A Postnuptial Agreement is a Marital Agreement made after the Marriage occurs, which mainly tells the disclosure of each other’s assets, the separation of the assets, and the obligation of the Parties.
Based on Article 35 Marriage Law Number 1/1974 (“Marriage Law”), the asset obtained during the marriage classified as a join asset. If the marriage couple tend to arrange the separation asset during the marriage, they may enter to the Marital Agreement which the main purpose is to regulate the condition of the assets after they are married.
There are two types of Marital Agreement known widely; Prenuptial Agreement and Postnuptial Agreement. The difference between Prenuptial Agreement and Postnuptial Agreement is the time they are made. Prenuptial Agreement made before the marriage and Postnuptial Agreement made after or during the marriage.
Article 29 paragraph (1) of the Marriage Law, which must be regulated in a Postnuptial Agreement, namely to limit the making of a marital agreement to separate assets while the marriage takes place. There are legal consequences if the Postnuptial Agreement does not register with the marriage registration officer, the husband and wife still have legal consequences for both parties, while for third parties, if the Postnuptial Agreement is not registered, the legal consequences of the marriage agreement do not have binding legal force against third parties.
Postnuptial Agreement in Indonesia
Marital Agreements in Indonesia are ruled by Civil Code Book (KUHPerdata) also Marriage Law. Marital Agreement type known in Indonesia is Prenuptial Agreement, as stated in the Article 119 Civil Code Book and Article 29 Marriage Law. Even stated in the Civil Code Book that during the marriage, with regard to the joint property, the joint property shall not be removed or changed with the consent of the Husband and the Wife. This limitation then provokes legal issues for those who just knew about the Marital Agreement or the importance of Marital Agreement after they are married. While, Indonesian Law only knew one type of Marital Agreement; Prenuptial Agreement.
In 2015, the Postnuptial Agreement finally became known in Indonesia through Constitutional Court Decision Number 69/PUU-XIII/2015. How? The Petitioner in this case is an Indonesian Citizen who wants to buy a Flat Unit (Rumah Susun) in Jakarta. After the Petitioner has paid the agreed price, the agreement is suddenly canceled by the property developer with the main reason being the Petitioner’s husband is foreigner, and the Petitioner does not have any Marital Agreement. The property developer uses Article 36-point (1) Agrarian Law and Article 35-point (1) Marriage Law, which says that a woman who married a foreigner is prohibited to buy land or building with the right of the building (Hak Guna Bangunan). So, the developer decided not to make any Sale and Purchase Binding Agreements on Land and/or Building (Perjanjian Pengikatan Jual Beli), because it will violate Agrarian Law.
The Constitutional Court of the Republic of Indonesia then brought the intensification of the Marital Agreement definition which stated in Article 29-point (1) Marriage Law Number 1/1974. Before, it is stated that Marital Agreement can be made on the day or before the Marriage. The definition extended to be: “On the day, before or during the Marriage both Parties with mutual agreement can execute a written agreement legalized by the marriage register officer or notary, as the agreement will also be implied to the third party as long as the third party is related.”
This is where the Postnuptial Agreement is known in Indonesia. As now the meaning of Article 29 point (1) is extended and there is a room for Postnuptial Agreement in Indonesia. It is born from the real case, while the Petitioner is aggrieved by the implementation of Marital Agreement rules in Indonesia.
The main purpose of Postnuptial Agreement
The first and main purpose of Postnuptial Agreement is to separate the assets of the husband and wife so their assets will be separate assets not joint assets. And for the conclusion, if one day they have decided to divorce, their own assets are protected, there will be no dispute between the Parties regarding the joint asset’s division.
The next purpose and benefit of the Postnuptial Agreement is if the Parties stated their own responsibilities regarding debt payment, it will be protecting the asset of the other Party from debt payment claim from a third Party. Each Party is responsible for their own debt payment.
The Postnuptial Agreement also brings effect when one Party intends to sell their own assets, they do not need any consent from the other Party as their assets are not joint assets. For credit facility, they are not needed to ask for their spouse permission in order to use their asset for warranty.
