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POSTNUPTIAL AGREEMENT’S CONSEQUENCE TO THE OWNERSHIP OF LAND IN INDONESIA

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Marriage is not as simple as it seems. It may give countless consequences to both the bride or the groom. The consequences may vary in different aspects, such as inheritance, wealth, and citizenship. Therefore, to control the consequences that may arise due to marriage, it is getting more and more common for couples to enter into a ‘nuptial agreement’ or marriage agreement.

Nuptial Agreement is stipulated under Article 29 paragraph (1) of Law Number 1 of 1974 regarding Marriage (“Indonesian Marriage Law”), which states:

Before the marriage, both parties (bride and groom) may enter into a written agreement which shall be validated by a marriage registrar, which afterwards the stipulations may also apply to a third party if there are any involved third party”.

Referring to the above, it seems like that Indonesian law only provides pre-nuptial agreement or a marriage agreement which is made before the marriage occurs. However, by virtue of Indonesian Constitutional Court’s Resolution Number 69/PUU-XIII/2015 of 2015 (“MK Resolution 69/2015”), Article 29 paragraph (1) of Indonesian Marriage Law had a little bit of tweak. In result, the post-nuptial agreement or a marriage agreement which is made after the marriage occurs is legally known in Indonesia since the MK Resolution 69/2015 prevails. Just like prenuptial agreement, a postnuptial agreement also has to be validated by a notary or a marriage registrar.

Referring to Article 1338 of Indonesian Civil Code, an agreement may stipulate anything as long as it is not against the law, then it will be binding for the parties to comply with it. This means that a postnuptial agreement may stipulate about anything and it will prevail as long as it is not breaching any prevailing laws and regulations. In practice, however, what is within a post-nuptial agreement is usually regarding the separation riches which are obtained after the marriage occurred, remembering that by virtue of Article 35 of Indonesian Marriage Law, every properties acquired after a marriage occurred will be owned jointly. Hence, A stipulation regarding this matter is important for couples, especially for the mixed ones.

Mixed couple is a couple of an Indonesian citizen and foreign citizen. They are bound by a Mixed Marriage. Article 57 of Indonesian Marriage Law defines a Mixed Marriage as a marriage between a foreign citizen and an Indonesian citizen. Whether the groom is an Indonesian citizen and the bride is a foreign citizen and vice versa, both are defined as the Mixed Marriage. As mentioned above, a prenuptial or postnuptial which stipulates the separation of riches are important for mixed couples. It is due to Law Number 5 of 1960 regarding Land (“Indonesian Agrarian Law”).

Article 21 ofI ndonesian Agrarian Law states that only those who hold the Indonesian citizenship may hold a Freehold Title (“SHM”) of a certain land in Indonesia. Meanwhile, by in accordance with Article 42 of Indonesian Agrarian Law, a foreign citizen may only hold a Right to Use Title (“SHP”). If an Indonesian citizen marries a foreign citizen, the Indonesian counterpart may lose his/her right to hold an SHM title of a land since his/her foreign counterpart does not have the right to hold an SHM title based on the Indonesian Agrarian Law. Nonetheless, entering into a nuptial agreement, whether it is pre or post, will give them a different scenario.

Separation of mixed couple’s riches shall make the bride’s or the groom’s right of a certain title does not wear off. The Indonesian counterpart still has his/her right of holding an SHM, while on the other side, there will be no change regarding the foreign counterpart’s right of holding an SHP. However, there are stipulations regarding SHP that have to be paid attention to by foreign citizens.

Summarizing the Government Regulation Number 103 of 2015 regarding Ownership of House or Place of Living by Foreign Citizen in Indonesia (“GR 103/2015”), a foreign citizen in Indonesia (who has a permit) may own a property in Indonesia. The ownership is based on the SHP title. Since it is based on the SHP title, this means the foreign citizen may own the property but not the land. A Right of Use prevails for 30 years, open for 20 years extension, and after that is open for another 30 years renewal. If the relevant foreign citizen is not staying in Indonesia anymore, then the Right of Use has to be transferred to other party who fulfils the criteria under the prevailing laws and regulations within a 1 year deadline. There will be consequences if the relevant foreign citizen fails to meet the deadline, the consequences depends on who holds the right of the land on which the property stands.

To conclude, prenuptial and postnuptial agreement is known by the Indonesian Law by virtue of the Indonesian Marriage Law and MK Resolution 69/2015. These shall help the Indonesian citizens who is going to marry or be married or already married to a foreigner to retain his/her right to hold the SHM title of a land in Indonesia, whilst the foreign counterpart also still has his/her right to hold the SHP title of a certain property in Indonesia. However, regarding SHP, regulations such as GR 103/2015 has to be complied.

Rerefence :
1. Article 29 paragraph (1) of Law Number 1 of 1974
2. The Government Regulation Number 103 of 2015

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