We take marriage very serious in Indonesia. You need to meet certain requirements, terms and conditions in order to get legally married. Once you have been issued a marriage certificate, or a marriage book for Moslem couples, your marriage is legally recognized. The terms and conditions for a person to get legally married in Indonesia are, among others:

1. Consents by both parties; bride and groom;
2. They must be aged 21 years. They must obtain parents' approval, or either parent if one of them has passed-away, or from their guardian in the even both of them have passed-away.

Consents by both parties are required in order to avoid forced-marriage, or arranged marriage. Both bride and groom must love each other without any force to enter into a matrimony. This is in accordance with our philosophy that marriage is a spiritual bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family (household) based on belief to one and only God. This aim most likely will not be met without consents of both parties.

The idea of having the couples aged 21 years old to get married without parents' consent, among others, is to have matured spouses in the matrimony as it requires emotional as well as physical efforts. 

The Applicant 

If you think a marriage does not meet the above terms and conditions, you may file a cancellation to the court of law. An application may be submitted to the court with a jurisdiction as governed by the 1974 Marriage Law. In order to file an annulment application, you must be either:

1. You are one of the parties in the marriage, either wife or husband;
2. You are the parents of the groom or the bride;
3. You are the authorized officer as governed by the Marriage Law;
4. Any party related with legal interest to the marriage. This can be, among others, a wife whose husband is getting married again without her approval for committing bigamy.

You need to pay attention to the time frame for filing the annulment with the ground that the marriage conducted under a threat. You have only six  (6) months to file for the annulment application to the court. After that, the law will see you accept the situation, and annulment is no longer the case. 

Legal Consequences

The marriage annulment will not take affect to your children's legal status. They are legitimate one, and therefore shall have the legal relationship with their father. The rights and obligations within parental relationship are still in place even the marriage has been canceled. 

As for the property, since the marriage declared annulled and therefore it's not legally recognized since day one, the property division is not applicable between the husband and wife that is not legally free to marry. This may happen especially when the previous marriage still exists and is not yet to be dissolved.

Key Take-away

Marriage annulment has many aspects to meet. Failure to do so will make the court reject your application. Instead of filing for the annulment, I would suggest you to go with a divorce application. You have more leeways and options in pursuing your goals. We have one legal ground that commonly used in the field of practice i.e. irreconcilable differences. 

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I am Asep Wijaya. Thank you for reading my blogs!

Postnuptial agreement  is another marital contract recognized under the laws and regulation in the Republic of Indonesia. It is a contract entered into by husband and wife within the course of their marriage. It is not valid retroactively and only applicable to property acquired after the contract legally executed.

As to other contracts under the legal system in Indonesia, both Article 1320 and 1338 of Civil Code are applicable to the postnuptial agreement. Those two articles are the basic rules for contracts in Indonesia, both for marital agreement as well as non-marital agreement.

Article 1320 of the Civil Code stipulates that in order to be valid, an agreement must satisfy the following four conditions: 1. there must be consent of the individuals who are bound thereby; 2. there must be capacity to enter into an obligation; 3. there must be a specific subject matter; 4. there must be a permitted cause. 

As for Article 1338 of Civil Code imposed that all valid agreements apply to the individuals who have concluded them as law. Such agreements are irrevocable other than by mutual consent, or pursuant to reasons stipulated by the law. They must be executed in good faith.

In view of the above two basic laws in recognizing the validity of the postnuptial agreement in Indonesia, married couples must abide those stipulation before they enter into the contract. Some required terms and conditions imposed by the Article 1320 of Civil Code are applicable thereto:

1. No consent is valid if it is granted based on mistake or obtained by duress or fraud. So, you need to have an informed consent from your spouse in order to enter into a postnup. A mistake does not render an agreement invalid unless such mistake pertains to the substance of the subject matter of the agreement. Duress against an individual who has entered into an agreement, provides grounds for nullification of the agreement, even if it was committed by a third party who does not benefit from the agreement. Fraud is form grounds for nullification of an agreement, if the fraud by one party is of such nature that it is apparent that the other party would never have concluded the agreement were it not for such deceit. Fraud is not be presumed, but must be proven.
2. Each individual is authorized to conclude agreements, unless he has been declared incompetent by law. The following individuals are incompetent to conclude agreements: 1. minors; 2. individuals under guardianship. Those individuals are incompetent to enter into agreements may claim for the nullification of the obligations, except for where the law excludes such power.
3. An agreement must at least have as a subject a matter a property whose nature is determined. The quantity of the matter needs not be ascertained, insofar such quantity can be determined or calculated at a later date. Future properties may be the subject of an agreement. An individual may not however, relinquish an inheritance which has not occurred or conclude an agreement regarding such inheritance, notwithstanding that he has obtained the consent of the testator.
4. Any agreement without a cause, or concluded pursuant to a fraudulent or prohibited cause, is not be enforceable. In the event that no cause is specified but that there is an existing permissible cause, or if there is a permissible cause other than the one specified, the agreement shall be valid. A cause is prohibited if it is prohibited by law, or if it violates morality or public order. 

