Last will is a legal instrument to distribute your assets to your next of kin after you’re gone. This is a very important document, and you want to do it the right way and properly. It’s because the property of the deceased belongs to the heirs, as long as there was no valid decision made in this matter. 

The decision you’re making on the testament will determine who gets what. Basically, it is a statement of your last will to the surviving persons at your disposal. It is also revocable when you’re still alive to do so. It’s totally under your control. The last will is your official statement to nominate several administrators to administer your assets with the terms and conditions according to your own preferences. 

The Definition

You see, let’s find out what is the official definition of a last will. Article 875 of Civil Code stipulates that: “A testament or last will is a deed, containing a statement of an individual's wishes and intents to take effect following his death, and which deed can be revoked.” The deed must specify a clarity regarding the assets and the heirs who will receive them. The terms and conditions written on your last will must prevent disputes from taking place between your heirs. 

Prenup or Postnup

You also need to have a prenup or to consider signing a postnup prior to writing a last will. You need to make sure that you have full control and authority in disposing of your assets, as they may be part of your joint property with your spouse. Your last will can not violate stipulations in the Marriage Law because it may be voidable. Your heirs may challenge it at the court, and things can go messy. 

The reason why you need to have a prenup or postnup before you write a last will is because you need to make sure that the assets you dispose of in your last will are totally yours. Not part of community property with your husband or wife. If they do, at least you need their consent. You can not dispose of a disputed asset on your last will.  

So, check again if your prenup got you covered for this. Otherwise, please consider getting a postnup before you write a last will.

Separate Assets

You may dispose of your own separate assets on your last will. This is doable. Things like your assets acquired from your parents, inheritance, or from other third parties. They are disposable in your last will.

Under Article 36 (2) of the Marriage Law that stipulates: “In the matter of separate assets of husband and wife, they have full authority in committing  legal action for their own property.”

Keep On Updating It

You need to update your last will to become recent and current. You may keep updating it according to your need to reflect your current situation. You may do so as long as you live. Your last will may only be executed when you’re pass-away.

I can't stress how important it is for your last will to get updated in regards to the terms and conditions, your heirs, and the administrator or executors nominated on your last will. 

The Best Type

There are three types of last will in Indonesia, but the best one is an Open Testament. It is being kept as an authentic deed so when you pass-away, the probate process will be able to determine your wishes and they can be easily executed.

I would not recommend the Closed Testament. This type is to conceal the terms and condition of your last will. Potential disputes may arise in the future. Your heirs may file a lawsuit to revoke your last will. It’s the last thing you need.

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My name is Asep Wijaya. Thank you for reading my posts!

In Indonesia, we have two types of marital agreement: Prenuptial Agreement, and Postnuptial Agreement. Both of them are valid, legally recognized, and provide strong protection in terms of property ownership. In the event those terms are new to you, let me explain a little bit. Prenuptial agreement is a contract or an agreement entered into between husband and wife before they get married. Postnuptial agreement is a contract or an agreement signed by husband and wife after they got married, or during the course of their marriage. 

Those agreements, both prenup and postnup,  are also giving you some sort of extra protection.  You might think you don’t need it in the early course of your marriage, but if a divorce occurs, you are strongly protected. The agreements that are drafted by our Indonesian lawyers, either prenup or postnup, are upheld by the court, all the way from the Republic of Indonesia to the United States. This is a recent testimonial from a client. A very pleasant surprise indeed. 

Stay tuned, and I will tell you some more!

Property in Your Marriage

Basically, properties acquired during the course of marriage are joined. They are becoming community property. You and your spouse own them together. You guys own them 50:50. It’s quite a beautiful thing, having something that you can call “Ours.”

Here’s the legal ground for that opinion, the definition of Community Property according to the Civil Code in Indonesia under Article 119 is: "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 prenuptial agreement." 

This is the ancient legal basis for the prenuptial agreement within the legal system in the Republic of Indonesia. So, that’s the thing, if you want to create a prenuptial agreement, it must be done before the marriage date. You need to execute it before or on the date of your marriage. That’s the least you can do. 

Now, in the modern era, we have Marriage Law enacted in the year of 1974. We called it Law number 1 of 1974 regarding Marriage. This one also governs marital property acquired during the course of your marriage.  

The Marriage Law stipulates in Article 35 as follows: 1. The property acquired during the course of marriage is joint marital property; 2. Separate property of husband and wife, and  property acquired respectively as a gift or inheritance are under the control of each party as long as the parties do not specify otherwise. 

What Is It About?

When you’re dealing with a marital agreement such as prenup and postnup, mostly they are involving property and other issues related to property. It’s the basic issue that can be included into your prenup or postnup. 

The legal ground to support that opinions is Article 139 of Civil Code that stipulates as follows: 

“The prospective spouses, may, pursuant to a prenuptial agreement deviate from the rules stipulated in relation to legal community property, provided that they do not contravene proper morals or public order and that they comply with the following provisions.” 

