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.
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.