized the failure of meeting the time frame as an "Important Event" which means only a district court may order the civil registry to record your overseas marriage.

You are required to obtain a court decree prior to legalize and record your marriage. You need to submit civil petition at the local district court.  Approximately within 30 days, and upon receipt of completed supporting documents, the court will set-up a hearing to cross-examining all the supporting evidence.  You may be required to provide two witnesses. Usually the hearing will only take place once. After the hearing, the court will issue a court decree to order civil registry to record your marriage. Based on the court decree, the civil registry will issue an STBLP (Surat Tanda Bukti Laporan Perkawinan/Marriage Reporting Certificate).

An STBLP is a very useful certificate. Your overseas marriage will not be legally recognized by the Indonesian laws. It is the same as if no marriage at all. No marriage means no divorce. Children born in the marriage shall be categorized as out of wedlock. Claiming Indonesian citizenship for your child born before August 2006 will require an STBLP, if you were married abroad. Furthermore, it will also take effect to the inheritance issues. It seems the 2006 enacted-law sending  a message the importance of marriage legalization and reporting by imposing more strict time frame. It is more likely people would fail to meet the 30 days reporting requirements as it is too short!

Most people think of marriage as the ultimate emotional and spiritual bond. They are looking forward to a life of happiness. However when faced with negotiating a premarital agreement, they realize that not only do they have to decide what will happen to them if they divorce or when die, but that they also have to negotiate these issues with their fiancée. It’s not the types of subjects that an about to be married couple likes to think about prior to getting married.

Persons in Need of a Prenup

Consider a prenuptial agreement if you have at least one of the following situations:

  1. You are an Indonesian citizen planning to marry to a foreigner;
  2. You plan to purchase land or a home in Indonesia during your marriage;
  3. You are on a fast career track and are likely to earn a hefty salary in the future;
  4. You own your own business or are a partner in a company;
  5. You are the person who will bring a lot of assets to the partnership, including a retirement account;
  6. Anyone who is paying for his or her spouse to get an advanced degree which is likely to result in significant future earnings;
  7. You have children from a prior marriage.

Legal Grounds for Prenuptial Agreement

The prenuptial agreement in Indonesia is honored and can be upheld in court. The laws governing prenuptial agreements (prenup) stipulate that the agreement should be made prior to marriage. The legal grounds for the prenup come from severalapplicable Indonesian laws, including: Civil Code, 1974 Marriage Law, and Compilation of Islamic Law, as follows:

  1. Article 47 (1) of Compilation of Islamic Law Article stipulates similar provision with the Marriage Law: “At the time of or before the marriage took place, the bride and groom may enter into an agreement approved by the Registrar of Marriage regarding the management of community property.”
  2. 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, after which it shall also apply to third parties as long as it involves them as well.” Another provision stipulated in the marriage law is that the agreement cannot be amended during marriage, except upon approval of both parties and cannot cause disadvantage to any third party. This stipulation comes from Article 29(4) in the Marriage Law.
  3. Article 199 of the Civil Code stipulates that: “From the commencing of a marriage, there shall exist by law, community property between the spouses to the extent that no other stipulations have been made in the prenuptial agreement…”

Making a Prenup

Indonesian law does not provide a ready-made framework for a prenuptial agreement. You and your lawyer have leeway to define your future legal relationship, although you are bound by law, religion, morals, and public order considerations in drafting the agreement.

An Indonesian prenuptial agreement must be tailored to the particular needs of the husband and wife and be sufficiently flexible to take into account changes in your future circumstances during the course of the marriage. Both parties are free to determine the form of agreement, as long as it abides by religious and civil laws. The provisions are indeed very abstract. The legislature seems to leave it that way in order to make it flexible within the influences of religion, moral, and public order.

Begin by collecting all the subjects and items you want to be included in the prenuptial agreement. Ask your lawyer to draft the agreement and request his/her recommendations. Make note that the property purchased in Indonesia will be under your Indonesian spouse’s name. This is necessary because foreigners are not allowed to own property in Indonesia. For mixed couples what is needed is a prenup which instigates separation of property as the rule so that an Indonesian spouse can legally own and hold property under Hak Milik (Freehold Title) on property purchased. This negates the foreign spouse being an automatic owner of 50% of the property due to the usual joint property rule for married couples in Indonesia. This is one of the most important points of the pre-nuptial agreement and is a requirement for a mixed couple to purchase land/property in Indonesia.

