Postnuptial agreement is legally recognized in Indonesia. It is a legal instrument from the decision of the Constitutional Court. It's quite a breakthrough but it has some prerequisite requirements in order to be valid. Some of them must come from you as the parties of the contract. Some come from the contract itself, including the formalities from the government institution supervising the proceeding.
You Must be a Husband and Wife
Postnuptial agreement in Indonesia is an agreement signed by a husband and a wife after their legal marriage. The marriage must be properly registered at a registry, such as civil registry, if they were married in Non Moslem, or Office of Religious Affairs (so called "KUA"), if they were a Moslem couple. This is related to one of the legal requirements imposed by the laws in getting a recognised post-marital agreement.
You must be a legally-wedded husband and wife in order to sign a postnuptial agreement. The marriage must have been performed, both the civil marriage and the religious ceremony. In Indonesia, you can't have a civil marriage without performing religious ceremony. So, both of them must be completed before the postnup is being signed. Therefore, you must be able to present the marriage certificate/book for processing the postnup.
The draft of your postnup is available in Indonesian language. An English translation may be provided for mutual understanding. But the version with the legal precedent is the Indonesian. A good postnup certifies this situation in order to give you an informed consent before you said OK to this.
Your legal expert must offer a dual language questionnaire to gather all the required input from you and your wife of what should be included into your postnuptial agreement. Many legal aspects in your marriage that you can't afford to left behind. Therefore, a questionnaire is crucial. At Wijaya & Co, we offer our clients with a questionnaire in order to give you any idea what's your postnup is about.
From Joint to Separation
The regime of property ownership in your postnup will be changed drastically, from joint ownership to total separation. Each spouse will have independent control of his/her own property. This will take effect since the date you signed the postnup. Therefore, each property belongs to each spouse, and they require no assistance from the other. This is a favourable situation when the two of you are a mixed-marriage couple.
This regime will allow the Indonesian spouse to maintain his/her ownership in any immovable property located in Indonesia. Without this situation, she/he will be precluded to own a property under Hak Milik (Freehold Title), let alone to dispose it. If you need a bank's loan to finance the purchase of your assets, chances are they may not be able to offer you one. Many of our clients experience this constraint. A successful application was made after a good and legally recognized postnuptial agreement is incorporated with us.
What If You Can't Come to Indonesia
The Covid-19 pandemic forbids you to travel to Indonesia. You can't come down here to sign the postnup, both you and your spouse. In that case, you need to make sure if the country you live in has diplomatic relationship with Indonesia. If they do have an embassy or a consulate there, you can take the postnup to the embassy/consulate, and get your signatures attested by the consular officers.
We'll take it from there!
I always advise my clients to get a court approval to their postnup contract. You see, the postnup is changing the situation, from joint to separation of property. This is changing of legal situation. The only thing that can do this is a court of law. The process may take a little bit longer. It may costs you a little bit. But, this is going to be the strongest legal instrument you ever make in terms of your property protection in Indonesia.
You need to consider this if you own quite significant assets or planning to buy an assets based on the postnuptial agreement. Make sure you have strong legal basis in order to move forward ahead. If you're in this situation, I strongly suggest you get one of this type of postnuptial agreement. Please call me or email me if you need any further information or requires any assistance with this.
My name is Asep Wijaya. Thank you for reading!
Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!