Prenuptial Agreements for Mixed Marriage Couples
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Most people think of marriage as the ultimate emotional and spiritual bond. They are looking forward to a life of happiness. However when faced with negotiating a premarital agreement, they realize that not only do they have to decide what will happen to them if they divorce or when die, but that they also have to negotiate these issues with their fiancé. It’s not the types of subjects that an about to be married couple likes to think about prior to getting married.
Persons in Need of a Prenup
Consider a prenuptial agreement if you have at least one of the following situations:
Legal Grounds for Prenuptial Agreements
The prenuptial agreement in Indonesia is honored and can be upheld in court. The laws governing prenuptial agreements (prenup) stipulate that the agreement should be made prior to marriage. The legal grounds for the prenup come from several applicable Indonesian laws, including: Civil Code, 1974 Marriage Law, and Compilation of Islamic Law, as follows:
Making a Prenup
Indonesian law does not provide a ready-made framework for a prenuptial agreement. You and your lawyer have leeway to define your future legal relationship, although you are bound by law, religion, morals, and public order considerations in drafting the agreement.
An Indonesian prenuptial agreement must be tailored to the particular needs of the husband and wife and be sufficiently flexible to take into account changes in your future circumstances during the course of the marriage. Both parties are free to determine the form of agreement, as long as it abides by religious and civil laws. The provisions are indeed very abstract. The legislature seems to leave it that way in order to make it flexible within the influences of religion, moral, and public order.
Begin by collecting all the subjects and items you want to be included in the prenuptial agreement. Ask your lawyer to draft the agreement and request his/her recommendations. Make note that the property purchased in Indonesia will be under your Indonesian spouse’s name. This is necessary because foreigners are not allowed to own property in Indonesia. For mixed couples what is needed is a prenup which instigates separation of property as the rule so that an Indonesian spouse can legally own and hold property under Hak Milik (Freehold Title) on property purchased. This negates the foreign spouse being an automatic owner of 50% of the property due to the usual joint property rule for married couples in Indonesia. This is one of the most important points of the pre-nuptial agreement and is a requirement for a mixed couple to purchase land/property in Indonesia.
You need to specify the percentage of the combined wealth that each spouse will receive if the marriage was dissolved. Included in the agreement should be full disclosure of all assets and liabilities, including the value of each asset. Ensure that the terms of the agreement do not promote dissolution of assets.
Keep a copy of all drafts of the documents so that there is a record that you have reviewed every draft. Keep all the drafts, correspondence, and notes so that the file reflects the negotiations and the various resulting revisions. Name and number the drafts in consecutive order such as “draft number three”. This record will be very helpful if the agreement is later contested. After negotiating the agreement, make sure you understand its terms and the importance of abiding by them. An agreement approved by both parties in its entirety is more likely to stand the test of time.
Avoid commingling assets and keep careful records. A qualified accountant or bookkeeper can assist you with this task. Even if the agreement is set aside or revoked, careful bookkeeping will make it easier for the court to trace assets and will save you lots of money.
At Wijaya & Co, we provide client with a pre-nuptial agreement questionnaire. The main purpose of this questionnaire is to gather facts and obtain client’s input on issues that should be incorporated into a prenuptial agreement. The questionnaire consists of the issues that should be considered when you enter into a prenuptial agreement. It can be difficult to discuss every issue that listed on the questionnaire. When you are ready with the answers, the couple may sit down together to discuss every one of the questions, even if they are difficult to resolve.
Legal Constraints for Mixed-Couples
If you are foreigner and plan to marry an Indonesian, you need to get a prenuptial agreement. Considering that foreigners are not allowed to legally own property in Indonesia, and if you wish to take the quite sensible precaution of a prenuptial agreement for the purpose of protecting yourself and your properties in the event that one of you dies, a prenuptial agreement is a must-have choice. The Indonesian government can, by law, take virtually every purchased property away from the grieving party if they did not create such a protective document PRIOR to marriage.
The legal constraints came from the Basic Property Law enacted in 1960 imposed that Indonesian married to the foreigner will be precluded to own a property in Indonesia. This is because the Marriage Law imposed joint property regime as imposed in Article 35: “Property acquired during the course of a marriage become community property.” As for the community property, the Marriage Law imposed further in Article 36 (1): “In regards to the Community Property, Husband or Wife may act on the consent of both parties.” Islamic Compilation Law, which is enacted specifically for Muslims, stipulates that: “A Husband or Wife is not allowed to sell or transfer the community property without the consent of the other.” This makes perfect sense because mutual consent must be obtained from the other spouse. When it comes to mixed couples, such consent cannot be obtained from your foreign spouse because they are not allowed to own property in Indonesia.
So, how could consent can be retrieved when someone is not in the legal position to hold it? Therefore, in order to avoid this kind of trouble, it would be prudent to draft a prenuptial agreement complying with Indonesian law to ensure that your financial interests will be upheld by an Indonesian court.
Importance of Separation of Property
The idea of having a prenuptial agreement for mixed nationality couples, among others, is to have a property separation regime in your marriage since the Indonesia’s Marriage Law is assuming joint property ownership in all marriages. The Marriage Law is applicable to all Indonesians and to all marriages registered in Indonesia. Furthermore, the Basic Property Law in Indonesia does not allow foreigners the right to own property in Indonesia. Therefore, when an Indonesian is married to a foreigner she/he will be precluded to legally own property in Indonesia.
