Postnuptial agreement Indonesia
Indonesian Postnuptial Agreement is principally the same type of agreement as an Indonesian Prenuptial Agreement, the content, the forms and most details are exactly the same as the prenuptial agreement, difference is this type of agreement were drawn during the course of the marriage or after the legal marriage took place between the parties inside the agreement.
By referring to the provisions as listed on both The Indonesian Agrarian Law and The Indonesian Marriage Law, the existence of The Postnuptial Agreement within the parties marriage will certainly provide even more benefits for the already-married-couples with different nationalities.
This is because within the postnuptial agreement, the couple will provide their approval regarding separations of their respective assets, rights and obligations within their marriage. Thus, the land purchased under the title of ownership by The Indonesian citizens will only become their property, not joint property with their foreign partners.
For years, the law does not govern a specified provisions regarding the establishment of the Indonesian Postnuptial Agreement, it only mentioned that based on Article 29 chapter (1) of the Indonesian Law Number 1 Year 1974 regarding Marriage, that a Marriage Agreement is an agreement made at the time or before a marriage is performed and that the Marriage Agreement is need to be further legalized by the marriage registrar. Furthermore, the Constitutional Court Decision Number 69/PUU-XIII /2015 have turned the table around. With this verdict the provisions of Article 29 of the Indonesian Marriage Law are fully changed, and allowing the married couple to drawn an agreement within their marriage, for as long as the marriage is still exist.
The are many purposes for creating an Indonesian postnuptial agreement, some of which are: to obtain legal clarity and certainty on the separation of assets, property and even debts between the husband and the wife within the marriage, that will happen in the course of the marriage, what will happen in terms of divorce took place, or what will be done when either party have pass away during the marriage; no approval should be made towards the other party, should one party would like to sell, rent, pass or inherit their assets and properties; as for Indonesian national marry with foreign citizen, the Indonesian party can own a land and property under the title of ownership; other similar financial benefits.
However, the signed Indonesian postnuptial agreement does not have retroactive effect, meaning that the separation of assets, property, rights and obligations only applies to the items acquired once the Indonesian postnuptial agreement have been made, signed and legalized, while all assets and properties that have been obtained before the postnuptial agreement is made will still be considered as joint assets.
Depending on the current situations that the parties may have, we mostly recommend our clients to obtain a specified court order with the local district court prior executing this type of agreement, therefore their Indonesian postnuptial agreement will have dual basis on its existence. We need to make sure that they are fully understand what is the purpose and the main benefits to drawn this type of agreement, besides what is more important than their contentment at the end results of the given services. 😀
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