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Prenuptial agreement in Indonesia is an agreement you sign with your partner before performing the marriage. The date when you execute it must shows clearly that it is being entered on or before the legal marriage date. I have reason to believe that your legal marriage date may be different than the solemnization date. It because the marriage in Indonesia is considered legal when you perform the religious marriage prior the civil ceremony, unless of course, if you were married in Moslem rites. The latter requires no civil marriage registration. So, the prenuptial agreement must be entered into before the date of the civil marriage, the legal one.
Prenup: The Beginning
Let’s have a look what the law said about it in Article 119 of Civil Code stipulates that from the moment of execution of the marriage, it shall arise by law joint marital property between the spouses to the extent that no other stipulations have been made in the pre-nuptial agreement. There you go, the prenuptial agreement must be executed before the marriage. Beside, if you did not sign any prenup, you will have joint property ownership. This condition is preventing your Indonesian spouse to keep owning a property after she/he married to you.
The validity of a prenup begins when you and your partner sign it and register it with the marriage registry. The laws said it is valid when the officer at the marriage registry is to legaize the prenup. So, they are actively legalising the document. While in fact, they are only conducting registration of the prenup together with the registry of your marriage. This is extremely important because this action giving you a legal recognition to make the prenup valid between you and your spouse. Without this, your marital agreement is nothing but worthless piece of paper. It has no legal effect and won't do any good for your mixed-marriage life in owning a property in Indonesia. The registration of the prenup applicable to all the marriages performed and registered under the laws of the Republic of Indonesia, in accordance with the Circular Letter of Civil Registry Directorate General number 472.2/2017 for Non-Moslem, and Circular Letter of Ministry of Religion Number B.2674/DJ.III/KW.00/9/2017 for Moslem couples.
I am an old-fashioned guy, so I would recommend to register the prenup with a district court. This is to make your prenup valid legally against third party. Your property ownership involves other third party such as the government, banks, creditors, etc. The publicity requirement is met when you're registering the prenup with a court. Please refer to Article 152 of Civil Code that states: "No stipulation in the prenuptial agreement which deviate entirely or partially from the provision regarding legal community property shall apply to third parties, earlier than from the date of copying such stipulations in a public register, which shall be done with the court clerk at the court of justice, within those legal jurisdiction the marriage was executed."
One item missing in your prenup might cause it challengeable. This can be a potential loophole you don't want to miss. At Wijaya & Co, we always pay attention to details of our client’s case. You better have an umbrella when it does not rain, instead of you don't have one and it gets rain. Indeed, it won't stop the rain, but at least it will make you stand in the rain.
Which Prenup is for You?
In the event you are a foreigner planning to marry to an Indonesian, the prenup have certain issues that must be addressed to. First, we have many types of the prenup, You need to get the right one. Failure to do so will affect the ability of property ownership in your mixed marriage. You need to get a prenup with total separation of property. This is applicable to both the assets and debts of the couple. Don't use the one that suggesting joint property ownership. This one is the last thing you need. They have an old Dutch term for this: "Gronds verponding verbood." Forgive my rusty Dutch. The idea of having this type of prenup is because the laws forbid foreigners to own lands in Indonesia. Article 26 (3) of Basic Agrarian Law imposed that in the event by marriage, inheritance, or by any other means she/he loses the citizenship of Indonesia, he/she must transfer the title of the land to other third party or the state will take possession. Please contact me should you wish to draw-up a more suitable prenuptial agreement that just right for you!
In terms of mixed-marriage, I would say the above situation only applicable if you marry to a foreigner and your status in owning the property is legally affected by your foreign spouse. Since the property falls into the definition of joint property, both of you co-own the assets and therefore require consent from each other. This is not good. In any way, the consent may not be retrieved because the foreigner is not in the legal position to own the property in the first place. The ideal situation is no consent is required from either party to execute any property transaction. Either party is independently to act on his/her behalf. The idea is to keep the land with the Indonesian only.
The Assets Transfer
Second, legal constraints as set-out by Article 21 of Basic Agrarian Law certified that an Indonesian is precluded to own a freehold title after she married to you as a foreigner, without any prenup. In the event, the Indonesian spouse passes-away, you may keep the property for 12 (twelve) months. Unless, if you transfer the title to other Indonesian. Transfer means you can sell it, give it away or inherit to your child, provided she/he is an Indonesian, of course. Standard tax rate is applicable for this transaction.
You can also to downgrade the title from Hak Milik (freehold title) to Hak Pakai (Leasehold). It valids for twenty years or so. You can renew it after. This can be the smart solution if you want to keep the property for quite a while. Until you know what to figure out next.
Next of Kin
The third one, you should consider the inheritance to you next of kin. Inheritance issues in Indonesia are referred to a person’s religious affiliation. If you were in Moslem family, the people in layer one, the next of kin in the event one passes-away, are very crowded. If you want the assets distributed to just the surviving spouse and the children, and prevent the other extended families to even touch them, you should consider a last will. Seriously.
