Quick Guide to Postnuptial Agreements for an Indonesian and Foreigner Couple
What is a postnuptial agreement?
A postnuptial agreement is made after a couple has been married. It is a way to expressly state that the Indonesian spouse maintains the right to own certain shares and property, and to separate property ownership. In 2015, the Constitutional Court ruled that postnuptial agreements are valid.
Why is a postnuptial agreement important for a marriage involving an Indonesian and Non-Indonesian citizen?
When a couple marry under Indonesian law, property obtained during the marriage becomes communal property. As such, the property is considered as being jointly owned. And any future dealings with the property will require the consent of both parties. If the marriage is between an Indonesian and a foreigner, then there are potential complications in owning certain assets.
What kind of complications can arise for owning property if the marriage is between an Indonesian and a foreigner?
A foreigner is not allowed to own shares in a local limited liability company, nor allowed to own property that is subject to Hak Milik (Ownership Rights) title or Hak Guna Bangunan (Building Rights) title. Thus, following marriage, the Indonesian spouse is burdened by the legal status of the foreigner that he or she marries. And consequently, the Indonesian spouse too cannot legally own certain property. For more information on foreign ownership of a landed house or an apartment, see our Quick Guide to Individual Foreign Direct Ownership of a Landed House in Indonesia and our Quick Guide to Individual Foreign Direct Ownership of an Apartment in Indonesia.
What else should be considered when making a postnuptial agreement?
In a divorce what is stated in the agreements may not reflect the reality of whose money has paid for assets purchased by the couple. Also, the postnuptial agreement may not align with the couple’s intentions for estate planning.
What about people who did not have a prenuptial agreement but now want to buy property subject to Hak Milik (Ownership Rights) title or Hak Guna Bangunan (Building Rights) title?
They can now make a postnuptial agreement, and the Indonesian spouse can buy Hak Milik (Ownership Rights) or Hak Guna Bangunan (Building Rights) property that a foreign individual is not allowed to buy.
What if the Indonesian spouse already owns Hak Milik (Ownership Rights) property but did not have a prenuptial agreement?
If an Indonesian spouse owns Hak Milik (Ownership Rights) property but did not have a prenuptial agreement when marrying a foreigner, then a postnuptial agreement would be a way to protect this property. This is because a postnuptial agreement made today would have the retrospective legal effect of operating from the beginning of the marriage. However, such an agreement must not prejudice the interests of any third party.
What about people who made a postnuptial agreement before the ruling in 2015?
For people who made a postnuptial agreement before the Jakarta Higher Court’s ruling in 2015, there seems to be some uncertainty about the legal status of their agreement. For peace of mind, it is advisable to have a notary look at the specifics of each case.
How long does it take to make a postnuptial agreement?
For a postnuptial agreement, it currently takes 1 week from drafting to completing the notarial deed of postnuptial agreement. Then, the agreement is registered by the Civil Registration office or Religious Affairs Office (for a Muslim couple), as well as registered with the District Court. It takes another 3-4 weeks to receive proof of registration at the Civil Registry or the Office of Religious Affairs, and at the District court.
What are the actual deliverables that a client receives when making a postnuptial agreement?
The following deliverables will be received by a client who wishes to make a postnuptial agreement:
What are the required documents for making a postnuptial agreement?
For a postnuptial agreement, the following documents are required:
For the prospective husband and wife:
For the foreign Individual:
For the Indonesian Individual:
The above information is based on the following laws and regulations:
This Quick Guide is provided for general information purposes only and should not be considered as legal advice for your specific situation. Should you require legal advice, contact an attorney.
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