Postnuptial agreement is widely recognized in Indonesia. It's legal, and it has always been legal, even before the breakthrough decision made by the Constitutional Court. The thing is, it relies on your perspectives. When you write a postnup, you're separating assets that previously fall into the definition of joint property. The asset in Indonesia must be transferred from the foreign spouse to the Indonesian spouse, even though it is under the name of the Indonesian. This is because before the postnup, they have a joint property that makes each spouse gets 50:50. It means, the foreign spouse also has the right in the property for the other 50%, beside the portion that belongs to the Indonesian spouse. So, the transfer of foreign share must take place within the legal framework in the postnup.
There are some terms and conditions that you want to make sure they are included in your postnuptial agreement. You don't want to miss it because their absence would make it invalid. Firstly, the postnup must assign the authority to the Indonesian spouse to do legal action with the property. It includes to transfer and dispose such assets to other third party, including to put a mortgage on. So, your postnup serves as a power of attorney in this matter. Without this clause, you're stuck and leave you and your spouse in the middle of nowhere. In the limbo of Indonesian laws that preclude the foreigner to own property under freehold title.
Your postnuptial agreement must also include the fact and full information regarding your legal marriage, even though you're married outside of Indonesia. This is the essential information to stand out your postnup from a prenup. This constitutes as full disclosure of any important information in order to make the the postnup formally legal. It's the express intention of your utmost good faith. The way I see it, it is must be located on the consideration part of your postnup. Yes, at the beginning of the contract.
A good postnuptial agreement must also include choice of forum and choice of law. If your intention to write a postnup to enable you to own a property in Indonesia, you need to choose the Indonesian laws as the choice of law. Choosing other jurisdiction such as the laws of the State of California, for example, may invalidate your postnup. It's a waste of time and money. So, don't do it. It won't do you any good. The choice of forum is choosing the court of law serves as the implementation of Civil Code requirements to make the postnup valid against third parties. Try not to do it, you will end-up with worthless piece of paper. The recent postnup rules clearly states that a registration at the court, and thefore choice of forum is a must, will make your postnup legally valid and recognized.
Other clause that may be good for your postnup is severability. This is a sophisticated clause that will assemble your postnup into pieces should there's change of law. The postnup is a new thing. It may be high possibilities that they are introducing more implementation rules and regulation that may weaken your contract. The severability clause can help you and your postnup to separate one invalid clause so not to affect the rest of the clauses in your contract. That way, the other remaining valid clauses can still working for you.
Call us or email us to find out how we can assist you in getting you to the right postnup for your and your spouse. My name is Asep Wijaya. Thank you for reading my posts.