You and your spouse are foreigners. Both of you have been living in Indonesia for several years due to work commitments. Either your spouse works in Indonesia or being your dependent, both of you are residents of Indonesia. After all you have been through, you find the romance is no longer exists and you are seeking divorce as the ultimate solution.
In any country, divorce is tough for everyone involved. Obtaining a divorce can be costly and expensive. It’s even tougher when you file for divorce in a foreign country. The last thing you want to do is file for divorce in your home country and have the court dismiss your case due to lack of subject matter of jurisdiction. This could cost you even more.
Legal doctrines may say that you are now the subject of International Civil Law due to your long residence abroad. It’s pretty complicated whenever there is more than one legal system involved in your particular case. You need to work through all the necessary procedures in order to see that it’s possible to file for a divorce in Indonesia, when both spouses are foreign nationals.
Indonesian Court Perspective
The Indonesian legal system should not refuse to examine, hear, and decide a case filed, even when there is no clear legal reason for the case to be filed in an Indonesian court. The court is obliged to examine and judge the case. This is a basic principle in the judicative system in Indonesia. Period.
The court may not refuse to examine the case. But do they have any jurisdiction over your case? If, both of you are foreign nationals and your marriage was conducted and legally registered abroad you may wonder if the Indonesian courts could have jurisdiction over a divorce in your case.
Let’s Cut to the Chase: The International Civil Law (ICL)
In the divorce between two foreign nationals, there are foreign elements involved. Therefore, the case shall be considered as an ICL proceedings. ICL is a national law. It’s not a supranational law or international law. Therefore, every country, including Indonesia, has ICL system respectively. Furthermore, there are major issues within the ICL, they are Choice of Law and Choice of Forum/Jurisdiction. Official domicile of the Parties is a link point to determine the forum court of competent jurisdiction to examine the case. This deals in determining the personal status of a person.
There are several ways to determine the personal status of a person that is principle of citizenship or nationality (Lex Patriae) and principle of domicile. In the principle of nationality, one’s national law determines his/her personal status. It means, even though one is residing abroad, his/her nationality law shall prevail and therefore the court in his/her home country shall have jurisdiction upon him/her. While the principle of domicile, on the other hand, one’s personal status is determined from the country where they live. It means that the law and the court where he/she lives shall have jurisdiction upon him/her.
Each country has different principles in determining one’s personal status. Let’s take Indonesia and the United States as examples. Indonesia adheres to the civil law as its legal system, while United States adheres to the common law legal system. Civil law countries use the principle of nationality and common law countries use the principle of domicile. These are very closely related to the jurisdiction of the court to adjudicate a case of divorce. Therefore, the marriage of the US nationals must be dissolved in their country.
On the other hand, according to the state that adheres to a common law system such as United States, the party’s residence or domicile must exist at the time the proceedings are filed. In order for a US court to have subject matter jurisdiction to dissolve a marriage, either party must have been physically present within the country for a certain period of time prior to the filing of the petition for dissolution of marriage. The divorce, therefore, should be finalized in their country of domicile.
This is where renvoi (re-appointment) serves. Renvoi arises because of the differences in determining one’s personal status. It requires the US court to dismiss your divorce case due to lack of subject matter of jurisdiction. Although Indonesia is not a state of the United States of America, nevertheless, the Indonesian decree is an order from a foreign nation which the US court cannot ignore subject to certain restrictions. Furthermore, the court shall re-appoint Indonesia as the forum in dissolving the marriage. This is where Indonesian court has jurisdiction based on the re-appointment (renvoi).
So What Next?
In Indonesia, marital dissolution is a personal status related case under the category of family law. If both spouses are US nationals, the Indonesian court shall consult and utilize US family law regarding legal grounds for marital dissolution during the proceedings. The legal grounds in the US family law must not contradict with the public policy (ketertiban umum) in Indonesia. To be more specific, it must be in line with the legal grounds for divorce as stipulated in Indonesia’s Marriage Law and its implementing regulations.
Let's Take It to the Next Level!
After the Indonesian court declared the jurisdiction to adjudicate the case, and the legal grounds for divorce is in line with the public policy in Indonesia, the case shall be tried by using Indonesia’s civil procedures law. This is when the case enters regular phase within the Indonesian court.
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.
The precise origin of the legal concept of the joint venture (or joint “adventure,” as it sometimes is called) is not known. Some believe that the concept originated in the United States. Originally, the courts treated joint ventures simply as a special form of partnership, applying the law of partnership. But beginning in the late nineteenth century, the courts began to recognize the joint venture as a separate legal entity with qualities that distinguished it from a partnership.
In a modern joint venture, the parties combine their resources, usually comprising capital, knowledge, skill and services, in the conduct of a business venture, but without necessarily organizing a partnership in the legal sense.
What Is It?
Joint ventures may be either structural or contractual, or both. They also may conform to a statutory or other regulatory scheme. The cooperative relationship may be broad based or narrowly defined. It may be long term or transitional. While subsequent chapters primarily address long term joint ventures having a corporate structure, all ventures-regardless of duration or form-have some characteristics in common. Understanding these characteristics is the first step toward reducing the inevitable risks associated with joint ventures through effective planning, negotiation, management and ultimate termination of the venture.
