Wednesday, 18 October 2017 12:38

Postnup in Indonesia: A Walk in the Park

Postnuptial agreement is a marital agreement. It’s the same thing like any other type of contract in Indonesia. The basic requirement that make the postnup valid is consent between the parties in the contract, husband and wife. It’s that simple! I can’t imagine other people take it more complicated than a walk in the park. Well, at least that’s what I’ve heard from the people on the forum. I don’t really have time to investigate what they say about posts I wrote. I provide the posts and they provide the comments. But this one is really worth a response from me. At least, it inspires me to use it as the title of this post. The postnup, moreover, is legal and it’s doable. It’s like a walk in the park! More important is, it works! Read my lips, it works! Let me explain it further.
The postnup is very useful when spouses failed to create a prenuptial agreement but want to protect their assets. It is not something usual in Indonesia because the law thinks that you should’ve get the prenup in the first place. Therefore, requirements to get a postnup are stricter than getting a prenup. Certain conditions must be met before a judge considers a postnuptial agreement valid. The contract must be created with full disclosure of assets, be entered voluntarily by both parties, and have terms that are fair and equitable. However, even if these conditions are met in a postnuptial agreement, a judge can refuse to enforce it. Therefore, it is very important to start the proceedings with enough legal grounds, previous court precedence that might help the judge to have more leeway for your case.
The postnup will create separation of property ownership in your marriage with the basis of having an affidavit of release and discharge by the foreign spouse. The foreign spouse shall release her/his right in the property ownership and vested in his/her Indonesian spouse. The Indonesian spouse therefore shall act as the title holder of the property in the matrimony. The postnup shall enlist the property acquired during the marriage obtained before the couple have a postnup.
The end results of your postnuptial agreement proceedings is in the form of a deed. The same like an ordinary prenup. The deed shall serves as your separation of property regimes and can be used to prove that there is a property separation in your marriage. Therefore, it gives you and your Indonesian spouse the authority to conduct any property transaction, without any mutual consent. Once the property separation created and vested in a postnup deed, your Indonesian spouse still be the holder of the property title. As long as there is a separation of property in the deed, your Indonesian spouse may keep the property for good. That situation will create legal protection for an Indonesian married to a foreigner.
Please forward this post to people who discuss this issue on the forum. We need to make sure that it is like a walk in the park. I am Asep Wijaya. Thank you for helping me spread the access to the legal system in Indonesia.
Our thanks to Asep Wijaya, Managing Director of Wijaya & Co
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I wrote an Indonesian postnup on daily basis. Yes, I wrote them almost everyday. The postnup is quite different from a prenup. It's  still a marital agrement, and it's totally legal. But the postnup is entered into during the course of your marriage. Yes, you read it right. We date it the day you sign it. On actual date. I am not pulling on your leg. 
A true story about an Indonesian lady who came to my office with her Bristish husband. She wanted some information about the postnup. They signed a Service Agreement the second I finished explaining what the postnup was. You know what had happened next? She wanted to transfer the title of her house, from her sisters's name to hers, without the legal constraint because of marryng her foreign husband. I told her the processing time is six months, and take approximately two times of her presence at my office. She said OK. Take all the time you need. So I do my stuffs, and a few months after I invited her, her sister, and her sister's husband. A sale and purchase agreement took place at the our meeting room.
At this point, you need to be very careful. It's still a taxable transaction: the seller paid 5%, and the buyer paid 5%. Remember, no money being transferred to noone. It just applicable sale and purchase tax payable to the government. The house title was printed on a certificate of ownership. On an ownership's page, details showing her sister's name has been crossed-out. Her name was printed as the new owner. She is now the legal owner of the house. No huss no fuss! The BPN (Badan Pertanahan Nasioanal/National Land Registry) has legally acknowledged her as the new legitimate owner of the house. Thanks to the postnup! 
You know why they made it? It's because the Affidavit of Release and Discharge signed by her British husband. The affidavit is about him giving up his fifty percent shares to her and nominate her as the property holder in the matrimony. That document got her a postnup that will assist her in the future property investment in Indonesia. 
I am Asep Wijaya. Thank you for reading. 
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When you’re married, you’re married. You need to move forward with your life. It’s time to settle down: have kids, running a family, and have a home. Yes, you need to have a home for your own little family. This may not be as easy as it sounds when your spouse is a foreigner. The thing is, they are not allowed to own property in Indonesia under freehold title (so called “Hak Milik”). They only allowed to have a leasehold property under Hak Pakai valids for 20 or 25 years. If that sounds good to you, then you don’t have any problem. But if you insist in having a Hak Milik for your landed property, you need to consider getting a postnuptial agreement. We called it “Postnup” for short.

The postnup is a marital agreement signed during the course of your marriage. You see, it requires consent from both husband and wife in order to be valid legally. It means both of you must agree. No duress. No threat. No pressure. Sounds pretty legal already. So, let me carry on. The postnup imposed that the holder of the property in the matrimony should be the Indonesian spouse. Why so? Simple. The freehold (Hak Milik) is the best title an individual can possibly have. You can keep the property for good, as long as you like. It gets a higher and higher price everyday. Your perfect future investment. But it can only happen when you’re an Indonesian. The trust factor plays important part in this scenario. Anyway, it’s the marriage is about, right? 

As with any other legal agreement, the postnup must be signed on actual date. No back-dated contract. Let me rephrase it to you: no back-dated contract. If you come to someone asking for a postnup, and he needs to check his back-dated registry, then I can say you come to the wrong place. He shouldn’t do that. You tell him it’s not the right thing to do. It's definitely not a postnup. Forget about it. On the other hand, the postnup should tell everything about your situation. It must say that you’re married, and have the details about it. It must also print the correct and actual date the contract signed. There you go! It’s about telling the truth, the whole truth, and nothing but the truth. What’s wrong with telling the truth? Back-dating the contract date means you're not telling the truth. 

You see, the postnup solves your issues, not creating another one. A back-date prenup surely creates one. More than one. I can tell you how it is easily challengable. So, you need to be smart. Your decision determines the outcome, It takes effect to you and your family as well. As an Indonesian, by marrying to a foreigner, he/she is being diluted. Your spouse still an Indonesian citizen, but his/her rights in owning an immovable property is no longer complete. All I can say is, it has nothing to do with the citizenship issues. It has something to do with his/her marriage to a foreign national. I assure you that the postnup can solve the problem. It keeps you move on with your life, without have to turn the clock around. It avoids you mixing one problem with another, like getting a ridiculous back-dated prenup! This is why so many married couples are loving our postnup.

 

 

 

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