You can specify your spouse as an administrator of your assets after you're gone. You can also nominate the other person, like your sister acting as one of the other administrator, should your surviving spouse is not available or is not able to execute your last will. This is what we called estate planning. This has to be done correctly and with the right way. Please contact me should you wish to discuss any further about this. You can drop me an email or give me a call to have a free assessment of how can you move forward with the solution available for you.
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My name is Asep Wijaya. Thank you for reading my posts!
Getting divorce in Indonesia is not easy, especially if you were married abroad, but is still doable. You can rely on the court in Indonesia to dissolve your foreign marriage. This is not the case that they usually see on daily basis. This is about making Indonesia as your primary jurisdiction. Some regular legal issues in terms of divorcing in Indonesia may not be applicable to your case. For example, the marriage must be registered or reported to the marriage registry in Indonesia, you must possess a marriage certificate issued from the marriage registry in Indonesia, or none of you are Indonesian national. Those things are not required to exist in your case. This is a foreign divorce case. It's part of the international civil law in Indonesia.
Reporting of Foreign Marriage
When you're married outside of Indonesia, both of you are foreigners, and either of you work in Indonesia, you don't have to register or report marriage in order to divorce or dissolve your marriage here. You don't have to get a marriage certificate from the civil registry or you don't have to retrieve a marriage book from the Office of Religious Affairs (so called "Kantor Urusan Agama"/KUA). When you're married, you're married. Since both of you are foreigners, no further reporting of your foreign marriage is required with the above marriage registries. Foreign marriage reporting is only applicable to you in the event one of you are an Indonesian national.
This thing has something to do with the term of "Lex Loci Celebrations." Literally, this term means the law of the land where the marriage was celebrated. A marriage or a union of a man and a woman when lawfully and validly celebrated under the relevant law of the land where the two individuals have legal nationality or citizenship, is also lawful and valid in the country where they live (reside or are domiciled).
Principle of Minimum Contact
There are several legal principles that may able to used to support your foreign divorce. They are principle of connection point, Lex Fori, and Lex Causae. Those are the basic legal principle that in order to examine how the court will handle your case. The connection point principle consist of two parts i.e. Primary and secondary connection point. Some called it Minimum Contact. Your case must have minimum contact with the laws where the court has its jurisdiction. Primary connection point is the facts that establish the connection between your divorce case with the place where you will find it has jurisdiction over your case. At Wijaya & Co, we always pay attention to details of our client’s case.
The component supporting primary connection point are as follows:
- The nationality. Both spouses nationality is part of the primary connection point that establish the case between you and your spouse.
- Domicile. You must live in the territory of Indonesia and both you and your spouse are residents. This is where you establish the bonafide residence in order to have a minimum contact with the court jurisdiction in the area where you live.
- The venue. The venue is the exact place where you intend to dissolve the marriage and shall try your case according to the prevailing laws in Indonesia.
As for the secondary connection point in your case is the applicable law under your nationality. If you belongs to the state of California, United States, the court in Indonesia shall use family law in the state of California, especially to establish legal grounds for divorce, spousal and child support. The judge will compare those laws with the same thing that applicable under the Indonesian laws. They need to come to examination where none of the stipulation in California laws do not contradict anything under the Indonesian laws. This is to meet the requirements of keep the public order. Indonesia definitely confirm that they have jurisdiction over the case like this under a very ancient stipulation of Article 16 Algemene Bepalingen (AB). It's an ancient law that still exist in Indonesia. It came from Dutch ruling ages ago, but still exist up until now. In fact, it created the framework of our legal system.
Jurisdiction according to Residence
Under Article 207 of Civil Code, a petition for divorce is to be filed with the court of justice, within whose jurisdiction the husband, at the time of the filing of the petition has his main residence, or in the absence thereof, has taken up actual residence. In the event the husband does not have any known principal residence or actual residence within Indonesia, the petition is to be filed with the court of justice at the location where the wife, at that time, actually resides. So, the actual residence of both spouses may be used in order to establish connection with the court jurisdiction in Indonesia. This is the principle Lex Fori that the laws in Indonesia shall be referred to in terms of determination of the court responsible to try the case.In order to retrieve your legal jurisdiction to dissolve your foreign marriage in Indonesia, you need to have a valid residency here. Either you work in a company located in Indonesia, or you set-up your own company in Indonesian soil operating within the territory of the Republic of Indonesia, you may retrieve a court jurisdiction through that residency. I would say you need any least twelve (12) months minimum in order to retrieve a jurisdiction for this situation.
The above is the minimum contact in order to get a divorce in Indonesia. Please contact me should you want me to explain in plain language about how we can do to assist you with your foreign marriage dissolution or even how you might be able to establish a case under the Indonesian law. Please contact me should you wish to discuss any further about this. You may give me a call or drop me an email so we can take it further.
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My name is Asep Wijaya. Thank you for reading my posts!
Prenuptial agreement in Indonesia is highly recommended for mixed-couples in Indonesia. This is the only way to get around the legal issues exist in your matrimony as imposed by the prevailing laws in Indonesia. What exactly is that? Simple, they don't want foreigners to really own a piece of property in Indonesia. At least, under Hak Milik. It is similar to freehold title that you can keep it for good, no expiry date, and you can inherit it to your children in the event you pass-away.