Long term joint ventures, particularly those that are broad based, usually are best suited to a corporate structure. Short term or narrowly defined joint ventures often are better formulated contractually. Partnerships, business trusts and hybrid structures also house joint ventures. Corporate joint ventures are characterized by shared ownership and often by shared functions, such as research and development, manufacture, assembly or marketing as well. Shared function often leads to shared dependency. Contractual joint ventures usually are more narrowly based than corporate joint ventures. They often involve a combination of product distribution, licensing or OEM arrangements. They also may involve research and development. While contractual joint ventures may be long term, they have no shared ownership with its accompanying shared governance. The participants may, however, share a function, with resulting mutual dependency. Contractual joint ventures may require shared management of a particular function. Thus, contractual joint ventures and corporate or other structural joint ventures share the need for management continuity.
Why Joint Venture?
Joint ventures are vital to business. They have become an important strategic option for many companies-particularly those operating internationally. Few companies have the capital, skills or market access necessary to achieve their commercial objectives entirely through their own resources. Rarely a day passes without an announcement of a new joint venture, alliance or collaboration. Reason for particular joint ventures do, of course, vary. They include:
There may be other reason, since many ventures will be based on more than one objective. The objectives may also not be the same for all joint venture parties. An added complexity in analyzing commercial objectives is that a joint venture may not be an ‘and-game’ in itself. It may be an interim stage in a party’s long-term business strategy or simply, in itself, intentionally a short-term strategy which may be subject to review at a later stage. Joint ventures frequently change in scope over time.
Planning Joint Venture
A joint venture initiative may arise internally or in response to an external proposal. Internal initiatives may result from strategic planning or from existing suppliers, distributors, or competitors or from companies with whom no current business relationship exists. Whatever the source of the initial joint venture proposal, whether internal or external, participants must undertake financial and operational analysis, evaluate managerial, technical and other staffing requirements, deal with legal and administrative requirements, and evaluate the other venture’s capabilities and motives.
This planning process should include both those with financial or administrative responsibilities and those with operational responsibilities. Internal consensus as to the venture’s structure and course must be reached among those who are to share ongoing operational, financial and administrative responsibilities for the venture. Operational consideration such as a perceived need for entry into a particular market should not dictate a joint venture with undue long term financial or administrative risks. Conversely, a long range strategic plan calling for market expansion should not impose a joint venture upon an operation with insufficient resources or motivation to successfully implement it. If consensus is not reached an anti-venture lobby within the company may ultimately poison a particular joint venture by withholding financial or operational resources critical to its success.
In July 2000, the Indonesian government began to implement the Consumer Protection Law of 1999 by requiring registration of imported food products. Importers must apply for a registration number from the Agency for Drug and Food Control (BPOM). All imported food products must be tested by BPOM. Fees for such testing range from Rp 50,000 ($6.00) to Rp 2.5 million ($300) per item, and between Rp 1 million ($120) to Rp 10 million ($1200) per product.
Indonesia’s government also has been gradually implementing a strict food labeling law that requires labels written only in the Indonesian language on all consumer products. Labels may not include any other languages. Beginning January 2001, Indonesia’s regulations required labels identifying food containing "genetically engineered" ingredients and "irradiated" ingredients. BPOM, which is an arm of the Ministry of Health, must test all processed food products and is also responsible for labeling and the issue of registration numbers (MLs) for imported food products.
ML Numbers System in Indonesia
Under the Consumer Protection Law, a registration system covers all processed food products. Its key elements are:
Products must be registered with BPOM before clearance through Customs and carry the appropriate sticker. Importers, distributors or retailers dealing in unregistered products are in breach of the regulations and subject to penalty. The time it takes to register goods is also significant—up to six months, although some cases can take longer.
Imported Food Products Registration
All processed food products imported must be registered with the National Agency of Drugs and Food Control (BPOM) except for:
Registration requires submission of five standard forms in triplicate together with:
Following consideration, the product may be:
Other Specific Standards
GMO’s (General Modified Organism)
Any producer using genetic engineering must ensure that the product is safe for human consumption before distribution. In terms of labeling requirements for GMO’s: 1) The words GENETICALLY ENGINEERED FOOD shall be contained in labels of food resulting from genetic engineering; 2) In the case of processed food which results from genetic engineering as meant in paragraph being ingredients used in certain food products, the information on genetically engineered ingredients of foods resulting from the genetic engineering on labels shall be enough.
New food labeling requirements were introduced in 1999 and are the responsibility of the Food and Drug Control Body (Badan POM or BPOM). Labeling requirements are designed to ensure that the consumer can be accurately informed about the ingredients in processed food and its status as a halal or non-halal product. Post market control is maintained through sampling and testing food products. Where discrepancies occur there are powers to reprimand, order withdrawal of products from sale, or prosecute through the courts.
Key points of the current labeling requirements include:
The Indonesian authorities do not require halal certification for all imported foodstuffs. But while certification is not compulsory, 88% of the Indonesian population is Muslim and the Indonesian Islamic Council (MUI) prefers all food products to be halal accredited. Halal is an Arabic word meaning lawful or permitted. The opposite of halal is haram, which means unlawful or prohibited. Halal and haram are universal terms that apply to all facets of life. However, in Indonesia, these terms are used only in relation to food products, meat products, cosmetics, personal care products, food ingredients, and food contact materials.
All foods are considered halal except the following, which are haram: a. Swine/pork and its by-products; b. Animals improperly slaughtered or dead before processing; c. Animals killed in the name of anyone other than Allah (God); d. Alcohol and intoxicants; e. Carnivorous animals, birds of prey and land animals without external ears; f. Blood and blood by-products; g. Foods contaminated with any of the above products.
