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Getting marry is going to be the best decision you'll ever made. It is a simple decision with the a future lying ahead of you. They said the marriage is the foundation to everything in your life, among other, property. Both husband and wife are to have joint property ownership after the marriage, if they did not sign anything like a prenuptial agreement. Sometime, you don't get one just because you thought you did not need one. But now, the Constitutional Court revised the Article 29 (1) of the Marriage Law that the marital agreement may be entered as well during the course of marriage. The verdict number 69/PUU-XII/2015 officially created a postnuptial agreement on October 27, 2016 as one of the legal instrument in management of your assets in the marriage. Now, you can have one when you feel you need one.
The ideas behind this decision to officially allow the postnuptial agreement for married couples were to create separation of property and assets between husband and wife. Their separate assets are protected. No drama in fighting for property division. The same idea also applicable to debts. Husband and wife shall responsible for debts they created. The postnup therefore shall create separation of liability during the course of marriage. Furthermore, no consent is required from each of the party in the marriage in the event they want to sell their own separate assets. As for loan application with the bank, neither party is required to obtain consent from their spouse in putting their separate assets as a mortgage. In view of the above, the court wants both parties are totally independent in managing their assets. This is a fine legal reasoning. The Constitutional Court, they keep-up with the contemporary developments within the society in Indonesia. Awesome!
The validity of the postnup shall be initiated as soon as you’ve signed it. It is applicable since you entered it, and it is advisable not retroactively backward. It is applicable on actual date. This is to avoid any conflict of interests with any third party, because since the marriage date the couple might have been created jointly owned marital assets. It is very difficult to differentiate which property belongs to separate or joint property. You may potentially jeopardize the third party’s interests such as banks, and other investors in your marital assets. If you should retroactively draw the postnup back to the marriage date, at least you need to have the properties included into the exhibit and make sure they are mortgage-free. Apart from the ones listed in the exhibit, they belong to both of them. The couple is to have equal shares. This will also include the creditor(s) having a portion in the unlisted properties for the part that a mortgage has been put under. You may want to contact me here to discuss any further about this matter.
The postnup created under the verdict from the Constitutional Court has potential challengeable issues. The verdict put a notary as the party that legalize the postnup. According to the civil law procedures doctrines, this is not a proper ruling. They put the role of a notary to substitute the authority of a judge. You see, having a prenup and not having a prenup is a big deal, because it creates a property separation during the course of marriage. This situation is full of potential issues because when you're having a property, whether you like it or not, it involves other third party(ies) too, not just you and your spouse. The other third party such as bank as the lender if the property under mortgage, the government through the BPN (Badan Pertanahan National/National Land Registry), and other party that may have interest in your assets acquired during the marriage. At Wijaya & Co., we always pay attention to our clients' details and therefore issues are identified before they become potential hiccoughs.
By having a notary legalizes a postnup, they are driven to declare some new legal situation. Last time I checked, this is the domain of a court through their legal instruments i.e. court decree. They called it a Declaratory Verdict. It creates a new legal facts, a new situation. For instance, declaring from joint property ownership to separation of ownership. As far as I concern, the court have a very established sets of law in civil procedures. Before finally reaching the verdict, the court must conduct a cross examination. This is a very important phase in civil legal system. If you were not happy with the verdict, you may file an appeal to the higher court within 14 (fourteen) days since the date the verdict reached. If there was nothing within that set of time-frame, the court finds that you are happy with the verdict, and everybody can get on with their lives. Your Indonesian attorney may proceed to draft a postnup for you.
You can't have those situations if a notary is to legalise the postnup. The convert from joint property to separate property, is not legally assessed with substantial rule of evidence, like the one they're doing it at a court proceeding. If one of the spouses was not happy, or seek any potential leeway that may benefit them in a divorce case, they might want to revoke the prenup. I would say they may be able to do that. Therefore, the postnup as its final outcome, is challengeable, and may be voidable. I would suggest you should consider it with full discretion. If your situation is full with substantial marital property, you should decide if any further reasonable action may be taken to secure your interests.
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My name is Asep Wijaya. Thank you for reading my posts!
Disclaimer:
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 anywhere in this article nor in this website.
Marriage performed outside of Indonesia is not automatically legal and recognized. You must willing to go through the extra mile in order to gain recognition under the laws in Indonesia. We called it reporting of foreign marriage. This thing has substantial implication to you and your family. The marriage indeed is the foundation to everything important in our lives i.e. the children, property, inheritance, etc. You make a mess with the marriage, you're messing with your own life. Not to mention your children. So, whatever you do, always think twice.
The foreign marriage reporting has a set of time frame as imposed by the prevailing laws. You need to comply with it. They said don’t put till tomorrow what you can do today. This must be the reason why they put such a time frame in place. The reporting must be made within 30 (thirty) days since you return in Indonesia after the marriage. The older version of the law sets more leeway to report it i.e. one year. They use the new rule, without revoking the old one. The old one is the 1974 Marriage Law, and the new one is the 2003 Administration of Population Law. The old law is considered as general regulation, and the new one is a very specific law governing certain issues. The marriage registry in Indonesia, they tend to use the 2003 for governing your foreign marriage reporting. At Wijaya & Co., we alway identify the issues before they can potentially turns into a problem.
There are two conditions or requirements that must be fulfilled in order to create legal recognition with the foreign marriage in Indonesia. First, formal requirement. The marriage is legal according to the local rules and regulation where it is performed and registered. So, when you’re married, you’re married. The laws in Indonesia will mirror anything that takes place in the country where the marriage performed and registered. Second, material requirements. This conditions applicable absolutely to the Indonesian citizen. It must refer to the prevailing laws and regulations in Indonesia especially regarding marriage. Issue under this criteria is, among others, the minimum age requirements to get marry. Mixed religion is also part of the material requirements. Failure to meet this requirement, the marriage may be voidable. It may be challengeable at the court of law. There’s a slight possibility that the marriage may be legal in the country where you register it, but it might not be recognized under the laws in Indonesia. It’s a quite tricky situation, please contact me should you wish to discuss any further about this. Things may be overlooked. This potentially can turn into something inevitably unpredictable. This can be used as one of the grounds for an annulment. See, there's more to this than meet the eyes.