Literally, they want property ownership for Indonesian citizen only. So, when you're marry to a local partner, and you want your spouse to maintain her/his rights to property ownership in Indonesia, prenup is advisable. Get a good one! Something that could protect you, and not to make you jumpy when you executed it to secure a property purchase. At Wijaya & Co., we always pay the details of our clients' case.
The idea behind a valid prenuptial agreement for mixed-marriage couples is to avoid joint property ownership. Your prenup must promote separation of assets in order to meet the situation required by the Indonesia's Basic Property Law. If you have no prenup, it means there is a joint property ownership in your mixed-marriage. If such thing exists it means that there's foreign ownership in the property. The Indonesian spouse is effected as both the husband and wife co-own the assets. Please contact me to identify the dos and don'ts regarding a valid prenuptial agreement in Indonesia.
When you co-own the assets with your foreign partner, you need to retrieve consent from him/her, which is not possible to get. You need it but he won't be able to give it to you because he is not in the legal position to own a property in Indonesia in the first place. The legal constraints come from the Article 21 of 1960 Basic Agrarian Law stipulates that an Indonesian married to a foreigner is precluded to own a property in Indonesia.
A prenup in Indonesia is governed under contract laws. In order to enter into a valid one, you need to make sure you meet all the requirements for contract eligibility as set-out by Civil Code 1320, as follows:
- You must have consent. Both you and your prospective spouse must agree to enter into a prenuptial agreement, and the consent must be voluntary.
- Both of you must have capacity to enter into an obligation arise under the prenuptial agreement you're about to sign. Each of you are authorized to conclude agreements, unless you have been declared incompetent by law. The individuals incompetent to conclude agreements are, among others minors, and individual under guardianship. In order to have a competency to sign a contract in Indonesia, you must at least aged 21 years old. You need consent from your parents when you're younger.
- Your prenuptial agreement must have as specific subject matter. Furthermore, the law stipulates that only tradable properties may form the subject matter of the agreements. Your prenup is about property ownership such as land, house, apartment, etc. They are immovable property and it is tradable.
- Your prenuptial agreement must have a permitted cause. Any agreement without a cause, or concluded pursuant to a fraudulent or prohibited cause, is not be enforceable.
The contents of your prenup must not include reduction or limitation to several rights of the husband, wife, and the children born into their marriage. Your prenup must not have a clause that limits the authority of a husband. The agreement does not interfere with the rights, which originate from the man, in such capacity, and with the paternal rights, neither will it interfere with the rights which the law has granted to the longest living spouse. They are also entitled to stipulate, that, notwithstanding the legal community property, the immovable assets, the recordings of State debts, other negotiable instruments and indebtedness, attributable to the wife, or those, which, during the course of the marriage, will be added to the community property as her share, will not be transferred or encumbered by her husband without her consent.
Your prenup must not consist a clause that limits the authority as parents. The agreement must not prejudice the rights afforded to the man, as head of the legal union; without prejudice to the rights of the wife to control the management of her movable and immovable assets, and to enjoy her personal income freely.
The rights of a surviving spouse may not be limited. It must not reduce the rights of surviving spouse and the children born into their marriage to inherit the deceased spouse. The prospective spouses, may not in the prenuptial agreement, renounce their legal obligation regarding the inheritance of their descendants. In addition, they cannot regulate the inheritance of their descendants in the prenup. You need to write a separate last will to distribute assets in the even you're pass-away.
You may not to draw-up a clause in your prenup that either party has larger portion in a debt or loan. They may not enter into an agreement to the effect that one is liable for a larger portion of the joint marital property debts than the other. That just not fair!
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My name is Asep Wijaya. Thank you for reading my posts!
Last will in Indonesia is a legal instrument to distribute your assets after you pass-away. This is your preferred way to get the people you care most to inherit your assets notwithstanding any prevailing rules and regulation regarding inheritance in Indonesia. You can distribute any rights and obligations in the field of property law to your next of kin.
There are three (3) different inheritance laws in Indonesia, and you must specify one law in your last will. We have Customary Law, Islamic Law, and Civil Inheritance Law. The three laws are very different to one another. You may opt one law, regardless your religion affiliation, and once you made the choice, you must stick to it and your family members must respect your option.
As the person who sign a last will, you will be called a Testator. In order to have a valid last will, you need to comply with several terms and conditions. Some of them are simple, some of them are quite tricky. But let's take it one step at a time. Shall we go over the rest of them?
Minimum Age
In order to be eligible to write a last will, you must at least 18 (eighteen) years old, and you're married. This is the legal requirement that you must comply with. There's no exception for this, otherwise your last will is challengable. Inheritance matter is for real.
In accordance with the Article of 897 of Civil Code imposed that minors, who have not reached the full age of eighteen years, are not allowed to make wills. The competence of the Testator shall be judged based on the condition that he was in at the time that the last will was made. At Wijaya & Co., we always pay attention to our clients' case details. Please contact me should you require any further assessment regarding your valid last will in Indonesia.
The Subject Involved
The people involved in this case are the deceased with assets to distribute. He/she is called the Heiress. The other that involved in this are called the Heir. This is the people that eligible to inherit after meeting the legal requirements. The heir must be born at the time of the inheritance was opened, and he must alive.
