While previous regulations defined "mixed marriage" as marriage between people in Indonesia subject to different laws", under the Marriage Law, a "mixed marriage" is defined as "marriage between two people in Indonesia subject to different laws as result of difference in citizenship and one of the parties is an Indonesian citizen". (Article 57, the Marriage Law).
Divorce: Grounds for Divorce
One of the means to dissolve a marriage is by divorce. Divorce may only be effected based on "sufficient reasons". The reasons for a divorce have been regulated in the Marriage Law, which are, in the event where one of the parties:
- has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or other vices which are difficult to cure;
- has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;
- has been sentenced to imprisonment for five years or a longer period;
- has resorted to cruelty or severe ill- treatment, endangering the life of the other spouse;
- has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or
- Irreconcilable differences.
Custody and Child Support
Both of the divorced spouses are responsible for the protection and education of their children. In case of minor children, the Court will usually award custody of such children to the mother, unless the mother is the one who is at fault or there is proof of her incompetence to take care of the children. If the baby is born overseas the regulation requires registration within 10 days after the baby birth and registration may be made to the Indonesian Embassy in the country where the baby was born. As far the practice we know the baby may travel with the mother's passport and other travel documents as required by the relevant regulations.
Marital property in Mixed-Marriages
The division of joint marital property will be dealt with according to the respective laws of the spouse. The laws may be their respective religious laws, customary law and other laws. The joint property is usually divided equally between the spouses.
Own a Property for Foreigners
Real estate in Indonesia may only be owned by Indonesian citizens or Indonesian legal entities (i.e., companies, yayasan, etc.). Thus, the only way a foreigner can truly have an interest in Indonesian land is by owning (or controlling) an Indonesian legal entity, in this case, either a PMA company or a PMDN company in which control of shares have been signed over to a third party.
Although land owned by companies may not be "Hak Milik" (often, and rather erroneously, translated as "freehold"), the Hak Guna Bangunan title is completely solid, and exists for as long as the company exists, and such titles are mortgageable. Of course, setting up these companies has an initial cost, and in the case of nominee companies there are ongoing nominee and administrative costs, however if you want security, this is the only way to do it, despite what Bali property salespeople may tell you. This is potentially a very technical and complex subject.
A good starting point is the knowledge that a) foreigners can't own land etc.. and b) Indonesian law assumes community (joint) property between husband and wife except for gifts and inheritances. So the starting point is that an Indonesian wife will need a marriage contract which states that immovable property in her name legally belongs to her alone, this is because her husband is a foreigner and can't own land in Indonesia in the first place.
So when you say "recover his assets on the death of his Indonesian wife", legally they cannot have been his! Generally what happens is that the foreign husband provides money for the Indonesian woman to buy the land. They should however document a loan agreement or mortgage on the land to that effect and the husband who put up the money should hold the certificate of title. That way if the woman dies, the husband will still have his mortgage and the certificate of title, even if the property has to be sold or legally transferred to another Indonesian (perhaps a family member).
An additional factor would be for the husband to take a lease of the land. Of course all this needs to be done to also protect the wife if her husband gets hit by a bus! There is no reason why the wife cannot will her legal assets to her husband, and leave her family out of it. That's up to her. But even then, the husband will never be able to own the land, because he is a foreigner. In the event of the wife's passing, her family is entitled to their "Hak" (rights). Basically you are entitled to your 50%. Your Indonesian wife's 50% would be divided between her surviving husband and their chlidren. That would entitle you to 50% of her share.
On paper you should be allowed 75% of the money from selling the property and her family to get the remaining 25%. When the wife passes away, the expat husband has one year from the date of death to sell your properties. If you manage to sell out, you get 50% (if he has no children) and the late wife's family gets the other 50%.
If, after one year, he hasn't been able to sell, the estate is handed over to a government body and the courts decide how the estate will be divided. The expat husband will probably get next to nothing. Otherwise, during that year he can have the estate placed in another Indonesian's name but this is not a direct transfer of title. It must be "sold" and the expat husband will have to pay the tax on the sale.
There is no easy way out and what ever you do, it takes a long time (and money). It's a lot more involved than have to be mentioned, believe me! It may well be wise for husband to form an investment company first, before forming the company, which could then buy the house and set up a PMA (Penanaman Modal Asing).
The wife must sign a letter authorizing a lawyer or a law firm to handle her affairs on the husband's behalf in the event of her death. This legal paper immediately puts the family at arms length and they can do nothing unless the lawyers and you agree. Make sure that any and all bank accounts are JOINT. Not an account in wife’s name with you having "signatory" rights. Even though you are the husband, the courts will not hand over the money without including the deceased wife's family, as by Indonesian law, they are entitled to some or all of her assets. This is a lengthy process and very difficult to deal with as one is dealing with grief and sorrow at the same time as one is sorting out the legal aspects of the situation.
Indonesian nationality is governed by Act No. 62 of 1958. It defines an Indonesian national as a person who, since the beginning of independence on August 17, 1945, qualifies for citizenship under existing laws. An Indonesian woman married to an alien husband shall lose her Indonesian nationality if she makes a statement to this effect within a year of her marriage.
The 1958 Law on Citizenship, the citizenship of a child born from a marriage between an Indonesian woman and a foreigner should be that of the father. But, if the marriage has been recognized by Indonesian law, the baby is considered a child born out of wedlock, hence he/she should have his mother's citizenship. In this condition there's no problem and the baby can have an Indonesian birth certificate.
The problem would be different, if the father must have alien citizenship. Infants born from mixed (different races) marriages, have been deported to their fathers' countries. This is because the 1958 Law on Citizenship, which had a paternalist character (in which the legal line of the father dominates). Indonesia recognizes the principle of ius sanguinis, whereas the citizenship of a child is the same as his parents.
There are many legal disputes between divorced couples of Indonesian women and their foreign ex-husbands over the citizenship of their children. The resolution is considered unfair as children were given their fathers' citizenships, although the children were in the custody of their mothers. A child born from a legitimate marriage of an Indonesian mother and an alien father shall, in the event a divorce is granted by the court, qualify for Indonesian nationality if he/she so decides.
A child born from a legitimate or illegitimate marriage between an alien father and an Indonesian mother is entitled to become an Indonesian national if he/she applies to the Minister of Justice, having abandoned his/her alien nationality according to the law of the foreign country or in accordance with an agreement concluded between Indonesia and a foreign country. In such case a child shall submit the application within a year after reaching the age of 18. A child under the age of 18 who is not married and retains his/her kinship with the father who has not yet acquired Indonesian nationality, qualifies for Indonesian nationality if he/she lives permanently in Indonesia.
I am Asep Wijaya. Thank you for visiting my blog, and reading my posts.
The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.