Prenuptial Agreements – A handy guide for mixed marriage couple about the prenuptial agreement in Indonesia.
Getting married is not just about “love” or “commitment,” but also formal matters such as marriage documents. Law that regulates prenuptial agreement in Indonesia provides guidelines to deal with important documents and formalities, but the matters become more complicated when one of the spouses is a foreigner. Learn how to navigate the process of making prenuptial agreements before marrying a foreigner, and what to expect when dealing with all the formalities.
Why Prenuptial Agreement is Important
Prenuptial agreement is a term for a written contract signed by a couple before their marriage. The content of the contract can be anything, but the most common thing is related to the division of assets and properties. A prenuptial agreement can also be about support in the event of divorce, or asset division when one of the spouses dies.
In the modern world, especially when the marriage with foreigner becomes more popular, a prenuptial agreement is essential. The agreement works as a legal umbrella in case of divorce or death, especially since foreigners face several restrictions in Indonesia.
There are several reasons why you and your spouse need to consider a prenuptial agreement, such as:
- Preventing post-divorce arguments
Divorce is painful enough without arguments about dividing property and assets. The prenuptial agreement helps to divorce couple in navigating formality after a divorce.
- Confirming financial responsibilities and rights
All couples, regardless of wealth and financial conditions, can get advantages in clarification from a prenuptial agreement. They can determine financial rights and responsibilities, whether during or after marriage (if divorce or separation happens).
- Protection from debts
Despite the commitment made by married couples, debts can be personal. A prenuptial agreement could protect one of the spouses’ financial rights or assets if the other stuck in debts.
- Clear asset divisions between family members
When one of the spouses leaves the other with kids, there are possibilities of unfair asset division between them. The prenuptial agreement helps the left spouse and children to get their fair shares of assets.
- Protecting the property
One of the restrictions faced by foreign people who married Indonesians is the inability to keep the property in the country. If divorce happens between the couple without creating protective documents, the government has rights to turn the joint property into a community asset.
While Indonesia may impose restrictions in property-related matters regarding of mixed marriage, making prenuptial agreement can help the surviving party navigating all the legal obstacles, especially if he or she wants the children to inherit the asset. Despite the unfortunate situation, at least the separated couple and the children can get the fair option.
What You Must Consider before Signing the Prenuptial Agreement
Prenuptial agreement in Indonesia is a relatively new law, which is helpful for mixed marriage couples to ensure the safety of their joint property. However, there are several important things to consider before you decide to sign the agreement. They are:
- Finding Indonesian property/asset holder
Since foreigners are not allowed to have properties in Indonesia, any joint properties or assets that result from marriage will automatically be signed under the names of Indonesian spouses. Therefore, if separation happens, the foreign husband/wife must look for trusted Indonesian nominee that can temporarily or permanently hold the properties.
In the case of children, the foreign spouse can transfer the property to their adult child/children and make the child the new owner. However, the child must be registered as an Indonesian citizen (Indonesia does not recognize dual citizenship). It can only happen if the child decides to become an Indonesian citizen after turning 18.
- Considering the future income
Income plays a big part in determining the details of the prenuptial agreement. Couples must consider the possibilities of extra income in the future. It can mean career advancement, growing business, or advanced study for special skill.
- Emphasizing property separation
When you marry an Indonesian, the government will immediately assume that you and your spouse have joint property. If both spouses have their own properties or assets, make sure to emphasize the asset separations in the prenup. It will avoid misunderstanding when divorce or death happens.
- Preventing back-dated prenup
The back-dated prenuptial agreement is a practice of making prenup way before marriage, but only signing it afterward. It means that the dates of making and signing the document are different. It is illegal in Indonesia and will not be acknowledged by the government. Couples must stop the urge to use shady service out of desperation; it is not only illegal but also can be dangerous.
- Investing in good legal service
Foreigners who want to marry Indonesians must find good legal service or lawyer to accompany them in the making of the prenuptial agreement. This is an investment to avoid misunderstanding, mistakes, and bureaucratic pitfalls, especially if both spouses have assets or properties.
