When my Javanese husband and I set our wedding date, I suggested that we should make our prenuptial agreement. He was reluctant at first, but I was able to point it out to him that it is a wise and a sensible thing to do.
There are so many issues and discrepancies about prenup here in Indonesia. The provisions of the law are not very clear and even the law practitioners like lawyers and notaries have different interpretations of the law. My understanding of Indonesian laws is very basic based on my readings, so I am going to present the issues surrounding the prenuptial debates here in Indonesia.
Our Family Code in the Philippines states that the family is the foundation of the nation; that the public policies should cherish and protect it; that no custom, practices, or agreement destructive to the family shall be recognized.
This is similar to the Marriage Law here in Indonesia. They believed that the purpose of marriage is to have a happy and stable family- mixed marriage or not.
In order to be happy and stable, it is expected that the family can provide for their needs- food, shelter, health care, kids' education, etc. However, it becomes complicated when an Indonesian is married to a foreigner because of the opposing views surrounding mixed marriages, in terms of finances, assets, and property acquisitions.
What are the complications of mixed marriages when it comes to properties?
1. Here in Indonesia, there are lots of Hak or property rights. To illustrate, a Sertifikat Hak Milik certifies that you own the property, A Sertifikat Hak Pakai gives you the right to use a particular property, say a condominium or a villa, for a limited period of time, and Hak Guna Bangunan certifies a person to build a house. As a foreigner, we can have the Hak Pakai and Hak Bangunan but we are not allowed to have a Sertifikat Hak Milik. Yes, we can build a house but when we leave Indonesia for good, then, we have to sell it to an Indonesian citizen.
2. When a couple gets married in Indonesia, the properties that they acquired during the marriage becomes joint property. This is where the discrepancy arises. For example, if I, a Filipino, and my Indonesian husband buy a house during our marriage, what certificate are we allowed to have for our joint properties? My husband is eligible for Sertifikat Hak Milik but I am not. Will we only have the Hak Guna Bangunan or Hak Pakai? Wouldn't that be unfair to my Indonesian husband who has all the rights to Sertifikat Hak Milik?
Is the PRENUP Agreement the solution to this discrepancy?
Some say YES, Some say NO.
Personally, I believe that it is a NO. The law did not specify clearly that the solution to this discrepancy is to file a prenuptial agreement. Yet, I was the one who encouraged my husband to draft our prenup. Why is that so? These debacles and debates make it circuitous for mixed couples to acquire Hak Milik, so to avoid all the bureaucratic fuzzes and messes that law practitioners created, I did convince him for a prenup. With this prenup, I hope that it would be easy and smooth for my husband to be granted a Sertifikat Hak Milik for our properties.
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| Cover page: Prenup |
What is a Prenuptial Agreement?
A prenup is an agreement signed by the couple PRIOR to marriage. The contents vary depending on what the couple agree upon. Basically, they agree upon spousal support and division of assets and properties during the break-up of the marriage. Take note that prenup makes litigation easier during the break up of a marriage, not for the reason of acquiring freehold properties, as espoused by some Indonesian law practitioners.
What are the guidelines in drafting the prenup?
Indonesia has no fixed framework to follow in making a prenup. It is a personalised agreement.
a. In Indonesia, the prenuptial agreement allows the husband and the wife to control their marital properties separately especially that the foreigner can not own free hold properties here. In reality, it does not work this way for most couples. Mixed couples buy properties using their pooled money. However, since foreigners are not allowed to own freehold properties, all the properties are under the name of the Indonesian spouse. Can you imagine, if, in the event of a divorce, all the properties that you bought using both of your money will all be owned by the Indonesian spouse? Hence, if you are a foreigner, never ever sign a prenuptial agreement giving up your rights to the freehold properties of your family in the event of divorce or death.
b. Unfortunately, most prenups that I have seen here are sort of unfair to the husband. All the education of the kids is solely the responsibility of the husband. If you are the male foreigner, do you think this provision of the prenup is fair for you?
How to draft the Prenup?
a. The prenup has to be drafted 10 days before the wedding. This is done by a notaris and signed by the groom and wife in the presence of the notaris.
b. There is a fee to be paid, from 500Rp to as high as 3million Rp.
In order to be valid, the prenup has to be registered in the local district court( where the marriage will be held) and to the civil registry (Catatan Sipil) before the marriage.
The prenup record appears in the marriage certificate. There are many inconsistencies along this area though. When we filed the prenup in the Civil Registry, an officer said that it is not necessary to file it in the local court. Others contradict it. To be safe, better file them in the two offices.
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| A record of prenup appears in the akte nikah |
Which is TRUE and which is FALSE?
a. If you are an Indonesian married to a foreigner, you CAN NOT own a freehold property under your name UNLESS you drafted a prenuptial agreement. (Not explicitly stated in the constitution. It depends on the interpretation of the law practitioner).
b. With the prenuptial agreement, the Indonesian spouse can purchase free hold properties like house and lands. ( Not explicitly stated in the constitution. It depends with the interpretation of the law practitioner).
c. With the prenuptial agreement, the properties acquired during marriage is separate. What the husband owns is his and what the wife owns is hers. (Yes, if the contents of the prenup say so).
d. Without prenup, the State, by law, can take away the family's properties and assets during divorce or death of the Indonesian spouse. (Not explicitly stated in the constitution)
e. Whatever properties acquired by the spouses BEFORE the marriage can not become a joint marital property. Whatever you bought when you were single shall remain yours. It will be your SEPARATE property. (True)
f. Whatever gifts and inheritances that you received when you were SINGLE shall not become a joint property, too. (True)
What happens with the properties in the event of death or divorce?
The state/ courts will decide what will happen to the properties if there are no documents from the family to follow.
Is the Prenuptial Agreement the needed document from the family in the event of death or divorce?
Yes, it is one of the documents needed.
Can the properties go to the children?
Yes, for as long as they are of 18 years old. If they are below 18, then, they need to be represented by an adult.
Is it necessary to file a prenuptial agreement between mixed marriage couple?
In my opinion, Yes, for as long as the agreement is fair to both couples.
a. Yes, not because the prenup gives the Indonesian spouse the power to acquire free hold properties.
b. Yes, not because the family can not own free hold properties without a prenup.
c. Yes, because of the many discrepancies among law practitioners and notaris about prenup, it does not hurt to have one. There are cases when some notaris do not sign the house or land title of the mixed couple unless a prenup is presented.
Post- Nuptial Agreement
Mixed -couples who were not able to draw a prenuptial agreement can have a post-nuptial agreement.
Below are some links that can further give you information and latest developments about prenup and postnup.
http://indonesianlawadvisory.com/FAQ%20Expat%20Spouse%20Law.aspx