Article 56 (1) of the Marriage Law imposed strict requirements as well as time frame for foreign reporting marriage to the Indonesia’s government. This law was retrieved from the Principle of Nationality that every Indonesian citizen submit themselves to the laws of the Republic of Indonesia, wherever they are. You see, this is the interesting part of your foreign marriage. The idea behind the issue is an ancient government ruling took place from the colonial government back in 18 century. It was the Algemene Bepalingen ("AB") in the Article 16. This ruling is still there until today and become the basic law of how we determine our individuals can access the legal system wherever they are. We proud ourselves that the laws of Indonesia is always prevail in the life of every Indonesian, even if they are not on the Indonesian soil.
So, the other inevitable legal consequences for getting marry in a foreign country is, among others, without you even realize, you’re inviting other foreign law elements into your marriage life. Not to mention, if your spouse is non-Indonesian. Another foreign law element is joining the club. You know, two is a company. Three is a crowd. You even have higher potential that you may overlook things. But remember, things can be mitigated with the help from the experienced international civil law in Indonesia.
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My name is Asep Wijaya. Thank you for reading my post!
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 anywhere in this article nor in this website.
Prenuptial agreement in Indonesia is highly recommended to mixed-marriage couples. They are the ones with different nationalities i.e. Indonesian and foreigner. This matter has been an issue since 1960 as governed by the Basic Property Law. The only legal way to get around this issue is by having a prenuptial agreement. This document allows you, the mixed-marriage couples, to own property in Indonesia. The ownership title is under Hak Milik (Freehold Title). It is the strongest title and can only be owned by an Indonesian national.
Every marriage registered under the laws in Indonesia will automatically have joint property. This situation is applicable to all the properties acquired during the course of marriage. As for the assets acquired before the marriage, gifts from third parties, and inheritance, they are under the control of each party. This is not a favourable condition for mixed-marriage couples as the Indonesian spouse is precluded to own a freehold property. It simply because the marriage to his/her foreign spouse and the matrimonial regime the Marriage Law created. Article 35 of 1974 Marriage Law imposed that the parties may create different arrangements, and it is legally acceptable. The arrangement made by the parties before they get marry is called prenuptial agreement. Both parties are allowed to create such different terms and conditions in the property ownership effective since the date of the marriage. Please contact Wijaya & Co., for further details on this matter, I would certainly love to assist you.
We have three (3) types of prenuptial agreement in Indonesia. The first one is the type that creates separation for the assets acquired before the marriage, and joint the assets during the course of marriage. The second one is the type that shares the benefits or profits during the course of marriage, but not the loss and its related liabilities incurred down the line. The last one, here's the best part, this is the type of total separation both before the marriage and after the marriage. The separation takes place both to the profits, benefits as well as the loss and liabilities arising out of the assets acquired before they get marry, and after they tie the knot. This situation gives both parties, including the Indonesian spouse in the mixed-nationalities marriages, to act freely and therefore require no consent from his/her foreign spouse to dispose the assets.
The prenup will take legal effect upon the marriage of the parties. In the event they cancel the marriage, the prenup will not be valid. You need to make sure that your prenup is being registered with the court. This is to meet the third parties' legal interests in your property ownership in the marriage. Without it, your prenup will not be recognized legally. I'd say it's challengeable. We'll discuss later about it. Apart from that, it must also be registered at the marriage registry. You need to make sure the contract can be legally upheld between the two of you, husband and wife. I've seen many prenups missing those two important thing. You should consult your experienced family law attorney for further inquiry on this matter. At Wijaya & Co., we have team of lawyers who loves to give you a detailed advice on your case. Some of those missing items may require further legal proceedings with the court.
The arrangement to enter into a prenuptial agreement for mixed-marriage couples is according to the stipulation that a husband has an obligation to protect his wife. He also has the obligation to provide her needs according to his financial ability. By doing the property separation in the prenup, the husband allows his wife to hold the property under her own name. It's preserving her/his rights as an Indonesian in owning freehold title. This may a big deal for some men, but the ones that doing it are the one that set aside ego and put his family interests first. Article 34 (1) of the Marriage Law imposed that failure in performing his obligation may be used by his wife to file for marital dissolution to the court of law. The application may be carried-out under the ground of abandonment. So, having a prenup is something that you might want to do. It protects your family, giving your Indonesian spouse a chance to preserve his/her rights in owning the property in Indonesian soil.
My name is Asep Wijaya. Thank you for reading my posts!
Disclaimer:
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 anywhere in this article nor in this website.
Certificate of child custody in Indonesia certifies that you are the legal holder of a custody of a child, and therefore allows you to represent him/her inside and outside the court of law. Yup, inside and outside the court room. This term has a very broad meaning. Basically, as the holder, you are the legal representative of the child for his/her best interests. You may be considered as a guardian of the child. In order to secure the certificate for the child custody some terms and conditions applied under this situation.
The child is his/her parents’ responsibility until they reach legal age. In the event the marriage has been dissolved, Indonesia recognized custody-holder parent, and non-custody parent. In best practice, joint custody is also recognized and it must be set-out with a divorce settlement entered by both parents. The court loves this. They encourage you, the parents, to discuss the well-being of your child, even though you’re divorced.