When preparing marriage with an Indonesian, a foreigner and his/her spouse must prepare all the formal documents way before the wedding date. This will help in preparing the necessary steps for making a prenuptial agreement.
How to Obtain Prenuptial Agreement in Indonesia
There are several important steps a couple must make in creating a prenuptial agreement. They are:
- Making a list of all the properties and assets
Before making the prenup, couples must list all the assets and properties they want to include. Depending on wealth or owned property numbers, it can be a long and detailed list. Couples must also determine the ownership status of each property/asset before discussing what they want to do with the ownership status after marriage.
- Listing the ownership proofs
Property division means each spouse must prepare ownership proofs or documents regarding of their properties. This information will be included in the prenup, so make sure every asset document is ready.
- Making sure the documents are valid
Both spouses must make sure that they have all the documents needed to make prenuptial arrangement and hold a wedding. The foreign spouse must have valid KITAS (limited stay permit) and other proper legal documents to secure Hak Pakai (right to use). This special right will be valid for 30 days after death or divorce, and it will give time for a foreign spouse to find proper Indonesian person to transfer the asset.
- Discuss child support
If the couple plans to have kids after marriage, create a plan about child support in the case of divorce. Determine who will be responsible for the kid’s financial needs until he/she comes of age or graduates, for example. While it makes you imagine unpleasant situations, it will help to prevent disputes in the worst scenario. Also, this information will be included in the prenup.
- Get the right format
Prenuptial agreement letter has a specific format, so make sure you get the right one. It is generally written in Indonesian, but you must invest in finding good translations to make the English version. You can also discuss with a lawyer or legal service so that they can prepare the proper letter format.
- Discuss the contents together
In making a prenuptial agreement, both spouses must give consent about the content. Every change or addition to the letter must be communicated. Make sure to take the time for discussing the content together with the spouse and lawyer or legal advisor whenever possible.
- Making the draft
The draft is important in the making of all legal documents, especially in Indonesia. Despite the document samples you can research, Indonesia does not exactly have a strict format for a prenup letter. You and your lawyer should come up with several drafts and review them to get the most satisfactory one.
- Record the prenuptial agreement formally
The prenuptial agreement must be recorded formally to the local Kantor Catatan Sipil (Civic Registrar) or Kantor Urusan Agama (Office of Religious Affairs). Without formal recognition from these offices, your prenuptial agreement will be considered invalid. Make sure to have several copies of the prenup letters.
For those who marry outside Indonesia and cannot come back for the prenuptial agreement, there are several legal steps you must do to ensure the validity of the prenup. They are:
- Following the Indonesian law
Your Indonesian prenup must be recognized under the country’s law, despite you having the wedding day abroad. To make sure that the document gets formally recognized, it must be written in the Indonesian language (with English translation in a separate form). The agreement must explicitly state that dispute resolution must follow Indonesian law.
The use of Indonesian language in the legal document refers to Regulation Number 24 the Year 2009 regarding the Indonesian flag, language, symbol, and national anthem. The law says that the Indonesian language is mandatory in all legal documents, memorandums, and agreements that involve Indonesian citizens, government institutions, and private organizations.
- Giving power of attorney to the spouse
Sometimes, the spouses do not fly together to the foreign country. If this is the case, the Indonesian spouse can sign the prenuptial agreement on behalf of his or her partner. This can be done by using a power of attorney given by the other partner.
- Legalizing the power of attorney
The power of attorney that is mentioned previously needs to be legalized by the Indonesian Embassy or Consulate in the spouse’s origin country. Remember, each country may have a different way of handling the procedure and document requirements. Make sure you communicate with your lawyer and Indonesian spouse during the process, since you may need to provide Indonesia-related documents.
Despite the popularity, a prenuptial agreement may not be the ideal choice for all couples. There are times when a couple probably needs postnuptial agreement more than a prenup.
Prenuptial, Postnuptial, Antenuptial Agreement: What’s the Difference?
When researching about documents necessary for a mixed marriage, you may find information about antenuptial, prenuptial, and postnuptial agreements. At this point, you may be familiar with the prenuptial agreement, but what about antenuptial and postnuptial agreements?