As for the Article 1338 of Civil Code, the terms and conditions applicable to the postnuptial agreement are as follows:

All valid agreements apply to the individuals who have concluded them as law. In the postnuptial agreement, husband and wife sign the contract. So, the terms and conditions of the postnup applicable to both of them;

Such agreements are irrevocable other than by mutual consent, or pursuant to reasons stipulated by the law. You can't withdraw from the contract just because you changed your mind, and the contract no longer interests you. Your spouse consent in revoking the contract is required;

They must be executed in good faith. Agreements is bind the parties not only to that which is expressly stipulated, but also to that which, pursuant to the nature of the agreements, shall be imposed by propriety, customs, or the law. 

An agreement applies only to the parties thereto. An agreement cannot be detrimental to third parties; third parties cannot benefit from them. When you signed the contract, your parents are not included as one of the parties. You're an adult and you should take responsible for the thing you are doing.

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

Legal Ground in General

In Indonesia, foreigners are not allowed to legally own freehold title (Hak Milik) in landed property.  In accordance with Article 21 (1) of  Law number 5 of 1960 regarding  Basic Agrarrian Law imposed that: “Only Indonesian citizens can have a hak milik.” In the event the Indonesian married to a foreigner, she will be precluded to legally own freehold title of a landed property. This stipulation also similar to the situation as if she lost her rights as an Indonesian citizen.

Furthermore, according to Art. 21 (3) stipulates as follows: “A foreigner who, following the entry into force of this Act, acquires a hak milik by way of inheritance without a will or by way of joint ownership of property resulting from marriage and an Indonesian citizen holding a hak milik who, following the entry into force of this Act, loses Indonesian citizenship is obliged to relinquish that right within one year following the date the hak milik is acquired in the case of the former or following the date upon which Indonesian citizenship is lost in the case of the latter. If following the expiry of the said timr periods, the right is not relinquished, then the siad right is nullified for the sake of law and the land falls to the State with the proviso that the rights of other parties which encumber the lands remain in existence.”

As for the Art. 21 (4) imposed as follows:  “As long as one with Indonesian citizenship concurrently holds foreign citizenship, he/she cannot have land with the status of a hak milik, and to him/her the provision as meant in paragraph 3 of this article shall apply."

Those are the legal grounds why you need to have a prenuptial agreement in the first place. The prenup is to separate your property acquired before and during the course of your marriage. This is the legal way to get around the issues of property ownership in mixed-marriage couples in Indonesia. 

Legal Ground from Banking Sector 

Some other legal ground comes from the banking sector. A prevailing regulations that apply to a bank imposed that a loan applicant must possesses a marital agreement for mix-marriage couples. The regulation of Bank Indonesia number 7/14/PBI 2005 regarding  Rupiah transactions and providing foreign currency credit by the bank for foreigners. The foreigners here are citizens who are licensed or permitted to stay Indonesia. For mixed-marriage couples, the Indonesian spouse will be precluded in applying for credit or a loan to the bank in the event she/he does not have any marital agreement governing the separation of their properties.

In the event no prenuptial agreement exists in your mixed-marriage, the Indonesian spouse will be considered to have join property with her/his foreign spouse. Therefore, the bank will not be able offer loans to the Indonesian spouse. This is because that she/he may require a consent from her/his foreign spouse to execute a property transaction. It is something that the foreigner will not be able to provide as he/she is not in the legal position to own any property in the first place. So, you are hitting a dead-end. 

1. The regulation of Bank Indonesia number 7/14/PBI 2005 stipulates: “Banks are prohibited from conducting certain transactions with Foreign Parties as follows:
2. Provision of Credit in rupiahs and/or foreign currencies;
3. Placements in rupiahs;
4. Purchase of rupiah-denominated Securities issued by Foreign Parties;
5. Inter-Office Accounts in rupiahs;
6. Inter-Office Accounts in foreign currency for provision of Credit outside Indonesia;
7. Equity Participation in rupiahs;
8. Rupiah Transfer to an account held by Foreign Parties and/or joint account held by a Foreign Party and non-Foreign Party at a domestic Bank;
9. Rupiah Transfer to an account held by a Foreign Party and/or joint account held by a Foreign Party and non-Foreign Party at an overseas Bank.”

