Why You Should Have a Prenup

When you’re getting married in Indonesia, it is very important for you to have a prenup. It stands for a prenuptial agreement. I will tell you the importance and significance of having one for married couples. So please keep reading!

Prenuptial agreement in Indonesia is your own self-made law. Yes! The law for you in protecting and defining your rights and obligations as a husband and wife. You need to make sure your prenup ensures a fair and equitable outcome. It happens if you get a divorce. Marriage dissolution such as divorce, or annulment can be daunting. That’s why this legal document provides property division according to your wish when love is in the air. Assets and debts are the most important things that’s included in your prenup customization.

Your prenuptial agreement is a means to safeguard the rights and obligations of married spouses in Indonesia. Legal protection for women is one of the primary reasons why you should have a prenup. Promoting gender equality, among others, is another reason why couples entering into marriage need to have a prenuptial agreement in Indonesia. 

Prenuptial agreement can also be used for protecting the married spouses financial interests. It can be very specific in describing assets and liabilities of each spouse. The prenup is giving them the power to every individual in holy matrimony to exercise their rights confidently. 

Child custody and spousal support are the issues that can be discussed in your prenuptial agreement. Things like visitation, child support and other parenting plan checklists are the matters that can be included into your own prenuptial agreement. Nevertheless, you cannot include inheritance because assets distribution in the event one pass-away must be held by a last will. Prenuptial agreement can only govern your assets when you’re alive. 

Intercultural marriages in Indonesia definitely require a prenuptial agreement. It serves as tools to navigate different legal systems in your mixed marriage. A marriage with different nationalities. Your prenuptial agreement can also come handy in bridging cultural practices in your mixed marriage life in Indonesia. It serves to clearly understand the legal status of your assets. Your prenup can also help you to comply with Indonesian law, as well as the cultural norms of your spouses.

Lastly, executing a prenuptial agreement shows your commitment in your relationship. Things like information sharing, transparency and having long-term stability can sustain your financial security in your marriage life. 

Is a Prenup Legal in Indonesia? It’s a Yes!

Prenuptial agreements in Indonesia are definitely legal! The legal ground around the prenup is governed by the Marriage Law number 1 of 1974. This is the legal ground in creating and enforcing prenuptial agreements in Indonesia. 

The Marriage Law is the legal framework that sustains the legality of prenuptial agreements in Indonesia. It creates the legal recognition for your prenup. The Marriage Law encourages prenuptial agreements by creating property division regime before the couples enter into a marriage. 

The 1974 Marriage Law also tells you what should be included into your prenup. Clauses which potentially violate public policy or morals are prohibited. There are also other limits imposed by the Marriage Law in terms of the creation of the prenup. It is very important to make sure that you prenup comply with Marriage Law and other relevant laws and regulations in Indonesia. 

Lawyers in Indonesia with expertise in family law like Wijaya & Co are very competent in guiding you throughout the process of incorporating the prenuptial agreement. Wijaya & Co’s lawyers can help you with your prenup and make sure it is compliant with the legal framework of Indonesia. Lawyers at Wijaya & Co are able to act carefully about your situation and your intentions. 

What Should be Included into Your Prenup?

You should employ the clauses that encourage equality and fairness. You should put to work clauses that safeguard both parties’ rights and interests in the future matrimony. You should take advantage of the following various clauses:

1. Separation of Property. This clause describes the situation of how both parties acquired assets during the course of marriage, and how they divide them in the event of divorce. 
2. Spousal Support. This clause is applicable in the event of divorce.This is financial support from a husband to his wife in order to support her during divorce takes place. 
3. Dispute Resolution. This is an exit clause in the event both parties faces disputes and outlining how disputes can be resolved along with the methods such as mediation or arbitration. 

These clauses must be available in your prenuptial agreement. If you did not see any of them in your document, you should insist on having them on board. Those clauses encourage fair outcomes, and support fairness, and mutual appreciation between both of you.

If You Get a Divorce…

I suggest you and your spouse perform fair and equal property division in the event of a divorce. The following is a few suggestion that you can consider with your spouse:

1. Financial Disclosure. Information about assets, and debts as well as financial resources in their possessions. 
2. Customized Settlement. You can settle the property division during a divorce according to your original contribution instead of equal distribution.
3. Inheritances. In Indonesia, inheritances are separate property. It is free from claims from your spouse. Somewhere else may not be free from claim, but not here in Indonesia. Keep your hands off!
4. Future Earnings. When you divorce, you divorce. Future earnings are not part of the property division. There is a limitation to the assets distribution during divorce in Indonesia. 

Those suggestions must be considered when you incorporate a prenuptial agreement in Indonesia. A fair and equitable division of property revolving their marital situation.