You need to specify the percentage of the combined wealth that each spouse will receive if the marriage was dissolved. Included in the agreement should be full disclosure of all assets and liabilities, including the value of each asset. Ensure that the terms oftheagreement do not promote dissolution of assets.

Keep a copy of all drafts of the documents so that there is a record that you have reviewed every draft. Keep all the drafts, correspondence, and notes so that the file reflects the negotiations and the various resulting revisions. Name and number the drafts in consecutive order such as “draft number three”. This record will be very helpful if the agreement is later contested. After negotiating the agreement, make sure you understand its terms and the importance of abiding by them. An agreement approved by both parties in its entirety is more likely to stand the test of time.

Avoid commingling assets and keep careful records. A qualified accountant or bookkeeper can assist you with this task. Even if the agreement is set aside or revoked, careful bookkeeping will make it easier for the court to trace assets and will save you lots of money.

At Wijaya & Co, we provide client with a pre-nuptial agreement questionnaire. The main purpose of this questionnaire is to gather facts and obtain client’s input on issues that should be incorporated into a prenuptial agreement. The questionnaire consists of the issues that should be considered when you enter into a prenuptial agreement. It can be difficult to discuss every issue that listed on the questionnaire. When you are ready with the answers, the couple may sit down together to discuss every one of the questions, even if they are difficult to resolve.

Legal Constraints for Mixed-Couples

If you are foreigner and plan to marry an Indonesian, you need to get a prenuptial agreement. Considering that foreigners are not allowed to legally own property in Indonesia, and if you wish to take the quite sensible precaution of a prenuptial agreement for the purpose of protecting yourself and your properties in the event that one of you dies, a prenuptial agreement is a must-have choice. The Indonesian government can, by law, take virtually every purchased property away from the grieving party if they did not create such a protective document PRIOR to marriage.

The legal constraints came from the Basic Property Law enacted in 1960 imposed that Indonesian married to the foreigner will be precluded to own a property in Indonesia. This is because the Marriage Law imposed joint property regime as imposed in Article 35: “Property acquired during the course of a marriage become community property.” As for the community property, the Marriage Law imposed further in Article 36 (1): “In regards to the Community Property, Husband or Wife may act on the consent of both parties.” Islamic Compilation Law, which is enacted specifically for Muslims, stipulates that: “A Husband or Wife is not allowed to sell or transfer the community property without the consent of the other.” This makes perfect sense because mutual consent must be obtained from the other spouse. When it comes to mixed couples, such consent cannot be obtained from your foreign spouse because they are not allowed to own property in Indonesia.

So, how could consent can be retrieved when someone is not in the legal position to hold it? Therefore, in order to avoid this kind of trouble, it would be prudent to draft a prenuptial agreement complying with Indonesian law to ensure that your financial interests will be upheld by an Indonesian court.

Importance of Separation of Property

The idea of having a prenuptial agreement for mixed nationality couples, among others, is to have a property separation regime in your marriage since the Indonesia’s Marriage Law is assuming joint property ownership in all marriages. The Marriage Law is applicable to all Indonesians and to all marriages registered in Indonesia. Furthermore, the Basic Property Law in Indonesia does not allow foreigners the right to own property in Indonesia. Therefore, when an Indonesian is married to a foreigner she/he will be precluded to legally own property in Indonesia.

The prenup creates a legal framework for a property separation in your marriage and thus preserves the rights of the Indonesian spouse to own property in Indonesia. The property ownership must be under the Indonesian spouse's name as the title holder. In the event the foreign spouse passes away, the Indonesian spouse may keep the property for good. Given the origins of the prenuptial agreement in Indonesia are in marital property provisions, therefore it can be concluded that the main contents of a prenup are about the rules of community property notwithstanding the provisions of the Civil Code.

If the Indonesian spouse dies, the foreign spouse must transfer the property within 12 months to other Indonesian's name. In many cases, this may be the child/children of the couple. At this stage, the stipulation imposed by the 1960 Basic Property Law is still applicable for foreigners. The prenup protects your financial interest in the event one of you passes away. Just remember, it must be agreed up and signed before the marriage, otherwise it won’t be valid or legally binding.