The court acknowledged the settlement reached during in-court mediation. The divorce verdict shall include the custody and parenting plan. According to Article 41 of 1974 Marriage Law stipulates that in the event the marriage dissolved by divorce, the parents have the obligation to nurture and educate the children to the best interests of their children. If there’s a dispute in regards to the custody, the court may decide the case. Remember the keyword: "best interests of the child." This should not be translated as a situation that you are the bread-winner in the family. That may help you doing your parental works to support the child financially but it may not win the custody. You may ruin your ex-spouse credibility by submitting evidence that she/he is committing sexual misbehaviour. Although, that thing may be bring the judges' attention and creates such a court-room drama, but it won't likely to make you the winner in the case.
In pursuing a custody of your child, I suggest you need to make sure you pay attention to your child's legal rights. Law number 23 of 2002 regarding Child Protection imposed the child's basic rights as follows:
- Every child has the right to acquire medical services and social security according to their physical, mental, spiritual, and social needs;
- When the child in the custody of his parents, guardian or any other party responsible for his/her custody, the child has the right protection from discrimination treatment, exploitation, either economically or sexually, abandonment, cruelty, violence, and torture, injustice, and other mistreatment. In the event the parents, guardian or care-giver committed any form of the above-mentioned treatment, the perpetrators must be imposed weighted-sentence.
- Every child has the right to be raised by his/her own parents, except if there is a reason and/or valid legal regulation that the separation is being done for the sake of child's best interests and shall be made as the last resort. In the event one parent has been decided by the court as the holder of child custody, she or he is not allowed to forbid his/her ex-spouse to meet the child. The custody holder parent must give the other parent a reasonable access of visitation.
The same legal reasoning also applicable to certificate of child custody for the child born out of wedlock. This one is specifically made for creating physical evidence of legal relationship between the mother and the child. One thing that must exist in this case: the child was born outside of illegitimate relationship. There's no legal marriage between the child's mother and the man who got her pregnant. Therefore, you need to conduct a DNA test. The consent from the biological mother must first be obtained before the proceedings is being initiated. Whatever you do, be nice. This is totally her statutory rights. You can't do it without her OK.
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I am Asep Wijaya. Thank you for reading my posts!
When you're married, you're married. Most people wants the marriage for once in a life time. But at some point, you want to "undo" the decision and "reinstate" the status. From married to single. This is doable with the marriage annulment. Although permitted under strict requirements, the application for marriage annulment must be lodged to the court within the territory of the Republic of Indonesia. This is the procedures to turn the clock around under civil law in Indonesia. This has several legal consequences to your marital status. Shall we go over the rest of them? Read on!
Marriage annulment in Indonesia is a court litigation proceedings, similar with divorce application. It requires litigation skills by lawyers who specialize in civil law, family law or international civil law to assist you to navigate with the sophisticated legal system. At Wijaya & Co., we assist our clients with their annulment cases in Indonesia. The proceeding may be conducted with the same chamber of court with other family law cases. Some may not be familiar with the proceedings as this is one of a kind.
The application for annulment of marriage must meet the following criterias:
- It must be made within six (6) months since the marriage date. They have strict time-frame. If you stay in the marriage for more than six months, they think you're accepting the marriage. They might think you enjoy tying the not with your spouse. Comfy, yet?
- Must be made to the court according to your jurisdiction. They set-out a very strict ruling with the court jurisdiction. This is understandable as the legal system needs to provide a certainty for those whose committed with the sacred bond of matrimony.
The parties that may apply for the marriage annulment are as follows:
- Upper line family members of husband, or wife. They include your parents, your grand parents, etc.
- Husband or wife. They must step forward and tell the truth. After all, this is the life they're about to go through;
- The authorized officer before the marriage dissolved. They may be able to do it by occupation;
- Any party that has legal interest to the marriage, but only after the marriage has been dissolved. This may be related to the the property acquired during the marriage i.e. mortgage with the bank, etc. This situation makes things get complicated. Other third parties may be involved in the marriage because finally they are affected as well;
- Any person related to the bride or groom under the marriage relationship. The child(ren) of either spouse may be included in this category. They are the person that may be suffer more than anybody else if the marriage turns sour.
One of the main requirements to apply for the annulment is that the marriage must be originally performed and registered in Indonesia. It doesn't matter if it was a Moslem or Non-Moslem marriage. It must be registered and recognised under the Indonesia's Marriage Law. The marriage must have proof of registration from the marriage registry in Indonesia. It doesn't matter your nationality, whether you're an Indonesian or a foreigner. Please contact me if you want more details on this matter.
The court upon receipt of the marriage annulment shall hold a litigation proceedings, and the procedures shall be set-up according to the applicable divorce litigation proceedings. Some pointers that you need to anticipate is that the court may require two (2) witnesses to testify. They need to come to the court and supply the information to the judge. The court will take their oath in order to be used as evidence. This is a substantial part of the case and therefore you must have some family members to support you should you want to go ahead with the case.
Although, the marriage annulment may reverse your marital status, but it will not, in anyway, take effect to the children born into the marriage, property, debt and other financial consequences. This is according to the Article 28 of the Marriage Law. The annulment of a marriage applicable after the court order legally binding. You see we have 14 (fourteen) days waiting period for you to file for an appeal. If they didn’t receive any appeal from either party within that period, the annulment will be legally binding. You’re back to square one!
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My name is Asep Wijaya. Thank you for reading my posts!
Disclaimer:
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 anywhere in this article nor in this website.
In Indonesia, according to the 1974 Marriage Law, the marriage is legal if it is performed according to your religion affiliation. You need to have the same religion with your partner. If you have two different religions, either of you must convert. It sounds awkward, but we find the religion plays important role in the success of your marriage. That’s why the Law requires you to have the same religion marriage. It is imposed by Article 2 (1) of the Marriage Law. So, if you want to do it legally, you need to do it according to your religion. It is either Moslem or Non Moslem.
