Law on community property in Indonesia is very simple. It refers to the Article 35 of 1974 Marriage Law that stipulates: “Property acquired during the marriage shall become community property. Separate property of husband and wife acquired as gift or inheritance shall be under each party’s control, as long as the parties did not govern otherwise.” Governing otherwise means both you and your wife sign and entered into any prenuptial agreement.
If you signed a Prenup, that we should take a look at what your Prenup what have to say. The stipulation by the law was pretty simple. How you going to do about it? Dig deeper and see what the court said about it. We call it Precedence. It’s a Supreme Court ruling on issues and shall serve as reference for lower courts in trying similar cases. Some of the verdicts were major breakthrough. Some of them were detailed explanation of what the law had to say about the issue.
The Supreme Court have had categorized Community Property in various verdicts on issues on property in a matrimony. They are as follows:
- Property acquired during the marriage. It doesn’t matter who bought it, husband or wife. It doesn’t matter who holds the property title. As long as it was bought within a legitimate marriage, then it shall be classified as Community Property. This was retrieved from the verdict of Supreme Court number 803K/Sip/1970. Of course, there was an exception when the money to acquire such property came from the proceeds of separate property, or from the saving of each party acquired before the marriage, then the property will be her/his separate property. The exception was retrieved from the verdict number 151K/Sip/1974.What do you need this for? You need this for to determine the definition of separate property while you’re writing your prenuptial agreement, or when you’re drafting your divorce settlement, or when you are in the proceedings of community property division in your divorce case.
- Property acquired after divorce financed by community property. Like for example, you and your ex-spouse have money in your joint account. One of the parties dried-up the account, and start making purchases like houses, cars, etc. Those properties are classified as Community Property. Nevertheless, you need to prove that the money comes from the joint account. You need to show a clear flow of the money. You’re bringing the motion, you ought to prove it. The legal doctrine was retrieved from the verdict of the Supreme Court number 803K/Sip/1970.The law in Indonesia can touch that, and you need to make sure that who ever took the money from the joint account can’t get away with it.
- Each and every property acquired during the marriage classified as the Community Property. You need to work hard to prove it. Regardless, who the title holder is, as long as you can withdraw a clear line and bring a bunch of evidence to the court that show the flows of the money, supporting documents, then the law can help you. As long as it’s happening during the marriage, the property is your community property. The Supreme Court had this case and took it as the precedence in verdict number 806K/Sip/1974.
- Income of husband and wife during the marriage. Their incomes are community property. Even though only one party is working, like for example, husband. In that case, his income shall be classified as community property. This is in line with the spirit when the law maker enacted the 1974 Marriage Law in Indonesia: husband is the bread maker in the family. Wife is the housewife. But things are changed now. We have equal rights. It means we want to be treated equal, right?
Community property is your property together with your spouse, regardless the contribution. Being together in a matrimony is something special. You’re not only focus on “I” or “you” but rather to promote “we” thing. Last night, I sat together with my wife in our living room. She wanted to buy some dining set, and she asked my opinion about it. Well, it is something simple. It wasn’t that expensive. For a second I thought, why don’t you just buy it and tell me about it afterward. I sat closer and pay attention to whatever she had to say about those china dining set. I asked her which one she liked, and we came to the conclusion to which dining set we’re buying. The one she liked, of course. Apart from that, something simple like a dining set can come to a powerful meaning for us to something that we can call: ours.
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I am Asep Wijaya writing for Wijaya on the Access. Thank you for visiting my blogs, and reading the posts.
Prenuptial agreement in Indonesia requires two registrations. Registration at a district court, and registration at marriage registry. Indonesian legal system divides marriage registry into two. Civil registry for Non-moslem individuals, and Office of Religious Affairs (so called “Kantor Urusan Agama/KUA”) for Moslem individuals. Those two registrations are very crucial as each of them takes effect to the legality of your Indonesian prenup.
Legally speaking, those two (2) registrations comes from different source of law. The registration at the marriage registry imposed by the Marriage Law. The law needs the couples to register it with the marriage registry in order to make the agreement legally binding between them, and applicable to each spouse. The 1974 Marriage Law in Article 29(1) stipulates that: “At the time of or before the marriage took place, with the mutual consent of both parties, they may enter into an agreement approved by the Civil Registrar of marriage…” As for the registration at a district court, it is required by the Civil Code. Article 152 of Civil Code states: “No stipulations in the prenuptial agreement which deviate entirely or partially from the provisions regarding legal community property shall apply to third parties, earlier than from the date of copying such stipulations in a public register, which shall be done with the court clerk at the court of justice, within whose legal jurisdiction the marriage was executed.” The idea is to keep the prenup can be upheld and legally binding against other third party. Who’s the third party? It’s the husband and wife. The third party can be anybody beside those two. It can be either the banks they loan money to, it can be either other people that may purchase their properties. So, the two registration are required in order to have a conclusive legal binding prenup.
What if, for some reason, your marriage couldn’t be performed and registered in Indonesia. It must be conducted overseas, outside Indonesia. May be the place has sentimental meaning for some individuals. But they may consider Indonesia as the place to get marry in Indonesia if they knew what will happen to their Indonesia prenup if they get marry abroad. Well, registering their marriage overseas might cause their prenup lose one registration, which is registration at a marriage registry. Reporting your overseas marriage is not the same with registering your marriage abroad. On the reporting marriage certificate certifies that it’s not a marriage certificate. It means that your Indonesian prenup cannot be registered the same time you report your foreign marriage at a marriage registry.
What does this mean? It means that your prenup is voidable. By whom? By either party in the prenup. By husband or wife. Either you or your wife may submit any motion to the court and ask them to legally annul it. If the motion application for prenup annulment is granted, then your marriage falls under the definition of joint property ownership. The Marriage Law shall applicable to your marriage. When the prenup is cancelled, the “shield” is open, and you’re exposed. This is not good. Therefore, make sure that every formalities required by the prevailing laws are met. I am Asep Wijaya writing for the Wijaya Law Review. Thank you for reading.
Marriage legalization is for Moslem couples only. It applicable for those who were married in an Islamic ceremony. You know, the one that required you to convert into the same Moslem religion with your partner in order to get marry. If that rings a bell now, yes, this one is for you. This is regulated under the Indonesia's Compilation of Islamic Law. It was introduced in June 1991. Since then, the legal proceeding is more and more required by the laws in order to secure the legality of the marriage by Moslem couples in Indonesia.
You see, the marriage is the foundation of someone's life. If it's fragile, legally questionable, you might end-up in a fiasco. The marriage legalization is the legal way to fix your foundation. It might not sounds popular to some people, but it gives you the answer you and your family need. The marriage legalization is to legalize the earlier performed marriage. It has the legal power of retroactively legalize the past in order to get recognition in the future, such as the birth of the baby, property division during the course of marriage, prenuptial agreement, custody, inheritance, immigration issues, and even divorce. This is quite complicated motions as not every marriage legalization lodged gets approved by the court of law. You need to present facts and legal grounds fair enough to support your petition, instead of getting denied. Our Indonesian lawyers will guide you step by step in order to accomplish the mission. Cases I've handled so far gave me clear and pristine lessons that each court, each judge might have different idea why your case must be tried, and approved.
The recent three cases I've handled were in Tangerang, Brebes, Central Java; and Cikarang, West Java. The first one, the case was so incredibly difficult where the marriage finally legalized one month before the couple's baby due. The second one was a unique situation where the couple was already divorce by the time the marriage legalized. The incredible one was when we filed the case with one of the spouses was already dead. His wife was the Petitioner. They need the legality of their marriage for the immigration issues they face back in the United States. Article 7 of Indonesia's Compilation of Islamic Law stipulates that the marriage legalization can be carried-out by either husband or wife, and their children. Even her husband has passed-away, his wife still have the right to file for the legalization of their marriage in Indonesia. The final outcome of this proceeding may be a stipulation regarding the marriage legalization. It is also advisable to forward the court's holdings by filing it separately to the Marriage Registry. It doesn't come automatically as it is requires manual application to different government institutions. Normally, a stipulation from the court that the marriage has been legalized is enough and legally acceptable.
On another subject, the marriage legalization is not the same with marriage registration. These proceedings are under Indonesia’s 1991 Compilation of Islamic Law. The court of law is the government institution for the proceedings. This is not the same as if you perform the marriage, and register it with a marriage registry. The latter refers to marriage registration under the 1974 Marriage Law. The thing is, under this proceeding you will not receive any marriage booklet. The marriage legalization is meant to legalize the marriage previously conducted. If you were to do marriage registration now, you will have new marriage date. The actual date when you perform the marriage. So, on another words, those two things are similar but have different legal impacts both to your marriage, and your beloved family.
You see, this is all about turning the clock around and fixing things. Things that might left behind. Important enough to turn around to, the future of your family. I am Asep Wijaya, writing for Wijaya on the Access. Thank you for reading.
Marriage registration in Indonesia can be done after fulfiling ten days waiting period. You must have the same religion in order to get marry in Indonesia. We don't recognize mixed religion registration. Any marriage performed according to the couple's religion affiliation is legal in Indonesia. For non-Moslem couples, after they performed religious ceremonies, they must register their marriage with the civil registry in order to make it legally recognized. Under the current law, it must be done at the same jurisdiction with their domicile. Otherwise, the civil registry will not be able to accept their marriage registration. As for Moslem couples, their marriage must be registered with the Kantor Urusan Agama (KUA). They will receive a passport-sized marriage book colored in brown and green. The English term for this government institution is Office of Religious Affairs. Marriages registered with the KUA is legal and recognized, even without registration with the civil registry.
