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. At Wijaya & Co, we always pay attention to details of our client’s case. 

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. Please contact me should you wish to discuss any further about this.

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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.

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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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