The prenup creates a legal framework for a property separation in your marriage and thus preserves the rights of the Indonesian spouse to own property in Indonesia. The property ownership must be under the Indonesian spouse's name as the title holder. In the event the foreign spouse passes away, the Indonesian spouse may keep the property for good. Given the origins of the prenuptial agreement in Indonesia are in marital property provisions, therefore it can be concluded that the main contents of a prenup are about the rules of community property notwithstanding the provisions of the Civil Code.
If the Indonesian spouse dies, the foreign spouse must transfer the property within 12 months to other Indonesian's name. In many cases, this may be the child/children of the couple. At this stage, the stipulation imposed by the 1960 Basic Property Law is still applicable for foreigners. The prenup protects your financial interest in the event one of you passes away. Just remember, it must be agreed up and signed before the marriage, otherwise it won’t be valid or legally binding.
Record the Agreement
There are two registrations required for a prenuptial agreement. A premarital agreement must be recorded with the registrar’s office of the local district court and the marriage registry. The agreement will take effect for the husband and wife when the marriage is recorded at the Civil Registry or the Office of Religious Affairs and shall take effect against third parties upon the date of registration with the local district court where the marriage will take place.
The 1974 Marriage Law in Article 29(1) stipulates that: “At the time of or before the marriage took place, with the mutual consent of both parties, they may enter into an agreement approved by the Civil Registrar of Marriage, after which it shall also apply to third parties as long as it involves them as well.” Another provision stipulated in the marriage law is that the agreement cannot be amended during marriage, except upon approval of both parties and cannot cause disadvantage to any third party. This stipulation comes from Article 29(4) in the Marriage Law.
Registering a prenup with a district court is also required. If the agreement is not recorded at the local district court, then it will be considered that no prenuptial agreement exists. Thus, your marriage will have joint ownership in property. Article 152 of Civil Code states: “No stipulations in the prenuptial agreement which deviate entirely or partially from the provisions regarding legal community property shall apply to third parties, earlier than from the date of copying such stipulations in a public register, which shall be done with the court clerk at the court of justice, within whose legal jurisdiction the marriage was executed.”
Death of Either Party
If your Indonesian spouse passes away, the foreign spouse will have to transfer the property title within one year. To transfer the property you need to sell it to another Indonesian or pass it to your children. Under 2006 Citizenship Law, children born into mixed marriages are entitled to dual citizenship. They can keep the two citizenships until the age of 18 plus they have another 3 years to choose one of the two citizenships. In the event they did not choose Indonesian citizenship they will be treated as foreigner and therefore will not be able to hold the property any further. On the other hand, if the foreign spouse pass away, the Indonesian spouse can maintain ownership of the property.
Back-dated Prenuptial Agreements
A back-dated prenuptial agreement is not legal in Indonesia. Even though, you may find someone that is unethical enough to provide you with a back-dated prenup, one can always tell that it's a back-dated prenup. A back-dated prenup is a marital agreement that is dated prior to your marriage, but signed after you're already married. Couples do this because they realize they need it after they are already married. So, they back date the prenup as if it was signed prior to your marriage. But don't forget what makes the prenup legally binding between you as husband and wife, and against other third parties. It requires that the document be registered, both at the clerk's office of a district court, and at a marriage registry. These two offices won't allow back dated registrations. They can only give you actual date registration.
So, instead of getting a back-dated prenup, it is preferrable to do a postnup. Indonesia’s Marriage Law recognizes prenuptial agreements, (”prenup” for short) a contract created by two people before they are married. The 1974 enacted law only discusses the matrimonial agreement that must be drawn-up prior to marriage. Indeed, the law regarding the validity and enforcement of post-marital agreements is not well developed in Indonesia. But if we dig a little bit deeper, Indonesian Civil Code provides special provisions concerning property division in the course of marriage. This provision can be the ultimate solution for mixed-couples in Indonesia who did not sign a prenuptial agreement before their marriage. This may also preserve the rights of the Indonesian spouse to own property in Indonesia even though they are married to a foreigner.
Post Nuptial Agreements
Postnuptial agreements, also known as post-marital agreements, are agreements entered into after a marriage has taken place. There are many reasons why a mixed-marriage couple might wish to draw-up a postnuptial agreement. Among others, a couple that did not sign a prenuptial agreement before marriage may later determine that they want to have some sort of financial plan in place in the event of death or divorce. For further details, please read the article on Postnuptial Agreements for Mixed-Couples in Indonesia.
Indonesian Prenup Signed Abroad
In the event that you’re living abroad, or your marriage will be performed outside Indonesia and you cannot come to Indonesia just to sign a prenuptial agreement. You still can have a legally recognized prenuptial agreement by meeting the following legal formalities:
Foreign Pre-Nuptial Agreements
It may also be advised to have a pre-nuptial agreement that is valid in the country of origin of the foreign spouse to govern assets in the foreign spouse's country of origin. It should be registered in your country or through the consular section of your embassy in Jakarta. However, there are embassies and consulates which don't accept the prenup during registration of the marriage. Both agreements are ONLY valid in the country they have been tailored for.
Updating the Prenup
It is important to understand the need to keep the agreement up-to-date. The agreement should be designed to accommodate the passage of time and changes in status, such as the birth of children, and increases or decreases in wealth, or the disability of either party. Since no agreement can take into account all possible eventualities, however, you need to review the agreement periodically with an attorney to keep it current.
Due to the Highly complicated nature of prenuptial agreements, we have removed the samples as they may seem to infer that one prenup fits all .. which is not accurate. May we suggest that you consult with an attorney to be certain that all your necessary legal matters are covered. [wm]
Last updated November 4, 2013
Our thanks to Asep A. Wijaya, Managing Director of Wijaya and Co for sharing this information with the community!
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