Couple Marriages – For Indonesian citizens who are married to foreigners, here are the things you should know about postnuptial agreements for mixed-couples marriage in Indonesia.
Love can never tell. You may have any partner from any backgrounds, but what if your partner was a foreigner in the country? Well, if you wish to marry your foreign partner in Indonesia, your marriage is categorized as a mixed-couple marriage, which is a marriage between two persons domiciled in Indonesia and subject to two different state laws due to the difference in citizenship and one of them is a citizen of Indonesia.
However, for some matters, you will need a letter of agreement that will govern your rights and obligations as a married couple during the marriage. What is the agreement like and how are the terms and procedures for obtaining a valid marriage agreement? Do kindly check out the following.
Introduction to the regulation on mixed-couple marriages in Indonesia
Marriages by Indonesian citizens to foreign nationals are usually called mixed-couple marriages which have been regulated under the Marriage Act. 1/Year 1974. That means, the permit and condition of mixed-couple marriages in Indonesia also have a few differences compared to any marriages in general.
For those of you who will be married to a foreign citizen and do not yet know what things required, please read the following information.
- Requirements to be fulfilled by the future bride/groom of the Indonesian Citizen:
a. Certificate of Unmarried
To get a Certificate of Unmarried, you may contact your Neighborhood Association (RT/Rukun Tetangga) and Citizens Association (RW/Rukun Warga) at your residence with a copy of Family Identity Card (KK/Kartu Keluarga) and a copy of your ID card (KTP/Kartu Tanda Pengenal).
b. Certificate of Marriage (N1, N2, and N4) and The Letter of Agreement of between the Future Bride and Groom (N3).
c. After getting the RT / RW introductory letter, you must go to your residence urban village to register and fill in the following forms:
- Model N1: Certificate of Marriage
- Model N2: Certificate of Origin
- Model N3: Letter of Agreement between the Future Bride and Groom
- Model N4: Certificate of Parents
d. Certificate of TT Vaccine/immunization (Tetanus Toxoid)
You simply go to the nearest health center or health facility to complete your marriage requirement After going through some procedures, you will be given a Vaccine/Immunization Card;
e. Recommendation Letter of Marriage
Visit the Kantor Urusan Agama Kecamatan (the Office of Religious Affairs at the District level) to submit the Model Letters N1-N4. In addition, you should also bring:
- Copy of your ID card
- Copy of your Birth Certificate
- Copy of your TT Immunization Card
- Close-up photographs, each sized 2 × 3 and 3 × 4 with blue background
- Deed of Divorce for divorcee or Death Certificate for widow or widower
- Supervisor’s Permit for the future bride/groom who is a member of TNI (Indonesian National Army) and/or POLRI (Police Department of Indonesia).
- Dispensation Letter of Religious Courts for the future bride/groom who is not even 19 years old (for the groom) and not yet 16 years of age for the bride.
- Certificate of Guardian, for the future bride whose parents or guardians cannot attend the marriage ceremony
- Copy of Deed of Marriage Agreement that has been legalized by a Notary (if any).
2. Requirements to be fulfilled by the future bride/groom of the foreign citizens:
- Permit from the representative embassy/consulate in Indonesia, Letter of Permission of Marriage in the form of CNI (Certificate of No Impediment) or LNI (Letter of No Impediment)
- Copy of valid Passport of at least 18 (eighteen) months
- Copy of Birth Certificate from the country of origin
- Copy of Deed of Divorce for the divorcee or Death Certificate for widower or widow
- Close-up photographs of size 2 × 3 and 3 × 4, with blue background
- Certificate of Convergence if the bride/groom has converted to Islam religion
- Letter of Good Manners for Foreign Citizen from the local Police Department
- Certificate of Guardian, for the future bride whose parents or guardians cannot attend the wedding ceremony
- Foreign Worker Tax Ledger (especially for those who have been living and working in Indonesia for more than 183 days or 6 months consecutively).
- It should be noted that all requirements and documents in foreign languages must be translated by a sworn translator, and subsequently required to be legalized at the Consulate/Embassy of the country of the future bride/groom of the foreign nationals.
A mixed-couple marriage cannot take place before it is proved that the terms and conditions of the marriage prescribed by law applicable to the respective parties have been complied with. It is then proven by a certificate that the terms have been met by the authorities to register the marriage under the law applicable to the respective parties.
