Prenuptial agreement in Indonesia is a marital agreement that signed before the couple enter into a legal marriage. The marital contract is recognized under the laws in Indonesia, both the Marriage Law, and the Civil Code. You can write any content of your prenup as long as subject to law and regulation, religious values, appropriateness values, and morality.
Most people, they treat their assets, both movable and immovable and their own debts as separate property free from claim from the other spouse. Other type of property that falls into this definition are gifts, and inheritance. The prenup serves as the law between husband and wife, and other third party as long as they are relevant thereto.
There are several legal grounds in relation to a prenup in Indonesia. Article 119 of Civil Code and Article 35 of the Marriage Law. Both laws are the very basic legal ground for getting a prenuptial agreement legally incorporated.
Article 119 of Civil Code stipulates as follows: "From the moment of execution of the marriage, it shall arise by law joint marital property between the spouses to the extent that no other stipulations have been made in the pre-nuptial agreement." So, the prenuptial agreement is the specific terms and conditions entered into and executed by the couples before they get married. Without any prenup, their marriage will have joint property regime.
Article 29 of the Marriage Law stipulates that before, on the marriage, or during the marriage, both parties in the marriage may enter into a mutually agreed agreement that also may be applicable to any third parties. It is valid since the beginning of the marriage, unless otherwise specified. During the course of marriage, the prenuptial agreement may not be altered or revoked, unless by mutual consent of both husband and wife.
During the marriage, both husband and wife may have property acquired during the course of their marriage, as well as the property acquired prior to the marriage date. Those property may be regulated within the prenuptial agreement in Indonesia. The properties are the object of the agreement signed by the husband and wife.
Article 35 of the Marriage Law further imposed that the property shall be classified as joint property, and separate property. The joint marital property is the assets that acquired during the course of the marriage of husband and wife. As separate property is the assets acquired or owned before the marriage date, or a gift from any third party or inheritance, shall be under each party's control and therefore free from claim that may be made by the other spouse by reason of their marriage.
As for commingling property, they may combine their assets and form a new property that exist after their marriage. Although this type of property may not favorable, but doing so is possible and the ownership of the parties shall be according to each party's contribution. The capital gain, the increase of the investment during the course of time, is subject to 50:50 You need to expressly specified this term and condition in your prenuptial agreement in order to eliminate any potential conflict. It is also recommended to write any specific details about the assets on your prenup.
Other Terms and Conditions
Your prenup may have other terms and conditions relevant to your marriage. It can be a freedom to manage your assets and liable for your own debts. The freedom to manage your assets and requires no assistance from your spouse is a very important term and condition in the event you are running your own business, posses a hefty assets from previous marriage, have children from any previous relationship, and in the even that both of you are mixed-marriage couple.
Mixed marriage couple is man and woman that have different nationalities and married under the laws of the Republic of Indonesia, or their marriage recognized by the laws in Indonesia. The freedom to manage your assets is very important as the Indonesian spouse will be affected by his/her foreign spouse in owning the property, should they did not have any prenup. With the prenup that give you the freedom to manage your assets, you requires no assistance from your foreign spouse, and therefore the co-siging is not required. Consent to dispose the assets are no longer required and therefore the Indonesian spouse can freely act on his/her behalf. Please contact me should you require any further assistance about this term and condition particularly applicable to you and your spouse.
Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!