MARRIAGE AGREEMENTS

Category: Notary Services, Estate Planning Services
Written by Riska Destriyanti on 30/06/2022
The author’s views are entirely their own and may not always reflect the views of Putranto Alliance.

A marriage agreement is one of the preparations in building a household before nuptial ceremony. This kind of agreement usually arranges everything about marital assets, jointly or personally owned by one of the spouses. It has become common for couples to have prenuptial agreements in Indonesia. Many couples realize that a prenuptial or postnuptial agreement may be one of the best ways to protect their financials, custody of their children, and assets if things go south.

MARRIAGE AGREEMENTS IN INDONESIA

Marriage Agreements refer to Law Number 1 of 1974 on Marriage (known as Marriage Law). Article 29 (1) of the Indonesian Marriage Law initially provides that a marriage agreement can only be made before or on the date of marriage. It is known as Prenuptial Agreement.

However, later, the Indonesian Constitutional Court’s Number 69/PUU-XIII/2015 allowed a marriage agreement to be made during the marriage period. It is also known as a Postnuptial Agreement.

A marriage agreement is an agreement made by a couple before or after the marriage takes place to regulate the consequences of marriage on assets.

Many Indonesians disregard marriage agreements since they believe marriage is sacred and divorce separation is highly discouraged by society. However, divorce separation is common in society, and disputes regarding assets and children often appear as the big issues. A marriage agreement is essential to prevent the dispute.

The Marriage Law regulates assets which include 2 things:

  1. Asset obtained during marriage as a joint asset; and
  2. Each couple's asset, and asset obtained by them as a gift or inheritance, is under the supervision of each party.

Couples can deviate from the rules of the joint asset by making a marriage agreement whose contents are according to law, religion, and morality.

 

A marriage agreement has many benefits for couples because this marriage agreement protects assets and/or property that will be owned or already owned. So that if one party is in trouble in business or other matters, the partner’s assets and/or property will not be affected or will not be contested by another party.

The marriage agreement is considered a preventive measure in the event of a dispute that leads to divorce because the marriage agreement will facilitate the distribution of assets. It is also considered that couples are ready for everything that will happen.

The marriage agreement is made with a deed before a notary. After the agreement is made, the parties must register it with Civil Registry Office. After the marriage agreement is recorded, it applies as law to the couple and third parties.

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THE IMPORTANCE OF MARRIAGE AGREEMENTS

The importance of a marriage agreement cannot be emphasized enough. Here are some of the reasons for couples to consider making a marriage agreement:

  1. Confirming financial rights and responsibilities;
  2. Preventing post-divorce conflicts and arguments;
  3. Protecting from spouse's debts;
  4. Dividing assets clearly among family members, such as spouse and children; and
  5. Protecting their property in Indonesia.

The purpose of making a marriage agreement is:

  1. If each party owns a business, and business one of the parties fails or bankrupts, then the assets of the spouse cannot be contested;
  2. If, before or after marriage, one of the parties has debts, then the debt is only borne by that party, not by the spouse;
  3. There is a separation of assets or property owned before marriage and assets or property to be owned after marriage;
  4. If you are married to a foreigner, you can still own land and buildings in Indonesia; and
  5. Children's needs are more secure because one party's debt (husband or wife) does not harm the other party, so if one party goes bankrupt, the other party will not be harmed.

A marriage agreement is necessary for couples who are getting married or already married. The marriage agreement has many benefits, and it’s also self-protection for both husband and wife.

In making a marriage agreement, some provisions are prohibited, namely:

  1. Must not conflict with morality and public order:

    Based on Article 139 of the Civil Code, couples can deviate from the laws and regulations regarding joint assets as long as they do not conflict with morality, public order, general rules, and applicable provisions.

  2. Cannot reduce husband's rights:

    Based on Article 140 of the Civil Code, the marriage agreement may not reduce the rights of the husband, either as a husband, as a father, as the head of the household, or other rights.

  3. It is not allowed to regulate inheritance:

    Based on Article 141 of the Civil Code, the husband and wife in the marriage agreement may not relinquish their rights to inheritance from their descendants.

  4. It is not allowed to incriminate one of the parties regarding the debt:

    Based on Article 142 of the Civil Code, a husband and wife are not allowed to make a content of agreement that makes one party obliged to pay a debt bigger than the profit they can obtain from the assets or property.

  5. It is not allowed to use Law outside Indonesian Law:

    Based on Article 142 of the Civil Code, a husband and wife are not allowed to make an agreement that their marriage bond will be regulated by foreign law. They can only use Indonesian law or other regulations in Indonesia.

