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Prenup and Postnup in Indonesian are Officially a Couple, and Their Protection in Property Ownership Is Strong

Tuesday, 09 March 2021
Written by
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In Indonesia, we have two types of marital agreement: Prenuptial Agreement, and Postnuptial Agreement. Both of them are valid, legally recognized, and provide strong protection in terms of property ownership. In the event those terms are new to you, let me explain a little bit. Prenuptial agreement is a contract or an agreement entered into between husband and wife before they get married. Postnuptial agreement is a contract or an agreement signed by husband and wife after they got married, or during the course of their marriage. 

Those agreements, both prenup and postnup,  are also giving you some sort of extra protection.  You might think you don’t need it in the early course of your marriage, but if a divorce occurs, you are strongly protected. The agreements that are drafted by our Indonesian lawyers, either prenup or postnup, are upheld by the court, all the way from the Republic of Indonesia to the United States. This is a recent testimonial from a client. A very pleasant surprise indeed. 

Stay tuned, and I will tell you some more!

Property in Your Marriage

Basically, properties acquired during the course of marriage are joined. They are becoming community property. You and your spouse own them together. You guys own them 50:50. It’s quite a beautiful thing, having something that you can call “Ours.”

Here’s the legal ground for that opinion, the definition of Community Property according to the Civil Code in Indonesia under Article 119 is: "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 prenuptial agreement." 

This is the ancient legal basis for the prenuptial agreement within the legal system in the Republic of Indonesia. So, that’s the thing, if you want to create a prenuptial agreement, it must be done before the marriage date. You need to execute it before or on the date of your marriage. That’s the least you can do. 

Now, in the modern era, we have Marriage Law enacted in the year of 1974. We called it Law number 1 of 1974 regarding Marriage. This one also governs marital property acquired during the course of your marriage.  

The Marriage Law stipulates in Article 35 as follows: 1. The property acquired during the course of marriage is joint marital property; 2. Separate property of husband and wife, and  property acquired respectively as a gift or inheritance are under the control of each party as long as the parties do not specify otherwise. 

What Is It About?

When you’re dealing with a marital agreement such as prenup and postnup, mostly they are involving property and other issues related to property. It’s the basic issue that can be included into your prenup or postnup. 

The legal ground to support that opinions is Article 139 of Civil Code that stipulates as follows: 

“The prospective spouses, may, pursuant to a prenuptial agreement deviate from the rules stipulated in relation to legal community property, provided that they do not contravene proper morals or public order and that they comply with the following provisions.” 

Basically, marital agreement both prenup and postnup are about property, including but not limited to property related issues. 

Legal Ground 

In Indonesia, both prenuptial and postnuptial agreements are governed by Article 29 (1) of the 1974 Marriage Law and the Verdict of Constitutional Court number 69/PUU-XIII/2015 as follows: 

“At the time, prior to taking place or during the marriage knot, both parties with mutual consent can enter into a written agreement which is legalized by the marriage registrar, after which the contents also apply to third parties as long as the third party is involved.”

The legal ground has been amended in 2015 in order to include marital agreement that is being executed during the course of marriage: postnuptial agreement. So, the above definition is the most recent and updated with the current situation. 

Types of Marital Agreement

Therefore, according to the definition in the Civil Code, there are three (3) basic types of prenuptial agreement, they are:

  1. Full separation of property. This is the most complete version that includes separation on the property, and joint in loss and profit. 
  2. Separation on separate property. This type of marital agreement is only applicable to property acquired before the marriage, as well as to gift and inheritance. Any property acquired during the marriage shall be joint and become community property. 
  3. Separation of profit and loss. This is the type of marital agreement that covers only joint profit. In terms of loss to the assets, it is a separate loss retained by each party within the marriage. 

It’s a Contract!

I believe a marital agreement, especially a prenuptial agreement can do just more than a property. It can include anything as long as it’s a legal cause. It’s something legal that does not violate the laws and the rights of other people. This is what they called the conditions that are required for the validity of agreements. So, pretty much you can include anything into your prenup: custody of the child, among others. 

On one occasion, I offered a clause in our prenuptial agreement to a fun loving couple. Something that they didn’t think they needed: joint custody of their child in the event of divorce. Both of them didn’t refuse. They agreed to my offer. Love was in the air. I could almost smell it.  

Sadly, they got divorce. They have one child. She wanted to keep the child for herself, so she committed child abduction. She kidnapped the child and brought him overseas. Our drafted prenup was upheld by the courts in South Jakarta and  one of the states in the US. The father was entitled to joint custody as well as the mother. But since the mother closed the access to the other parent, which is against the law, her custody right has been revoked by the court. 

So, I should refer to the Article 1338 of Civil Code that is imposed: “All valid agreements apply to the individuals who have concluded them as law.” The prenup is the law of the game between the two of you. Therefore, make sure you get a valid one. The above story can be shown as proof that a piece of paper can protect you, even in a foreign country.

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

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