Affidavit of Foreign Law Wants Intestacy Too: Here's What They Look Like

You and I both know that when it comes to inheritance, things can get complicated. 

It’s not just about who gets what. It’s about how the law steps in when there’s no will. This is where intestacy laws come into play, and when foreign law gets involved, it can feel like a whole new ball game. 

Let’s dive into what an affidavit of foreign law looks like in the context of intestacy and how it interacts with legal frameworks like the Civil Code on inheritance, the 1974 Marriage Law, and the Islamic Compilation Law.

What Is an Affidavit of Foreign Law?

First, let’s break it down. 

An affidavit of foreign law is a sworn statement by a legal expert who explains how the laws of another country apply to a specific legal issue. In inheritance cases, this affidavit is often used when someone passes away without a will (intestate) and the laws of another country need to be considered. For example, if the deceased was a foreign national or had assets in another country, the court may require an affidavit to understand how that country’s laws handle intestacy.

Now, why is this important? Because without the affidavit, the court might not have the clarity it needs to distribute the estate properly. You and I can agree that when it comes to inheritance, clarity is everything. No one wants family disputes or legal battles over who gets what.

Intestacy Under the Civil Code

Let’s start with the Civil Code, which lays the groundwork for inheritance laws in many jurisdictions. Under the Civil Code, intestacy rules kick in when someone dies without a will. The law outlines a clear hierarchy of heirs, starting with the closest relatives like spouses, children, and parents. If none of these exist, the estate may pass to more distant relatives or even the state.

Here’s where it gets tricky. 

If the deceased was a foreign national who lived in Indonesia or had assets abroad, the Civil Code might apply directly. Instead, the court may not need to look at the laws of the deceased’s home country. This is where the affidavit of foreign law comes into play. It helps the court understand how the Indonesian law treats intestacy and ensures that the estate is distributed fairly.

For example, let’s say someone from Country A dies intestate while living in Country B. The court in Country C where he has his assets might require an affidavit explaining how Country B’s laws handle inheritance. This document becomes a key piece of evidence in the case.

The Role of the 1974 Marriage Law

Now, let’s talk about the 1974 Marriage Law. This law is crucial because it governs marital property and how it’s divided upon death. In Indonesia, for instance, the law distinguishes between joint marital property (harta bersama) and individual property (harta bawaan). When one spouse dies, the surviving spouse is entitled to half of the joint property, while the other half becomes part of the deceased’s estate.

But what happens if the deceased was married to someone from another country? Or if they owned property abroad? In these cases, the affidavit of foreign law can clarify how the foreign jurisdiction views marital property and inheritance. For instance, some countries might not recognize the concept of joint marital property, which could significantly impact how the estate is divided.

You and I both know that marriage may complicate things, legally speaking, of course. The 1974 Marriage Law provides a solid framework, but when foreign laws come into play, the affidavit becomes a bridge between different legal systems.

Islamic Compilation Law and Inheritance

For those who follow Islamic law, the Islamic Compilation Law (Kompilasi Hukum Islam) provides specific guidelines on inheritance. This law is based on Sharia principles and outlines a fixed distribution of the estate among heirs. For example, male heirs typically receive twice the share of female heirs, and certain relatives are prioritized over others.

But what if the deceased was a Muslim living in a non-Muslim country? Or what if they had assets in a country that doesn’t follow Islamic law? In these situations, the affidavit of foreign law can help the court understand how Islamic inheritance rules should be applied in the context of the foreign jurisdiction.

Let’s say a Muslim man passes away intestate, leaving behind a wife and two children. Under the Islamic Compilation Law, the wife would receive one-eighth of the estate, while the remaining portion would be divided among the children, with the son receiving twice the share of the daughter. However, if the man owned property in a country that follows a different inheritance system, the affidavit would explain how to reconcile these differences.

What Does an Affidavit of Foreign Law Look Like?

So, what does this affidavit actually look like? It’s not as intimidating as it sounds. Think of it as a detailed explanation written by a legal expert at Wijaya & Co. The document typically includes:

1. Introduction. The expert introduces themselves and explains their qualifications. This part is crucial because the court needs to trust that the expert knows what they’re talking about.
2. Summary of Indonesian Law. The expert provides an overview of the Indonesian laws on intestacy. This might include details about who qualifies as an heir, how the estate is divided, and any special rules that apply.
3. Application to the Case.  The expert at Wijaya & Co explains how the Indonesian law applies to the specific case at hand. For example, they might outline how the estate should be divided based on the deceased’s family situation and assets.
4. Supporting Evidence. The affidavit may include references to legal texts, court decisions, or other documents that support the expert’s analysis.
5. Sworn Statement. Finally, our expert at Wijaya & Co swears that the information in the affidavit is true and accurate to the best of their knowledge.

Why Does This Matter?

You and I both know that inheritance disputes can tear families apart. The affidavit of foreign law helps prevent these disputes by providing a clear, authoritative explanation of how the law applies. It ensures that everyone involved understands their rights and responsibilities, reducing the risk of misunderstandings or conflicts.

Moreover, the affidavit plays a crucial role in upholding justice. It ensures that the deceased’s wishes (even if they didn’t leave a will) are respected as much as possible within the framework of the law. Whether it’s the Civil Code, the 1974 Marriage Law, or the Islamic Compilation Law, the affidavit helps bridge the gap between different legal systems and ensures a fair outcome.

Final Thoughts

Inheritance is never an easy topic to discuss, but it’s something we all have to face eventually. When foreign law gets involved, things can get even more complicated. That’s why the affidavit of foreign law is so important. It provides the clarity and guidance needed to navigate these complex situations.

Whether you’re dealing with the Civil Code, the 1974 Marriage Law, or the Islamic Compilation Law, the affidavit acts as a roadmap, guiding the foreign court and the heirs through the maze of legal rules. It’s a reminder that even in the most challenging circumstances, the law is there to ensure fairness and justice.

So, the next time you hear about an affidavit of foreign law, you’ll know exactly what it is and why it matters. It’s not just a legal document. It’s a tool for bringing clarity and peace to what can often be a difficult and emotional process. And you and I can agree that when it comes to inheritance, peace of mind is priceless.

My name is Asep Wijaya, writing for Wijaya & Co. We orchestrate. You Navigate. Thank you for considering Wijaya & Co your ally in navigating the legal system in Indonesia.