You need to perform the marriage and it must be registered with the marriage registry. This is to have a legal recognition to your marriage. You see, the marriage is the foundation of everything in your life. When you’ve decided to get marry, you’ve just made a big decision. You’re starting a new page in your life. If you want to live your life the right way, get your marriage legally registered. It’s the right thing to do. It is imposed by Article 2 (2) of the Marriage Law. The marriage registry will in turn issue marriage license for you. It is the evidence that your marriage has been officially registered. At Wijaya & Co., we pay attention to the details of our clients' case.
Furthermore, the Marriage Law imposed more requirements for you before you can perform the marriage. They are:
- Consents from both parties. Both of you must love each other. You can’t force your partner to marry you. It takes two to tango!
- You need to be old enough to get marry in Indonesia. You need to be at least 21 years old. This is the minimum age requirement. Otherwise, you need to have consent from your parents.
- In the event both parents are no longer complete, for example one of them passed-away or legally incapacitated, consent from either parent is enough.
- In the event both parents are not available, you need consent from your guardian. This guardian must have blood relationship with you. That person can be, among others, your grand-parents, if they still alive. They must also have legal capacity to do so.
- You need to get a court order, if there’s dispute between parents, grand-parents, or marriage guardian, in procuring the consent for marriage.
In order to get marry legally in Indonesia, you must submit the Notice of Marriage Intention to the marriage registry. There’s 10 (ten) working days as waiting period. You can get marry after the 10 (ten) days waiting period is over. I mean, you can get marry on the eleventh day. This is imposed by the Government Regulation number 9 of 1975 regarding the Implementation of Marriage Law. Please contact Wijaya & Co. for further details about government regulation related to your marriage requirements.
As for supporting documents required to register your marriage are as follows:
- If you are a foreigner: copy of your passport, copy of your birth certificate, copy of your divorce decree, photos, and Certificate of Non-Impediment (so called it "CNI") Letter printed on your embassy’s letterhead.
- If you are an Indonesian: copy of KTP, family card, birth certificate, N-forms, photos, and original divorce decree and certificate.
A very interesting part about one of the supporting documents, some countries called it "the CNI" (Certificate of Non Impediment), like the US Embassy in Jakarta. But other countries may have different title such "the NOC." It stands for the No Objection Certificate. Both of them serve the same purpose. They certify that you are legally free to marry. The procedures in retrieving them are also varies. This is very interesting as some countries just require you to make an appointment, fill a form, pay a fee. They will release the form to you, after they took your oath.
Some countries would require you to submit a supporting document from your home country certifying that you are legally free to marry, before they can issue the NOC to you. What's important is that Indonesia's law imposed that either the CNI or the NOC printed on the embassy's letterhead. At least, signed and sealed by the authorized officer at your embassy in Jakarta. Some countries via their embassy even refuse to issue such document for their citizen. Well, this is the tricky part that you will have to deal with before tying the knot. As the Indonesians said it: "Indah Pada Waktunya."
In most of the cases, the marriage registry may issue the marriage evidence on the same day of the marriage. The marriage licenses from Indonesia's marriage registries are worldwide recognized. Most major countries such as United States, United Kingdom, Australia, China, and Canada are familiar with Indonesia's marriage documents. I know this when I work with K-3 visa, a spousal visa for the spouse of a U.S. citizen.
So, consider Indonesia as venue of your marriage because getting marry in Indonesia is simple, legal, and hassle-free. Good luck, and welcome aboard!
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I am Asep Wijaya. Thank you for reading my posts!'
Disclaimer:
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 anywhere in this article nor in this website.
Last will in Indonesia is an important document, especially if you're married to an Indonesian citizen, or if your marriage was registered under the laws of the Republic of Indonesia. You need to sign an open testament if you want your property distributed according to your last will. This is the instrument that you authorise the legal system in Indonesia to distribute your assets to your next of kin, and the designated beneficiaries.
I have been writing several last wills for our clients this weeks. We have been digging some laws and also court precedence. If you were married to an Indonesian citizen, or if your marriage was registered or performed in Indonesia, it is advisable for you to get a last will. It is useful in order to protect the property outside of Indonesia free from claims from the Indonesian side. It can be either the Indonesian surviving spouse, Indonesian laws and court precedence, or family members that may encourage the surviving spouse. At Wijaya & Co., we give our clients our detailed attention. Inheritance law in Indonesia is very open and may be mirrored by the court overseas. Therefore, having a last will may ease the distribution of the assets to the designated beneficiary(ies), and to prevent the unwanted parties making claims against your assets, after you’re gone.
Distribution of a last will is called probate. It can only be executed upon meeting two general principles, as follows:
- Death to the Testator.
- Blood relationship between the heirs and the testator.
The Heirs
The heirs are persons that entitles to receive inheritance from the testamentor. There are two most common reasons why a person can be an heir. First, you must have a blood relationship. Second, you can be an heir if you’re married to the testator. Please contact me at Wijaya & Co. for further information about the next of kin. Our last will can make your heirs and next of kin legally recognised by the probate office in Indonesia. Get one and you may rest assured that your loved one will be benefit from it.
Reasons to Sign a Last Will
Of course, you need reasons why you need to sign your last will in Indonesia. The following are the legal facts that a last will is an important legal instrument for you:
- The inheritance legal system in Indonesia consists of three (3) different laws i.e. Inheritance under Civil Law, Inheritance under Customs Law, and Inheritance under Islamic Law. It means inheritance laws for the people here is divided according to their identities. If you're a Moslem you go with the Islamic Law, if you're a Non Moslem you go with the Civil Law, and if you're a person with strong ties to your local community with customsary laws, then you may go with customs law for your inheritance matters;
- The legal systems are open. It means, even if you are a Moslem, you may use Civil Code for your inheritance matters. If you’re a Non Moslem, you can use Customary Law to distribute your asset after you’re gone. So, the choice is open, but when you made one, you must stick to it, and the beneficiaries must go along with it. They must respect the Testator’s last will and his/her choice of legal forum;
- If you’re married in Islamic Law, the heirs in layer one are not only the children born into their marriage, and the surviving spouse; but also other family members such as parents, siblings, etc. They said the more the merrier. But it’s the last thing you need. You better get a last will to prevent unnecessary drama happens in the grieving situation.