Food Additive Regulations
The Food Act of 1996 states that food additives are not to be used if they have been banned, or may not exceed specified limits. This implies a "negative" regulation of food additives, but the subsequent clause states that the Government will determine which substances are banned as food additives and/or may be used in food production and also the content limit. Hence the regulation is "positive" in that the Government states those additives that may be used. Approval is the prerogative of the Director of Food Safety Evaluation, a subordinate of the Deputy of Agency for the National Agency of Drugs and Food Control (BPOM). The regulation states that approval will be based on assessment against guidelines prepared by the Head of Agency.
Every import of food additives must be reported in writing to the Division of Food Certification, BPOM after the goods arrive in harbor. The report must include:
A certificate of analysis for the applicable batch must accompany every import of food additives. The certificate may be issued by the production plant or by the responsible authority in the country of origin. Before the import is cleared from the point of entry the Director of Food Certification, BPOM must agree the certificate. If a certificate does not accompany an intended import, then a certificate must be requested from the Director of Food Certification before the food additive shipment may enter the country.
The certificate must include:
A food additive product from an animal source must also have a certificate of conformity with Islamic purity, "Halal". That certificate is to be issued by the responsible authority in the country of origin. Food additives produced, imported or distributed must comply with the Indonesian Food Codex or conditions approved by the National Agency of Drugs and Food Control (BPOM). For food additives not listed in the Indonesian Codex, or not having conditions determined by the National Agency of Drugs and Food Control (BPOM), the FAO/WHO Codex Alimentary Commission or Food Chemicals Codex is applicable.
***Compiled from various sources.
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.
In Indonesia, every divorce lawyer will have to refer to the 1974 Marriage Law and its implementing rules for divorce and marital dissolution. A divorce petition must be filed at the local district court for Non-Moslems, and local Religious Court for Moslems. There are certain marital dissolution reasons according to 1974 Marriage Law and Islamic Law, they are:
Pursuant to Marriage Law, a marriage may be terminated due to several reasons as follows:
The death to either party will automatically terminate the marriage.
One of the means to dissolve a marriage is by divorce. Divorce may only be executed before a court session, before the district court for Non-Moslems and before the religious court for Moslems. Therefore, either one of the parties wanting to divorce needs to file a divorce petition to the court.
There are legal grounds of filing for divorce that every divorce lawyer has to advise his/her clients with, and they have been regulated in the Marriage Law, which are, in the event one of the parties:
has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;
has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;
has been sentenced to imprisonment for five (5) consecutive years or a longer period;
has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;
has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or
has irreconcilable differences.
Annulment to Dissolve Your Marriage
Marriage annulment means that any marriage may be cancelled if both parties cannot fulfill the conditions for the marriage. A marriage annulment can only be decided by a court of law.
Families in a straight line of descent and above the husband or wife (For example: father, mother, grandfather etc of husband or wife.) , an authorized/appointed official, and anyone directly possessing legal interest in the marriage may file a request for marriage annulment.
Any request for marriage annulment may be submitted to a court within the jurisdiction where the marriage was conducted or within the jurisdiction of the residence of the married couple (in accordance with Article 38 (1) Government Regulation No. 9 Year 1975 regarding the Implementing Rules of 1974 Marriage Law) the husband, or the wife. A marriage annulment may be filed for the following reasons:
The right to annul a marriage by a husband or wife based on such reasons becomes null and void if they live together as a married couple and can show the marriage certificate issued by the unauthorized officer of the marriage registry. In this instance the marriage has to be conducted again in order to make it legal.
The husband or wife may request an annulment of their marriage, if the marriage was conducted before an unauthorized officer of a marriage registry, or if the marriage was conducted under a threat that violates the law, or if there is a misunderstanding between the husband and wife.
His/her right will be null and void if the threat has stopped or if the misunderstood party? realizes the situation, but doesn’t use his/her right to request for marriage annulment within six (6) months after living together as married couple. Example of a “misunderstood condition” would be if the husband thought the wife was a virgin, but in fact she was not – so I misunderstood about her personal conditions.
Annulment of a marriage commences upon the court decision and is permanent and legal binding and applies as of the time of marriage was conducted. However, such a decision is not retroactively effective to:
children born from the marriage;
husband or wife acting with good intention, except against joint property, if the annulment is based on a previous marriage. The annulment decision is retroactively effective to the joint property of the parties in the event the marriage was entered and one of the couples was not legally free to marry.
In Islam, a marriage may be terminated due to several reasons, namely:
When a husband or wife passes away, their marriage is automatically terminated. When a wife passes away, her husband doesn’t have any legal difficulties in marrying another woman, but can remarry immediately. But, when a husband passes away, his wife has to wait for four (4) months and 10 days before she can marry another man.
Literally, thalak means to release (abandon). Thalak or divorce is the right given to a man and is an action of releasing a woman from the marriage. In Islam, this method of divorce has been stipulated, but it is accompanied by the explanation from the Prophet Mohammad that God doesn’t like divorce.
Divorce through a judge’s decision may be due to several reasons, such as, among others, that the husband is unable to provide the basic necessities of life, the husband commits torture against his wife, the husband vanishes (being far away from or not being near his wife), or that the husband is serving a term in prison.
Fasakh is the cancellation of marriage agreement (akad) and the termination of a marriage between a husband and wife due to damage taking place in the marriage agreement (akad) or due to sudden reasons that may hamper the continuation of the marriage agreement (akad). For instance, it could be due to a problem in the family relationships. Fasakh will cause the marriage agreement (akad) to be annulled.
