In Indonesia, Wedding Vows That Can’t Include a Home
The Jakarta Globe, Jakarta on Jul 14, 2010
Recent discourse on the ownership of property in Indonesia largely has been focused on the laws and regulations concerning foreign workers, retirees and investors in the country. What has received less attention is the predicament of thousands of mixed-marriage families — families in which one of the parents is Indonesian and the other a foreigner.
Such mixed-nationality marriages do not always involve wealthy couples who can afford to live in a high-rise apartment. There are also couples with limited financial resources, many of whom would prefer to own a small house on their own plot of land, including in rural areas.
This choice of lifestyle is a basic right of each family. A couple should be able to jointly own property if they wish and not be restricted to living in a luxury apartment in a big city just because one of them is a foreigner.
Any new regulations should thus address the ownership of land and houses not just by foreign investors but also by mixed-marriage families. Under the current law, foreigners cannot own land or domiciles.
If his or her Indonesian spouse dies, the foreign widower has no right to inherit the home or property, which must be sold or converted to hak pakai, or right of use, within one year.
And in any case, Indonesian women cannot have hak milik, or right of ownership, over land unless they have a prenuptial agreement regarding the separation of assets. A woman’s rights regarding land ownership and inheritance are lost as soon as she marries a foreigner.
In the case of Indonesian men with foreign wives, the law is less clear, but in practice many men do own land. A problem arises if the husband dies, though: The wife has a year to sell the home or forfeit it to the state.
Indonesia, which ratified the UN Convention on the Eradication of Discrimination Against Women and adopted it in 1984, should no longer prohibit property ownership by Indonesian women solely on the grounds that they are married to a foreigner.
The convention states that member parties “shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure … the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.”
The 1960 Law on Agrarian Matters states: “If a person has foreign citizenship in addition to his/her Indonesian citizenship, he/she cannot own land with right of ownership.”
A person who holds dual citizenship would thus be subject to another clause of the same article, which requires that foreigners who obtain ownership rights through inheritance or marriage must sell the land within one year or forfeit it to the state.
This is in conflict with the 2006 Law on Citizenship, which grants children of mixed-marriage couples dual citizenship up to the age of 18, as it takes away their rights as Indonesian citizens.
The idea of allowing foreign investors to own property in Indonesia has been discussed for years without effect. In late June, this paper quoted Anton Sitorus, the head of research at Jones Lang LaSalle Indonesia, as saying that “ownership rights are the most important thing for foreigners.”
However, Anton said he was not optimistic that a regulation would be introduced anytime soon, as he was under the opinion that giving foreigners ownership rights would require amendments to the current law, not mere changes in the regulations.
Aliansi Pelangi Antar Bangsa (the International Rainbow Alliance) agrees with this opinion. The House of Representatives should make it a priority to revise the Law on Agrarian Matters for investors and mixed-marriage families alike.
We propose that a revised law on agrarian matters allow a foreigner who has been married to an Indonesian citizen for at least five years and has been a resident of the nation for at least five years to have right of ownership.
Children of mixed-marriages who hold dual citizenship should also be entitled to ownership rights.
The APAB also proposes that the government grant permanent resident status to foreigners who have been married to an Indonesian citizen for at least five years and who have been a resident of Indonesia for at least five years through the Immigration Bill, which is a priority to be passed by the House this year.
This permanent resident status would not be the same as the current Kitap (permanent residence permit), which is merely a slightly longer version of the Kitas (temporary residence permit).
Marilyn Ardipradja is a member of Aliansi Pelangi Antar Bangsa, a Jakarta-based coalition of organizations working to ensure legal protection for Indonesian and foreign nationals and their families.
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