There you go. You have more than enough reasons to sign a last will. Contact me or email me to request our last will questionnaire so you can identify what you should write in your testament.
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My name is Asep Wijaya. Thank you fo reading my posts.
Couples sign prenuptial agreement in Indonesia for various reasons. They sign a prenup in order to protect assets acquired before the marriage. They also sign a prenup to protect their family and the future of their children from their business risk. They sign a prenup in order to enable their Indonesian spouse to still own property in Indonesia. A prenuptial agreement in Indonesia must meet certain requirements before it is valid and recognized legally. Without fulfilling them, their prenup may not be able to work properly. The last thing you want is to have a worthless piece of papers that do you no good.
Recently, I work with a Belgian client married to an Indonesian wife. He came to my office, and show me their prenup. He said it's not working for them. The bank won't loan them the money to finance their property purchase. I said what happened? He wanted me to look at the prenup, and tell them why. So, here's the reasons why your prenup might not work for you. At Wijaya & Co., we always pay attention to details of our clients' case.
The prenup was written in dual language i.e. Indonesian, and English. Well, I see no problem with that. As long as the Indonesian version is the one that has precedence, it should be fine. The version written in Indonesian language is the official version, and shall be legally recognized in the event it is being contested at the court. This is inline with the Law number 24 of 2009 regarding Flag, Language and State Symbol and National Anthem. So, from this legal perspective, their prenup is fine. As for English, it is considered as the language used for mutual understanding between both parties.
The choice of forum must be one of the courts in Indonesia, and the choice of law is Indonesian laws. You may not submit yourself to the other jurisdiction, for example English law, or it becomes automatically invalid. The choice of forum may be determined according to your wife's ID card. This is to comply with the publicity requirements because your prenup is a public document, and it must be accessed easily. The failure to meet this requirement will make your prenup end-up worthless piece of paper. Please contact me if you wish to know any further details about this.
We have many types of prenup, and you must know that. By the time you're meeting your Indonesian lawyer, you must raise the question: what type of prenup that suitable for you? For your marriage, and for your situation. Here's a little clue from me: never lie to your lawyer, and to your priest. Tell him everything. Don't misconceal a thing. A good prenup is meant to support you, not against you. The last thing you want is to hire another lawyer to get a good prenup for you. So, you better make it count. We have total separation of assets, and joint assets prenup, among others. There are many other types of prenup. I can go on forever, but I don't want to waste your time. Those are the most important types and most people use them for their legal affairs.
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My name is Asep Wijaya. Thank you for reading my posts.
Fathering illegitimate child can happen when you're in a relationship with your legally wedded spouse. It means you're committing an adulterous relationship. An adultery is a crime in Indonesia under Article 284 of Criminal Code. We called it Delik Aduan, meaning that it's an absolute complaint offence. They can only bring you to justice if your spouse file charges against you. The definition of an adultery is sexual intercourse committed by a married man or a married woman, must be consensual, and either of you are not legally free to marry. Your spouse may file charges against you, but he/she is the only one that may revoke it.
The child, should you want to keep it, is an out of wedlock child. It means he/she is born out of legal marriage. Under the 1999 Human Rights Law, the child has the rights to know his/her parents, to be nurtured and raised by his/her own parents. So, keeping the child alive is a good choice. It's your flesh and blood. Abortion is the last thing you want to do. So don't do it, for God sake! Don't do the abortion. Do the DNA test. If the child was yours, acknowledge it and proceed with child legalization. Please contact me at Wijaya & Co. for getting this thing done the right way.
According to the ruling from the Constitutional Court number 466/PUU-VIII/2010 and since the verdict was reached on Feb. 17, 2012, child born out of wedlock has legal relationship not only with its mother and her family, but also with its father and his family. Claims towards the child must be consented by the mother. This must be done before you pursue child legalization. Going further with child legalization requires DNA test, and must be supported by other evidentiary proof to support it.
The birth certificate for a child born out of wedlock has mother's name only. You won't see your name as the father before you're conducting child acknowledgment and child legalization thereafter. When you're taking a DNA test, you need to make sure that the results of the test is being signed by the accredited medical practitioner in the business. You need to make sure no clause that may prevent or lies legal constraint during the proceeding of child legalization. According to the ruling from the Constitutional Court, the DNA test is one of the two significant evidence used in getting the child's legal recognition. In fact, this is the utmost significant evidence used by the court in determining parental relationship between you and the child. It's a tricky thing that you should do with the laboratory conducting your child's DNA test. Failure in doing so might end-up the court rejects your motion. This is the last thing you want. You need to be very careful about this one.
Call us or email at Wijaya & Co. us to find out how we can assist you in getting you to the right direction of this proceeding. I am sure you want to do the right thing with the right way.
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My name is Asep Wijaya. Thank you for reading my posts.
In Indonesia, a husband is considered as the bread maker in the family. The Marriage Law considers a wife as a full-time house wife. She's taking care her husband and the children. Your main responsibility is to support your wife and the children financially. Article 34 of the Marriage Law imposed that a husband is obliged to protect his wife and provide all the necessities of living household according to his ability. This condition is also applicable in the event of divorce. Even though your wife is also working, and making more money than you.