Khulu’ is a divorce given by a husband to his wife with payment to the wife. Khulu’s is required by Islam for balancing the thalak right for a husband when there is a hatred that cannot be settled peacefully.
A marriage may be terminated due to li’an, because the person making the li’an in the fith oath says that God’s curse is upon him/herself if he/she is a liar. As a result of li’an, the marriage is terminated forever. If the accusing husband denies the birth of a child by saying that the child is not his, the child is not the offspring of this husband any longer, but legally becomes an illegitimate child and becomes the child of accused wife. The child cannot inherit from his/her father (the accusing husband). If the child is female, her guardian is a judge of justice, if the child will marry someone else.
Murtad (apostate) is when a Moslem abandons Islam. If a husband or wife is judged apostate, their marriage is terminated due to their action.
Marriage dissolution based on the grounds of thalak, li’an, and khuluk’ shall only valid in the event they are conducted at the religious court.
Annulment according to Compilation of Islamic Law
Compilation of Islamic Law which is enacted under Presidential Instruction Number 1 of 1991 also governs marriage annulment under several reasons:
The bride is not legally free to marry and still in a marriage with other man;
The bride in the period of ‘iddah of her previous husband, Iddah means a waiting period where a woman is not allowed to marry other man. The period may vary according to the reason of her previous marriage dissolution i.e. 130 days due to death, and 90 days due to divorce;
The marriage is not comply with the minimum of age requirement as governed by the 1974 Marriage Law;
Married performed without wali nikah (marriage guardian) or performed with unauthorized one;
Marriage performed under threat
Marriage annulment is also known as fasakh is the cancellation of marriage agreement (akad) and the termination of a marriage between a husband and wife due to defect taking place in the marriage agreement (akad) or due to sudden reasons that may hamper the continuation of the marriage agreement (akad). For instance, it could be due to a problem in the family relationships. Fasakh will cause the marriage agreement (akad) to be annulled.
Annulment petition can be filed at the local religious court having jurisdiction over the residence of husband or wife or may be submitted to the local religious court within the jurisdiction where the marriage was conducted. Court decree on marriage annulment shall take effect retroactively since the date of marriage took place.
Parties to authorize for annulment petition are:
Other parties who aware of any marriage defect in terms of marriage requirements as imposed by the prevailing law.
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.
Will is the most common way for people to state their preferences about how their estates should be handled after their deaths. It is a legal document containing a statement of an individual’s wishes and intents to take effect following his/her death, and which can be revoked. Many people use their wills to express their deepest sentiments toward their loved ones. You can protect the people you love most, choose guardians for minor children, and make gifts to family, friends, and charities.
Making a valid last will and testament in Indonesia is the only way to ensure that your property passes to people of your choosing rather than to people chosen by the courts based on laws that are decades old. Without a will, the estate can be subject to many problems. Relative may also dispute over property, leading to lengthy proceedings, and a probate judge who does not know your personal wishes will dictate who gets your property and custody of your children after your death.
By having a valid last will and testament, you will have full control over how your assets (i.e. your estate) are managed and distributed after your death and who will look after your children when you are no longer around to do so. The clear terms of last will require no clarification and in the event they can be interpreted in several ways, the intent of the testator must be determined rather than interpreting the text literally. Making a Last Will A last will cannot be made by two or more individuals in one legal document, whether it is in favor of a third party mutual or reciprocal arrangement.
Everyone with property who have reached the full age of 18 years are allowed to make wills. The competence of the testator shall be judged based on the condition that he was in at that time that the last will was made. In last wills, conditions are unintelligible or impossible, or which violate the laws and good morals, shall be regarded as void. Last wills which are made as a result of duress, deceit or cunning shall be invalid. The Legitimate Portion The legitimate portion or the legal share of the inheritance is that portion of the estate which the lawful heirs in a direct line are entitled to and which the testator is not entitled to dispose of as a gift during his lifetime or by last will. In relation to the descending line, if the testator leaves only one legal child, the legal share of the inheritance shall consist of half of the property which the child would be entitled to inherit upon death.
In the event that there are two children, the legal share of the inheritance for each child shall be two thirds of whatever they would be entitled to inherit upon death. In the event that the deceased has left three or more children, then the legal share of the inheritance shall be three fourths of whatever each child should have inherited upon death. Children shall include the descendants, in any kind of degree; they shall, however only be regarded as substitutes for the child whom they represent in the inheritance of the testator.
Meanwhile, in the ascending line, the legal share of inheritance shall always consist of one half of that which is by law due, upon death, to each blood relative in that line. For the purpose of calculating the legal share, regard shall be had to those individuals who upon the death of an individual have become heirs to his estate but who have not been named as legatees under his will, and in the event that individuals other than the aforementioned heirs have been granted a share in excess of their legal share by deed during the lifetime of the deceased or by last will, provided that the aforementioned heirs were not present, the devises and gifts may be reduced upon a claim and in favor of the legatees and heirs or those entitled.
In the absence of blood relatives in the ascending and descending line, and of natural, legally acknowledged children, gifts by inter vivo deed or by last will, shall be deemed to be of the entire estate.
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 website.
Business activities in Indonesian may be carried-out in the form of a sole proprietorship, a general or limited partnership or one of a various number of corporations. However foriegn capital investment (so called "PMA Company") in Indonesia may only conducted in form of a limited liability company, being established and existed under the Indonesian laws and havin its legal domicile within the Indonesian territory.