The marriage ceremony can be done at the office of the marriage registry, or it can also be done at your place i.e. hotel, apartment. They can also come to your house. The marriage books or marriage certificate will be presented to you after the ceremony. If you sign a marital agreement before the marriage, the details of your prenup shall also be printed on the marriage book/certificate. So is with the prenup, it will have the registration details from the Marriage Registry. This is to meet publicity requirements as set-out by the Marriage Law. The marital agreement must also be registered with a court. Both of registrations will be shown in your marital contract. You need to do this in order to create a legally binding marital contract, and a bonafide marriage. I strongly suggest you do so.
During the proceeding of the marriage, you may also conduct a child legalization. This involves the child birth certification to include his/her relationship with the biological father. Nowadays, they need you to supply a DNA test to support your parental claim. Two witnesses are required in order to support the birth registration of the child. At this point, you need to perform a court litigation. This is quite tricky situation. This may also involves citizenship issues if the alledged father is an Indonesian. The child birth certificate will show his/her nationality(ies). This is a civil document to prove the legal identity of the child. This is the last thing you want to mess up with.
As you can see, the marriage is the foundation of your life. It affects so many aspects in your life, and your loved ones. When you're doing things rights, and you're doing it the right way, you'll be fine. Everyone will be alright. Wijaya & Co can assist you in registering your marriage by going through the administrative procedures and government bureaucracy, so you don't have to. Our lawyers know how to get you tie the knot with your partner legally.
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My name is Asep Wijaya. Thank you for reading my posts, and visiting my blogs.
Postnuptial agreements, also known as post-marital agreements, are agreements entered into after a marriage has taken place. There are many reasons why a mixed-nationality married couple might wish to draw-up a postnuptial agreement. Among others, a couple that did not sign a prenuptial agreement before marriage may later determine that they want to have some sort of financial plan in place in the event of death or divorce. Additionally, a major change in the financial circumstances of the couple, such as a major career change or inheritance, may alter the financial landscape, requiring a change to the terms of the couple's existing prenuptial agreement to reflect their current wishes, such as the intention of purchasing property in Indonesia.
Indonesia’s 1974 Marriage Law only recognizes prenuptial agreements, ("prenup" for short), a written contract created by two parties before they are married. The 1974 enacted law only discussed the matrimonial agreement that must be drawn-up prior to marriage. Indeed, the law regarding the validity and enforcement of post-marital agreements is not well developed in Indonesia.
But if we dig a little bit deeper, Indonesian Civil Code provides a special provision concerning property division in the course of marriage. The postnup is a product of the ancient Civil Code. It’s been there for many decades. So, some couples have been using these provisions. It just that the postnup is not as popular as its related document, the prenup. In my personal opinion, the postnup is like a fine wine. It’s being kept in the dark, until it matures enough to become something you would like to have dinner with.
What’s Postnup?
First of all, a postnup is not a back-dated prenup. It is signed and dated after your marriage. When you’re married, you’re married. There’s no way you can turn the clock back after you are already married and get a prenup or even back-date a prenup. That would be illegal under Indonesian law! The harsh reality is that the courts tend to assume that a prenup is always valid, but they have the opposite reaction to the back-dated prenup. The assumption is, in the majority of cases, that this type of agreement is not valid.
You can’t find a postnup mentioned in the 1974 Marriage Law. Nevertheless, just because the Marriage Law doesn’t say anything about the postnup, it doesn’t mean it’s not legal. It’s already exists in the Civil Code. This is can be the ultimate solution for mixed-couples in Indonesia who did not sign a prenuptial agreement before their marriage. This also may preserve the rights of the Indonesian to own property in Indonesia, even though they are married to a foreigner.
The postnuptial agreement may be useful to couples seeking to enter into a post marital agreement after a significant financial change or a period of marital conflict. It is signed and entered into in contemplation of an existing, ongoing, and viable marriage. This agreement allows married couples to legally pre-determine how property will be divided, if the couple divorces.
The postnup creates property separation in your marriage since the signing date, and therefore the community property regime, shall not exist any further. As for the property in existence prior to the postnup, you would need to determine what that encompasses. It has to be separated as well. Then, you need to appoint one spouse as the property holder.
Nevertheless, please take a note that signing a postnup is not the only phase required to create a separation of property during the course of your marriage. Your Indonesian lawyer needs to work on other legal issues such as taking prior legal measures to make sure of the legality of the postnup before it is signed by the husband and wife.
Legal Implications of the Postnup
Legal implications will occur due to property division in the course of the marriage in terms of the two parties in the postnup (i.e., husband and wife), the property in the marriage, and other possible related third parties. Both husband and wife shall be bound by the legal binding force in effect from the Postnup. As it is a legally binding contract, therefore it shall serve as the law between both contracting parties; husband and wife. This is in line with Article 1338 of the Civil Code stipulating that: “All contracts legally drafted shall serve as the law to the parties involved.”
The postnup also takes effect upon third parties. In regards to creditors, the further implementation must be specified in accordance with the time frame. Community property shall be liable to serve as collateral in the event a mortgage exists prior to the postnup date. On the other hand, if one spouse gets a loan from a bank after the postnup date, his/her separate assets shall be in liability to any debts he/she might have created.
Postnup for Mixed-Marriage Couples
In accordance with Article 186 (1) of the Indonesian Civil Code, the wife may, in the course of marriage, request a division of assets, in the following circumstances: "...wife is in imminent danger of losing the security of her dowry and her entitlements pursuant to the law…, and also if ... in the management of the community property, such property might be endangered." This is totally applicable to the circumstances in every no-prenup mixed-nationality married household in Indonesia. By marrying a foreigner, the Indonesian spouse will be precluded to own property, which is her/his right as an Indonesian citizen. Therefore, his/her entitlements to own property in Indonesia may be endangered.
There are many mixed-nationality married couples in Indonesia that did not sign a prenuptial agreement prior to their marriage. In the absence of a prenuptial agreement, by law, their marriage has joint property regime because the Marriage Law - automatically assuming joint property regime within their marriage. This means that either spouse would require consent from the other spouse for every transaction involving immovable property in Indonesia.
Consent is implemented if both parties co-sign every transaction document. In terms of a mixed-nationality marriage, such consent cannot be retrieved from the foreign spouse because a foreigner is not allowed to own property in Indonesia. An Indonesian will not be able to retrieve such consent from their spouse because the foreign spouse is not in the legal position to own the property in the first place. So, the Indonesian spouse is stuck. This is where a prenup is essential to prevent this dilemma.
Since there are many mixed-nationality couples without a valid prenup, then a postnup may be used as one of the options. Writing a postnup, just because you didn’t have a prenup, is not a routine document. Instead of creating an illegal back-dated prenup, I certainly think the postnup is legally worth considering.
Postnuptial agreements are most often used to settle financial matters, including property ownership in mixed-nationality marriages. The postnup is very useful when spouses failed to create a prenuptial but want to protect their assets. It is not something that is common in Indonesia because the law thinks that you should have gotten a prenup in the first place. Therefore, the requirements to establish a postnup are stricter than for establishing a prenup. The contract must be created with full disclosure of all assets, be entered into voluntarily by both parties, and have terms that are fair and equitable.
Why should you get a Postnup?
Because it is dated after your marriage and because it is a legal document. The postnup is about admitting that the Indonesian spouse did not realize that they needed a prenup in order to own property in Indonesia before they married a foreigner. It’s about being honest with yourself and to the public institution where the postnup will be registered. Back-dated prenups are about manipulating the facts of your marriage date, and the date when you signed the prenup.
Postnup are the most favorable choice for the difficult situation of having no prenup in the first place. Some mixed-nationality married couples have resorted to questionable measures, such as making purchases using fake ID cards, or risky purchases, such as buying real property using their relative’s name. You may be trust them, but trust is not the only issue here.
The postnup is about making sure that you control your own property without have to rely on someone else’s mood. With the postnup, you have the power and the authority to make the purchase without being affected by the legal constraints.
What’s Your Marriage Like after the Postnup?
The postnup serves as the law for both contracting parties; husband and wife. After both of you signed the postnup, property shall be separated upon the legal effective date of the postnup. Both spouses shall be independent and will not require consent from the other spouse, including to conduct property transactions. The best part is the Indonesian spouse will no longer be affected by his/her foreign spouse. The rights of an Indonesian to own property are preserved as if you had a prenup from the beginning of your marriage.
Reinstatement of Community Property
You would use these proceedings, if you want to return to the joint property regime, because perhaps the laws may have changed. For example, the Indonesian spouse is no longer affected by being married to a foreigner regarding the ownership of property in Indonesia.
In the event where community property is reinstated, matters relating thereto shall be afforded the same status as that applicable prior to separation, without prejudice to the result of acts carried out by the wife which took place in the interim between separation and reinstatement. Agreement providing for reinstatement of community property by the spouses for any reasons other than those already specified shall be deemed void.
The community property which is dissolved by separation of assets may be reinstated with the consent of both spouses. The reinstatement of community property must be made public by both spouses. Third parties shall not be affected by the reinstatement until the public announcement has been made.