Documents You Need

This is not a personal attack on you. This is the ruling from our legal system to protect the land in Indonesia only for Indonesian. No offence. Should you interested in moving forward with your own prenuptial agreement, have these documents ready so we can review them and provide the best possible terms and conditions for your situation:

1. ID Card (KTP), for Indonesian; 
2. Family Card or Kartu Keluarga, for Indonesian; 
3. Copy of birth certificate, for Indonesian;
4. Copy of passport and Kitas, for foreign spouse.

Your prenuptial agreement will be going places. They must be recognized by government institutions. Your supporting documents are the credentials to lodge the prenuptial agreement in the right database. The government is getting organized these days, which is good for you. All you've got to do is to comply. Cheers!

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

Real estate transaction in Indonesia is pretty straight forward but yet tricky as well as interesting business practise. Several aspects blended in one single deal. It involves various legal fields such as property law, taxation law, inheritance law, as well as family law in general. In real estate transaction, the most familiar and usual one is sale and purchase transaction. It happens on daily basis. It just business as usual. 

The Basic Agrarian Law in Indonesia stipulates that sales and purchase transaction is the evidence that proves the transfer of title from the seller to the buyer. The law imposed that real estate transaction must be carried out and meet two criterias i.e. transparent and paid in full. It must be carried out in front of and under the supervision of the authorized officer. The law also imposed that it must be paid in full. In other words, the transaction cannot be executed if you have any shortfall in the payment. 

These are the things that you need to do before you proceed with the sale and purchase in real estate transaction in Indonesia:

Background Check

This is a must. No transaction can be carried-out without any formal background check. In order to do this, you need to supply us with the original certificate of ownership. The legal status of the property will be unable to be verified without any originals. 

The Seller's Information

You need to obtain the information from the seller that contain the following documents/information:

1. Copy of Kartu Tanda Penduduk (So called "KTP"). If he's married, you need to obtain his spouse's KTP too. Chances are, the spouse will also require to sign the sale and purchase agreement with you. If they have no prenuptial agreement, it means the property you are buying is their marital asset, and therefore spousal consent is statutorily required. Otherwise, the transaction you're dealing with potentially illegal;
2. Family card (so called Kartu Keluarga/KK). This document shows family members of the seller;
3. Marriage certificate, if applicable. In the event, the spouse passed-away, you need to obtain his/her death certificate. In the event the seller is divorced, you need to obtain his divorce verdict and the property division certifying the property is being sold is hers or his;
4. Original of certificate of land ownership;
5. PBB tax payment. We called it SPPT PBB. This represents payment of the current of building and land tax. This document is important in order to identify the tax applicable in this transaction. You will find out how much the seller should pay, and how much tax you should pay as the buyer.
6. Tax payer's number. So called "NPWP."

The Buyer's Information

If you're buying the property, you need to make sure you have the following documents available for the transaction:

1. Copy of KTP. When you're married, you need to supply your spouse's KTP too. Unless, if you signed a marital agreement, like a valid prenuptial or postnuptial agreement. Please contact me for more details about thing thing. If you're a mixed-married couple, most likely you can't execute any transaction without this agreement;
2. Family card. This would also be required in order to identify your next of kin legally. This document has your information on your Nomor Induk Kependudukan/NIK (Residency Registration Number) that will refer to your tax information. This is very important when we validate tax applicable to this transaction;
3. Marriage certificate. We need to know your status, and how the state will treat the property under the current status i.e separate property or joint property. This certificate will have to come with the marital agreement, if applicable;
4. NPWP. They need copy of your tax payer number in order to validate the tax applicable to this transaction. 

Sale and Purchase Agreement

Your intention to conduct sale and purchase transaction must be written in the form of agreement. We called it SPA (Sales and Purchase Agreement). Both the seller and the buyer must be present to sign the SPA. You must come with your spouse if you're married.

A valid document like a marital agreement must be presented as well in the event you have a separation of property in your marriage. A prenup or postnuptial can serve as the document that you require no assistance from your spouse. With this document, your spouse doesn't have  to come with you to sign the SPA.

A valid SPA must be lodged to the land registry office in order to transfer the title from the seller to the buyer. One thing you need to be aware of payment of the current year taxation must be settled before the title is being transferred. A tax validation will be carried-out before title transferred is being conducted. 

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