The Capacity to Inherit
You must have legal capacity to inherit from the deceased. A person must meet the following requirements in order to eligible to receive an inheritance:
- They must have blood relationship with the deceased. They can be his child, siblings, father or mother;
- They must have a marital relationship with the deceased. They can be either a wife or a husband of the deceased.
How Can You Inherit?
There are several ways you can inherit something from the deceased. You can inherit by law by becoming yourself, or by replacing someone's place. As a child of your parents, by law you have all the rights to inherit all your parents' assets. You can also acting as a replacement of your parent to receive inheritance from your grandparent. This replacement capacity may only happen in the event your parent has passed-away.
You may not be the person related to the deceased via blood nor a marriage. The other way you can inherit is through a last will. The deceased must include you in his last will as one of his next of kin to receive an inheritance from him after he's gone. There are strict terms and conditions that must be met in order to eligible to inherit via this route. The maximum you can inherit under this scheme is 1/3 after deducted with all the liabilities and expenses.
Executing Your Last Will
Following the death of the testator, the last will shall be submitted to the probate office. Probate is the proceeding of establishing the validity of a last will. In Indonesia, the government office like this called "Balai Harta Peninggalan" (BHP). The last will must be submitted to the probate office within the jurisdiction of the available inheritance is located. This board open the last will and draft minutes of the submission and the opening of the last will, and is include details therein of the condition that it is in. Thereafter be returned to the your legal representation for further execution of the inheritance.
The Article 955 of Civil Code imposed that upon the death of the testator, legal title to the properties shall devolve upon the beneficiaries named in the last will as well as the individuals to whom the law grants part of the inheritance.
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My name is Asep Wijaya. Thank you for reading my posts!
Police clearance certificate in Indonesia also known as Surat Keterangan Catatan Kepolisian (so called “SKCK”). This is the police certificate that certifying your crime record. Previously, known as Good Conduct Certificate (Surat Keterangan Kelakuan Baik/SKKB) certifies that you are not involve in a crime until certain period of time. Both terms are referring to the same thing.
The police clearance certificate valid for six (6) months since date of issuing. You may submit a renewal application when you think you need a longer timeframe.
If you stay in Indonesia for more than six (6) months, according to our experience, the following countries would require a police clearance from Indonesia:
- Italy;
- Canada;
- Australia;
- New Zealand;
- United States (Spouses applying for a green card within the United States have to lodge police records instead of police clearance certificate).
Terms and Conditions
Police clearance in Indonesia can only be issued if you stay in Indonesia under a KITAS (Kartu Ijin Tinggal Terbatas/Limited Stay Permit). This is your residency permit as issued by the local immigration office in Indonesia. The KITAS can only obtained through sponsorship of employment or spousal.
Supporting Documents
If you are a foreigner, the required supporting documents for the application of police clearance are as follows:
- Copy of your passport;
- Copy of your KITAS;
- Copy of police report such as SKLD (Surat Keterangan Lapor Diri/Self Reporting Police Certificate), or STM (Surat Tanda Melapor/Reporting Certificate). Both documents serves the same purposes. These documents usually obtained when the first time you were here in Indonesia. This is the record that establish your presence within the police database.
- Fingerprints form;
- Power of Attorney.
Some people might not have all complete supporting documents that cover the period of your stay in Indonesia, or you just don't have the required documents but the police clearance is imposed on you by the immigration authorities. This is not a personal attack on you. This is what happen if you're working with bureaucracy everywhere. Please contact me and we'll discuss how you can move forward with your application.
If you are an Indonesian, the police require the following supporting documents:
- Attestation from the local Kelurahan/Kecamatan;
- Copy of your KTP and family card;
- Copy of your birth certificate;
- Photograph 4 x 6 cm.
Prerequisite Requirements
The police headquarters require you to supply the police clearance from your local Polres (local police precinct) in the city where you live, before they can issue you one that valid internationally. The reason behind this is because the Polre may know better about your background than the headquarters.
Fingerprints Formula
The police clearance certificate from Indonesia is very complete and has the details of your biographic information, including your fingerprints formula. Each person has very specific fingerprints and non-identical from others. Just like DNA. It consist of number and letters that represent pattern of your fingerprints.
This is the reason they may require you to present at the police precinct. They need to take your fingerprints with ink, and examine it in order to retrieve a formula. Please let me know should you are not be able to come to the precinct for fingerprints collection. In some cases we handled, other precinct fingerprints formula are also acceptable for further examination.
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My name is Asep Wijaya. Thank you for reading my posts!
When you're purchasing a land and/or a house in Indonesia, you're dealing with a seller or the representative of the seller. You must deal with the owner of the property in order to protect your future investment. The owner must have legal rights to own the property that you are looking to buy. When he has the legal rights in the property, he must has the title of ownership that can be transferrable to you as the buyer.
He must be able to present his certificate of title to prove his ownership. The certificate is issued by the government of the Republic of Indonesia. The authorized government agency that responsible for issuing a certificate of title called Badan Pertanahan Nasional (National Land Registry), so called the BPN. They have offices in every city in Indonesia.
