Postnuptial agreement in Indonesia is 100 percent legal and recognized by the courts of law. In 2015, the Indonesia’s Constitutional Court issued a verdict saying that the marital agreement may be entered into before, after, and during the marriage. Many thinks that this ruling is a breakthrough verdict, but surprisingly, of course, it's not the first one to ever happened in Indonesia.
Long before the ground breaking verdict, courts in Indonesia have been come up with similar rulings. From Jakarta to Malang, from Makassar to Tanjung Pandan. All of them are saying the same thing: postnup is legal. The way they see it, it's a contract between two parties entered into freely, with voluntarily consent, and without any duress.
I managed to get some court orders gathered from a few places in Indonesia, such from Malang, Tanjung Pandan, Makassar, North Jakarta, Central Jakarta, and of course South Jakarta. Their considerations in reaching the verdicts were pretty similar. The courts tends to think that even though the marital agreement may only be entered before and on the marriage date, but as long as it does not violate the rules, religious norms, and moral, the amendment of marital agreement may take place during the course of marriage. This is where they allow postnuptial agreement. Mutual consent, and as long as the contract does not jeopardizing the third party, the courts are welcome with the marital agreement after the marriage.
The other legal reasoning is because the Marriage Law in Article 29 allows amendment to the marital agreement. This does not contradicts with the other provision that postnuptial agreement is forbidden. Furthermore, our Civil Code recognised post-married contract in Aricle 139, and therefore, they allow postnuptial agreement to legally take effect without any hesitation.
The only hi-cough was we didn't have any prevailing rules regarding registration at the civil registries. This is in order to meet the requirement as imposed by the Marriage Law that a marital agreement must be registered at a marriage registry in order to take effect legally between the two spouses. As the holding from the court does not say anything about registering the postnup with a marriage registry, it does not prevent the postnup from taking a legal stand within our legal system. But luckily, the circular letter from the Ministry of Interior breaks the ice. Marriage registries all over Indonesia have been instructed to receive registration for postnuptial agreements, and issued a certificate as proof of a registration. This heals the hi-coughs.
I am Asep Wijaya. Thank you for visiting my blog, and 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.