Endorsements from the Jakarta Higher Court
Recent developments related to the postnup have been very important. The latest updates from the Jakarta Higher Court regarding the marital agreement entered into after the marriage. The endorsement from the Higher Court is subject to the following terms and conditions, among others:
- As long as the postnup entered into by husband and wife in accordance with Article 1338 Civil Code, then it serves as the law to both of them. Therefore, the parties in the postnup must perform their rights and obligations as specified in their postnup. In the event one party fails to do so, then the other party may file a complaint to the court of law.
- Furthermore, the Jakarta Higher Court stipulates that the postnup must be dated with an actual date. So, why should you back-dating the prenup in the first place, while you can have an actual-date postnup and legally endorsed by the Higher Court?
- No need to record the postnup on your marriage certificate. Unlike the prenup, the postnup does not require registration at the marriage registry to take effect legally between husband and wife. The postnup automatically valid legally when you covenant and agree to execute its terms and conditions. This must be done freely and voluntarily and free from coercion, duress or pressure of any kind, and they have an adequate opportunity to read and study the postnup.
Legally Recognized by the National Land Registry
In Indonesia, government agency responsible for the titles management of immovable properties in Indonesia is the National Land Registry (so called the BPN/Badan Pertanahan Nasional). Recently, our postnup has been recognized by the BPN. A mixed-marriage couple, a British husband and an Indonesian wife, they were married in July 1993. In the year 2008, she received an inheritance from her father, a house worth more than 15 bio IDR, but was unable to hold it because they didn’t sign any prenup. She nominated her older sister to hold the title of the house. In August 2015, the couple signed our postnup. It took a couple of months for transferring the title. In January 2016, the name of the Indonesian wife was printed on the house ownership certificate. The title of the house is Hak Milik (Freehold Title) and the transfer proceedings were conducted on the certificate of ownership (SHM/Sertifikat Hak Milik) by the BPN in South Jakarta.
So, the BPN recognized her rights as an Indonesian to hold the estate as it is vested by our postnup they signed during the course of marriage. This is of course a very good news for married couples without any prenuptial agreement in Indonesia. I do believe the married couples can thrive in owning the property even without a prenup, and I can say that our postnups have definitely been enriched with the recent developments.
Foreword
Postnuptial agreements, also known as post-marital agreements, are agreements entered into after a marriage has taken place. There are many reasons why a mixed-marriage couple might wish to draw-up a postnuptial agreement. Among others, a couple that did not sign a prenuptial agreement before marriage may later determine that they want to have some sort of financial plan in place in the event of death or divorce. Additionally, a major change in the financial circumstances of the couple, such as a major career change or inheritance, may alter the financial landscape, requiring a change to the terms of the couple's existing prenuptial agreement to reflect their current wishes, like simple thing as the intention of owning property in Indonesia.
Indonesia’s 1974 Marriage Law only recognises prenuptial agreements, ("prenup" for short), a written contract created by two people before they are married. The 1974 enacted law only discussing the matrimonial agreement that must be drawn-up prior to marriage. Indeed, the law regarding the validity and enforcement of post-marital agreements is not well developed in Indonesia. But if we dig a little bit deeper, Indonesian Civil Code provides special provision concerning property division in the course of marriage. The postnup is a product of our ancient Civil Code. It’s been there for many decades. So, some couples have been using it all along. It just the postnup is not as popular as his other sibling, the prenup. As to my personal opinion, the postnup is like a wine. It’s being kept in the dark, until they mature enough into something you would like to have dinner with.
What’s Postnup?
First of all, postnup is not a back-dated prenup. It is signed and dated after your marriage. When you’re married, you’re married. There’s no way you can turn the clock around and get a prenup, or even back-date a prenup. That’s awful, and illegal of course! The harsh reality is that the courts tend to assume that a prenup is always valid, but they have the opposite reaction to the back-dated prenup. The assumption is, in the majority of cases, that this type of agreement is not valid.
You can’t find a postnup in the 1974 Marriage Law. It’s not there. Nevertheless, just because the Marriage Law didn’t say anything about the postnup, it doesn’t mean it’s not legal. It’s in the Civil Code. This is can be the ultimate solution for mixed-couples in Indonesia who did not sign a prenuptial agreement before their marriage. This also may preserve the rights of the Indonesian to own property in Indonesia even though they are married to a foreigner.
The postnuptial agreement, may be useful to couples seeking to enter into a postmarital agreement after a significant financial change or a period of marital conflict. It is signed and entered into in contemplation of an existing, ongoing, and viable marriage. This agreement allows married couples to legally pre-determine how property will be divided if the couple divorces.
The postnup creates property separation in your marriage since the signing date, and therefore the community property regime shall not exist any further. As for the property exist prior to the postnup, you need to determine them. It means that it has to be separated as well. You need to appoint one spouse as the property holder.
Nevertheless, please take a note that signing a postnup is not the only phase required to create separation of property during the course of your marriage. Your Indonesian lawyer needs to work on other legal issues such as taking prior-legal-measures to make sure the legality of the postnup before signed by husband and wife.
Legal Implications of the Postnup
Legal implications will occur due to property division in the course of marriage to the parties in the postnup (i.e. husband and wife), to the property in the marriage, and other related third party. Both husband and wife shall be bound by the legal binding force as affected by the Postnup. As it is a legally binding contract, therefore it shall serve as the law between both contracting parties; husband and wife. This is in line with Article 1338 of Civil Code stipulating that: “All the contracts legally drafted shall serves as the law to the parties involved.”
The postnup also take effect to the third party. The further implementation in regards to creditors, it must be specified according to the time frame. The community property shall be liable as collateral in the event the mortgage exist prior to the postnup date. On the other hand, if one spouse getting a loan from a bank after the postnup date, his/her separate assets shall be in liability to any debts he/she might have created.
Postnup for Mixed-Marriage Couples
In accordance with Article 186 (1) of Indonesian Civil Code, the wife may, in the course of marriage, request a division of assets, in the following circumstances: "...wife is in imminent danger of losing the security of her dowry and her entitlements pursuant to the law.., and also if ... in the management of the community property, such property might be endangered." This is totally applicable to the circumstances in every no-prenup mixed-marriage household in Indonesia. By marrying a foreigner, the Indonesian spouse will be precluded to own a property, which is her/his right as an Indonesian citizen. Her/his entitlements in owning a property in Indonesia may be endangered.
There are many mixed-marriage couples in Indonesia that did not incorporate a prenuptial agreement prior to their marriage. In the absence of a prenuptial agreement, by law, their marriage has joint property regime because the Marriage Law automatically assuming joint property regime within their marriage. This means either of you would require consent from the other for every transaction involving the immovable property in Indonesia. The implementation of consent if to co-sign of every transaction documents. In terms of mixed-marriage, such consent cannot be retrieved from the foreign spouse because a foreigner is now allowed to own property in Indonesia. An Indonesian will not be able to retrieve such consent from her spouse because he is not in the legal position to own the property in the first place. So, the Indonesian position is stuck. This is where a prenup is essentials.
Since there are too many mixed-couples out there without a prenup, then a postnup may be used as one of the options. Writing a postnup, just because you didn’t have a prenup, is not some business they see every day. Instead of getting a silly back-dated prenup, I certainly think the postnup is legally worth a shot. They can get a postnup.
The postnuptial agreements most often used to settle financial matters, including property ownership in mixed-marriage. The postnup is very useful when spouses failed to create a prenuptial 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. The contract must be created with full disclosure of assets, be entered voluntarily by both parties, and have terms that are fair and equitable.
Why Should You get the Postnup?
Because it is dated after your marriage, and because it is legal. The postnup is about admitting that you did not realize that you need a prenup in order to own property in Indonesia right before you got marry to a foreigner. It’s about being honest to yourself, and to the public institution where the postnup will be registered. Back-dated prenup is about manipulating facts of your marriage date, and the date when you sign the prenup.
Postnup is the most favorable choice for the limbo situation of having no prenup in the first place. Some mixed-marriage couples have resorted to questionable measures, such as making purchases using fake ID cards, or risky purchases, such as buying real property using their relatives’name. You may be trust them, but trust is not the only issue here.
The postnup is about making sure that you control your own property without have to rely on someone else’s mood. You have the power and the authority in making the purchase without affected by the legal constraints anymore. Sounds good, huh?
What’s Your Marriage Like after the Postnup?
The postnup serves as the law for both contracting parties; husband and wife. After both of you signed the postnup, the property shall be separated since the date of the postnup takes effect legally.
Each and every spouse in your matrimony shall be independent and will not require any consent from the other spouse, including to conduct property transactions. The best part is the Indonesian spouse will no longer affected by his/her foreign spouse. There you have it! The rights of an Indonesian in owning the property is preserved as if you had a prenup in the beginning of your marriage.
Reinstatement of the Community Property
This is the proceedings if you want to go back to the joint property regime, because may be, the laws have changed. For example, the Indonesian is no longer affected by getting married to a foreigner in owning any property in Indonesia.
In the event where community property is reinstated, matters relating thereto shall be afforded the same status as that applicable prior to separation, without prejudice to the result of acts carried out by the wife which took place in the interim between separation and reinstatement. Agreement providing for reinstatement of community property by the spouses for any reasons other than those already specified shall be deemed void.
The community property which is dissolved by separation of assets may be reinstated with the consent of the spouses. The reinstatement of community property must be made public by the spouses. Third parties shall not be affected by the reinstatement until the public announcement has been made.