The limited liability company (Perseroan Terbatas, so called "PT") is the most ideal vehicle for direct foreign investment because of its nature as an association of capital with objection to make profits and the laws on establishment of other type of legal entity does not accomodate foreign investors.
An application to the Investment Coordination Board ("BKPM") is necessary in order to have a foreign capital investment. A letter of approval (Investment license) will be issued by the Head of the Investment Coordinatong Board to the applicant after all of the requirements have been completed and fulfilled.
Form of Foreign Capital Investments
Foreign Capital Investment may be conducted in the form (1) Joint ventures between foreign capital and capital owned by Indonesian citizens and/or Indonesian statutory bodies. Under the current applicable regulation, the foreign party may have 95 % of the share in the Company, and at least 5 % of the share shall be owned by Indonesian citizen or legal entity; (2) Direct Investments, which the entities capital being owned by foreign legal entities, whether it is a foreign citizens or foreign statutory bodies.
A foreign entity may invest their capital through several ways, e.g. purchasing an existing company, wholly or partly as well as setting-up a whole new company.
Incorporation of a Limited Liability Company
In order to incorporatea limited liability company, the company shall at least require two legal entities (persons or business entities) or more ("Founder") using a notarial document written in Indonesian language. The founder may be represented by its attorney or proxies. Each founder of the company shall get their part of the company shares at the time the company is incorporated.
Deed of Incorporation
The notarial document which in this matter is the Deed of Incorporation shall contain the company articles of associations and other relevant information, at least information regarding personal or company profile of the founder, member of the board of directors ("BoD") and Board of Commissioners ("BoC") of the company for the first time appointed and name of shareholders and the shares that they hold, objectives and purposes of the company.
Approval from the Minister of Justice
In order to be able to commence its business legitimately, a company must apply for an approval of its incorporation from the Ministery of Justice ("MOJ"). It is then considered as a corporate body/legal entity. Normally, the MoJ shall grant the approval no later than 60 days after the receipt of the complete application. Once it is approved, the BoD of the company must register the company to the Company Registry Office in oder to be registered within the List of Company. After it has been registered, it will be announced within the Supplement to the Gazette of the Republic of Indonesia. As long as the registration has not yet been made, the BoD shall collectively be held responsible for all legal acts conducted by the company.
Certain industries are entirely closed to foreign capital investment, the most notable being industries vital to the national defense, e.g. industries producing arms, ammunition, and military equipment. Large sectors of trading and distribution business, particularly domestice retail trades, exports and import are largely closed to foreign capital investment. The government gradually issue and publish a list of business sectors absolutely restricted as well as business sectors that are open but with certain conditions for foreign and domestic capital investment.
In regards to sales activities (merchandise selling), trading and its supporting services are restricted to foreign investment except for large retailers (superstore, shopping mall, etc), large scale trading (distributorship/wholesaler), restaurants, quality certification services, market research services and after sales services are opened for foreign investment. However these sectors are opened with certain conditions set-up by other relevant regulations.
Children born outside of marriage are declared as illegitimate on their birth certificates under Indonesia's 1974 Marriage Law. In Indonesian, the term illegitimate is known as ''Anak Luar Kawin'' referring to the child born outside the marriage of the two parents. As such, these children do not have any legal claim against their biological fathers, as the identity of the father is not noted on the birth certificate.
This article will hopefully be useful for parents who are experiencing legal problems with their children born out of wedlock in Indonesia and wish to obtain legal recognition for their children.
An ''out of wedlock'' child is a child born outside of a marriage between the woman who is giving birth to the child with a man who caused her pregnancy. The legal parentage of the child may or may not be admitted by the father.
Parentage Acknowledged by the Father
A child born out of wedlock shall have civil law relations only with his/her mother. The child does not automatically have a legal parental relationship with the father. To establish that legal relationship with the father, Indoensian law requires an admission, referred to as ''pengakuan'', where the father admits that the child is in fact his child. The out of wedlock child already has a civil law relationship with the mother who is giving birth to the child. This grants a family relationship, with its legal consequences including inheritance rights, to the mother of the child (only). An admission of the parentage by the father will not create a family relationship between the child with his/her father's family.
Out of Wedlock Legalization
Legalization is the next step towards recognizing parentage of an out of wedlock child. The father that intends to legalize the child's birth must legally marry the child's mother. The legalization will grant family relationship between the child with her/his parent's and their families that have acknowledged the child's parentage.
Recorded at Civil Registry Office
The admission of out of wedlock child is not a hush-hush proceeding. It should be registered with the Civil Registry by recording the child's birth in the birth certificate registry or into the parent's marriage certificates (which will then grant legalization) or in a separate deed of civil registry or even written in a notary deed.
Once the parents are legally married and the birth is registered at the Civil Registry Office, the child's parentage is legally recognized by the Indonesian government. A new birth certificate, can be issued by the civil registry office, will have the father's name on it.
The law on validity of marriage is governed by the 1974 Marriage Law and its implementation rules. Indonesian law has no provision for no-religious civil marriages. The mixed-marriage coupes needs to pay attention to the legal issues. If something happen down the line, lack of legal requirements in your marriage will put you into unfavorable conditions. No law recognition to your marriage, will be considered no marriage at all. It will take effect to your divorce, division of marriage property, child custody, and alimony.
Indoensia's 1974 Marriage Law stipulates that marriage can be legally recognized if it is performed according to the religion of the couple. It makes Indonesia as the country that put religion as the main issue in marriage. Mixed-religion marriage is not allowed in Indonesia. Both spouses must have the same religion in order to get marry legally.
