When we think of marriage, the last thing on our minds is the potential downfall of that union. However, in an age where divorce rates are on the rise globally, including Indonesia, it's becoming increasingly common for couples to prepare for this possibility. A postnuptial agreement can be a life raft in such stormy waters, but in some instances, clauses within these agreements can become outright frightening—especially when they stipulate that a judge should determine the outcome of your sproperty division.
The Constitutional Court and Postnup Legality
In 2015, a landmark ruling by Indonesia's Constitutional Court effectively changed the landscape for married couples. Before this decision, marital agreements, whether prenups or postnups, were considered invalid if they were not formulated at the time of marriage.
The Court ruled that marital agreements could be created during the course of marriage, breathing new life into Indonesia's view of postnuptial agreements. This pivotal move was largely grounded in the protection of personal assets and ensuring economic security for both parties in the unfortunate event of a divorce.
Marriage Law and Marital Agreements
Under Indonesia’s Marriage Law No. 1 of 1974, particularly Article 29, spouses have always had the right to separate their assets through a marital agreement. With the Constitutional Court's interpretation, the law has now expanded to allow couples to enter into a marital agreement at any time during their marriage, offering couples the flexibility to make financial decisions as their relationship evolves.
A Judge-Ordered Verdict: A Scary Prospect?
It's one thing to agree upon a division of assets mutually; it's entirely another to leave this decision in the hands of a judge. A clause in a postnuptial agreement where a judge makes the final call on asset division may seem like leaving your fate up to the roll of the dice. After all, judges tend to follow the letter of the law, which might not always align with the nuances and emotional investments of each spouse in the assets accumulated over time.
Most couples wish for control over how their properties are divided should a divorce occur. However, a clause that removes this control and places it under judicial discretion could be terrifying. It leaves much uncertainty since each judge may interpret the laws differently, potentially leading to vastly different outcomes in similar cases.
The Ugly Side of Divorce Cases in Indonesia
Divorce cases in Indonesia have revealed the unsightly battles that can ensue over property. Often, without a solid postnup or a clear distinction of pre-marital assets, proceedings can get messy, costly, and drawn out, sometimes for years. Stories abound of estranged spouses squabbling in court over every spoon and fork.
The courts are overwhelmed with such cases, and in the absence of a private agreement, judges apply statutory regimes that often result in a 50/50 split of joint property, regardless of individual circumstances, contributions, or future needs. This approach can feel heavy-handed and unfair to many couples, highlighting why most would prefer to avoid courtroom drama.
Preparing for Peace, Preparing for War
To quote Sun Tzu from 'The Art of War', "In peace prepare for war, in war prepare for peace." Applying this wisdom to marriage, one could say that a postnup prepares you for the peaceful resolution of property matters in case of a marital breakdown. A well-crafted postnup can ensure that both parties are treated fairly and prevent the battle of the exes from becoming a reality show of its own.
However, the thought of a 'scary' clause that puts your future in the hands of a judge's discretion might just be the deterrent that pushes couples to work through their differences rather than opting for divorce.
Couples who choose to include a clause entrusting a judge to decide their property division should weigh this decision carefully. They need to consider the legal, financial, and emotional implications of such an arrangement. It's prudent to seek legal counsel and fully understand the ramifications of relinquishing control over your property rights before including such a clause in your postnup agreement.
Closing Arguments
Marriage is a journey, and like all journeys, it can face unexpected turns. A postnuptial agreement is no longer taboo but seen as a practical tool for managing marital assets in Indonesia. While allowing a judge to pick your verdict in a divorce might be a clause some are willing to accept, it’s essential to remember the potential scare factor involved. It’s about striking a balance between preparing for the worst while still hoping for the best. As couples navigate these waters, they must do so with care, foresight, and ideally, a sense of fair play.
My name is Asep Wijaya. Thank you for reading my posts!