Basically, marital agreement both prenup and postnup are about property, including but not limited to property related issues. 

Legal Ground 

In Indonesia, both prenuptial and postnuptial agreements are governed by Article 29 (1) of the 1974 Marriage Law and the Verdict of Constitutional Court number 69/PUU-XIII/2015 as follows: 

“At the time, prior to taking place or during the marriage knot, both parties with mutual consent can enter into a written agreement which is legalized by the marriage registrar, after which the contents also apply to third parties as long as the third party is involved.”

The legal ground has been amended in 2015 in order to include marital agreement that is being executed during the course of marriage: postnuptial agreement. So, the above definition is the most recent and updated with the current situation. 

Types of Marital Agreement

Therefore, according to the definition in the Civil Code, there are three (3) basic types of prenuptial agreement, they are:

1. Full separation of property. This is the most complete version that includes separation on the property, and joint in loss and profit. 
2. Separation on separate property. This type of marital agreement is only applicable to property acquired before the marriage, as well as to gift and inheritance. Any property acquired during the marriage shall be joint and become community property. 
3. Separation of profit and loss. This is the type of marital agreement that covers only joint profit. In terms of loss to the assets, it is a separate loss retained by each party within the marriage. 

It’s a Contract!

I believe a marital agreement, especially a prenuptial agreement can do just more than a property. It can include anything as long as it’s a legal cause. It’s something legal that does not violate the laws and the rights of other people. This is what they called the conditions that are required for the validity of agreements. So, pretty much you can include anything into your prenup: custody of the child, among others. 

On one occasion, I offered a clause in our prenuptial agreement to a fun loving couple. Something that they didn’t think they needed: joint custody of their child in the event of divorce. Both of them didn’t refuse. They agreed to my offer. Love was in the air. I could almost smell it.  

Sadly, they got divorce. They have one child. She wanted to keep the child for herself, so she committed child abduction. She kidnapped the child and brought him overseas. Our drafted prenup was upheld by the courts in South Jakarta and  one of the states in the US. The father was entitled to joint custody as well as the mother. But since the mother closed the access to the other parent, which is against the law, her custody right has been revoked by the court. 

So, I should refer to the Article 1338 of Civil Code that is imposed: “All valid agreements apply to the individuals who have concluded them as law.” The prenup is the law of the game between the two of you. Therefore, make sure you get a valid one. The above story can be shown as proof that a piece of paper can protect you, even in a foreign country.

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My name is Asep Wijaya. Thank you for reading my posts!

Foreign marriage in Indonesia is a marriage between two foreign nationals. It must be conducted under the laws of the Republic of Indonesia. Their marriage must be performed according to their religions and belief. They must have the same religion before they can perform the marriage. After that, they can register their marriage with the marriage registry in Indonesia. We have Civil Registry in the event the couple is non Moslem. We have Office of Religious Affairs in the event they are a Moslem couple.

In order to register your marriage in Indonesia, you need to supply the following supporting documents:

1. Certificate of Non Impediment Letter from your embassies in Jakarta;
2. Birth certificates from both partners. This document is a civil certificate. So, it is required in order to deal with civil matters in Indonesia. 
3. Copy of your passports;
4. Certificate of domicile, in the event you are a Kitas holder.

Basically, marriage in Indonesia is under monogamous principle. A husband can only have one wife, and a wife can only have one husband. In the event that you wish to take a second wife, you need to have a court order and the court may impose that your first wife to appear at the court for giving the consent. 

Legal Age

In 2019, the legal age to get married both for man and woman is 19 (nineteen) years old. In the event both the bride and groom are younger than 21, they need to have the consent from their parents. 

The stipulation of the legal age is according to the law number 16 of 2019 regarding the Amendment of the Marriage Law number 1 of 1974. The basis for this amendment is the Constitutional Court decision in 2017 number 22/PUU-XV/2017. The court ruled that the amendment to the relevant law must be issued within 3 (three) years since they issued the decision in 2017. 

This legal age also applicable to foreigners that perform their marriage here in Indonesia. 

Marriage Guardian 

If you are a Moslem couple, you need to make sure your bride has her own marriage guardian. The guardianship is imposed under the Article 14 of Islamic Compilation Law. This is the law for marriage in Indonesia especially for Moslem couples. The marriage guardian is one of the legal requirements to perform a marriage in Indonesia:

1. A groom;
2. A bride;
3. Marriage guardian;
4. Two witnesses. They must be men and grown-ups. If you're getting married in Moslem, you can't have a female witness;
5. Ijab dab Kabul (Consent by the groom and the guardian).

Your guardian for the marriage is strictly limited to these person only: your biological father, your biological grand father, and  your brother from patrilineal line. If none of them does not exist, you're in need of a help from the judge. 

Residency Permit

As foreigners, you may or may not have a resident permit in Indonesia.

If you do, this determine the jurisdiction of your marriage registry. If you did not have one, you may register your marriage according to the place where your marriage takes place.