Once you have made the decision to marry in Indonesia, you must choose the type of religious ceremony that you intend to have. For Non-Moslem, you must hold church (or temple) ceremony first, and then record the marriage with Civil Registry Office. The Couple will experience two types of ceremonies. The religious part will first be performed followed by a civil ceremony. The civil registry will in turn issues a marriage certificate which is evidence that you are legally married. A Non-Moslem wedding which is not recorded with Civil Registry is not considered legal. There will be two certificates presented at the end of ceremony, one from the church/temple, and the other from the Civil Registry Office.
If you have decided the marriage in Moslem ceremony, you must register you marriage at the local Office of Religious Affairs. Person wedded in a Moslem ceremony and issued a Marriage Book need not record their marriage with Civil Registry Office.
Considering Indonesian law has no provision for no-religious civil marriages, the couple who wish o perform civil wedding should provide the religious marriage certificate (i.e. Certificate of Marriage Solemnization) which means that they have done the religious marriage in their country(ies). Many foreigner tourists having their vacatioon and/or honeymoon in Indonesian, choose this route.
Mixed-marriage couple married in Indonesia should pay attention to this issue also, especially if they have married in Moslem Ceremony. The Moslem Marriage Book is accepted in United States and United Kingdom. But it is not accepted in several countries, to mention one of them is the Netherlands.
The immigration rules in Netherlands will require the Certificate of Attestation from Civil Registry Office. This is the certificate to show that the marriage has been registered with Civil Registry Office in order to register at the Civil Registry Office in the Netherlands. In order to obtain this certificate, you need to submit supporting documents such as passport and visa, marriage books, and photograph (with groom on the right side).
Theoretically, this is may sounds very funny. Office of Religious Affairs and Civil Registry Office is the government institutions that have the same authorities in recording the marriage. But, in the field of pratice, you might face the walls if you don't have any clues at all. Otherwise, your plan to stay and live in overseas will not come together.
For example, if you go to the Surabaya Civil Registry Office, they will not willing to issue the Certificate of Attestation for Moslem Marriage Book, They don't even want to provide the letter of rejection. They find Office of Religious Affairs have the same position with them. So, it is not their authority to issue such certificate. I have seen a couple separated just because of this obstacle. Of course, we can not put pressure on Surabaya Office. According to the Regional Autonomy Law of 2004, the regulation for civil registry and population services is the sole resposible of local municipal. So, it is the authority of Surabaya Municipal that considers the Religious Affairs and Civil Registry have the same position. Legal breakthrough must be achieved if you want your case succeeded. A comprehensive study on Indonesian legal system must be perfomed. You can check with your Indonesian law specializing in mixed-marriage legal assistance regarding this case.
Other things you need to bring to your attention is document legalization. Immigration related documents require certifications or legalizations or authentications in order to be recognized internationally. The legalizations rules are different for different countries. Not all information is provided clearly and many regulations are different to other countries. This conflicting information is not a personal attack on you, it's typical of government bureaucracy all over the world. As we aware, the US rules specify that your certificate(s) should be less than a year old. As for the Netherlands rules, the certificate(s) should be less that five years. The process usually complicated and, in many cases the lack of time or expertise causes you delays and valuable time is lost. We can only begin to imagine how you must be feeling with the delays and the conflicting information from all involved. This is very distressing for you.
Indonesia is not a part of the Hague Convention, a group of nations joined to create a simplified method of legalizing documents for universal recognition, then you will need an Embassy Legalization to be valid internationally.
As a non-member of Hague Convention, the documents must full-fill certain requirements before the Embassy can legalized your documents. The documents should pass the procedures at the related government institutions in Indonesia, such as Notary Public certification, Civil Registry, Department of Justice, Department of Foreign Affairs, and/or Department of Religion.
The mixed-couple who have decided to get marry abroad, will not exempted by the law. The Marriage Law of 1974 stipulates that within one year after return to Indonesia, you must report the marriage to Civil Registry Office. You will then received a Surat Tanda Bukti Laporan Perkawinan (STBLP) or Overseas Marriage Registration.
This certificate is very important and will make your marriage recognized by the Indonesian laws. Even if you have decided not to stay in Indonesia, this certificate is a must-have document. You never knwo what will happen in the future and something make you move back again to Indonesia. By then, it will arise complication to your case. You need to get a court decree in order your marriage can be recorded at civil registry office. It will give you more hassles if your are deliverng a baby in Indonesia. You can not get the Foreign Birth Certificate for the baby if you do not possess STBLP. In addition to STBLP, it is also very important document if you would like to have property in Indonesia. Notary public will require Indonesian marriage certificate, whether it's an STBLP or regular marriage certificate. Your overseas marriage certificate will not be accepted because your marriage is not recognized by the Indonesian laws.
Marriage carried-out before 1974
The marriage carried-out before the year of 1974 was governed by Indonesian Civil Code. It is the Dutch ancient rules which divide people into classes i.e. Europe, Indonesian native (pribumi), Chinese, and Far Eastern (Arab and India).
This law was meant to be very specific according to who you are and where you come from. It did not treat people equal. The law sees the people through race, customs, and classes. Ubelievably, many of them are still valid and have not been revoked yet by the Indonesian government.