The certificate of title for the house you are going to buy is issued by the land registry office where the property located. The property such as land, houses, apartments are classified under the category of Immovable Property. The legal owner of the immovable property is the person whose name printed on the title certificate.
Ownership of the Property
The ownership of immovable property is different with the movable ones, such as cars, etc. The legal owner of this type of property is the one whose name(s) printed on the certificate of title. If the ownership has passed-away, his next of kin is the property’s legal owner. They usually consist of the surviving spouse, and his/her children. So, if the owner of the property has gone, make sure you’re dealing with the right person.
As for the movable assets such as cars, the person that controls the property can be considered as the owner, although you might want to check the ownership of the certificate as well. Please contact me should you wish to discuss any further about this.
The certificate of title in real estate property is a strong evidence that serves as proof of ownership, as well as proof of registration from the local land registry. Article 19 of Basic Agrarian Law certified that the government of Indonesia is conducting land registration in order to provide legal privilege to the owner whose name printed on the certificate of title. You will automatically be included within the land registry database and therefore are subject to the prevailing laws and regulation in Indonesia.
Background Check
It is very important to conduct a background check before you’re making any further transaction with the seller of the real estate property. This will give you sufficient information about the current status of the property, as well as its title. The information is enough to get you to decide whether you want to proceed with the sale and purchase transaction.
You will see if there’s any mortgage put on the property. If yes, you need to make sure the owner to remove the mortgage first, before making any further transaction with you as the buyer. You will also find out if the property is under any potential dispute or no. The background check is extremely important and I would suggest not to proceed with the transaction before the background check has been finalized. At Wijaya & Co, we always pay attention to details of our client’s case.
Transfer of Title
You need to perform a proceeding of title transfer when you purchase a real estate property. Your name must be registered as the latest owner of the property after you executed the sale and purchase agreement, and remit the payment to the seller. They will include the details of the agreement you executed with the seller of the property, as well as the date when you entered the agreement.
They will print your name as the current owner of the property on the certificate of title. This proceeding involving the local land registry where the real estate property is located. You will be recognized as the legal owner after the proceeding completed. Please contact me should you wish to discuss any further about this.
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My name is Asep Wijaya. Thank you for reading my posts!
Marriage in Indonesia is the basic foundation for almost everything in your life. We take it very serious as failure to do do will make you end up with several consequences. It affects the whole aspects of your family such as children, inheritance, property ownership, including the relationship between you and your partner.
In order to prove the importance of the registration of a marriage, Indonesia has more than one laws during the time of early independence up until now. The recent one was issued in 2018 by the Ministry of Religion Affairs under regulation number 19 of 2018 regarding Registration of Marriage. This regulation issued for Moslem couples marriage with the Office of Religious Affairs (Kantor Urusan Agama/KUA) as the government institution responsible for conducting and keeping records of the marriage. This new regulation introduced new product as proof of the registration i.e. marriage card. Apart from the existing marriage booklets, the marriage card has details about your marriage too. The card is the short version of your marriage evidence.
The procedures for marriage registration must be initiated by lodging a Notice of Marriage Intention. The notice must be filed within ten (10) working days before you can perform the marriage. If you wish to get marry less than ten (10) days, a special dispensation is required from the district head in the area of your residence. People usually plan the marriage ahead. So, getting marry in a short notice usually would require special attention. At Wijaya & Co., we always pay attention to the details of our clients’s works.
The notice of marriage intention lodged to the marriage registry must be supported with the following documents:
- Copy of your birth certificate;
- Copy of your family card;
- Copy of your KTP;
- Originals of N forms;
- Divorce certificate, if applicable;
- Death certificate, if applicable;
- Copy of your passport, KITAS, and the Non Impediment Letter printed on the letter head of your embassy in Jakarta, applicable if you are a foreign citizen.
Upon receipt of your notice of intention to marry, they will conduct documents verification by interviewing you, your partner and your parents. The interview is to identify any potential legal constraint that may be exist in your relationship. They will deny your application in the event you have incomplete supporting documents or they identify any potential legal constraint. They will reject application and they will let you know the reason why. Please contact me for getting your application accepted smoothly.
In the event they accept your marriage notice, they will post it for public for ten (10) days until you’re up for the wedding. The notice shall also be published in other media as deemed necessary. This is in order to reach public as much as possible. It is according to the principle of positive publication with the registry of marriage in Indonesia. Furthermore, the registration of the marriage shall be conducted after you performed the marriage.
Your marriage may be performed after meeting the following requirements:
- Bride and groom;
- Marriage guardian;
- Two witnesses;
- Consent that consist of Ijab Qabul performed by the guardian and the groom. This is very interesting as the father of the bride as the guardian consent the marriage with the groom. It symbolises that after the marriage, the bride is no longer her father’s responsibility but the husband’s.
The marriage books as proof of marriage registration will be presented at the end of the marriage ceremony to both husband and wife. So they will give you two original marriage booklets with two different colora: brown and green.
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My name is Asep Wijaya. Thank you for reading my posts!