Marital Property

Since you're married under the laws in Indonesia, your property is subject to our laws too. Any property acquired during the marriage is subject to joint property. Anything acquired before the marriage date belongs to each spouse. They have their power to manage the property according to their will.

Prenuptial Agreement

I suggest you sign the prenup. Even if both of you are foreigners and the assets are located outside of Indonesia. The prenuptial agreement signed under the laws in Indonesia shall be mirrored by the court where your assets are located. If you did not sign any prenup, anything acquired during the course of your marriage shall be join. 

I advised American-Russian spouse married in Bali couple of years. Having a prenup under Indonesian laws sound simple. You might think it is not necessary as well. But this is important. This is going to test smartest move you will ever done in your assets protection. 

What else you need to know about the marriage in Indonesia? Oh ya, the Children!

Children

If you have a child born before your legal marriage registered in Indonesia, you need to have it legalized. This is simply building a relationship between the child and the father. You guys shall establish paternity privilege between those two persons. This is very important for claiming citizenship for your child. I did this for Australia, Swedish, American, and British couples before. Great people!

The proceeding called legalization of child born out of wedlock. Certain things you need to do before the child legally recognized. Give me a call or drop me an email and we'll take it from there!

We have prenuptial agreement questionnaire, biographic information form, and notice for marriage intention. All the forms you need to start your new journey legally recognized in Indonesia.

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My name is Asep Wijaya. Thank you for reading my posts!

Child legalization in Indonesia is the only way to recognize your child born out of wedlock. This proceeding is a must-have in order to build a relationship between a father and the child. It's giving him a paternity privilege. This thing means a lot to both of them, and covers so many aspects in their lives. The proceeding is to get a DNA test as the primary scientific instrument to take a stand in the court litigation. On one side, it shall be the legal basis for the paternity claim to the court of law in Indonesia. But on the other side, DNA tests may become the potential shadowing procedure in getting a child legalized by a father. 

Read on and I will tell you what you should know.

Your Marriage First

According to Article 2 (1) Marriage Law number 1 of 1974, your marriage will only be legally recognized if it was officially registered. We have two marriage registries in Indonesia i.e. Civil Registry, and Office of Religious Affairs. The date when your marriage is officially registered will be the date of your marriage. In the event your child’s date of birth was before the marriage date, she/he is an out of wedlock child, even though she/he was born after the religious ceremony. It is the registration date that counts. Therefore, your marriage is not legally recognized according to state law. Any child conceived shall be an illegitimate one. 

So, your marriage must come first before the child, and it must be officially registered with the government's marriage registry. Therefore, your marriage is the foundation of your family. Just like what they said: your marriage first!

Your Child Comes Thereafter

In the event your child was born before the marriage officially registered, legally speaking she/he is an illegitimate child. The child is not a legitimate one according to Article 42 of the Marriage Law. A legitimate child is one who was born into its parent legal marriage. 

In another word, your child is an out of wedlock and therefore will only have a legal relationship with its mother and her family. No paternity privilege being established under this situation. Not yet. This is governed under Article 43 (1) of the Marriage Law. The only way to do so is through the biological mother. She needs to consent the child legalization. 

The Procedures

The Civil Code has imposed that in order to legitimize the child, both husband and wife need to perform child legalization. Article 274 of Civil Code further stipulates that the same rules and regulations shall be applicable to both the legitimate and illegitimate after the legalization proceeding is fully completed. 

The procedures started by getting an acknowledgment of the child by the father. He acknowledges the child as his flesh and blood, and therefore shall be willing to accept the responsibilities as a father. As part of the acknowledgement, he also allowed the child to use his family name. In some parts of the world, you need to use the same last name in order to be entitled to some privileges. 

On the other hand, the mother consents the legalization proceedings. She also needs to confirm that the child receives support from the father on a daily basis. The most important part is that she needs to confirm that the child is his. This is essential as her affidavit shall be supported with a DNA test. This is the primary procedure that has been shadowing the child legalization proceedings.

What If You’re Not Married?

If you’re not married, you can also conduct child legalization. You need to get a court to approve this case. This is quite a tricky process as you only have one bite of an apple. You need to get the process a success in the first place, otherwise they will throw the case out and you’re stuck in limbo.

Your child also needs legal protection by getting legal recognition by his/her parents. It’s reflected on his/her birth certificate with the complete parents’ name. The child born out of wedlock, they cannot have this. The child only has his/her mother’s name on it. This is awkward because you must have both parents otherwise it won’t work. The fact is, a father’s name is not printed on the birth certificate. You need to have your name as a father otherwise your child is not recognized legally. 

Article 43 (1) of 1974 Marriage Law allows the child born outside of legal marriage to have paternity relationship with the alleged man as his/her father. Thanks to the breakthrough decision by the Constitutional Court in 2010. I have assisted more than a dozen cases in doing so during my time as an attorney. This is not something you see everyday, but it’s happening here in our lives, and our legal system is perfectly well in getting the proceeding completed.

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My name is Asep Wijaya. Thank you for reading my posts!