A Guide to Incorporate a Prenuptial Agreement in Indonesia Most people think of marriage as the ultimate emotional and spiritual bond. They are looking 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 when they divorce or die, but thay they also have to negotiate these issues with their fiance(e). It's just not what people are thinking about when they are getting married. If you are foreign nationality and plan to marry an Indonesian spouse, you need to get a prenuptial agreement PRIOR to marriage. Considering foreigners are not allowed to have a 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 Agrarian Law stipulates that foreigner is not allowed to own property in Indonesia, and Indonesian who married to the foreigner will be precluded to own free-title property. The agrarian law refers to Indonesia's Marriage Law assuming joint property ownership in the marriage. Prenuptial agreement concerning separation of property in the marriage is the most possible solution to get around the issue. The Indonesian government can, by law, take virtually everything away from the grieving party because they did not create such a protective document PRIOR to marriage. To avoid this trouble, it would be prudent to draft a prenuptial agreement complying with the Indonesian laws to ensure that your financial interest(s) will be up-held by the Indonesia court. As one of the Indonesian legal services working for family law cases, especially mixed-marriage cases, we will walk you through the proper procedures how the prenuptial agreement incorporated in Indonesia.Legal AspectsThe 1974 Indonesian Marriage Law has a very simple provision of prenuptial agreement compared to the ancient Dutch Law, Civil Code. The law governing the prenuptial agreement only consist of one article. It stipulates that the agreement should be made prior to marriage. The agreement should be legalized by the marriage registry office. Civil Registry Office for Non-Moslem, and Office of Religious Affairs for Moslem.Both parties are free to determine the form of law, as long as abiding the law, religion, and moral consideration. The provision are indeed very general. The legislatures seem to let it so in order to make it flexible with the development of the religion, moral, and public order.Other provision stipulates that the agreement can not be amended during marriage, except upon approval of both parties and do not cause disavantage to any third party.Person in Need of a PrenupConsider a prenuptial agreement if you suit with at least one of the following conditions: Person of foreign nationality wishing to marry to an Indonesian partner and wish to own property in Indonesia; Person who is bringing a lot of assets to the partnership, including all retirement account; Person who has his or her own business or is a partner in a company; Person on a fast career track who is likely to earn a hefty salary in the future; Person who has children from a prior marriage; Person who is paying for his or her spouse to get an advanced degree likely to result in significant future earnings. Making a PrenupIndonesian laws does not provide ready-made frameworks for prenuptial agreement. You and your Indonesian lawyer have more leeway to define your future legal relationship, although you are bound by law, religion, moral, and public order consideration in drafing the agreement.Indonesian prenuptial agreement must be tailored to the particular needs of the spouses and sufficiently flexible to take into account changes in your future circumstances during the course of marriage.Begining by collecting all the things you want to be included in the prenuptial agreement. Ask your Indonesian lawyer to draft the agreement and request for recommedation. But you need to take a note that the marriage property will be under your Indonesian spouse's name. Once again, foreigners of are not allowed to own a property in Indonesia. You just need to specify percentage of the property each spouse will get if the marriage was dissolved. Include in the agreement full disclosure of all assets and liabilities, including the value of each asset. Make sure that the terms of the agreement do not promote dissolution.Keep all drafts of the documents by email 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 is the agreement is later contested. After negotiating the agreement, make sure you understand its terms and the importance of abiding by them. An agreement followed by both parties is more likely to stand the test of time. Avoid commingling assets and to keep careful records. A qualified accountant and bookkeeper can assist you. Even if the agreement is set aside or revoked, careful bookkeeping will make it easier for the court to trace and will save you lots of money. At Wijaya & Co, we provide client with prenuptial 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. Some of you might not be ready to discuss every issue that listed on the questionnaire. Therefore, it is OK if you want the agreement is to be silent on the subject. When you are ready, the two of may sit down together, once again, to discuss the silent part(s). Legalized and 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 marriage registry. The agreement will take effect for the husband and wife when the marriage 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. If the agreement is not recorded at the local district court, then the marriage will be considered as if there is no prenuptial agreement exists. Thus, your marriage will have joint-ownership in property. This is the same as if you don’t have a prenup. Death to Either Party If your Indonesian spouse pass-away, you will have to transfer the property within one year. Transferring the property can be either sell it to other Indonesian or pass it to your children. Under 2006 Citizenship Law, children born into mixed-marriage will entitle to dual-citizenship. They can keep the two citizenships until the age of 18 years plus another 3 years to choose one. 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 pass-away, the Indonesian can keep the property for good. Updating the PrenupIt is important to understand the need to keep the agreement up-to date. Agreement should be designed to accommodate the passage of time and changes in status, such as the birth of children, and increase or decrease 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 Indonesian lawyer, to keep it current.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.
While previous regulations defined "mixed marriage" as marriage between people in Indonesia subject to different laws", under the Marriage Law, a "mixed marriage" is defined as "marriage between two people in Indonesia subject to different laws as result of difference in citizenship and one of the parties is an Indonesian citizen". (Article 57, the Marriage Law).
Divorce: Grounds for Divorce
One of the means to dissolve a marriage is by divorce. Divorce may only be effected based on "sufficient reasons". The reasons for a divorce have been regulated in the Marriage Law, which are, in the event where one of the parties:
Custody and Child Support
Both of the divorced spouses are responsible for the protection and education of their children. In case of minor children, the Court will usually award custody of such children to the mother, unless the mother is the one who is at fault or there is proof of her incompetence to take care of the children. If the baby is born overseas the regulation requires registration within 10 days after the baby birth and registration may be made to the Indonesian Embassy in the country where the baby was born. As far the practice we know the baby may travel with the mother's passport and other travel documents as required by the relevant regulations.