Advice from the Legal Expert

Legal experts like lawyers in Wijaya & Co are very important during drafting and incorporating a prenuptial agreement. Prenup is a legal document. It is a binding document legally, and it describes assets and liabilities distribution during hard times like divorce. Therefore, it is very important to have highly experienced lawyers like the legal experts at Wijaya & Co to walk you through the process. 

You need to make sure that complicated legal implications of a prenup are navigated with the help of lawyers from Wijaya & Co. Potential issues must be addressed at the early phase. Unfair provisions must be identified. Both parties must communicate honestly and openly. Lawyers from Wijaya & Co can assist in facilitating and liaising both parties.

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My name is Asep Wijaya. Thank you for visiting and reading my post!

Legal Ground

Indonesia has a complex legal framework on child legalization born out of wedlock. There was no legal recognition or even protection for children born out of wedlock in the early years. Over time, its legal framework evolves. Only recently, efforts to implement the principles of equality and children’s fundamental rights have been addressed. 

Child born out of wedlock has a legal ground in Indonesia. It was introduced by Article 43 of the Marriage Law. The legal ground stipulated that the child born outside a legal marriage has only a relationship with its mother and her family. But since 2010, it was amended by the Constitutional Court that a man with blood relationship should not be excluded as the child’s father. The relationship must be proven with science and technology and/or other evidence.

The amendment of the Article 43 was introduced with a court’s decision number 46/PUU-XIII/2010 It was a breakthrough decision and was considered to jeopardize the existence of a legal marriage in Indonesia. But the judges said that it was a protection for the child, not the recognition of an unregistered marriage in Indonesia.

Legalization and Acknowledgement

When the couple got married after the child was born, the proceeding called legalization of child born out of wedlock. If they did not get married, even after the child was born, the proceedings to get the child legalized called a child acknowledgment. The marriage between the father and the mother creates the difference.

The proceeding above is to ensure the child’s father gets his name printed on the child’s birth certificate. This is where the legal relationship between the father and the child is being created legally. 

According to Article 274 of Civil Code, an acknowledgement may be carried-out by a father in order to have his child acknowledged legally. This must be done with the consent from the biological mother. The consent is very important in order to avoid any illegal action from any man for the purpose of retrieving any benefits from the child. 

Legitimate Child

A child is considered a legitimate child when he was conceived within the religious marriage of his parents, even if the marriage is not registered yet with a marriage registry. Nevertheless, since his parents are unable to show their marriage book, the child needs a court litigation in order to prove that he was conceived within the marriage of his parents. This is required in order to secure a birth certificate with his father’s name on it. 

DNA Test

A DNA test is still required in order to prove the relationship between the child and his father. This is one piece of the evidence that was retrieved according to science and technology. Some couples may not be able to supply the DNA test. This may be a challenge since paternity is undoubtedly established according to the DNA test that shows 99.99 %

Why You Need to Do It

When you’re not married and conceived a child out of wedlock, it does not have to be reflected in your child’s situation. The children must be treated equally and fair. They must not be discriminated against and receive disadvantages in their life just because you decided not to get married. You need to do child legalization in order to protect your child’s rights. 

There are reasons why you should do it, and you should do it fast!

1. Human Rights. Your child deserves equal treatment with other legitimate children born inside the legal matrimony. Your child must not be treated differently. According to international human rights standards, your child must be protected, whatever your marital status is. You should not deny your child’s legal recognition. You need to do a child legalization in order to avoid breaching their rights in having your family name, citizenship, and birth certificate as their identity. Your child's access to various social services may be limited if you did not do it. 
2. Your child must not be treated unequally. Your child must not be discriminated against just because of a lack of legal status as an out of wedlock child. Their social well-being, emotional and physical, may be threatened. Your child may experience undesirable situations, such as negative stigma and disgrace, social exclusion, as well as limited opportunities in their lives. You need to eliminate the discrimination by conducting child legalization in Indonesia. 
3. Conducting child legalization means you’re giving your child legal protection. It is extremely  important for them to have  access to their basic rights. Your child's overall development and their prospect in the long run may be affected.  Their access to essential services such as healthcare, education, and inheritance may be interrupted just because of their legal status as a child born out of legal marriage. 
4. Your child recognition gives you parental authority in making significant decisions for them. Your child’s welfare can be secured, and you can ensure their best interests are protected. Your responsibilities as parents, regardless of your marital status, in getting legal recognition for your child born out of wedlock is definitely empowered. 
5. By conducting child legalization, you contribute to societal harmony. You reduce any potential discrimination and promote inclusivity to your child. Your child recognition legally promotes a fair and just environment. They can live in diversity in Indonesia. 
6. Legalization of your child born out of wedlock means that you conform to international standards. Many countries are recognizing child born out of wedlock with legalization by their parents.