Getting marry abroad is a romantic decision to make, among other considerations taking into account. Indonesian who married abroad must pay attention to certain registry requirements imposed by the prevailing laws. Registration of marriage must be conducted with the authorized local marriage registry. When registration with the local registry completed, marriage reporting must be made with the nearest Indonesian Embassy or Consulate. This is a temporary reporting requirements until you return to Indonesia.
There are two (2) prevailing laws governing overseas marriage legalization and reporting i.e. 1974 Marriage Law and 2006 Administration of Population. The first one stipulates that overseas marriage must be legalized and reported within 12 months since the date of your return to Indonesia. The other one stipulates that you must legalize and report the marriage within 30 days since your return, and it has been implemented under the 2008 Government Regulation in April 2008. Both laws are conflicting but the latter is the particular law governing this particular circumstances.
Civil registries all over Indonesia are in the process of transition to the new law. Therefore, it is a wise thing to do to pay attention to the arrival date in your passport. Failure to meet the reporting requirements shall be fined for IDR 1,000,000 equivalent to about USD 100 Other civil registries categorized the failure of meeting the time frame as an "Important Event" which means only a district court may order the civil registry to record your overseas marriage.
You are required to obtain a court decree prior to legalize and record your marriage. You need to submit civil petition at the local district court. Approximately within 30 days, and upon receipt of completed supporting documents, the court will set-up a hearing to cross-examining all the supporting evidence. You may be required to provide two witnesses. Usually the hearing will only take place once. After the hearing, the court will issue a court decree to order civil registry to record your marriage. Based on the court decree, the civil registry will issue an STBLP (Surat Tanda Bukti Laporan Perkawinan/Marriage Reporting Certificate).
An STBLP is a very useful certificate. Your overseas marriage will not be legally recognized by the Indonesian laws. It is the same as if no marriage at all. No marriage means no divorce. Children born in the marriage shall be categorized as out of wedlock. Claiming Indonesian citizenship for your child born before August 2006 will require an STBLP, if you were married abroad. Furthermore, it will also take effect to the inheritance issues. It seems the 2006 enacted-law sending a message the importance of marriage legalization and reporting by imposing more strict time frame. It is more likely people would fail to meet the 30 days reporting requirements as it is too short!
Most people think of marriage as the ultimate emotional and spiritual bond. They are looking forward to a life of happiness. However when faced with negotiating a premarital agreement, they realize that not only do they have to decide what will happen to them if they divorce or when die, but that they also have to negotiate these issues with their fiancée. It’s not the types of subjects that an about to be married couple likes to think about prior to getting married.
Persons in Need of a Prenup
Consider a prenuptial agreement if you have at least one of the following situations:
- You are an Indonesian citizen planning to marry to a foreigner;
- You plan to purchase land or a home in Indonesia during your marriage;
- You are on a fast career track and are likely to earn a hefty salary in the future;
- You own your own business or are a partner in a company;
- You are the person who will bring a lot of assets to the partnership, including a retirement account;
- Anyone who is paying for his or her spouse to get an advanced degree which is likely to result in significant future earnings;
- You have children from a prior marriage.
Legal Grounds for Prenuptial Agreement
The prenuptial agreement in Indonesia is honored and can be upheld in court. The laws governing prenuptial agreements (prenup) stipulate that the agreement should be made prior to marriage. The legal grounds for the prenup come from severalapplicable Indonesian laws, including: Civil Code, 1974 Marriage Law, and Compilation of Islamic Law, as follows:
- Article 47 (1) of Compilation of Islamic Law Article stipulates similar provision with the Marriage Law: “At the time of or before the marriage took place, the bride and groom may enter into an agreement approved by the Registrar of Marriage regarding the management of community property.”
- The 1974 Marriage Law in Article 29(1) stipulates that: “At the time of or before the marriage took place, with the mutual consent of both parties, they may enter into an agreement approved by the Civil Registrar of marriage, after which it shall also apply to third parties as long as it involves them as well.” Another provision stipulated in the marriage law is that the agreement cannot be amended during marriage, except upon approval of both parties and cannot cause disadvantage to any third party. This stipulation comes from Article 29(4) in the Marriage Law.
- Article 199 of the Civil Code stipulates that: “From the commencing of a marriage, there shall exist by law, community property between the spouses to the extent that no other stipulations have been made in the prenuptial agreement…”
Making a Prenup
Indonesian law does not provide a ready-made framework for a prenuptial agreement. You and your lawyer have leeway to define your future legal relationship, although you are bound by law, religion, morals, and public order considerations in drafting the agreement.
An Indonesian prenuptial agreement must be tailored to the particular needs of the husband and wife and be sufficiently flexible to take into account changes in your future circumstances during the course of the marriage. Both parties are free to determine the form of agreement, as long as it abides by religious and civil laws. The provisions are indeed very abstract. The legislature seems to leave it that way in order to make it flexible within the influences of religion, moral, and public order.
Begin by collecting all the subjects and items you want to be included in the prenuptial agreement. Ask your lawyer to draft the agreement and request his/her recommendations. Make note that the property purchased in Indonesia will be under your Indonesian spouse’s name. This is necessary because foreigners are not allowed to own property in Indonesia. For mixed couples what is needed is a prenup which instigates separation of property as the rule so that an Indonesian spouse can legally own and hold property under Hak Milik (Freehold Title) on property purchased. This negates the foreign spouse being an automatic owner of 50% of the property due to the usual joint property rule for married couples in Indonesia. This is one of the most important points of the pre-nuptial agreement and is a requirement for a mixed couple to purchase land/property in Indonesia.
You need to specify the percentage of the combined wealth that each spouse will receive if the marriage was dissolved. Included in the agreement should be full disclosure of all assets and liabilities, including the value of each asset. Ensure that the terms oftheagreement do not promote dissolution of assets.
Keep a copy of all drafts of the documents so that there is a record that you have reviewed every draft. Keep all the drafts, correspondence, and notes so that the file reflects the negotiations and the various resulting revisions. Name and number the drafts in consecutive order such as “draft number three”. This record will be very helpful if the agreement is later contested. After negotiating the agreement, make sure you understand its terms and the importance of abiding by them. An agreement approved by both parties in its entirety is more likely to stand the test of time.
Avoid commingling assets and keep careful records. A qualified accountant or bookkeeper can assist you with this task. Even if the agreement is set aside or revoked, careful bookkeeping will make it easier for the court to trace assets and will save you lots of money.
At Wijaya & Co, we provide client with a pre-nuptial agreement questionnaire. The main purpose of this questionnaire is to gather facts and obtain client’s input on issues that should be incorporated into a prenuptial agreement. The questionnaire consists of the issues that should be considered when you enter into a prenuptial agreement. It can be difficult to discuss every issue that listed on the questionnaire. When you are ready with the answers, the couple may sit down together to discuss every one of the questions, even if they are difficult to resolve.
Legal Constraints for Mixed-Couples
If you are foreigner and plan to marry an Indonesian, you need to get a prenuptial agreement. Considering that foreigners are not allowed to legally own property in Indonesia, and if you wish to take the quite sensible precaution of a prenuptial agreement for the purpose of protecting yourself and your properties in the event that one of you dies, a prenuptial agreement is a must-have choice. The Indonesian government can, by law, take virtually every purchased property away from the grieving party if they did not create such a protective document PRIOR to marriage.
The legal constraints came from the Basic Property Law enacted in 1960 imposed that Indonesian married to the foreigner will be precluded to own a property in Indonesia. This is because the Marriage Law imposed joint property regime as imposed in Article 35: “Property acquired during the course of a marriage become community property.” As for the community property, the Marriage Law imposed further in Article 36 (1): “In regards to the Community Property, Husband or Wife may act on the consent of both parties.” Islamic Compilation Law, which is enacted specifically for Muslims, stipulates that: “A Husband or Wife is not allowed to sell or transfer the community property without the consent of the other.” This makes perfect sense because mutual consent must be obtained from the other spouse. When it comes to mixed couples, such consent cannot be obtained from your foreign spouse because they are not allowed to own property in Indonesia.
So, how could consent can be retrieved when someone is not in the legal position to hold it? Therefore, in order to avoid this kind of trouble, it would be prudent to draft a prenuptial agreement complying with Indonesian law to ensure that your financial interests will be upheld by an Indonesian court.
Importance of Separation of Property
The idea of having a prenuptial agreement for mixed nationality couples, among others, is to have a property separation regime in your marriage since the Indonesia’s Marriage Law is assuming joint property ownership in all marriages. The Marriage Law is applicable to all Indonesians and to all marriages registered in Indonesia. Furthermore, the Basic Property Law in Indonesia does not allow foreigners the right to own property in Indonesia. Therefore, when an Indonesian is married to a foreigner she/he will be precluded to legally own property in Indonesia.
The prenup creates a legal framework for a property separation in your marriage and thus preserves the rights of the Indonesian spouse to own property in Indonesia. The property ownership must be under the Indonesian spouse's name as the title holder. In the event the foreign spouse passes away, the Indonesian spouse may keep the property for good. Given the origins of the prenuptial agreement in Indonesia are in marital property provisions, therefore it can be concluded that the main contents of a prenup are about the rules of community property notwithstanding the provisions of the Civil Code.
