The Constitutional Court building in Jakarta. (Antara Photo/Hafidz Mubarak A.)

Post-Nuptial Agreement Allows Mixed-Marriage Couples to Turn Tables on Government


DECEMBER 06, 2019

Jakarta. Mixed-marriage couples who forget to sign a pre-nuptial agreement no longer need to worry about losing ownership of properties they bought together after a 40-year-old regulation was changed only recently.

The Constitutional Court (MK) after a judicial review decided to legalize post-nuptial agreement in 2015 and the new rule has been in effect since 2016.

The 1974 Marriage Law only acknowledges pre-nuptial agreement.

The MK ruling makes it easier for mixed-marriage couples to retain ownership of their properties, allowing them to turn the tables on the government who – as the old rule had it – would automatically gain ownership of half of their combined wealth. 

Notary Elizabeth Karina Leonita said in a discussion in Jakarta on Thursday that the 1974 Marriage Law only allows a nuptial agreement to be made prior to the marriage or on the day of the wedding at the latest.

"Now the agreement can be made at any time during the marriage," Elizabeth said.

According to her, the 1974 law often complicates things for Indonesian citizens who marry a foreigner since without a prenuptial agreement to transfer the ownership of a property they bought together to the local partner, the state would, automatically by law, have ownership of half of the property.

This is because in Indonesia foreigners are not allowed to own land or property. 

Many mixed-marriage couples are not aware of this rule, never sign a pre-nup to transfer the ownership of their properties to the local partners and then run into difficulties when they need to sell their land or house.  

Most of the time in a case like this, the sale would not go through since the ownership of the property could not be resolved. 

A pre-nuptial agreement has been seen as the only way out since it allows the partners in a mixed marriage to transfer the ownership of a property they bought together to the local partner, hence preventing the state from taking control of half of it.

Allowing post-nuptial agreements would give mixed-marriage couples more time to do this. 

"This is a positive thing, especially for [mixed-marriage] couples who are experiencing problems with property ownership [and did not make a pre-nuptial agreement]," Elizabeth said.

She also mentioned that in the 2015 review the MK had also annulled a 1960 Basic Agrarian Law that gave a foreigner in a mixed marriage just one year to hand over his or her property to the Indonesian partner. 

However, it is worth noting that there are two forms of post-nuptial agreement.

The first one is where the couple agree that all properties bought prior to the marriage will not be included as part of their combined wealth.

The second is where they agree that any existing individual wealth before marriage will be included as part of their combined wealth until the post-nup is signed. 

Although the Constitutional Court's 2015 rulings were not included in the 2019 revisions of the Marriage Law, a representative from the Citizenship and Civil Records Agency (Dukcapil) at Thursday's discussion, Shanti, said they were valid.

The Dukcapil has been informed on how to carry out the MK verdicts, she said.