Marital property in Mixed-Marriages
The division of joint marital property will be dealt with according to the respective laws of the spouse. The laws may be their respective religious laws, customary law and other laws. The joint property is usually divided equally between the spouses.
Own a Property for Foreigners
Real estate in Indonesia may only be owned by Indonesian citizens or Indonesian legal entities (i.e., companies, yayasan, etc.). Thus, the only way a foreigner can truly have an interest in Indonesian land is by owning (or controlling) an Indonesian legal entity, in this case, either a PMA company or a PMDN company in which control of shares have been signed over to a third party.
Although land owned by companies may not be "Hak Milik" (often, and rather erroneously, translated as "freehold"), the Hak Guna Bangunan title is completely solid, and exists for as long as the company exists, and such titles are mortgageable. Of course, setting up these companies has an initial cost, and in the case of nominee companies there are ongoing nominee and administrative costs, however if you want security, this is the only way to do it, despite what Bali property salespeople may tell you. This is potentially a very technical and complex subject.
A good starting point is the knowledge that a) foreigners can't own land etc.. and b) Indonesian law assumes community (joint) property between husband and wife except for gifts and inheritances. So the starting point is that an Indonesian wife will need a marriage contract which states that immovable property in her name legally belongs to her alone, this is because her husband is a foreigner and can't own land in Indonesia in the first place.
So when you say "recover his assets on the death of his Indonesian wife", legally they cannot have been his! Generally what happens is that the foreign husband provides money for the Indonesian woman to buy the land. They should however document a loan agreement or mortgage on the land to that effect and the husband who put up the money should hold the certificate of title. That way if the woman dies, the husband will still have his mortgage and the certificate of title, even if the property has to be sold or legally transferred to another Indonesian (perhaps a family member).
An additional factor would be for the husband to take a lease of the land. Of course all this needs to be done to also protect the wife if her husband gets hit by a bus! There is no reason why the wife cannot will her legal assets to her husband, and leave her family out of it. That's up to her. But even then, the husband will never be able to own the land, because he is a foreigner. In the event of the wife's passing, her family is entitled to their "Hak" (rights). Basically you are entitled to your 50%. Your Indonesian wife's 50% would be divided between her surviving husband and their chlidren. That would entitle you to 50% of her share.
On paper you should be allowed 75% of the money from selling the property and her family to get the remaining 25%. When the wife passes away, the expat husband has one year from the date of death to sell your properties. If you manage to sell out, you get 50% (if he has no children) and the late wife's family gets the other 50%.
If, after one year, he hasn't been able to sell, the estate is handed over to a government body and the courts decide how the estate will be divided. The expat husband will probably get next to nothing. Otherwise, during that year he can have the estate placed in another Indonesian's name but this is not a direct transfer of title. It must be "sold" and the expat husband will have to pay the tax on the sale.
There is no easy way out and what ever you do, it takes a long time (and money). It's a lot more involved than have to be mentioned, believe me! It may well be wise for husband to form an investment company first, before forming the company, which could then buy the house and set up a PMA (Penanaman Modal Asing).
The wife must sign a letter authorizing a lawyer or a law firm to handle her affairs on the husband's behalf in the event of her death. This legal paper immediately puts the family at arms length and they can do nothing unless the lawyers and you agree. Make sure that any and all bank accounts are JOINT. Not an account in wife’s name with you having "signatory" rights. Even though you are the husband, the courts will not hand over the money without including the deceased wife's family, as by Indonesian law, they are entitled to some or all of her assets. This is a lengthy process and very difficult to deal with as one is dealing with grief and sorrow at the same time as one is sorting out the legal aspects of the situation.
Indonesian nationality is governed by Act No. 62 of 1958. It defines an Indonesian national as a person who, since the beginning of independence on August 17, 1945, qualifies for citizenship under existing laws. An Indonesian woman married to an alien husband shall lose her Indonesian nationality if she makes a statement to this effect within a year of her marriage.
The 1958 Law on Citizenship, the citizenship of a child born from a marriage between an Indonesian woman and a foreigner should be that of the father. But, if the marriage has been recognized by Indonesian law, the baby is considered a child born out of wedlock, hence he/she should have his mother's citizenship. In this condition there's no problem and the baby can have an Indonesian birth certificate.
The problem would be different, if the father must have alien citizenship. Infants born from mixed (different races) marriages, have been deported to their fathers' countries. This is because the 1958 Law on Citizenship, which had a paternalist character (in which the legal line of the father dominates). Indonesia recognizes the principle of ius sanguinis, whereas the citizenship of a child is the same as his parents.
There are many legal disputes between divorced couples of Indonesian women and their foreign ex-husbands over the citizenship of their children. The resolution is considered unfair as children were given their fathers' citizenships, although the children were in the custody of their mothers. A child born from a legitimate marriage of an Indonesian mother and an alien father shall, in the event a divorce is granted by the court, qualify for Indonesian nationality if he/she so decides.
A child born from a legitimate or illegitimate marriage between an alien father and an Indonesian mother is entitled to become an Indonesian national if he/she applies to the Minister of Justice, having abandoned his/her alien nationality according to the law of the foreign country or in accordance with an agreement concluded between Indonesia and a foreign country. In such case a child shall submit the application within a year after reaching the age of 18. A child under the age of 18 who is not married and retains his/her kinship with the father who has not yet acquired Indonesian nationality, qualifies for Indonesian nationality if he/she lives permanently in Indonesia.