Both, pre and post nuptial agreement should be legalized by Notary.
Wiseman said “trust is the foundation of love”. A marriage couple must always trust his/her spouse, no matter what. Is it true? Well, this may apply for fairy tale only. In the real world, each party has to secure his/her own interest, especially related to property. And fortunately, law has provide a mechanism for marriage couple in securing each party’s property, which is called marriage or nuptial agreement.
Legal Dictionary defines nuptial agreement as “a contract regarding a marriage arrangement, contract regarding the bonds of matrimony, marriage agreement, marriage compact, marriage concordat, marriage understanding, matrimonial contract, pact, pledge, postnuptial agreement, prenuptial agreement and spousal agreement”.
As stated in the above definition, nuptial could be pre or post marriage. And for years, at least 42 years since the enactment of Law on Marriage Number 1 of 1974 (“Law 1/1974”), Indonesia only recognized prenuptial agreement which means an agreement that is concluded before or at the time of wedding ceremony.
The condition then has significantly changed in October 2016, when the Constitutional Court (“MK”) addressed the judicial review decision on prenuptial agreement stipulation in Law 1/1974 and Law Number 5 of 1960 on Agrarian. In the decision, MK stated nuptial agreement is not limited only for prenuptial agreement but also postnuptial agreement or during the marriage exists.
Actually, there is no specific procedure stipulated in laws, either Law 1/1974 and its implementation regulation or Law on Agrarian. Previously, Article 29 Law 1/1974 only mentioned that prenuptial agreement shall be authorized by the Marriage Registrar Officer. But then, MK’s decision added “Notary” as an option to authorized the pre or postnuptial agreement.
Despite of there is no detail procedure of nuptial agreement, here are the steps in creating pre or postnuptial agreement based on common practice:
First, make a consensus. Pre or postnuptial agreement in nature is a contract. This means pre or postnuptial agreement complies to the basic terms and conditions of contract as stipulated in Indonesian Civil Code. One of the basic terms and condition is consensus among the parties. Each party has to carefully agrees on the detail of the agreement.
Technically, just write down all the wishlist from each party. Then, sort them by deliberation what is in or out in the agreement. Based on freedom of contract principle, the parties are free to put anything as detail as possible in the agreement as long it does not violate the existing laws, public order, and decency.
Second, do not hesitate to contact a legal consultant. Basically, the drafting process of pre or postnuptial agreement can be done by yourself. However, if you are confuse, please do not hesitate to contact a legal consultant, either lawyer or notary. Usually, a legal consultant offers a complete service, start from drafting the agreement, registering to the marriage registrar officer, or even amending the agreement if it is necessary.
Third, if you have not contacted a notary which means you drafted the agreement by yourself or assisted by lawyer, thus you come to a notary to authorize the agreement. This refers to MK’s decision. In this stage, the agreement is still open to be revised by the parties, so make sure all the agreed wishlist have been included in the agreement.
Fourth, register the agreement to the Civil Registration Office or the Office of Religious Affairs. This step is specifically necessary for prenuptial agreement, because the party have to submit the agreement before the solemnization of marriage.
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