In the even of divorce, the court may determine the spousal support that must be paid by the husband. The spousal support is one of the consequences of getting divorce in Indonesia. So, this is only applicable after the marriage has previously been dissolved by the court. Article 41 (c) of the Marriage Law gives the court the authority to impose financial obligation of the husband in regards to his spousal support payment that must be made to his wife. The ongoing divorce proceedings may not be used as an excuse of not making the daily living support to your wife. This is also applicable to your obligation to your children. You may not be allowed to abandon the children due to the ongoing case in court of law.
Furthermore, for Moslem couples, the Islamic Compilation Law stipulated in Article 80 (2) and (4) that the financial obligation provided by the husband is including but not limited to:
- Spousal maintenance, and marital residence for your wife;
- household expenses, medical expenses for your wife and children;
- Education expenses for your children.
The stipulation regarding spousal support also imposed by the Civil Code in Article 107 as follows: "The husband is obligated to accommodate his wife in the house that he occupies. He is obligated to protect her, and to provide her with necessities, in accordance with his position and capacity." See? We have complete ruling from all over the place: civil law, Islamic law, and the marriage law. The whole nine yards.
The terms and condition for spousal support is indeed very general, but may be applicable to you in the event you meet the criterias. Basically, it's you who throw the numbers on the table. You need to keep the standard of living that has been maintained during the course of your marriage. In the field of practise, we have two types of spousal support. The short one, and the long one. The first one is as short as three months. The long one is as long as 12 (twelve) months to 24 (twenty four) months. But indeed, you don't have to support her until she remarries. This won't be the case here in Indonesia.
If you failed to provide spousal support, you are considered comitting domestic violence under 2004 Domestic Violence Act stipulated as follows: "Everyone is prohibited to neglect a person within the scope of his household even though according to the law applicable to him or because of his consent it is obliged to provide life, care, or maintenance to that person." This is the last thing you want. You don't want the court in Indonesia reached the verdict with the figures you can't afford. If she's smart enough, she will use it as a mirror order to nail you wherever you are. It happened once. They were having this proceeding at the South Jakarta Court. The husband thought the court can't touch him because he lives and works in Singapore. The last thing he knew was he was served by the Singapore Supreme Court because of the complaints filed by his wife. So, take my word for it. Face it and get it over with. You need to hire the best in the business.
On the other hand, in the event your wife left you and the children. She left the house without your consent, the law thinks that she's not entitled to a spousal support. This is applicable according to the Islamic Compilation Law. They called it Nusyuz. It means she is being rebelled, and did not obey her husband. Nevertheless, this does not waive her rights in property division. It doesn't sound fair. I know. This is the sad part of our legal system. A precedence about this issue has been reached by the Supreme Court, and remain valid until now.
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My name is Asep Wijaya. Thank you for reading my posts.
Disclaimer:
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.
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Child custody in Indonesia is one of the consequences of a divorce between a husband and a wife, Divorce may be the solution for both of you. It may be your best way out, but the law suggets it can only be used as a last resort. It means both of you should work hard to keep your marrriage intact. In Indonesia, you should have enough reason to dissolve your marriage. You just can’t say: “I have enough of you! Let’s get divorce!” They won’t allow you to get divorce on this ground. Article 39 (2) of the Marriage Law stipulated that in order to get a divorce, both husband and wife must have enough reason that they will not be able to live in harmony.
There are legal grounds of filing for divorce that every divorce lawyer in Indonesia has to advise his clients with, and they have been regulated in the Marriage Law, which are, in the event one of the parties:
- has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits 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 (5) consecutive 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
- has irreconcilable differences.
For couples married in Moslem ceremony, Article 166 of Islamic Compilation Law added two more legal ground to get divorce. They are: a. You may get divorve in the event a husband broke his taklik talak. It’s a marriage vow soon after the Moslem couples performed the marriage. If you forget about it, you may want to check the back page of your marriage book; b. Apostate. In the event your spouse convert back to his/her previous belief, other than Islam. The above legal grounds are optional. I mean, your divorce case doesn’t have to meet all of the legal grounds. You just have to include ome of them, and supply two witnesses to take the stand at the court room.
As for the child custody, the decision follows after the marriage has been dissolved. The custody of a child under the age of 12 belongs to the mother. Article 105 of Islamic Compilation Law imposed that a child aged 12 (twelve) has a freedom to choose between its mother or father. They tend to give the custody to the mother because they think women is the best figure to nurture the child. They are more compassionate than men. They think women can do it better than men. In short, they think the Islamic Compilation Law has maternal preference. It's also has sole custody principle that allow one parent to be a custody holder, and the other parent is a non-custody parent. But, in the field of practice those things are not always happen. They don't always do their jobs. They can be either mentally unstable, committing adultery, leaving the child at home during night time to meet friends, hang out and partying all night, or even jeopardizing the child's well-being. Those are the circumstances where you as the father may take over the custody of your child. You can’t just say that you’re financially better than your wife, and you think you deserve the custody. Our Marriage Law considered husband is a bread maker in the family. You have the obligation to support your children. This is the universal value every where, I supposed.
The ultimate consideration of having a child custody is for the best interests of the child. It's imposed by the 2002 Child Protection Law. The judges assess and measure your ability in providing what’s best for your child. Factors included in the assessments are physical and mental health, intellectuality, independence, and utmost good faith in allowing his/her ex-spouse to have parenting and visitation. In another words, you still need to talk to you ex-spouse even though you are no longer married to each other. This is for the best interests of the child. The one that meets the requirements is the most eligible to serve as custody holder of the child.