If the Indonesian spouse dies, the foreign spouse must transfer the property within 12 months to other Indonesian's name. In many cases, this may be the child/children of the couple. At this stage, the stipulation imposed by the 1960 Basic Property Law is still applicable for foreigners. The prenup protects your financial interest in the event one of you passes away. Just remember, it must be agreed up and signed before the marriage, otherwise it won’t be valid or legally binding.
Record the Agreement
There are two registrations required for a prenuptial agreement. A premarital agreement must be recorded with the registrar’s office of the local district court and the marriage registry. The agreement will take effect for the husband and wife when the marriage is recorded at the Civil Registry or the Office of Religious Affairs and shall take effect against third parties upon the date of registration with the local district court where the marriage will take place.
The 1974 Marriage Law in Article 29(1) stipulates that: “At the time of or before the marriage took place, with the mutual consent of both parties, they may enter into an agreement approved by the Civil Registrar of Marriage, after which it shall also apply to third parties as long as it involves them as well.” Another provision stipulated in the marriage law is that the agreement cannot be amended during marriage, except upon approval of both parties and cannot cause disadvantage to any third party. This stipulation comes from Article 29(4) in the Marriage Law.
Registering a prenup with a district court is also required. If the agreement is not recorded at the local district court, then it will be considered that no prenuptial agreement exists. Thus, your marriage will have joint ownership in property. Article 152 of Civil Code states: “No stipulations in the prenuptial agreement which deviate entirely or partially from the provisions regarding legal community property shall apply to third parties, earlier than from the date of copying such stipulations in a public register, which shall be done with the court clerk at the court of justice, within whose legal jurisdiction the marriage was executed.”
Death of Either Party
If your Indonesian spouse passes away, the foreign spouse will have to transfer the property title within one year. To transfer the property you need to sell it to another Indonesian or pass it to your children. Under 2006 Citizenship Law, children born into mixed marriages are entitled to dual citizenship. They can keep the two citizenships until the age of 18 plus they have another 3 years to choose one of the two citizenship. In the event they did not choose Indonesian citizenship they will be treated as foreigner and therefore will not be able to hold the property any further. On the other hand, if the foreign spouse passes away, the Indonesian spouse can maintain ownership of the property.
Back-dated Prenuptial Agreements
A back-dated prenuptial agreement is not legal. Even though, you may find someone that might silly enough to provide you with a back-dated prenup, one can always tell that it's a back-dated prenup. A back-dated prenup is a marital agreement that dated prior to your marriage, but signed after you're already married. People does that because they realize they need it after they are married. So, they back-date the prenup as if it was signed prior to your marriage. But don't forget how the prenup may legally binding between you as husband and wife, and against other third party. It requires registrations, both at the clerk office of a district court, and at a marriage registry. The two registrations won't show back-dated registrations. They can only give you actual-date registration.
So, instead of getting a back-dated prenup, why don't you get a postnup. It's some sort of a prenup signed after you get married. You may read it further here, and here.
Indonesian Prenup signed Abroad
In the event that you’re living abroad, or your marriage will be performed outside Indonesia and you cannot come to Indonesia just to sign a prenuptial agreement. You still can have a legally recognized prenuptial agreement by meeting the following legal formalities:
The Choice of Law. Your prenup must be governed under the laws of the Republic of Indonesia. There are several requirements in order to comply with this: a) it must be written and signed in the Indonesian language (English version may be provided for mutual understanding), b) the prenup clearly states that Indonesian law is the law of choice, and therefore c) an Indonesian court must be used as the forum to resolve any dispute. Article 31 (1) of Law number 24 of 2009 regarding Flag, Language, State Symbol, and Anthem stipulates that: “Indonesian language must be used in the memorandum of understandings or agreements involving government institutions, government agencies, Indonesia’s private organizations or Indonesian citizens.” Any legal documents not complying with this rule may be null and void.
Indonesian Embassy Attestation. Since Indonesia is not a member sate of the Hague Convention on Abolishing the Requirement for Legalization for Foreign Public Documents, you must sign your prenup at the nearest Indonesian Embassy or must be attested by the consul staff at the Consulate. The place of signing must be the same country where you’re registering your marriage. This is related to the reporting of your overseas marriage.
Marriage Reporting at the Indonesian Embassy/Consulate. When you get married abroad, an Indonesian citizen is obligated to report the marriage to the Indonesian Embassy/Consulate in line with Article 37(1) of Administration of Population Law. This is a good time to register your prenuptial agreement as well.
Marriage Reporting at the Civil Registry. This is a permanent overseas marriage reporting and the burden of such reporting shall be on the Indonesian citizen. There are two laws regulating this issue: i.e., 1974 Marriage Law, and 2006 Administration of Population Law. The first one stipulates that it must be done within one year of the start of the marriage, and the latter states that it must be done in 30 days. Both laws impose the reporting time frame must be conducted upon your return to Indonesia. Usually, they will impose the latter law. Therefore, you need to report your overseas marriage, and as well as your Indonesian prenup signed abroad.
Foreign Pre-Nuptial Agreements
It may also be advised to have a pre-nuptial agreement that is valid in the country of origin of the foreign spouse to govern assets in the foreign spouse's country of origin. It should be registered in your country or through the consular section of your embassy in Jakarta. Both agreements are ONLY valid in the country they have been tailored for.
Updating the Prenup
It is important to understand the need to keep the agreement up-to-date. The agreement should be designed to accommodate the passage of time and changes in status, such as the birth of children, and increases or decreases in wealth, or the disability of either party. Since no agreement can take into account all possible eventualities, however, you need to review the agreement periodically with an attorney to keep it current.
Updated on Dec. 7, 2012.
Disclaimer:
The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found anywhere in this article nor in this website.
Custody and maintenance of children, like other family matters in Indonesia such as divorce, and inheritance; is governed by religious affiliation of the respective spouses. Some of you may find it absurd, but this relates to the belief that religion plays an important role in the family environment.
Child Custody for Moslem
The questions regarding who is entitled to custody or maintenance of children in the event of a divorce between a husband and wife who are Moslems, are subject to the provisions of the Compilation of Islamic Law, and also subject to the principles contained in the Religion of Islam. In the event of divorce, the maintenance of children who have not yet mumayyiz (under 12 year old) is their mother’s. In the case of mothers has died, then the position of woman as the holder of the rights can be replaced by the following persons: a). the women in a straight line upward from the mother, b). father, c). the women in a straight line upwards of the father; d). sister of the child concerned; or e). Blood relatives of women by the side line of the father. So, under normal circumstances, the law prioritizes custody to the mother of the child. Please take a note, under normal circumstances! If you think your particular situations are not even close, please continue reading.
For children who already mumayyiz, it is up to the child to choose between his father or mother as the holder of the right of maintenance. Nevertheless, the father of the child has the responsibility to provide child support according to his ability regardless who holds the custody. He should provide child support at least until the child is able to take care of him/herself or have aged 21 years. This provision relates to the principle in Islam that the father is the bread-maker in the family. The fact that in this modern world where women are also working and making good career, it does not forbid the obligation of a father to provide the child support. Something we must realize is that other than as husband and wife, we all have other capacity that is as father and mother for children born in our marriage.
Child Custody for Non-Moslem
Child custody and maintenance for Non-Moslem is applicable for children under the age of 18 years old or unmarried. In case of divorce to both parents, the provision of child custody and maintenance can be found in 1974 Marriage Law, Child Protection Law, and Indonesia’s Civil Code.
The 1974 Marriage Law stipulates that in case of divorce, both parents are still obliged to maintain and educate their children until the child marries or able to support themselves. In the event of disputes, they are still obliged to maintain and educate their children until the child marries or able to support themselves. A district court may enter into a verdict on the disputes. The provision sends a message that child custody and maintenance in the event of divorce is still a part of the obligations and responsibilities of spouses. Furthermore, Child Protection Law provides that parents are obliged and responsible for caring, nurturing, educating, and protecting children, fostering the children in accordance with their abilities, talents, and interests, and should prevent the occurrence of early marriage.
The Civil Code stipulates that the legal consequences of a divorce may end the parental authority (ouderlijke macht) and turns into guardianship (voogdij). When the marriage dissolved by the court, there should also be regulated on the guardianship of the underage children. The guardianship shall be determined after the judge hears family from both parents with close relationship with the child. Determination guardian also may be reviewed by a judge at the request of the father or the mother based on changing circumstances.
How Can You Lose the Custody?
Being a holder of child custody and maintenance is not permanent. A father or a mother could lose child custody and maintenance in the event he/she cannot guarantee the child’s physical and spiritual safety.
If You’re Moslem
At the request of child’s relatives concerned, the religious court may transfer the custody rights to other relatives who have rights of custody as well. Although child custody is a right of a mother, but sometime she could lose the rights due to special factors. There are factors that can impede her rights in obtaining child custody, among others, are:
- Ar-Riqqu. Literally, it means that the person concerned has status as a slave. I believe this is no longer applicable as we recognized equal status to all human being. Nevertheless, this can be further interpreted that the person has no freedom at her will. Don’t get me wrong! For example, you are working abroad and you cannot attend the child on daily basis in Indonesia. You need help from your family in Indonesia to take care of the child. On the other hand, your husband resides in Indonesia. Instead of giving the custody to you as the mother of the child, or giving a way the custody to wife’s parent; the father of the child will prevail and shall be the most appropriate parent to hold the custody and maintenance of the child.