Prenuptial agreements for mixed-couple marriages in Indonesia
Today, a prenuptial agreement is not considered as a taboo anymore, although in Indonesia, marriages are still common with joint properties. Prenuptial agreements are set forth in the Marriage Act No. 1/1974 and the Dutch Civil Code (Burgerlijk Wetboek), otherwise known as the “Marriage Act”.
In fact, the prenuptial agreement becomes very important especially for Indonesian citizens who wish to hold marriage with foreign citizens. With a prenuptial agreement, a spouse who is an Indonesian citizen may own land in the territory of Indonesia (with the rights of ownership and building use rights) or shares in a company with the status of PT (Limited Liability Company).
Other reasons a mixed-couple marriage should be equipped with the prenuptial agreement are as follows:
To protect the rights of local Indonesian citizens by preventing the purchase of land or property in Indonesia by foreigners in Indonesia. Many foreigners are using their mixed-couple marriages just to obtain the rights to own lands and properties in this country.
There are many areas in Indonesia owned by foreigners by marrying local citizens to get land or property with low prices. One example is an island in West Nusa Tenggara Province where almost 80% of its land is already owned by foreigners with very low selling value. They bought lands near the beaches, built resorts, and forbid the local people to be on the beach despite the fact that the locals are fishermen.
To protect the bride/groom’s property (and land) before, during, and after the marriage, because that is actually the main expectation of the making of the prenuptial agreement. Anyone must never imagine meeting a materialistic woman or man—known as the “gold digger”—who is using a marriage only for money or property. With prenuptial agreements, you can also be protected by law from any of those gold diggers.
Furthermore, the law has also reinforced your reasons for separating property during your mixed-couple marriage, as described in Article 186 of the Civil Code:
- If the spouse, with real misbehavior, wastes goods from the joint property, and leaves households in danger of destruction.
- If due to the confusion and ugliness of the husband’s property, the guarantee for the wife’s marital property and for what is lawfully the wife’s right is lost, or if due to the great negligence in the maintenance of the wife’s marital estate, the property is in danger.
Postnuptial agreements for mixed-couples marriage in Indonesia: the second chance
What if you already married your foreign spouse and decided to have a nuptial agreement? Can it happen?
The decision of the Constitutional Court No. 69/PUU-XIII/Year 2015 provides a second chance for married couples to be able to have a nuptial agreement made during the marriage bond or commonly known as Postnuptial Agreement. As a matter of fact, Director General of Personnel and Registration of Population, Prof. Dr. Zudan Arief Fakrulloh, on May 19, 2017, has allotted a letter outlining the implementation to apply for nuptial agreements (pre and postnuptial) at the Indonesian Civil Registry. This means you can have a marriage agreement done after you get married.
Despite the fact that there is no in-depth procedure in the making of a nuptial agreement, the following are the steps in making postnuptial agreements for mixed-couples marriage in Indonesia:
– Have a consensus between you and your spouse. Either pre or postnuptial agreements for mixed-couples marriage in Indonesia is basically a contract under the regulation mentioned in “The Marriage Act”. It means that both husband and wife should agree on every detail of the nuptial agreement, as it is a contract approved by each of the parties. Write down your wish list (as well as the wish list of your spouse). Both husband and wife are free to include their wishes on the agreement as long as they do not violate the law, norms, and morality applied in this country.
– It is better for you to consult a legal consultant regarding this postnuptial agreement. Even though you can write your own letter of agreement yourself, you may miss some legal matters that most people are not aware of. With a lawyer or a notary, everything can be done as perfectly as you wish, since they are professionals in legal services such as drafting the letter of agreement and registering the letter to the authority.
– If you draft your own letter of agreement, it means you have not contacted a notary. Next, you can visit a notary to have the agreement authorized. Before you go to the notary, you may still revise the letter and convince yourself that all the wishes of both parties (husband and wife) have been mentioned in the agreement.
– Have the letter of agreement registered to the authorities, e., the Civil Registration Office (for non-Moslem marriages), The Religious Court, or the Office of Religious Affairs (for Muslim marriages).
What should be written on a postnuptial agreement
In general, all agreements prioritize an approval that promises something for both parties and so do postnuptial agreements. Only, this kind of agreement focuses on property in a marriage, namely:
- Joint profit and loss
Article 163 Civil Code: All debts of the two spouses together during marriage shall be counted as a collective loss. What is deprived of the crime of one of the spouses does not include mutual harm.