Over all, it is very important for you as a father to conduct legalization of your child born out of wedlock. This is one of the means to address their legal status and uphold their rights. Child legalization also can eliminate discrimination against your child. Thanks to child legalization, your child can have access to basic rights. As a father, you can facilitate your own parental responsibilities to your child. The best thing of all, the child legalization in Indonesia conforms to international standards.

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

Divorce in Indonesia requires court litigation. You just can't fill a form, signed, sealed and delivered. No. You need to provide reasoning to dissolve your marriage. This is because Indonesia is a country that expects you to work hard to make your marriage work. 

Our legal system does not expect you to just give-up when you have a little fight with your spouse, and say: That's it! I am done with it. We want you to have a little effort before finally saying goodbye and burning the bridge behind you.

If you tried everything and you don't see any way out of the situation, divorce may be the ultimate solution. Your one and only solution. But you want to do it quickly and as painlessly as possible. Well, that can be done. It depends on your choices of the items in your case. 

So, let me walk you through!

The Choice of Legal Ground

We have many legal grounds that you can use to dissolve your marriage. Irreconcilable differences is one of the reasons that you should use in the event you want to do it quickly. This is quite straightforward. You don't have to prove the cause of the irreconcilable differences. This can be a long and winding road. You just have to prove that there is one in your marriage. 

You need to be very careful, using this legal ground may be common and straightforward, but it's quite tricky! I have a guy who came to me. His divorce was overruled by the Higher Court in Jakarta after a landslide win in the district court. What happened? This is why your lawyer needs to review the case before you lodge it to the court. Last thing you want is that the judges may think you are joking around with your divorce. 

Your lawyer needs to pay attention to every single detail. Not all lawyers are born the same. Just because you know a guy who knows laws, it doesn’t mean he can deliver a divorce to you. Indonesia has a very conservative legal system that values humans in flesh and blood more than evidence. You need two witnesses. They need to support your divorce application. Strong enough to dissolve a marriage.

The Choice of Court Jurisdiction

You will be surprised to know if one of the courts in Indonesia may have jurisdiction over your divorce case. There are several considerations such as your nationality, your registration of marriage, and your residency. Those three things may be involved in your case, and therefore one of the courts in Indonesia may have a jurisdiction. 

Here’s how to find out:

1. If both you and your spouse registered your marriage in Indonesia, regardless of your nationality.
2. If either of you is an Indonesian, regardless where your marriage was registered. 
3. If both you and your spouse are foreigners, and you live long enough in Indonesia and you still live here until you decide to get divorce. 

If you belong to one of the above checklists, you should contact your Indonesian lawyer to dissolve your marriage here. Contact Us here and we will review the case and advise you how to move forward. 

If You Could Settle, Do It!

I didn’t mean to settle not to get divorce. You can potentially settle on the legal consequences of the divorce such as child custody, spousal support, and property division. These things can be a pain if you fail to organize them earlier. It is better for you if you identify everything from the beginning. Work with your Indonesian lawyer to guide you through the legal system in Indonesia.  

We have a woman with a PhD degree from South America, and she wants us to represent her in her divorce case. She does everything we told her. She is very cooperative.  She just wants to do it as painlessly as possible. Great lady she is! Smart and well educated. 

All the legal consequences were settled before the case hit the court. I drafted the settlement and they gave me the pointers. This is what we called out of court settlement. Judges love this, and so will you. This gives you less headache! 

Another great guy, a Dutchman. He took my advice to settle before the case hits the courtroom. It’s over before you know it. Now, he is moving on with his life and his new partner. His ex-wife is also busy with her work too. She spends time diving and snorkeling in Bali. They still talk to each other and make friends after the divorce. 

It Takes Two to Tango

This is the best part with the laws and regulations pertaining a divorce in Indonesia. You have to be in love to stay in a healthy marriage. If you think the flame is gone, and nowhere to be found, you can file a divorce at the court to dissolve your legally wedded spouse. Please take a note that this must always stay in line with the irreconcilable differences legal ground. 

Your lawyer must know this and can use this to work with your case with a favorable outcome. He needs to present the case in a way to get the judges on the same page with you. He needs to use this: “it takes two to tango” thing, to deliver the divorce to you. 

I’ve presented this thing before in front of a mediator in South Jakarta court. Our client was a great man, a Dutch man who lives in South Jakarta. Smart and handsome man. He was Ok to come to the court for mediation. I was there with him. His beautiful and respectable wife was also there with him. They still talked politely to each other. 

I told him what would happen inside. So, I wanted him to be very careful with the words he would say to the mediator. He picked them himself. The mediator dismissed the case, and he sent the case to court litigation. Lesson learned, your own words can set you free. 