- The Fasiq. She conducts immoral behaviors such as having an affair with other man, or even worse, committing adultery. Can we trust her with the responsibility of parenting? When the court found her committing adultery, she will no longer entitle to child custody. How come? If she still has the custody, she will educate the child in accordance with her bad habits. Remember, our children learning by examples of their parents. The Islamic Law finds that the Fasiq will give negative impact to the children.
- The Kafir, means Non-Moslem person. The Islamic Law finds that they should not be entrusted with the parenting right of a Moslem child. Furthermore, the Islamic Law finds that they have the possibility in deceiving the child and removing it from the religious beliefs of Islam.
- A woman re-married with another man. On the issues of parenting, a mother holds primary rights to child custody and maintenance. However, the right will be automatically revoked when she married to another man with no family relationship with the child (ajnabi). On the other hand, if she married to a man with ties of kinship with the child, the mother custody is not lost. The revocation of the custody right shall be on the ground of religious court’s order. In this particular situation, I would like to refer to the Hadits of Prophet of Muhammad:
أَنْتِ أَحَقُّ بِهِ مَا لَمْ تَنْكِحِي
“You have more right to nurture him/her as long as you are not married.”
When the impediment factors are disappearing, for example the mother divorced again, she will get her custody right back. Some women don’t know about these rules when they got divorce. When our firm work for a case in a religious court in Bali, we advised our client to resign from her employment abroad to avoid her losing the custody. Nevertheless, such decision sometimes cannot always be accepted by everyone. Having a custody means that you have a responsibility to raise the child. When you and your ex do not cooperate, you will face difficulties in doing the job. After all, it’s not easy being a single parent.
If You’re Non-Moslem
Every child has the right to be taken care of by their parents, unless there is a reason and/or valid legal rules indicate that the separation with the parent is in the best interests of the child and should be taken as the final consideration. However, court decisions remain to decide custody of parents against children when one of their parents behave poorly and neglect their obligations towards the child. Nevertheless, someone who holds child custody and maintenance must be of the same religious affiliation with the child. The existence of this provision will ensure the parent will provide religious education for the child properly.
The Child Protection Law further stipulates that parental authority of one or both parents may be revoked at the request of the other parent or adult siblings or authorized officer based on the court verdict due to neglecting the duty towards the child and behave badly. Let me be more specific on the definition of other parent. It can be either grandmother of the child from the father’s line, grandfather of the child from the mother’s line, and the child’s family in straight line upward (grandfather or grandmother of the child). The first one is being prioritized in the event both parents are being revoked by the court.
In view of the above and regardless who have the custody, I believe you and your ex must work together in raising the child. Both of you still have obligations and responsibilities even if you’re not married anymore. Set aside the ego, and work side by side for your flesh and blood’s upbringing. I know it is easier said than done, but it is worth to try.
Well, I hope you get the whole picture about this issue and most important is that you have enough access to the legal system that protects your rights. At Wijaya & Co, we are helping people with their legal issues and assisting them to have access to the legal system in Indonesia. This information is to help them to gain the access and please feel free to forward it to others who might need the information. I’m Asep Wijaya, and thanks for helping Wijaya & Co spreads the access to the legal system in Indonesia.
Disclaimer:
The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found anywhere in this article nor in this website.
Oil and gas business activities in Indonesia are carried-out under two (2) types of activities i.e. upstream and downstream business activities.
Upstream Business Activities
Upstream business activities are the core business activities or based on activities which consist of exploration, and exploitation. Exploration is an activity aimed at obtaining information on the condition geology to find and obtain the estimated reserves of Oil and Natural Gas specified in the Work Area. Exploitation is a series of activities aimed to produce oil and Gas from the specified Work Area, which consists of drilling and completion of wells, construction of transportation facilities, storage, and processing for the separation and purification of Oil and Gas in the field as well as other activities that support it.
Downstream Business Activities
Downstream activities are the business which consist of processing, transporting, storing, and trading. Processing is an activity to purify, obtain the parts, enhance quality, and enhance the added value of petroleum and/or natural gas, butnot including field processing. Transporting is the activities of splitting oil, gas, and/or results processed from the Work Area or from shelters and treatment, including gas transport by pipeline transmission and distribution. Storing is an activity of receiving, collecting, storage, and expenditure oil and/or gas. Trading is the activity of the purchase, sale, export, import of petroleum and/or results processed products, including trading of natural gas via pipeline.
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You and your spouse are foreigners. Both of you have been living in Indonesia for several years due to work commitments. Either your spouse works in Indonesia or being your dependent, both of you are residents of Indonesia. After all you have been through, you find the romance is no longer exists and you are seeking divorce as the ultimate solution.
In any country, divorce is tough for everyone involved. Obtaining a divorce can be costly and expensive. It’s even tougher when you file for divorce in a foreign country. The last thing you want to do is file for divorce in your home country and have the court dismiss your case due to lack of subject matter of jurisdiction. This could cost you even more.
Legal doctrines may say that you are now the subject of International Civil Law due to your long residence abroad. It’s pretty complicated whenever there is more than one legal system involved in your particular case. You need to work through all the necessary procedures in order to see that it’s possible to file for a divorce in Indonesia, when both spouses are foreign nationals.
Indonesian Court Perspective
The Indonesian legal system should not refuse to examine, hear, and decide a case filed, even when there is no clear legal reason for the case to be filed in an Indonesian court. The court is obliged to examine and judge the case. This is a basic principle in the judicative system in Indonesia. Period.
The court may not refuse to examine the case. But do they have any jurisdiction over your case? If, both of you are foreign nationals and your marriage was conducted and legally registered abroad you may wonder if the Indonesian courts could have jurisdiction over a divorce in your case.
Let’s Cut to the Chase: The International Civil Law (ICL)
In the divorce between two foreign nationals, there are foreign elements involved. Therefore, the case shall be considered as an ICL proceedings. ICL is a national law. It’s not a supranational law or international law. Therefore, every country, including Indonesia, has ICL system respectively. Furthermore, there are major issues within the ICL, they are Choice of Law and Choice of Forum/Jurisdiction. Official domicile of the Parties is a link point to determine the forum court of competent jurisdiction to examine the case. This deals in determining the personal status of a person.
There are several ways to determine the personal status of a person that is principle of citizenship or nationality (Lex Patriae) and principle of domicile. In the principle of nationality, one’s national law determines his/her personal status. It means, even though one is residing abroad, his/her nationality law shall prevail and therefore the court in his/her home country shall have jurisdiction upon him/her. While the principle of domicile, on the other hand, one’s personal status is determined from the country where they live. It means that the law and the court where he/she lives shall have jurisdiction upon him/her.
Each country has different principles in determining one’s personal status. Let’s take Indonesia and the United States as examples. Indonesia adheres to the civil law as its legal system, while United States adheres to the common law legal system. Civil law countries use the principle of nationality and common law countries use the principle of domicile. These are very closely related to the jurisdiction of the court to adjudicate a case of divorce. Therefore, the marriage of the US nationals must be dissolved in their country.
On the other hand, according to the state that adheres to a common law system such as United States, the party’s residence or domicile must exist at the time the proceedings are filed. In order for a US court to have subject matter jurisdiction to dissolve a marriage, either party must have been physically present within the country for a certain period of time prior to the filing of the petition for dissolution of marriage. The divorce, therefore, should be finalized in their country of domicile.
This is where renvoi (re-appointment) serves. Renvoi arises because of the differences in determining one’s personal status. It requires the US court to dismiss your divorce case due to lack of subject matter of jurisdiction. Although Indonesia is not a state of the United States of America, nevertheless, the Indonesian decree is an order from a foreign nation which the US court cannot ignore subject to certain restrictions. Furthermore, the court shall re-appoint Indonesia as the forum in dissolving the marriage. This is where Indonesian court has jurisdiction based on the re-appointment (renvoi).
So What Next?
In Indonesia, marital dissolution is a personal status related case under the category of family law. If both spouses are US nationals, the Indonesian court shall consult and utilize US family law regarding legal grounds for marital dissolution during the proceedings. The legal grounds in the US family law must not contradict with the public policy (ketertiban umum) in Indonesia. To be more specific, it must be in line with the legal grounds for divorce as stipulated in Indonesia’s Marriage Law and its implementing regulations.
Let's Take It to the Next Level!
After the Indonesian court declared the jurisdiction to adjudicate the case, and the legal grounds for divorce is in line with the public policy in Indonesia, the case shall be tried by using Indonesia’s civil procedures law. This is when the case enters regular phase within the Indonesian court.
Disclaimer:
The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found anywhere in this article nor in this website.
The precise origin of the legal concept of the joint venture (or joint “adventure,” as it sometimes is called) is not known. Some believe that the concept originated in the United States. Originally, the courts treated joint ventures simply as a special form of partnership, applying the law of partnership. But beginning in the late nineteenth century, the courts began to recognize the joint venture as a separate legal entity with qualities that distinguished it from a partnership.
In a modern joint venture, the parties combine their resources, usually comprising capital, knowledge, skill and services, in the conduct of a business venture, but without necessarily organizing a partnership in the legal sense.
What Is It?