I would like to bring your attention to the court verdict number 110K/AG/2007 issued by the Supreme Court in December 2007. The holding from the court was, among others, the ultimate consideration of having child custody (Hadhanah in Arabic term) is for the best interests of the child, not merely the most normatively entitled to. The court further stipulated that even though the child was only 7 (seven) years, and the mother frequently travelling overseas and leave the child all alone by herself, while the father actually always be there for the child giving her steady and stable life, so therefore they found the father was entitled to the custody of the child. This is one of the most brilliant court's products in Indonesia, and considered as "jeopardizing" the maternal preference since the Islamic Compilation Law enacted in 1991. But I mean, apart from that, you know, you can really lose your rights in getting child custody, even though the law prefers you due to gender preference. As parents, I believe we must put ourselves behind the children's interests and put them as our priority in life. I am sure we're all love our children so very much.
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My name is Asep Wijaya. Thank you for reading my posts.
Child born out of wedlock in Indonesia has legal relationship with its biological mother and her family only. This principle is reflected on the child's birth certificate. It means the birth certificate of a child born out of legal wedlock cannot include the name of its father. That was ancient regulation before we have a breakthrough from the Constitutional Court. Nowadays, children born out of wedlock has legal relationship with the acclaimed biological father. The claims must be supported with the scientific evidence such as DNA test, among others.
Article 43 (1) of 1974 Marriage Law has been recently amended to include the biological father as parent of the child born out of wedlock. This ruling was meant to protect the child’s basic right. Just because we recognize the legal relationship between the father and his child born out of wedlock, it doesn’t mean to attack the legal marriage and its legitimate children. The relationship does not automatically entitles the child to the legal rights as if it was born into the legal marriage. Nevertheless, it may be the basis to create "the bridge" between the acclaimed father and the child in regard to the child's rights in claiming child supports, education, inheritance, etc. Well, at least you need to start somewhere, right?
The legal proceedings under the amended Article 43 (1) of the Marriage Law is very useful for the children born outside of the legal marriage. This is because they can have a birth certificate with complete names of the parents. Both names of the father and mother printed on its birth certificate. This is a milestone to a new world of opportunities for them. This is similar to child legalization proceeding. Without the proceeding, the child may entitle to a birth certificate with mother’s name only. They said our legal system legally bastardizing them. They won't be, as long as you as the father would like to recognize them. It's your flesh and blood anyway. So, give them what they need: the birth certificate with the full names of the parents.
The best thing about this, it does not have to come with the marriage of the parents. Do I mention something about tying the know at some point? No. It's up to you! Sometimes, messy things between the two of you doesn't have to make your "champ" suffers. All you need is to talk to each other, sit down in the same table with your Indonesian lawyer and get the ball rolling. Well, I am not the guy who against the spiritual and emotional bonds like they do have in those married couples. What's important is the father's acknowledgment. It does really matters to your child. What a simplified legal system, huh? We make things simple. It's up to you to keep it simple, or the otherwise. All you have to do is to supply the evidence. This is the most convenient way, considering the absence of your marriage certificate.
Well, let me completely be honest with you. I understand that you may not be able to supply the marriage certificate due to various reasons. You did perform the marriage, but it may not performed properly according to the marriage regulation. It's called unregistered marriage. In Indonesia, some called it "Nikah Siri." Or, you never get marry before and the child conceived out of the adulterous relationship. A marriage is one thing, and a child is another thing. I am not going to cast a stone at you. You don't have to do it if the marriage is not a scenario. So, you can do this proceeding under the Article 43 (1) of the Marriage Law without getting marry first.
I dedicate this article to a Swiss-Indonesian couple whose child born out of wedlock. They got rejected everywhere. At the civil registry. Even at the court. I do understand your frustration. Well, the system is not attacking you. Don't take it personally. You just have to look further. Good luck, and God speed!
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My name is Asep Wijaya. Thank you for reading my posts.
Guardianship of a child in Indonesia is a challenging issues. Not only this is the most important part in family and matrimonial law practice, such as adoption cases, divorce cases, and custody disputes. It also plays substantial role in general civil law, such as how a judge determine a child's guardian in representing him/her in all of her legal affairs. Article 47 of 1974 Marriage Law stipulated that children under 18 years old or have never been married, are under their parent’s authority. The parent represent them in and outside of the court room. The parental authority may be revoked by the court or may also be removed voluntarily and assigned to other individual. Parental authority is the term set-out in the laws in Indonesia. It also known as Child Custody. Different terms but discussing the same thing in common. The terms have a very broad meaning: representing the child inside or outside of the court room. This include the whole legal matters involving the child's life.
When parent is no longer in the position to perform his/her job, other people, preferably family members may replace them as a guardian of the child. The guardianship of the child may voluntarily appointed by the parent. The person may accept it or he/she may refuse it. Being a parent indeed is not an easy job. So, you're excused if you think you won't be able to do it properly. Child Protection Law of 2002 stipulates that in the event of a parent is absent, or unknown, or for some reasons unable to perform his/her duty and responsibility, the job is transferrable to other family member. A guardian may be appointed to do the job. They must be same blood family up to three degrees upline, such as grand father, grand mother. They can also be three level down line.
The laws further imposed how a guardian must meet criterias. He/she must at least 18 years of age, physically and emotionally healthy, fair, honest and having a good behavior. Other family members must also be supply their opinions about how he/she may be able to perform his/her duty as the child’s guardian. They also have the responsibilty to choose the right guardian because everybody knows everybody. This is the beauty of family emotional bonding.
At Wijaya & Co, we handled cases like this: transferring the children guardianship from their parents to their grand mother. Both of them are busy with their works and the grand mother lives in a different country. The guardianship order serves as an immigration clearance as well that allow the grand mother to have parental rights in regards to the furnihsing of immigration paperworks. She represents the children and have the legal power to decide on the parent’s behalf, as if having someone to trust to take care of your children, legally.
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I am Asep Wijaya. Thank you for reading my posts.
The laws in Indonesia legally recognized marital agreement as a contract entered by a husband and wife, either before or during the course of marriage. Having a marital contract, either a prenup or postnup in Indonesia, there is more to it than meets the eyes. You can see how it redefines your marriage, regardless your nationalities.