An antenuptial agreement is just another term for a prenuptial agreement. However, a postnuptial agreement is different. As the name suggests, postnuptial agreement refers to an extension of the agreement between spouse concerning properties and assets. This is usually for couples who, for some reasons, forget or do not have time to make a prenuptial agreement before marriage.
Indonesian civil law used only to recognize prenuptial agreement, and a postnuptial agreement was just something that you can do based on a loophole. However, the Indonesian government recently updated its policy about the postnuptial agreement. Mixed marriage couples now can easily make a postnuptial agreement after getting married in the country.
There are several benefits of the postnuptial agreement, such as:
- Preventing legal limbo
When a mixed marriage couple forgets to sign a prenuptial agreement (or does not know it), both can get trapped in legal limbo, because a foreigner cannot have property in Indonesia. Their properties will be considered state-owned if the Indonesian spouse dies and there is no nominee.
- Covering more details
Prenuptial agreement is good, but it is based on vague future possibilities. A postnuptial agreement is usually made after a couple goes through the significant length of marriage life and has more understanding after their marital affairs (including the problems, if any).
- Easier in going through the worst scenario
Postnuptial agreement is often made when a couple goes through the separation process. This document will help both parties determining the best way to split their properties and discuss child support when the situation is still fresh.
- Supporting financial plan
One common reason a couple does not make a prenuptial agreement is that they have too little to discuss. A postnuptial agreement may be made when a couple has more stable or higher income and therefore can imagine better details in discussing the agreement. This is great to create a future financial plan in the worst scenario, such as divorce and death.
A mixed marriage couple may also consider making a prenuptial agreement that is valid in the origin country of the foreign spouse. This “back-to-back” antenuptial agreement is useful if the foreign spouse has property or asset in his/her origin country to include. This is because the Indonesian prenuptial agreement only covers asset or property listed in the country. The same thing applies for postnuptial agreement.
Legal Advice for Prenuptial Agreement in Indonesia
Writing prenuptial agreement is a detailed and complicated task, and requiring time and focus. Restrictions imposed on foreigners regarding properties in Indonesia demand mixed marriage couples to pay more attention to their properties, especially if they have many.
To make it easier, here are several tips:
- Learn your legal responsibilities before marriage
Even before you and your spouse thinking about marriage, understanding legal responsibilities from the start will be useful. Both parties must be willing to talk about providing documents and discussing property ownership. Understand that this is an important thing to consider for every engaged couple.
- Make sure all documents are always valid
Being a responsible citizen/expatriate means always updating your legal documents. This means passport, visa, KITAS, and business documents. These documents will support your steps in creating prenuptial or postnuptial agreement.
- Always update the agreement
If you and your spouse already write the prenup, make sure to review and update it occasionally. This is because your life may experience significant changes after marriage, especially with the coming of kids. Updating the prenup makes it more flexible and accommodating for your current lifestyle.
- Understand that it does not apply if the spouse dies
Prenuptial and postnuptial agreements only apply when both spouses are still alive. If the couple wants to settle property division or inheritance that applies after death, it should be in a will. Couple must discuss with their lawyer about the mechanism if they think of making prenup and will, especially if they have big assets.
- Always make sure that everyone gets involved
A person must not make any decision regarding of prenup or postnuptial agreement without the consent of the spouse. Make sure to contact the spouse (if separated before marriage) or arrange a time to meet and discuss it together. If the couple is busy, understand that both need to arrange a schedule to discuss the document.
- Always opt for full disclosure
Prenuptial and postnuptial agreements require full disclosure. If there are any specific parts of the document that will affect the property division process, everyone involved must know beforehand. This means that the couple must be open between each other and with their lawyer.
- Find the best legal advisor
Legal advisor is important to help a couple navigating the steps and bureaucracy of prenuptial agreement. The lawyer or advisor must have the knowledge and practical experiences in prenuptial and postnuptial agreements.
Don’t let bureaucracy and formalities discourage you from finding happiness. Contact ELSON or visit Elson.co.id right now for inquiries and information about the prenuptial agreement in Indonesia. All our services are reliable and cost-efficient.
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.