Joint ventures may be either structural or contractual, or both. They also may conform to a statutory or other regulatory scheme. The cooperative relationship may be broad based or narrowly defined. It may be long term or transitional. While subsequent chapters primarily address long term joint ventures having a corporate structure, all ventures-regardless of duration or form-have some characteristics in common. Understanding these characteristics is the first step toward reducing the inevitable risks associated with joint ventures through effective planning, negotiation, management and ultimate termination of the venture.
Long term joint ventures, particularly those that are broad based, usually are best suited to a corporate structure. Short term or narrowly defined joint ventures often are better formulated contractually. Partnerships, business trusts and hybrid structures also house joint ventures. Corporate joint ventures are characterized by shared ownership and often by shared functions, such as research and development, manufacture, assembly or marketing as well. Shared function often leads to shared dependency. Contractual joint ventures usually are more narrowly based than corporate joint ventures. They often involve a combination of product distribution, licensing or OEM arrangements. They also may involve research and development. While contractual joint ventures may be long term, they have no shared ownership with its accompanying shared governance. The participants may, however, share a function, with resulting mutual dependency. Contractual joint ventures may require shared management of a particular function. Thus, contractual joint ventures and corporate or other structural joint ventures share the need for management continuity.
Why Joint Venture?
Joint ventures are vital to business. They have become an important strategic option for many companies-particularly those operating internationally. Few companies have the capital, skills or market access necessary to achieve their commercial objectives entirely through their own resources. Rarely a day passes without an announcement of a new joint venture, alliance or collaboration. Reason for particular joint ventures do, of course, vary. They include:
- Cost savings. A common rationale is the objective of saving costs by sharing with a joint venture partner or partners the costs of research and development (R&D) or capital investment programmers (a particular feature given the magnitude of investment costs involved in many industries such as electronics, defense, pharmaceuticals, telecommunications and aero-engines).
- Risk sharing. A similar rationale is the objective of sharing with another party or parties the significant financial risks involved in undertaking a speculative or capital intensive project.
- Access to technology. Joint ventures may also provide a route for a party to gain access to a co-venturer’s technology and skills and thus accelerate its entry into a particular technology or market.
- Expansion of customer base. International joint ventures can also provide the most effective route for a party to expand the scope of its customer base by utilizing a co-venture’s strength in different geographic markets or by buying-in to a co-venture’s distribution or sales network.
- Entry into emerging economies. Similarly, joint ventures may provide the best, and sometimes only realistic, route for gaining entry to new emerging markets in areas such as Eastern Europe or Asia where access to local knowledge, contacts or sponsorship is often a practical necessity.
- Entry into new technical markets. The rapid pace of technological change is itself producing new markets and effective entry into those markets can often be accelerated by participation with another company that already has a technical start in that field; a ‘go-it-alone’ strategy may simply take too long or cost too much.
- Pressures of global competition. On an international scale, the merger of similar businesses between two or more participants may be desirable in order to establish the economies of scale, global customer reach, and purchasing power or capital investment resources necessary to meet the strength of international competition.
There may be other reason, since many ventures will be based on more than one objective. The objectives may also not be the same for all joint venture parties. An added complexity in analyzing commercial objectives is that a joint venture may not be an ‘and-game’ in itself. It may be an interim stage in a party’s long-term business strategy or simply, in itself, intentionally a short-term strategy which may be subject to review at a later stage. Joint ventures frequently change in scope over time.
Planning Joint Venture
A joint venture initiative may arise internally or in response to an external proposal. Internal initiatives may result from strategic planning or from existing suppliers, distributors, or competitors or from companies with whom no current business relationship exists. Whatever the source of the initial joint venture proposal, whether internal or external, participants must undertake financial and operational analysis, evaluate managerial, technical and other staffing requirements, deal with legal and administrative requirements, and evaluate the other venture’s capabilities and motives.
This planning process should include both those with financial or administrative responsibilities and those with operational responsibilities. Internal consensus as to the venture’s structure and course must be reached among those who are to share ongoing operational, financial and administrative responsibilities for the venture. Operational consideration such as a perceived need for entry into a particular market should not dictate a joint venture with undue long term financial or administrative risks. Conversely, a long range strategic plan calling for market expansion should not impose a joint venture upon an operation with insufficient resources or motivation to successfully implement it. If consensus is not reached an anti-venture lobby within the company may ultimately poison a particular joint venture by withholding financial or operational resources critical to its success.
In July 2000, the Indonesian government began to implement the Consumer Protection Law of 1999 by requiring registration of imported food products. Importers must apply for a registration number from the Agency for Drug and Food Control (BPOM). All imported food products must be tested by BPOM. Fees for such testing range from Rp 50,000 ($6.00) to Rp 2.5 million ($300) per item, and between Rp 1 million ($120) to Rp 10 million ($1200) per product.
Indonesia’s government also has been gradually implementing a strict food labeling law that requires labels written only in the Indonesian language on all consumer products. Labels may not include any other languages. Beginning January 2001, Indonesia’s regulations required labels identifying food containing "genetically engineered" ingredients and "irradiated" ingredients. BPOM, which is an arm of the Ministry of Health, must test all processed food products and is also responsible for labeling and the issue of registration numbers (MLs) for imported food products.
ML Numbers System in Indonesia
Under the Consumer Protection Law, a registration system covers all processed food products. Its key elements are:
- Details of products, including their ingredients, must be submitted to BPOM, together with samples and evidence of testing by authorities in the country of origin
- Upon approval, a registration number is issued (for imports the ML number, which must be printed on food package labels)
- Products must be re-registered every five years
- The ML numbers (abbreviation of “Makanan Luar” or “Imported Food”) are importer specific.
Products must be registered with BPOM before clearance through Customs and carry the appropriate sticker. Importers, distributors or retailers dealing in unregistered products are in breach of the regulations and subject to penalty. The time it takes to register goods is also significant—up to six months, although some cases can take longer.
Imported Food Products Registration
All processed food products imported must be registered with the National Agency of Drugs and Food Control (BPOM) except for:
- Processed food with a life of less than seven days at room temperature.
- Processed food representing a donation to the Government or to a Social Institution.
- Processed food in small quantities for the specific purposes of registration with the National Agency of Drugs and Food Control (BPOM), scientific research or personal consumption.
Registration requires submission of five standard forms in triplicate together with:
- A sample of the food.
- The label (10 copies) and brochure if applicable.
- For repackaged product, the operating license of the Indonesian business involved and a letter of reference from the original production plant.
- For product produced under license, the Indonesian company's license and a letter of reference from the overseas factory.
- For imported products a reference letter from the overseas factory, a health certificate and a radiation free certificate in accordance with existing law.
Following consideration, the product may be:
- Registered with the issue of Form M1;
- Conditionally registered with the use of Form M2; or
- Rejected from registration via the issue of Form M3.
Other Specific Standards
GMO’s (General Modified Organism)
Any producer using genetic engineering must ensure that the product is safe for human consumption before distribution. In terms of labeling requirements for GMO’s: 1) The words GENETICALLY ENGINEERED FOOD shall be contained in labels of food resulting from genetic engineering; 2) In the case of processed food which results from genetic engineering as meant in paragraph being ingredients used in certain food products, the information on genetically engineered ingredients of foods resulting from the genetic engineering on labels shall be enough.
Labeling
New food labeling requirements were introduced in 1999 and are the responsibility of the Food and Drug Control Body (Badan POM or BPOM). Labeling requirements are designed to ensure that the consumer can be accurately informed about the ingredients in processed food and its status as a halal or non-halal product. Post market control is maintained through sampling and testing food products. Where discrepancies occur there are powers to reprimand, order withdrawal of products from sale, or prosecute through the courts.
Key points of the current labeling requirements include:
- All packaged food products distributed in Indonesia must be labelled exclusively in Bahasa
- Indonesia language, Arabic numbers and Latin letters.
- The use of any other language, number and letters is permitted only where there are no
- Substitute Indonesian words or if there is a difficulty in finding Indonesian words with a similar meaning; such approval must be obtained from the Indonesian Attorney-General.
- The use of stickers was authorized temporarily (until new legislation was enacted).
- Specific wording regarding content is required for labels of certain food items including milk
- Products, baby food, alcoholic beverages, and halal food.
- If the product is halal, it must be certified by an approved authority
- The expiration date of perishable food items must be shown (and products must be landed
- in Indonesia with at least 2/3 of their stated shelf life remaining).
- Food additives must be identified.
- The name and address details of the importer must be stated.
- There are specific requirements for labeling of products with GMO content greater than
- 5% and also for irradiated products.
- SNI marks must be shown when relevant compulsory standards exist (these apply to sugar,
- Salt and wheat flour.
Halal certification
The Indonesian authorities do not require halal certification for all imported foodstuffs. But while certification is not compulsory, 88% of the Indonesian population is Muslim and the Indonesian Islamic Council (MUI) prefers all food products to be halal accredited. Halal is an Arabic word meaning lawful or permitted. The opposite of halal is haram, which means unlawful or prohibited. Halal and haram are universal terms that apply to all facets of life. However, in Indonesia, these terms are used only in relation to food products, meat products, cosmetics, personal care products, food ingredients, and food contact materials.
All foods are considered halal except the following, which are haram: a. Swine/pork and its by-products; b. Animals improperly slaughtered or dead before processing; c. Animals killed in the name of anyone other than Allah (God); d. Alcohol and intoxicants; e. Carnivorous animals, birds of prey and land animals without external ears; f. Blood and blood by-products; g. Foods contaminated with any of the above products.