Record the Agreement

There are two registrations required for a prenuptial agreement. A premarital agreement must be recorded with the registrar’s office of the local district court and the marriage registry. The agreement will take effect for the husband and wife when the marriage is recorded at the Civil Registry or the Office of Religious Affairs and shall take effect against third parties upon the date of registration with the local district court where the marriage will take place.

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, after which it shall also apply to third parties as long as it involves them as well.”  Another provision stipulated in the marriage law is that the agreement cannot be amended during marriage, except upon approval of both parties and cannot cause disadvantage to any third party. This stipulation comes from Article 29(4) in the Marriage Law.

Registering a prenup with a district court is also required. If the agreement is not recorded at the local district court, then it will be considered that no prenuptial agreement exists. Thus, your marriage will have joint ownership in property. 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.”

Death of Either Party

If your Indonesian spouse passes away, the foreign spouse will have to transfer the property title within one year. To transfer the property you need to sell it to another Indonesian or pass it to your children. Under 2006 Citizenship Law, children born into mixed marriages are entitled to dual citizenship. They can keep the two citizenships until the age of 18 plus they have another 3 years to choose one of the two citizenship. In the event they did not choose Indonesian citizenship they will be treated as foreigner and therefore will not be able to hold the property any further. On the other hand, if the foreign spouse passes away, the Indonesian spouse can maintain ownership of the property.

Back-dated Prenuptial Agreements

A back-dated prenuptial agreement is not legal. Even though, you may find someone that might silly enough to provide you with a back-dated prenup, one can always tell that it's a back-dated prenup. A back-dated prenup is a marital agreement that dated prior to your marriage, but signed after you're already married.  People does that because they realize they need it after they are married.  So, they back-date the prenup as if it was signed prior to your marriage. But don't forget how the prenup may legally binding between you as husband and wife, and against other third party. It requires registrations, both at the clerk office of a district court, and at a marriage registry. The two registrations won't show back-dated registrations. They can only give you actual-date registration.

So, instead of getting a back-dated prenup, why don't you get a postnup. It's  some sort of a prenup signed after you get married. You may read it further here, and here.

Indonesian Prenup signed Abroad

In the event that you’re living abroad, or your marriage will be performed outside Indonesia and you cannot come to Indonesia just to sign a prenuptial agreement. You still can have a legally recognized prenuptial agreement by meeting the following legal formalities:

The Choice of Law. Your prenup must be governed under the laws of the Republic of Indonesia. There are several requirements in order to comply with this: a) it must be written and signed in the Indonesian language (English version may be provided for mutual understanding),  b) the prenup clearly states that Indonesian law is the law of choice, and therefore c) an Indonesian court must be used as the forum to resolve any dispute. Article 31 (1) of Law number 24 of 2009 regarding Flag, Language, State Symbol, and Anthem stipulates that: “Indonesian language must be used in the memorandum of understandings or agreements involving government institutions, government agencies, Indonesia’s private organizations or Indonesian citizens.” Any legal documents not complying with this rule may be null and void.

Indonesian Embassy Attestation. Since Indonesia is not a member sate of the Hague Convention on Abolishing the Requirement for Legalization for Foreign Public Documents, you must sign your prenup at the nearest Indonesian Embassy or must be attested by the consul staff at the Consulate. The place of signing must be the same country where you’re registering your marriage. This is related to the reporting of your overseas marriage.

Marriage Reporting at the Indonesian Embassy/Consulate. When you get married abroad, an Indonesian citizen is obligated to report the marriage to the Indonesian Embassy/Consulate in line with Article 37(1) of Administration of Population Law. This is a good time to register your prenuptial agreement as well.

Marriage Reporting at the Civil Registry. This is a permanent overseas marriage reporting and the burden of such reporting shall be on the Indonesian citizen. There are two laws regulating this issue: i.e., 1974 Marriage Law, and 2006 Administration of Population Law. The first one stipulates that it must be done within one year of the start of the marriage, and the latter states that it must be done in 30 days. Both laws impose the reporting time frame must be conducted upon your return to Indonesia. Usually, they will impose the latter law. Therefore, you need to report your overseas marriage, and as well as your Indonesian prenup signed abroad.

Foreign Pre-Nuptial Agreements

It may also be advised to have a pre-nuptial agreement that is valid in the country of origin of the foreign spouse to govern assets in the foreign spouse's country of origin. It should be registered in your country or through the consular section of your embassy in Jakarta. Both agreements are ONLY valid in the country they have been tailored for.