The Important Things to Share on the Postnuptial Agreement
Civil Code Book on article 119 stated that from the beginning of the marriage, by law all of the assets of husband and wife are considered as the joint assets/ joint property, unless stated otherwise on the Marital Agreement. Refers to the Agrarian Law Number 5/1960, foreigner is prohibited to have ownership rights (Hak Milik), right of the building (Hak Guna Bangunan), also right of exploitation (Hak Guna Usaha) upon land and/or building. And if Indonesian married with Foreigner without firstly have Marital Agreement, the Indonesia’s assets will be the Foreigner’s assets too and vice versa, and the Indonesian will not be allowed to obtain ownership rights, right of the building, also right of exploitation upon land and/or building. As conclusion, the first thing to be share on the Postnuptial Agreement is the list of assets owned by the husband and the wife, with the purpose is to separate the assets so those assets will not be classified as joint assets/joint property.
It is also important to list all of the obligations of each Party, specifically the debt made by each Party. The payment of the debt will be each Party obligation and it is protecting the other Party assets from claims made for debt payment from the other Party or third Party related.
Furthermore, your Postnuptial Agreement can state who will be in charge for daily expenses and who will be in charge to provide spousal and child care support. Your Postnuptial Agreement can also state the condition chosen in the event of divorce or death of the Party. The condition can cover child custody, alimony, spousal and child care support, and transfer of rights of their assets.
Finally, it is also important to state the chosen dispute settlement system also the domicile for Postnuptial Agreement registration as its registration is required by the Civil Code Book to be legally binding and effective to third parties.
Registration Postnuptial Agreement
The registration of the marriage contract is outlined in Article 29 paragraph 1 of the Marriage Law. If the marital agreement is to be enforceable or applicable to third parties as well, it must first be ratified by a notary before being registered with the marriage registrar, which is the Civil Registry Office and the Office of Religious Affairs (KUA). To fulfill the publicity requirement of the marital agreement, the document must be registered, so that third parties (those not related to the husband or wife) are aware of and abide by the guidelines set forth in the couple’s marital agreement. The Marital Agreement is only enforceable and effective for the husband and woman who made it if it is not registered. According to Indonesian Civil Code Book Articles 1313, 1314, and 1340, agreements are solely binding on the parties who make them.
The Head of Population and Registration Office District/City Civil Servants across Indonesia are given instructions in the form of a letter regarding the Recording of Agreement Reporting Marriage No.: 472.2/5876/Dukcapil dated 19 May 2017. According to the letter, there are numerous categories for registering marriage agreements reporting, including:
- The Marital Agreement is made at the time or before the marriage takes place;
- The Marital Agreement is made while in the marriage bond;
- The Marital Agreement was made in Indonesia and recording the marriage is performed in another country;
- Amendment or revocation of the Marital Agreement.
Procedure for Registration of Postnuptial Agreement for Muslim Couples
Muslim spouses Postnuptial Agreement registration is conducted in accordance with the letter from the director general of Islamic community guidance, Ministry of Religion Letter No. B. 2674/DJ.III/KW.00/9/2017 (the “Ministry of Religion Letter 2017”).
Marital agreements can be made before, during, and after the marriage, and they must be ratified by a notarial deed that can be recorded by the marriage registrar (“PPN”), noted in the note’s column on the marriage certificate, and noted in the marital status records column in the marriage certificate quote. This is according to the 2017 Ministry of Religion Letter.
The sub-district Office of Religious Affairs (“KUA”) records the aforementioned Marital Agreement report in the form of a statement letter for weddings that were legally consummated in Indonesia but were registered in another nation where the Marital Agreement or amendment/revocation was made.
Procedures for Registration of Postnuptial Agreement for Couples of Non-Muslim Religions
Whereas non-Muslims Postnuptial Agreement are registered in accordance with the Letter of the Director General of Population and Civil Registration of the Ministry of Home Affairs Number: 472.2/5876/DUKCAPIL about the Recording and Reporting of Marital Agreements (“Letter of Director General 472.2/2017”), Marital Agreements may be made before to, during, and after the wedding as long as a notarial deed is used to register the union and the Implementing Agency or Technical Implementation Unit (“UPT”) is notified. The Civil Registration Officer at the Implementing Agency or UPT makes comments in the certificate register’s margins regarding the reporting of the marriage agreement and takes excerpts from the marriage certificate.
Author: Atsyilla Salsabilla
Do you need legal assistance and or further discussion in registration regarding your postnuptial agreement?
Let’s contact us through:
WhatsApp Hotline: 0812-1111-8608
Email: info@ylpconsulting.com
Our experienced Consultant will be delighted to assist you.
overseas marriage, registry overseas marriage, mixed marriage, Spouse KITAP, Update KTP and KK, dukcapil,