Food Additive Regulations
The Food Act of 1996 states that food additives are not to be used if they have been banned, or may not exceed specified limits. This implies a "negative" regulation of food additives, but the subsequent clause states that the Government will determine which substances are banned as food additives and/or may be used in food production and also the content limit. Hence the regulation is "positive" in that the Government states those additives that may be used. Approval is the prerogative of the Director of Food Safety Evaluation, a subordinate of the Deputy of Agency for the National Agency of Drugs and Food Control (BPOM). The regulation states that approval will be based on assessment against guidelines prepared by the Head of Agency.
Every import of food additives must be reported in writing to the Division of Food Certification, BPOM after the goods arrive in harbor. The report must include:
- The name of the substance and batch quantity and weight.
- The name and address of the importer.
- The name and address of the exporter.
- The name and address of the producer.
- The port and date of lading.
- The port of destination and date of arrival.
- The name, nationality and registration number of the ship or aircraft carrying the food
- Additive import.
- The name and address of the warehouse and date into store.
- An outline of any accidents that may have occurred during shipping.
A certificate of analysis for the applicable batch must accompany every import of food additives. The certificate may be issued by the production plant or by the responsible authority in the country of origin. Before the import is cleared from the point of entry the Director of Food Certification, BPOM must agree the certificate. If a certificate does not accompany an intended import, then a certificate must be requested from the Director of Food Certification before the food additive shipment may enter the country.
The certificate must include:
- Date that the sample was taken.
- Batch number of the product
- Test date.
- Test method.
- Statement that the test result was in accordance with criteria for the product.
A food additive product from an animal source must also have a certificate of conformity with Islamic purity, "Halal". That certificate is to be issued by the responsible authority in the country of origin. Food additives produced, imported or distributed must comply with the Indonesian Food Codex or conditions approved by the National Agency of Drugs and Food Control (BPOM). For food additives not listed in the Indonesian Codex, or not having conditions determined by the National Agency of Drugs and Food Control (BPOM), the FAO/WHO Codex Alimentary Commission or Food Chemicals Codex is applicable.
Compiled from various sources.
Disclaimer:
The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found anywhere in this article nor in this website.
In Indonesia, every divorce lawyer will have to refer to the 1974 Marriage Law and its implementing rules for divorce and marital dissolution. A divorce petition must be filed at the local district court for Non-Moslems, and local Religious Court for Moslems. There are certain marital dissolution reasons according to 1974 Marriage Law and Islamic Law, they are:
Marriage Law
Pursuant to Marriage Law, a marriage may be terminated due to several reasons as follows:
- Death of either party
- Divorce
- Upon court’s decision
Death
The death to either party will automatically terminate the marriage.
Divorce
One of the means to dissolve a marriage is by divorce. Divorce may only be executed before a court session, before the district court for Non-Moslems and before the religious court for Moslems. Therefore, either one of the parties wanting to divorce needs to file a divorce petition to the court.
There are legal grounds of filing for divorce that every divorce lawyer has to advise his/her clients with, and they have been regulated in the Marriage Law, which are, in the event one of the parties:
- has committed adultery, is an alcoholic, is addicted to drugs, is a gambler or exhibits other vices which are difficult to cure;
- has left the other spouse for two consecutive years, without consent and without legitimate reasons or the absence of reasons beyond his control;
- has been sentenced to imprisonment for five (5) consecutive years or a longer period;
- has resorted to cruelty or severe ill treatment, endangering the life of the other spouse;
- has developed a disability or disease, preventing from fulfilling the duties of husband or wife; or
- has irreconcilable differences.
Annulment to Dissolve Your Marriage
Marriage annulment means that any marriage may be cancelled if both parties cannot fulfill the conditions for the marriage. A marriage annulment can only be decided by a court of law.
Families in a straight line of descent and above the husband or wife (For example: father, mother, grandfather etc of husband or wife.) , an authorized/appointed official, and anyone directly possessing legal interest in the marriage may file a request for marriage annulment.
Any request for marriage annulment may be submitted to a court within the jurisdiction where the marriage was conducted or within the jurisdiction of the residence of the married couple (in accordance with Article 38 (1) Government Regulation No. 9 Year 1975 regarding the Implementing Rules of 1974 Marriage Law) the husband, or the wife. A marriage annulment may be filed for the following reasons:
- the marriage guardian (so called “wali” ) is illegal; or
- the marriage was not attended by two witnesses.
- The marriage was performed in front of unauthorized marriage registrar.
The right to annul a marriage by a husband or wife based on such reasons becomes null and void if they live together as a married couple and can show the marriage certificate issued by the unauthorized officer of the marriage registry. In this instance the marriage has to be conducted again in order to make it legal.
The husband or wife may request an annulment of their marriage, if the marriage was conducted before an unauthorized officer of a marriage registry, or if the marriage was conducted under a threat that violates the law, or if there is a misunderstanding between the husband and wife.
His/her right will be null and void if the threat has stopped or if the misunderstood party? realizes the situation, but doesn’t use his/her right to request for marriage annulment within six (6) months after living together as married couple. Example of a “misunderstood condition” would be if the husband thought the wife was a virgin, but in fact she was not – so I misunderstood about her personal conditions.
Annulment of a marriage commences upon the court decision and is permanent and legal binding and applies as of the time of marriage was conducted. However, such a decision is not retroactively effective to:
- children born from the marriage;
- husband or wife acting with good intention, except against joint property, if the annulment is based on a previous marriage. The annulment decision is retroactively effective to the joint property of the parties in the event the marriage was entered and one of the couples was not legally free to marry.
- a third party, so long as he/she has the rights based on good faith.
Islamic Law
In Islam, a marriage may be terminated due to several reasons, namely:
- Death of either party
- Thalak
- Judge’s Decision
- Khulu
- Li’an
- Ila’
- Murtad (apostate)
When a husband or wife passes away, their marriage is automatically terminated. When a wife passes away, her husband doesn’t have any legal difficulties in marrying another woman, but can remarry immediately. But, when a husband passes away, his wife has to wait for four (4) months and 10 days before she can marry another man.
Literally, thalak means to release (abandon). Thalak or divorce is the right given to a man and is an action of releasing a woman from the marriage. In Islam, this method of divorce has been stipulated, but it is accompanied by the explanation from the Prophet Mohammad that God doesn’t like divorce.
Divorce through a judge’s decision may be due to several reasons, such as, among others, that the husband is unable to provide the basic necessities of life, the husband commits torture against his wife, the husband vanishes (being far away from or not being near his wife), or that the husband is serving a term in prison.
Fasakh is the cancellation of marriage agreement (akad) and the termination of a marriage between a husband and wife due to damage taking place in the marriage agreement (akad) or due to sudden reasons that may hamper the continuation of the marriage agreement (akad). For instance, it could be due to a problem in the family relationships. Fasakh will cause the marriage agreement (akad) to be annulled.
Khulu’ is a divorce given by a husband to his wife with payment to the wife. Khulu’s is required by Islam for balancing the thalak right for a husband when there is a hatred that cannot be settled peacefully.
A marriage may be terminated due to li’an, because the person making the li’an in the fith oath says that God’s curse is upon him/herself if he/she is a liar. As a result of li’an, the marriage is terminated forever. If the accusing husband denies the birth of a child by saying that the child is not his, the child is not the offspring of this husband any longer, but legally becomes an illegitimate child and becomes the child of accused wife. The child cannot inherit from his/her father (the accusing husband). If the child is female, her guardian is a judge of justice, if the child will marry someone else.
Murtad (apostate) is when a Moslem abandons Islam. If a husband or wife is judged apostate, their marriage is terminated due to their action.
Marriage dissolution based on the grounds of thalak, li’an, and khuluk’ shall only valid in the event they are conducted at the religious court.
Annulment according to Compilation of Islamic Law
Compilation of Islamic Law which is enacted under Presidential Instruction Number 1 of 1991 also governs marriage annulment under several reasons:
- Polygamy conducted by husband without the permission from the Religious Court;
- The bride is not legally free to marry and still in a marriage with other man;
- The bride in the period of ‘iddah of her previous husband, Iddah means a waiting period where a woman is not allowed to marry other man. The period may vary according to the reason of her previous marriage dissolution i.e. 130 days due to death, and 90 days due to divorce;
- The marriage is not comply with the minimum of age requirement as governed by the 1974 Marriage Law;
- Married performed without wali nikah (marriage guardian) or performed with unauthorized one;
- Marriage performed under threat
Marriage annulment is also known as fasakh is the cancellation of marriage agreement (akad) and the termination of a marriage between a husband and wife due to defect taking place in the marriage agreement (akad) or due to sudden reasons that may hamper the continuation of the marriage agreement (akad). For instance, it could be due to a problem in the family relationships. Fasakh will cause the marriage agreement (akad) to be annulled.
Annulment petition can be filed at the local religious court having jurisdiction over the residence of husband or wife or may be submitted to the local religious court within the jurisdiction where the marriage was conducted. Court decree on marriage annulment shall take effect retroactively since the date of marriage took place.
Parties to authorize for annulment petition are:
- Family in a upper and lower straight line such as parents, and siblings;
- Husband or wife;
- Authorized officers responsible in supervising the performance of marriage as governed by law;
- Other parties who aware of any marriage defect in terms of marriage requirements as imposed by the prevailing law.
Disclaimer:
The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found anywhere in this article nor in this website.
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