- Joint income
- There is no joint property at all
In the Civil Code (Burgerlijk Wetboek) which was made in the days of Dutch colonialism, and the Marriage Law is crystal clear and very profitable to both parties. They are mentioned as follows:
Article 35 paragraph (1): property acquired during marriage becomes joint property.
Article 35 paragraph (2): the property of each husband and wife and the property each of which is obtained as a prize, is under the supervision of each, as long as the parties do not specify otherwise.
Based on the law mentioned above, we can conclude that it considers the union of a woman and a man in a house under the sanctity of the institution of marriage also becomes one law and includes one in the property obtained after the marriage.
Other things that can be included in the prenuptial agreement include:
- There is no joint property between a husband and wife
- Debt that occurred before the marriage then becomes the responsibility of each party.
- The sharing of responsibilities of household expenses and children’s education
- Setting specific financial expenses (savings, investments, etc.)
- Childcare rights
- The right for the wife to work after marriage
- Schedule of working hours
- Other things that need to be discussed further
The postnuptial agreements for mixed-couples marriage in Indonesia also provide for sanctions to be borne by a husband or wife if they commit a breach of mutually agreed points. For example, if a husband or wife has an affair with a third party in the future, the husband/wife secretly commits polygamy or remarries, or the husband/wife commits domestic violence to their spouse or children.
The following is the content of postnuptial agreements needed to be omitted, including:
- It should not be contrary to morality or with the public order (Article 139 Civil Code)
- It shall not diminish the rights from the husband’s power and to the power of the father, nor the rights which by law are granted to the longest surviving (Article 140 paragraph (1) of the Civil Code)
- It should not diminish the rights reserved for the husband as the head of the family; but this does not undermine the authority of the wife to require for the maintenance of personal property, whether mobile goods or immovable property, in addition to the enjoyment of personal income (Article 140 paragraph (2) of the Civil Code)
- Husband and wife shall not relinquish the rights granted by the law to them to inherit their hereditary property in a straight line down (grandchild)
- If the joint property is stopped, it should not be agreed that the husband or the wife will repay the debt greater than its profits in the joint property
- There should be no statement stating that their marriage bonds are only subject to the rules applicable in a foreign country or some custom (Article 143 Civil Code).
The requirements to have a postnuptial agreement done
The postnuptial agreements for mixed-couples marriage in Indonesia are basically the same as the prenuptial ones. Prenuptial agreements are made before the weddings take place while the postnuptial ones are made after the weddings happen.
Meanwhile, the conditions for endorsing a postnuptial agreement are as follows:
- Made before (or after) the wedding takes place.
- Made in writing.
- Voluntarily made. Both parties should sign the agreement voluntarily and deliberately. Any indication that one party forces or threatens the other to sign the agreement will make the postnuptial agreement no longer valid.
- Fair and lawful. Total and fair disclosures are the elements of valid and workable postnuptial agreements. Once each party enters into the agreement, he/she must be transparent and disclose fully and fairly about his/her assets, liabilities, debts, and income.
This is an important point to understand because a postnuptial agreement is designed to explain how assets, liabilities, and support will be addressed if the marriage ends. If the information that one party relies upon is inaccurate or incomplete, then the agreement cannot be executed.
- Applied correctly. Postnuptial agreements must meet applicable legal requirements or conditions. In general, to make a valid postnuptial agreement, both signatures of both parties must be notarized, or registered in the Civil Registry Office. It must contain matters which do not violate the boundaries of law, religion, and morals (Article 29 paragraph (2) to Article 139 Civil Code).
- Authorized by a Notary.
- Registered in the Religious Court, Civil Registry Office (Non-Islam), and/or Religious Affairs Office (Islam) in accordance with the legal domicile of Indonesian Citizens.
Hence, the postnuptial agreements for mixed-couples marriage in Indonesia come into effect once all parties approved them. Note that whether prenuptial or postnuptial is required or not, many are left to each of the parties. It may be necessary but also not, so it is very dependent on the situations, conditions, circumstances, or needs. It is helpful to talk about it with a reliable lawyer or notary in order to obtain a more complete picture of the procedure and how the agreement should be done.
How Elson can Help you?
ELSON Indonesia is a company that has focus on providing legal solution for expatriates, foreigners, and mixed marriage couples in Indonesia.