The laws and regulation in Indonesia recognize two (2) types of public and private adoption. Public adoption is applicable in the event, the child was abandoned or neglected by his/her birth family, and raised by a foster care institution managed by the government. The relevant institution in this matter is Ministry of Social Affairs. As for the private adoption, the proceeding takes place between the biological parents and the adopting parents directly.
Adopting your step child in Indonesia can bring your family close together. You adopt your spouse's child, and legally you are family as if the child was born into your marriage. Your spouse may insist you to do it, but your willingness to do it that keep the marriage intact. You know, things a man do for his wife and his family.
There are some pointers that you need to be aware of regarding the adoption of your step-child, they are:
Consent Required
Consent is required from the biological parents, both the child's father and mother, if the child was born into a legal marriage. In the event the child was born out of wedlock, the consent from the child's mother is a must. The mother has full authority as vested by the Civil Code as related to the child, including when the alleged father wish to acknowledge the child. The authority of the mother solely comes from the Article 284 of the Civil Code: "No acknowledgment of a natural child is, during the lifetime of the mother, notwithstanding that she may be of Indonesian descent or descended from a similar indigenous group, be accepted, if the mother does not approve the acknowledgment." I am not saying that as the alleged father of the child you don't have any right at all, you do. The Constitutional Court confirmed your rights, but you must willing to go the extra mile in order to do that.
The Best Interest of the Child
The adoption proceeding that you are conducting is promoting the interests and welfare of the child. You must be able to prove this by supplying information that you are doing everything in your power to provide the child. You need to prove that the aim of the adoption is obtaining the welfare and protection of the child. You need to enter into a declaration that you are willing to be responsible for supporting the child on daily basis.
Habitual Residence
Basically, we pride ourselves with our nationality principle that all the Indonesian men are subject to the Indonesian law, wherever they are. This is the basis from the continental legal system. If you were married to a foreigner, your foreign spouse must use the Indonesian partner's jurisdiction and therefore a choice of forum is applicable. You may choose the jurisdiction of your Indonesian spouse through her/his domicile. This can be seen on his/her ID card. Article 14 of Administration of Population Law certifies that the ID card (so called KTP/Kartu Tanda Penduduk) is the official identity of a resident and is valid within the entire territory of the Republic of Indonesia. So, this is your jurisdiction as well as our laws do not require you to have a habitual residence to perform an adoption of your step-child in Indonesia.
Indonesia is not one of the Common Law countries that imposed you to have a minimum contact by having a residency at least for six (6) months. Nevertheless, you need to further consider about the requirements from your country of origin if they require you to have a residency in Indonesia. You may retrieve a spousal dependent visa in order to meet the requirement imposed on you regarding the habitual residence during the adoption proceeding.
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My name is Asep Wijaya. Thank you for reading!
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Child born out of wedlock in Indonesia has some key issues in its proceedings. If you have a child born out of legitimate marriage, you should know these and make sure you don't get conflicted by our legal system. First, we have now amended Article 43 (1) of the Marriage Law stipulates that child born out of wedlock not only has civil relationship with its mother and her family, but the child also have civil relationship with the biological father, and his family as well. So, you have the whole nine yard, both the father and the mother’s side. This has nothing to do with the marriage between the mother and the alleged father. Let’s go through the rest of them.
The starting point to draw a fine line between the child and the father, is by having the father to acknowledge the child. According to the Article 280 of Civil Code, the acknowledgment is to create the civil law relationship with the child, and its father or mother. After the acknowledgement, you may draw anything between the two of them. You may establish a child support, parenting and visitation. The child is also entitled to use your family name. He/she might be able to claim as your heir in the inheritance matters. Sure you want to do it? If you’re positive, please contact me at Wijaya & Co, if you want to discuss any further. We have plentiful of portfolio and experience to assist you to navigate the legal system in Indonesia.
Furthermore, the amended Article 43 (1) imposed that a claim made in order to acknowledge the child and his father must be supported with a scientific evidence, like DNA test, as well as two witness that willing to take a stand at the court of law. The acknowledgment of an out of wedlock child must be approved by the court of law. The court verdict must shows the origin of the child, the acknowledgment made by the father, and the consent by the biological mother. This is an integrated proceedings. You can’t have one without the other. Cross examination is a very important session. You need to establish a case and it must be done with the evidence rule in the Civil Code. You need to make sure the evidence is comprehensive legal binding, and acceptable to the judge, and leads to the expected results.
The idea to come-up with the amended Article 43 (1) is to provide legal protection for the child born out of wedlock. The protection may be in the form of provision of complete identity. This is very important for essential matters such as school, travel documents, etc. It is the duty of the state to issue a document regarding the origin of the child with full names of the parents and printed on a birth certificate. Please contact me should you wish to discuss any further about this.
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My name is Asep Wijaya. Thank you for reading my posts!
Getting marry is going to be the best decision you'll ever made. It is a simple decision with the a future lying ahead of you. They said the marriage is the foundation to everything in your life, among other, property. Both husband and wife are to have joint property ownership after the marriage, if they did not sign anything like a prenuptial agreement. Sometime, you don't get one just because you thought you did not need one. But now, the Constitutional Court revised the Article 29 (1) of the Marriage Law that the marital agreement may be entered as well during the course of marriage. The verdict number 69/PUU-XII/2015 officially created a postnuptial agreement on October 27, 2016 as one of the legal instrument in management of your assets in the marriage. Now, you can have one when you feel you need one.