Updating the Prenup

It is important to understand the need to keep the agreement up-to-date. The agreement should be designed to accommodate the passage of time and changes in status, such as the birth of children, and increases or decreases in wealth, or the disability of either party. Since no agreement can take into account all possible eventualities, however, you need to review the agreement periodically with an attorney to keep it current.

Updated on Dec. 7, 2012.

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.

Monday, 25 October 2010 00:00

Child Custody & Maintenance in Indonesia

Custody and maintenance of children, like other family matters in Indonesia such as divorce, and inheritance; is governed by religious affiliation of the respective spouses. Some of you may find it absurd, but this relates to the belief that religion plays an important role in the family environment.

Child Custody for Moslem

The questions regarding who is entitled to custody or maintenance of children in the event of a divorce between a husband and wife who are Moslems, are subject to the provisions of the Compilation of Islamic Law, and also subject to the principles contained in the Religion of Islam. In the event of divorce, the maintenance of children who have not yet mumayyiz (under 12 year old) is their mother’s. In the case of mothers has died, then the position of woman as the holder of the rights can be replaced by the following persons: a). the women in a straight line upward from the mother, b). father, c). the women in a straight line upwards of the father; d). sister of the child concerned; or e). Blood relatives of women by the side line of the father. So, under normal circumstances, the law prioritizes custody to the mother of the child. Please take a note, under normal circumstances! If you think your particular situations are not even close, please continue reading.

For children who already mumayyiz, it is up to the child to choose between his father or mother as the holder of the right of maintenance. Nevertheless, the father of the child has the responsibility to provide child support according to his ability regardless who holds the custody.  He should provide child support at least until the child is able to take care of him/herself or have aged 21 years. This provision relates to the principle in Islam that the father is the bread-maker in the family. The fact that in this modern world where women are also working and making good career, it does not forbid the obligation of a father to provide the child support. Something we must realize is that other than as husband and wife, we all have other capacity that is as father and mother for children born in our marriage.

Child Custody for Non-Moslem

Child custody and maintenance for Non-Moslem is applicable for children under the age of 18 years old or unmarried. In case of divorce to both parents, the provision of child custody and maintenance can be found in 1974 Marriage Law, Child Protection Law, and Indonesia’s Civil Code.

The 1974 Marriage Law stipulates that in case of divorce, both parents are still obliged to maintain and educate their children until the child marries or able to support themselves. In the event of disputes, they are still obliged to maintain and educate their children until the child marries or able to support themselves. A district court may enter into a verdict on the disputes. The provision sends a message that child custody and maintenance in the event of divorce is still a part of the obligations and responsibilities of spouses. Furthermore, Child Protection Law provides that parents are obliged and responsible for caring, nurturing, educating, and protecting children, fostering the children in accordance with their abilities, talents, and interests, and should prevent the occurrence of early marriage.

The Civil Code stipulates that the legal consequences of a divorce may end the parental authority (ouderlijke macht) and turns into guardianship (voogdij). When the marriage dissolved by the court, there should also be regulated on the guardianship of the underage children. The guardianship shall be determined after the judge hears family from both parents with close relationship with the child.  Determination guardian also may be reviewed by a judge at the request of the father or the mother based on changing circumstances.

How Can You Lose the Custody?

Being a holder of child custody and maintenance is not permanent. A father or a mother could lose child custody and maintenance in the event he/she cannot guarantee the child’s physical and spiritual safety.

If You’re Moslem

At the request of child’s relatives concerned, the religious court may transfer the custody rights to other relatives who have rights of custody as well. Although child custody is a right of a mother, but sometime she could lose the rights due to special factors. There are factors that can impede her rights in obtaining child custody, among others, are:

  1. Ar-Riqqu. Literally, it means that the person concerned has status as a slave. I believe this is no longer applicable as we recognized equal status to all human being. Nevertheless, this can be further interpreted that the person has no freedom at her will. Don’t get me wrong! For example, you are working abroad and you cannot attend the child on daily basis in Indonesia. You need help from your family in Indonesia to take care of the child. On the other hand, your husband resides in Indonesia. Instead of giving the custody to you as the mother of the child, or giving a way the custody to wife’s parent; the father of the child will prevail and shall be the most appropriate parent to hold the custody and maintenance of the child.
  2. The Fasiq. She conducts immoral behaviors such as having an affair with other man, or even worse, committing adultery. Can we trust her with the responsibility of parenting?  When the court found her committing adultery, she will no longer entitle to child custody. How come? If she still has the custody, she will educate the child in accordance with her bad habits. Remember, our children learning by examples of their parents. The Islamic Law finds that the Fasiq will give negative impact to the children.
  3. The Kafir, means Non-Moslem person. The Islamic Law finds that they should not be entrusted with the parenting right of a Moslem child. Furthermore, the Islamic Law finds that they have the possibility in deceiving the child and removing it from the religious beliefs of Islam.
  4. A woman re-married with another man. On the issues of parenting, a mother holds primary rights to child custody and maintenance. However, the right will be automatically revoked when she married to another man with no family relationship with the child (ajnabi). On the other hand, if she married to a man with ties of kinship with the child, the mother custody is not lost.  The revocation of the custody right shall be on the ground of religious court’s order.  In this particular situation, I would like to refer to the Hadits of Prophet of Muhammad:

أَنْتِ أَحَقُّ بِهِ مَا لَمْ تَنْكِحِي

You have more right to nurture him/her as long as you are not married.”

When the impediment factors are disappearing, for example the mother divorced again, she will get her custody right back. Some women don’t know about these rules when they got divorce. When our firm work for a case in a religious court in Bali, we advised our client to resign from her employment abroad to avoid her losing the custody. Nevertheless, such decision sometimes cannot always be accepted by everyone. Having a custody means that you have a responsibility to raise the child. When you and your ex do not cooperate, you will face difficulties in doing the job. After all, it’s not easy being a single parent.

If You’re Non-Moslem

Every child has the right to be taken care of by their parents, unless there is a reason and/or valid legal rules indicate that the separation with the parent is in the best interests of the child and should be taken as the final consideration. However, court decisions remain to decide custody of parents against children when one of their parents behave poorly and neglect their obligations towards the child. Nevertheless, someone who holds child custody and maintenance must be of the same religious affiliation with the child. The existence of this provision will ensure the parent will provide religious education for the child properly.

The Child Protection Law further stipulates that parental authority of one or both parents may be revoked at the request of the other parent or adult siblings or authorized officer based on the court verdict due to neglecting the duty towards the child and behave badly. Let me be more specific on the definition of other parent. It can be either grandmother of the child from the father’s line, grandfather of the child from the mother’s line, and the child’s family in straight line upward (grandfather or grandmother of the child). The first one is being prioritized in the event both parents are being revoked by the court.

In view of the above and regardless who have the custody, I believe you and your ex must work together in raising the child. Both of you still have obligations and responsibilities even if you’re not married anymore. Set aside the ego, and work side by side for your flesh and blood’s upbringing. I know it is easier said than done, but it is worth to try.

Well, I hope you get the whole picture about this issue and most important is that you have enough access to the legal system that protects your rights.  At Wijaya & Co, we are helping people with their legal issues and assisting them to have access to the legal system in Indonesia. This information is to help them to gain the access and please feel free to forward it to others who might need the information. I’m Asep Wijaya, and thanks for helping Wijaya & Co spreads the access to the legal system in Indonesia.

***

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.

Tuesday, 19 October 2010 00:00

Oil and Gas Business in Indonesia

Oil and gas business activities in Indonesia are carried-out under two (2) types of activities i.e. upstream and downstream business activities.

Upstream Business Activities

Upstream business activities are the core business activities or based on activities which consist of exploration, and exploitation. Exploration is an activity aimed at obtaining information on the condition geology to find and obtain the estimated reserves of Oil and Natural Gas specified in the Work Area. Exploitation is a series of activities aimed to produce oil and Gas from the specified Work Area, which consists of drilling and completion of wells, construction of transportation facilities, storage, and processing for the separation and purification of Oil and Gas in the field as well as other activities that support it.

Downstream Business Activities

Downstream activities are the business which consist of processing, transporting, storing, and trading. Processing is an activity to purify, obtain the parts, enhance quality, and enhance the added value of petroleum and/or natural gas, butnot including field processing. Transporting is the activities of splitting oil, gas, and/or results processed from the Work Area or from shelters and treatment, including gas transport by pipeline transmission and distribution. Storing is an activity of receiving, collecting, storage, and expenditure oil and/or gas. Trading is the activity of the purchase, sale, export, import of petroleum and/or results processed products, including trading of natural gas via pipeline.

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