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“Now Marriage Agreement could be made not only before or by the time when the wedding took place, but also along the Marriage”

The Indonesian Constitutional Court has broadened the interpretation of prenuptial agreement (marriage agreement) in the Indonesia Marriage Law No. 1 of 1975. Through its Decision No. 69/PUU-XIII/2015, the Constitutional Court declares Marriage Agreement can not only be made before or by the time when the wedding took place, but it also can be made along the marriage of spouse.

The Constitutional Court interprets the Indonesia Marriage Law No. 1 of 1975 Article 29 (1), (3), and (4). The Law regulated, before the Constitutional Court Decision issued, Marriage Agreement will only be drawn up before or by the time when the wedding took place, it is called as Prenuptial Agreement. However, through the decision, the Constitutional Court now allows what is called as Postnuptial Agreement, a marriage agreement that is drawn up or executed after the couple wedding.  It also includes the mixed-marriage couples.

By the existence of the Constitutional Court Decision, it changed the clause the Indonesia Marriage Law Article 29 as follows :

ArticleBeforeAfter
29 (1)By the time or before the wedding took place, two parties based on agreement could make the written agreement and legalized by Marriage Registrar, and the substance will be ruled on third parties.By the time, before, or along the Marriage, based on the Agreement, the Spouse could submit the Agreement which will be legalized by Notary or Marriage
29 (3)The Agreement begins the validation since the wedding took place.The Agreement valid since the wedding took place,  unless otherwise specified in Marriage Agreement
29 (4)Along the Marriage, the Agreement, could not be changed, except if both parties agreed to change or renew and does not disserve the third party.Along the wedding took place, Marriage Agrrement, such as for Assets of Marriage or the other Agreement, could not be chaged or revoked,  except Spouse agrees to change or revoke, and the changes or revokes the Marriage Agreement does not disserve the other party

 

There are some objectives of mixed-marriage couples to draw up the Prenuptial and Postnuptial Agreement, as follows:

  1. Separate the Spouse’s Assets, so they do not have joint Assets. Therefore, when they got divorced, assets will be protected and have no dispute over their assets.
  2. The Spouse would be responsible by themselves of their debt, as mentioned on their Prenuptial Agreement.
  3. If one of Spouse wants to sell the Assets, they have no need to ask for permission to the other one.
  4. However, with their Credit Facility, they have no need to ask permission too to the other one, when one of Spouse guaranteed his/her assets on behalf  of one of them.

Moreover, the Marriage Agreement (Prenuptial and Postnuptial Agreement) should be legalized by the Notary or Marriage Registrar. Marriage Agreement could not be changed or revoked, except Spouse agree to change or revoke, but the changes or revokes should not disserve the other party.

The existence of Marriage Agreement would be spawned the legal effect. The Spouse will be bound and should do the Rights and Obligations as mentioned in the agreement. It also should be borne in mind, there are also some legal consequences for each party if the agreement has been infringed.

 

The existence of Marriage Agreement, no more having joint assets and each party will hold assets privately”.

Through the decision, the mixed-marriage spouse who had entered a mixed marriage life without any marriage agreement (pre-marital agreement) could draw up the marriage agreement (either before or by the time of the wedding took place, or along the marriage), so they could separate their assets in order to restore their right of ownership specially for buying or owning a property or land in Indonesia.

Please be informed that Constitutional Court Decision has binding legal force since its decided and no more remedy which could be taken, final and binding, as mentioned on Constitutional Court Law, explanation of Article 10 (1).

 

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