The ideas behind this decision to officially allow the postnuptial agreement for married couples were to create separation of property and assets between husband and wife. Their separate assets are protected. No drama in fighting for property division. The same idea also applicable to debts. Husband and wife shall responsible for debts they created. The postnup therefore shall create separation of liability during the course of marriage. Furthermore, no consent is required from each of the party in the marriage in the event they want to sell their own separate assets. As for loan application with the bank, neither party is required to obtain consent from their spouse in putting their separate assets as a mortgage. In view of the above, the court wants both parties are totally independent in managing their assets. This is a fine legal reasoning. The Constitutional Court, they keep-up with the contemporary developments within the society in Indonesia. Awesome!
The validity of the postnup shall be initiated as soon as you’ve signed it. It is applicable since you entered it, and it is advisable not retroactively backward. It is applicable on actual date. This is to avoid any conflict of interests with any third party, because since the marriage date the couple might have been created jointly owned marital assets. It is very difficult to differentiate which property belongs to separate or joint property. You may potentially jeopardize the third party’s interests such as banks, and other investors in your marital assets. If you should retroactively draw the postnup back to the marriage date, at least you need to have the properties included into the exhibit and make sure they are mortgage-free. Apart from the ones listed in the exhibit, they belong to both of them. The couple is to have equal shares. This will also include the creditor(s) having a portion in the unlisted properties for the part that a mortgage has been put under. You may want to contact me here to discuss any further about this matter.
The postnup created under the verdict from the Constitutional Court has potential challengeable issues. The verdict put a notary as the party that legalize the postnup. According to the civil law procedures doctrines, this is not a proper ruling. They put the role of a notary to substitute the authority of a judge. You see, having a prenup and not having a prenup is a big deal, because it creates a property separation during the course of marriage. This situation is full of potential issues because when you're having a property, whether you like it or not, it involves other third party(ies) too, not just you and your spouse. The other third party such as bank as the lender if the property under mortgage, the government through the BPN (Badan Pertanahan National/National Land Registry), and other party that may have interest in your assets acquired during the marriage. At Wijaya & Co., we always pay attention to our clients' details and therefore issues are identified before they become potential hiccoughs.
By having a notary legalizes a postnup, they are driven to declare some new legal situation. Last time I checked, this is the domain of a court through their legal instruments i.e. court decree. They called it a Declaratory Verdict. It creates a new legal facts, a new situation. For instance, declaring from joint property ownership to separation of ownership. As far as I concern, the court have a very established sets of law in civil procedures. Before finally reaching the verdict, the court must conduct a cross examination. This is a very important phase in civil legal system. If you were not happy with the verdict, you may file an appeal to the higher court within 14 (fourteen) days since the date the verdict reached. If there was nothing within that set of time-frame, the court finds that you are happy with the verdict, and everybody can get on with their lives. Your Indonesian attorney may proceed to draft a postnup for you.
You can't have those situations if a notary is to legalise the postnup. The convert from joint property to separate property, is not legally assessed with substantial rule of evidence, like the one they're doing it at a court proceeding. If one of the spouses was not happy, or seek any potential leeway that may benefit them in a divorce case, they might want to revoke the prenup. I would say they may be able to do that. Therefore, the postnup as its final outcome, is challengeable, and may be voidable. I would suggest you should consider it with full discretion. If your situation is full with substantial marital property, you should decide if any further reasonable action may be taken to secure your interests.
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My name is Asep Wijaya. Thank you for reading my posts!
Disclaimer:
The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found anywhere in this article nor in this website.
Marriage performed outside of Indonesia is not automatically legal and recognized. You must willing to go through the extra mile in order to gain recognition under the laws in Indonesia. We called it reporting of foreign marriage. This thing has substantial implication to you and your family. The marriage indeed is the foundation to everything important in our lives i.e. the children, property, inheritance, etc. You make a mess with the marriage, you're messing with your own life. Not to mention your children. So, whatever you do, always think twice.
The foreign marriage reporting has a set of time frame as imposed by the prevailing laws. You need to comply with it. They said don’t put till tomorrow what you can do today. This must be the reason why they put such a time frame in place. The reporting must be made within 30 (thirty) days since you return in Indonesia after the marriage. The older version of the law sets more leeway to report it i.e. one year. They use the new rule, without revoking the old one. The old one is the 1974 Marriage Law, and the new one is the 2003 Administration of Population Law. The old law is considered as general regulation, and the new one is a very specific law governing certain issues. The marriage registry in Indonesia, they tend to use the 2003 for governing your foreign marriage reporting. At Wijaya & Co., we alway identify the issues before they can potentially turns into a problem.