Are You In It for Love?
A prenuptial agreement(so called “Prenup”) in Indonesia definitely can protect your assets. When you're considering to marry someone, you need to know if she/he's marrying you for love or for money. One could never tell, but the marital agreement could always do. Take my word for it. If she/she says yes, even after the prenup has been executed, then he/she's the one. No matter what.
By entering into a marital agreement prior to your marriage, you can protect your assets acquired prior to your marriage to him/her. The assets are legally free from the claim she/he can brought against you as if no marriage has been consummated. You're not legally liable for the debts prior the marriage. So, yes, with the marital agreement in Indonesia, you are in it for love. Not for the money.
Protection against Bigamy
This is sometime, just sometime, happens in countries like Indonesia: your husband is committing bigamy. Ouch! That's not good. Please don't get mad. Get everything! Yes, you read me right. Get everything, literally!
You should insist to enter into a postnuptial agreement (so called “Postnup”) between you and your husband in order to protect your financial interest, your children's future, and your assets. Even though, each marriage to each wife and its assets is totally separated, but you never knew. Get yourself a cover. You can't risk yourself and the children exposed to any potential risks. In this case, you should get a postnuptial agreement. A Postnup in Indonesia is legal and recognized. is a type of marital agreement entered into a husband and wife during the course of marriage. With the breakthrough verdict from the Constitutional Court in 2016, the postnup is legally recognized and totally can be upheld in the court of law.
Using a postnuptial agreement to protect yourself from bigamy is exist long before the Court reach the verdict. The terms and conditions for this type of marital agreement is even exist in the Civil Code. Indonesian socialites have been using this to protect their marital assets, and the laws allow the wife to submit a motion for postnuptial agreement.
Business as Usual
Practically, in Indonesia, your spouse is your business partner. Not to mention if she/he's actively contributing to the business enterprise on daily basis. Whether he/she is serving as a member of the board or not. Your spouse entitles to half of your share. Lovely, isn't it?
Article 157 Civil Code imposed that the profit you made out of your marital assets, retrieved from the community assets, income derived from joint assets, shall be considered as marital property or community property. Whatever you call it, your spouse entitle to it. Your profit, your income, exchanges of the existing property, among others, are part of the joint assets with your spouse.
When the marriage ends with a divorce, your spouse gets half of the assets, both now in existence and its profits. So, consider signing an Indonesian postnuptial agreement in order to prevent that from happening, and list your business enterprise as one of your separate assets.
Preserving Your Inheritance
Say, you're expecting inheritance from your parents. Legally, inheritance and gift from a third party are separate property. Article 35 (2) of 1974 Marriage Law stipulates that if you otherwise determined, the inheritance may become joint property. It means, it may not be free from your spouse's claims. Putting the inheritance into a prenup or postnup contract in Indonesia can preserve the inheritance from your parents. It can't be touched legally. You may be clear describing the assets such as location, dimension, and other related description in the marital agreement.
Back-to-Back: Foreign & Indonesian Prenup
Both of you are foreigners. Neither of you is an Indonesian citizen. But you have been residing in Indonesia for quite sometimes. You plan to get marry in one of our beautiful islands such as Bali, or Lombok. It means, you're registering your marriage under the laws of Indonesia. You're submitting yourselves to the legal system in Indonesia. There's a legal term called: "Minimum Contact." It’s a universal legal terms. You and your husband have a minimum contact with the Indonesian laws because you live in Indonesia. The legal effect is minimum but it’s still a loophole. I am not saying you are totally exposed without any Indonesian prenup or postnup, but if you wish to have a safe-precaution, you should get one. Remember, the Indonesian laws on marriage is applicable also to foreigners live in Indonesia. This is the part of the international civil law that may expose you to the risks of having a regime of marital property. Doctrines on the international civil laws are very complicated. We don’t know which one the court will apply to your case. We never know which court will have jurisdiction to your situation. But the last thing you want is to left yourself, and your marriage open to the potential exposures of marital property regime in Indonesia. People spends tens of thousand of dollars fighting in divorce litigations, while they can avoid it with a piece of paper called a prenup.
But hey! You're signing a foreign prenup. That's cool! You know what? Your foreign prenup is not recognized here. So, from the Indonesia's legal perspective you’re married but with no prenup. Therefore, you have joint property ownership regime. On the other hand, if you have the Indonesian prenup, and/or the Indonesian marriage, and/or you live here on the Indonesian soil, those are legal bonafide to you and your marriage. There’s no question in terms of the legality of your foreign prenup. It will even make things stronger. The Indonesian prenup shall serve as "the bridge" to your foreign prenup. So, everything is connected now. There's no missing link anymore.
In the event of divorce, with the Indonesian prenup, your marriage will still have separation of property regime. This can be used as “mirror” just in case things get ugly, and any court in other country may refer to the Indonesian side.
Preserving the Indonesian
I like the term "preserving" better than "protecting" because your Indonesian spouse is entitled to the freehold property. She/he can own property under hak milik. The best thing about it is that you can keep it for good. You can even inherit to your children. But once you're married to a foreigner, the Indonesian shall be precluded in owning the property in Indonesia. She/he is the same legal position with his/her foreign spouse. The Indonesian prenup comes to preserve the rights of an Indonesian citizen, even though she/he's married to a foreigner. The right or entitlement in owning the property has already been there since the Indonesian spouse was born. So, nothing to be protected. It just a matter of preserving what's already been there.
Do you know any other way how an Indonesian prenuptial or postnuptiall agreement may redefines your marriage? Do you have something to discuss with? Please do not hesitate to contact me: This email address is being protected from spambots. You need JavaScript enabled to view it.
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I am Asep Wijaya. Thank you for visiting my blogs and reading my posts.
Disclaimer:
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 anywhere in this article nor in this website.
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