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

After the marriage, property acquired during the marriage shall be treated as joint property. This is applicable either both spouses are working,  or only one spouse whose working. Regardless whose the bread maker in the family, assets secured after the date of marriage fall into the definition of marital property. Either you're a housewife, or a stay at home dad, both you are entitled to assets accumulated by your spouse. You're entitled to half of it. It's yours too. They are your assets. They belong to both of you. Therefore, in the event of marriage dissolution, the assets are subject to property division. All the assets must be divided evenly.

For some couples, community property is not for them. They have different situations. They may need different measures. They need something else. Something sophisticated. They need a prenuptial agreement. If you've decided to go ahead with a prenup, you have to sign it before you said: "I do" in the holy matrimony. That's why they called it PREnup. It has to executed before the marriage. You know it. She knows it. Everybody knows it. You just have to sit together and talk about it. 

The Legal Grounds

Prenuptial agreement in Indonesia is very strong. It is legally recognized and protected. The legal grounds have been there decades ago. Those are the laws and regulations from the Civil Code, as well as the Marriage Law. Indonesian legal system takes the prenuptial agreement very serious indeed. You can't possibly miss them. This is our state of the art rules and regulation to protect you, your family, and your assets. 

The situation where couples who need a prenuptial agreement is applicable under Article 119 of Civil Code stipulated as follows: From the moment of execution of the marriage, it shall arise by law joint marital property between the spouses to the extent that no other stipulations have been made in the pre-nuptial agreement. Rules regarding community property cannot be revoked or amended by mutual agreement between the spouses for the duration of the marriage." 

Further, Article 35 of Marriage Law stipulate as follows: 1) Properties acquired during the marriage will become joint property; 2) Separate Properties of husband and wife, and properties acquired as gifts and inheritance are under each party's control unless otherwise specified. 

You can consult your Indonesian lawyer regarding issues that you want to include into your marital contract. You can include assets, child custody, child support, property division in the event of divorce, etc. You can include anything and put there on your contract. Your choice. As long as they are legal and morally acceptable, you can include them. No problem. 

Why You Should Sign One?

Your prenuptial agreement is your rule of the game, because it has your name on it. You are one of the parties of the agreement. Therefore, it is better for you if the prenup is being "tailor made" and customised for you and your spouse. That's why, our firm provide you with a questionnaire. A list of questions with sets of answers so you don't have to worry how to come-up with response. If you don't see your answer, you can specify otherwise.

Basically, these are the reasons why you should sign a prenuptial agreement:

1. A prenuptial agreement is a tool to legally protect your assets, both acquired before the marriage, and during the course of marriage.
2. It can be used to protect members of your family from domestic violence. When it is a legal fact in Indonesia, it can be mirrored elsewhere in the world.
3. To set you free from your spouse's general liabilities. The last thing you want is to pay off your spouse debts with your assets.
4. Your prenup serves as a set of rights and obligation in running your marriage. It's like a manual book for your car. A marriage is far more complicated than a car. In that case, it must have also a manual of how you should be able to run the family. Many marriage fails, and it's a good idea to have one for your own matrimony. You know, just in case. 

What Issues Can be Included?

You can include almost anything into your prenuptial agreement. Some issues that usually we include into our firm's clients are:

1. Separation of assets. This issues is usually included because you want to separate assets acquired before and during the marriage. Usually, people do this because they want to protect their family from business risks, such as liquidation, business debts if their company going wind-up, or any other potential issues such as legal constraints. Risk from legal constraints can happen when you're getting married to a foreigner. There is a stipulation in Indonesia's Basic Property Law that a foreigner is not allowed to own a property in Indonesia. Sadly, the Indonesian married to the foreigner is precluded to own the property as well. So, you need a prenuptial agreement to get around the issues.
2. Child custody. This is very interesting, especially for newly wed couples. Usually they don't really pay attention to this issue as all is about love. So, they think child custody is not really an important issue. Really, they need the advice and they should take it from seasoned lawyer in the business. You should definitely take our advice here. Something that may look just fine, can turned upside down in no time. Your prenuptial agreement is your protection. Our prenuptial agreement is valid under the laws in Indonesia, but it recognized worldwide.  
3. Property division in the event of divorce. This is the crucial part. Who gets what. One spouse finances the purchase of their assets, and the other spouse could not possibly get away with everything. You need to protect your investment. In the future, assets grow and you entitle to your share. The prenuptial agreement can protect your rights, regardless how much you contribute.

Who You Talk to?

If you think you are the person who need a prenuptial agreement, please contact us. We can forward a questionnaire that can lead you to what you should included into your prenuptial agreement. We do the hard work, so you don't have to.

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