There are two conditions or requirements that must be fulfilled in order to create legal recognition with the foreign marriage in Indonesia. First, formal requirement. The marriage is legal according to the local rules and regulation where it is performed and registered. So, when you’re married, you’re married. The laws in Indonesia will mirror anything that takes place in the country where the marriage performed and registered. Second, material requirements. This conditions applicable absolutely to the Indonesian citizen. It must refer to the prevailing laws and regulations in Indonesia especially regarding marriage. Issue under this criteria is, among others, the minimum age requirements to get marry. Mixed religion is also part of the material requirements. Failure to meet this requirement, the marriage may be voidable. It may be challengeable at the court of law. There’s a slight possibility that the marriage may be legal in the country where you register it, but it might not be recognized under the laws in Indonesia. It’s a quite tricky situation, please contact me should you wish to discuss any further about this. Things may be overlooked. This potentially can turn into something inevitably unpredictable. This can be used as one of the grounds for an annulment. See, there's more to this than meet the eyes.
Article 56 (1) of the Marriage Law imposed strict requirements as well as time frame for foreign reporting marriage to the Indonesia’s government. This law was retrieved from the Principle of Nationality that every Indonesian citizen submit themselves to the laws of the Republic of Indonesia, wherever they are. You see, this is the interesting part of your foreign marriage. The idea behind the issue is an ancient government ruling took place from the colonial government back in 18 century. It was the Algemene Bepalingen ("AB") in the Article 16. This ruling is still there until today and become the basic law of how we determine our individuals can access the legal system wherever they are. We proud ourselves that the laws of Indonesia is always prevail in the life of every Indonesian, even if they are not on the Indonesian soil.
So, the other inevitable legal consequences for getting marry in a foreign country is, among others, without you even realize, you’re inviting other foreign law elements into your marriage life. Not to mention, if your spouse is non-Indonesian. Another foreign law element is joining the club. You know, two is a company. Three is a crowd. You even have higher potential that you may overlook things. But remember, things can be mitigated with the help from the experienced international civil law in Indonesia.
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My name is Asep Wijaya. Thank you for reading my post!
The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found anywhere in this article nor in this website.
Prenuptial agreement in Indonesia is highly recommended to mixed-marriage couples. They are the ones with different nationalities i.e. Indonesian and foreigner. This matter has been an issue since 1960 as governed by the Basic Property Law. The only legal way to get around this issue is by having a prenuptial agreement. This document allows you, the mixed-marriage couples, to own property in Indonesia. The ownership title is under Hak Milik (Freehold Title). It is the strongest title and can only be owned by an Indonesian national.
Every marriage registered under the laws in Indonesia will automatically have joint property. This situation is applicable to all the properties acquired during the course of marriage. As for the assets acquired before the marriage, gifts from third parties, and inheritance, they are under the control of each party. This is not a favourable condition for mixed-marriage couples as the Indonesian spouse is precluded to own a freehold property. It simply because the marriage to his/her foreign spouse and the matrimonial regime the Marriage Law created. Article 35 of 1974 Marriage Law imposed that the parties may create different arrangements, and it is legally acceptable. The arrangement made by the parties before they get marry is called prenuptial agreement. Both parties are allowed to create such different terms and conditions in the property ownership effective since the date of the marriage. Please contact Wijaya & Co., for further details on this matter, I would certainly love to assist you.
We have three (3) types of prenuptial agreement in Indonesia. The first one is the type that creates separation for the assets acquired before the marriage, and joint the assets during the course of marriage. The second one is the type that shares the benefits or profits during the course of marriage, but not the loss and its related liabilities incurred down the line. The last one, here's the best part, this is the type of total separation both before the marriage and after the marriage. The separation takes place both to the profits, benefits as well as the loss and liabilities arising out of the assets acquired before they get marry, and after they tie the knot. This situation gives both parties, including the Indonesian spouse in the mixed-nationalities marriages, to act freely and therefore require no consent from his/her foreign spouse to dispose the assets.
The prenup will take legal effect upon the marriage of the parties. In the event they cancel the marriage, the prenup will not be valid. You need to make sure that your prenup is being registered with the court. This is to meet the third parties' legal interests in your property ownership in the marriage. Without it, your prenup will not be recognized legally. I'd say it's challengeable. We'll discuss later about it. Apart from that, it must also be registered at the marriage registry. You need to make sure the contract can be legally upheld between the two of you, husband and wife. I've seen many prenups missing those two important thing. You should consult your experienced family law attorney for further inquiry on this matter. At Wijaya & Co., we have team of lawyers who loves to give you a detailed advice on your case. Some of those missing items may require further legal proceedings with the court.
The arrangement to enter into a prenuptial agreement for mixed-marriage couples is according to the stipulation that a husband has an obligation to protect his wife. He also has the obligation to provide her needs according to his financial ability. By doing the property separation in the prenup, the husband allows his wife to hold the property under her own name. It's preserving her/his rights as an Indonesian in owning freehold title. This may a big deal for some men, but the ones that doing it are the one that set aside ego and put his family interests first. Article 34 (1) of the Marriage Law imposed that failure in performing his obligation may be used by his wife to file for marital dissolution to the court of law. The application may be carried-out under the ground of abandonment. So, having a prenup is something that you might want to do. It protects your family, giving your Indonesian spouse a chance to preserve his/her rights in owning the property in Indonesian soil.
My name is Asep Wijaya. Thank you for reading my posts!
Disclaimer:
The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found anywhere in this article nor in this website.
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