“By having a prenuptial or postnuptial agreement with assets separation, the mixed marriage couple can establish a limited liability company (Perseroan Terbatas) for just two of them without requiring the third party as other shareholders. Furthermore, the Indonesian Citizen in the mixed marriage couple can still buy assets with the right ownership.”
Marriage Couple Definition in Indonesia
Marriage is a sacred ceremony and not only requires love and commitment, additionally marriage has legal consequences for the parties especially for the two people who held a mixed marriage. Mixed marriage as defined in Marriage Law Number 1 Year 1974 is the marriage held between Indonesian Citizen and Foreigner who complies to different laws because of the nationality differences. Beside the child citizenship status, it will also affect the status of the assets if the parties held marriage without a marital agreement.
Join Asset
It is written in the Article 119 Civil Code Book that from the moment of execution of the marriage the assets of the parties will be joint assets. It can cause a problem when the Indonesian Citizen wants to have a property, because according to the Agrarian Law, foreigners cannot obtain the right of ownership overland and due to the marriage status, they are considered as one party which can prevent the Indonesian Citizen from owning a property with right of ownership.
Separation Asset Agreement
Indonesian Law provides a solution as written in Marriage Law that if the parties provide a marital agreement which states the separation of assets and there will be no joint assets or joint marital between the parties. Marital agreement is helpful for mixed marriage couples to ensure the safety of their assets, at first the marriage law the marital agreement must be made before the marriage which is called prenuptial agreement. Separation Asset Agreement also mentioned in Compilation of Islamic Law Article 48 that spouse can make a marital agreement to separate their assets as long it goes hand in hand with Islamic Law.
However, there has been a change as in October 2015 the Indonesian Constitutional Court made a judicial review related to this and stipulates that Indonesian Citizens who have married with foreign citizens without previously creating prenuptial agreement can create an agreement during their marriage as called postnuptial agreement. Thus, now the marital agreement can be made before or during marriage and should be legalized by the marriage registrar officer or notary.
Technically Procedure of Prenuptial and Postnuptial Agreement
Both Prenuptial and Postnuptial agreement is categorized as domestic contract and the spouses can freely determine the content of the agreement as long as it is not contrary to law, religion, decency or public order according to the freedom of contract principle. The clause of the marital agreement is not only to manage the wealth of the spouse but can also preserve the rights, dignity and standing of both parties in front of the law thus the obligations of both parties in the marriage are clear and unambiguous. The parties should write a list of all the assets and properties owned and prepare the documents and proof of properties, this agreement provides details regarding the couple’s assets and income, thus the clause of the agreement is secure for both of the parties.
Both of Prenuptial and Postnuptial Agreement should be made in the form of a notarial deed and legalized by the notary and for muslim couple the prenuptial agreement should be recorded by the Pegawai Pencatat Nikah and will be written in the Marriage Certificate. For the non-muslim couple the prenuptial agreement should be registered in the Department of Civil Population. Furthermore, the postnuptial agreement, it should be made in the notarial deed and reported to the Civil Registry Office for non-muslim couple and KUA for muslim couple and registered to the Marriage Registraar.
Benefit Having the Prenuptial or Postnuptial Agreement
Marital agreement can be able to protect both of the parties during marriage especially in terms of economy. In other words, marital agreement is one of the tools to prevent couples from disputes in the future. Therefore, the marital agreement must be made by mutual consent because once the marital agreement is entered into force to the marriage it applies as a law for both of the parties.
By having prenuptial or postnuptial agreement, the Indonesian party in the mixed marriage can still buy the assets with the right ownership. Furthermore, since the assets between husband and wife will be separated, thus, they can establish a limited liability company and make cooperation between couple because the spouses are not considered as an one party and no joint assets and interests. Having a marital agreement can make status of the assets clearly and for the Indonesian Citizen can protecting their property in Indonesia.
Author: Sutria Puti Dwirahayu
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