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TYPES OF MARRIAGE AGREEMENTS

There are two types of marriage agreements that apply in Indonesia, namely:

  1. Prenuptial Agreement; and
  2. Postnuptial Agreement.

The difference between the two types of marriage agreements is when the agreement is made, the validity, and the procedure for recording it.

Those agreements, both prenuptial and postnuptial agreements, also give extra protection. Some couples think they don’t need it in the early course of their marriage, but if a divorce occurs, they are strongly protected.

A Prenuptial agreement is a written contract created by two people before marriage. The marriage agreement also applies directly to the parties after a notary ratifies the agreement. However, if this marriage agreement is to be applied to a third party, then this marriage agreement must be registered at the Civil Registry Office.

A postnuptial agreement is a legal contract created for spouses who have entered into a marriage in Indonesia. This agreement details how the married couple’s assets and income will be divided when they separate. A Postnuptial agreement is made during the marriage bond.

This agreement is valid and binding on husband and wife. The validity of this marriage agreement is not retroactive, meaning that the separation of assets only applies to assets obtained after the postnuptial agreement is made. Meanwhile, assets obtained before the marriage agreement are still considered joint assets.

The contents of the two marriage agreements are the same. It’s just that several notaries add a list of assets to the postnuptial agreement. A postnuptial agreement applies to third parties after being registered at the Civil Registry Office to fulfill the element of publicity so that third parties know and comply with the rules in the agreement made by the couple.

STEPS TO OBTAIN MARRIAGE AGREEMENTS

There are several steps a couple must go through to create a prenuptial or postnuptial agreement:

  1. Making a list of all the assets and properties owned;
  2. Preparing ownership documents and proofs of properties;
  3. Ensuring that all documents are valid such as Id Card, family cards, and birth certificates;
  4. Discussing who is responsible for child support;
  5. Hiring a legal advisor or notary to discuss and draft a marriage agreement with the proper format and under the Marriage Law; and
  6. Record the prenuptial agreement formally at the local Civic Registrar or Office of Religious Affairs.

WHEN DO YOU NEED MARRIAGE AGREEMENTS?

Marriage agreements are needed when marrying a foreigner or when we plan to open a business before or after marriage, or it could be when the partner has brought a lot of assets or property.

A marriage agreement is necessary for mixed marriage couples in Indonesia to protect their assets, especially for those who do not have a prenuptial agreement. An Indonesian spouse is excluded from owning property when married to a foreigner. A postnuptial agreement is a common choice for most mixed marriage couples in Indonesia who have no prenuptial agreement at first.

Without the postnuptial agreement, mixed marriage couples only can use their family member or relative’s name to buy a property. But all these measures are highly questionable and may be risk suffering a much more significant loss if these measures do more harm than good.

A marriage agreement should be made for couples who will or already have a business, either jointly with a third party or run alone because we do not know the future of their business, whether it continues to grow or fail.

By making a marriage agreement, we protect our partners so that when the business we run fails, and there is a debt to be paid, we only use our assets to cover the debt. A marriage agreement makes the household with a partner better.

By making a marriage agreement, we are considered ready to face bad things in the future. The marriage agreement provides protection not only for ourselves but also for our children and the asset we own.

HOW CAN WE HELP

Many Indonesians disregard marriage agreements since they believe marriage is sacred and divorce separations are highly discouraged by society. But seeing the fact today that divorce separations are common in society and that disputes regarding division of property and child come as a big issue during the process, a prenuptial and/or postnuptial agreement is critical to prevent the dispute.

Not only in the event of divorce, but it is also highly suggested for Indonesian women planning to marry foreigners. Without prenuptial and/or postnuptial agreement, Indonesian women are not allowed to have property. Here we have seen how important prenuptial and/or postnuptial agreement is.

We can help you know your rights and how you can protect your assets. Our experienced consultant and/or legal advisers can assist you in coming up with a prenuptial and/or postnuptial agreement that suits you and your couple. Through our legal assistant, the agreement is expected to give you the legal protection you need.

FAQ

Not at all, a marriage agreement is necessary for any couple wishing to regulate, among others, their rights and obligations, the assets management, the income distribution during the marriage and after the marriage ends, as well as their children’s needs.

Yes, a marriage agreement is valid and applicable to couples if the marriage agreement is made with a deed before a notary. After the agreement is made, the parties must register it with Civil Registry Office. After the marriage agreement is recorded, it applies as law to the couple and third parties.

Q: What documents are needed to make a marriage agreement?
A: To make a marriage agreement, the required documents are:

  1. ID Card of each party;
  2. Family card of each party; and
  3. Birth certificate of each party.

To sell the property does not require the spouse’s consent because, with the marriage agreement, there has been a separation of property between husband and wife.

Thank you for sharing

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