Quick Guide to Postnuptial Agreements
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 Jakarta Higher 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 becomes communal property and is considered as being jointly owned. As such, 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. For example, if the man is a foreigner, then based on his legal status as a non-Indonesian, he 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. Thus, following marriage, the Indonesian woman is burdened by the legal status of the foreign man she marries. And consequently, she too cannot legally own certain shares or own certain property. [See our Quick Guide to Foreign Ownership of Property in Indonesia, and our Quick Guide to Establishing a Foreign Investment Company (PT PMA).]
What else should be considered when making a postnuptial agreement?
While prenuptial and postnuptial agreements are a legal way for an Indonesian partner to preserve their right to own certain shares and property, there are other legal consequences that need to be considered. For example, 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. Therefore, it is best to talk to a professional person to fully understand all the legal consequences and risks in each person’s situation.
What about people who did not have a prenuptial agreement but now want to buy Hak Milik (Ownership Rights) property?
They can now make a postnuptial agreement, and the Indonesian spouse can safely buy Hak Milik (Ownership Rights) property that a foreigner 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.
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 2-3 weeks from drafting to completing the notarial deed of postnuptial agreement. Then, the agreement is registered and authorized 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:
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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