Prenup and post-nuptial agreements

[Scooterindo]

Unofficially Constitutional Court of Indonesia on today`s final session about challenging the Agrarian law for stripping Indonesian spouses in mixed marriages from right to own land, allowed besides making prenups also right to make post-nuptial agreements so the mix married couples can split the joint property.
The news are from the persons present on today`s session.

Hooray Indonesia has finally come into the 19th century

 

[waarmstrong]

After all these years of telling the relatives and others that we can't own land because we have no prenup, this is a threat. At our age and no one we plan on leaving things to we always felt renting would be a lot cheaper and we didn't need to worry about leaving property to anyone. Now, if they get wind of this, they will start pestering us again.

What was your sister-in-law's cell number, again?

 

[fastpitch17]

What was your sister-in-law's cell number, again?

666

 

[waarmstrong]

[FONT=arial, sans-serif]Ah yes, the mark of the beast.

 

[jstar]

OT: I'm still curious what happens during this 'in-between' period. Can people ignore that text of law? Will it be necessary to change the UU before a change is applied? ....

 

[atlantis]

I don't want to rain on anyone's parade but MK or MA decision for civil matters are unfortunately often ignored on the field.

Who has never heard of a mayor ignoring the invalidation of a PerDa by MK, or an operating license granted to a company cancelled by MA and ignored by local authorities (google "Bangka" + "mining" for example, a case which has lasted for years and which "may be" close to an end with the help of no less than a Minister referring directly to Jokowi to try to get the decision being enforced).
You may still have notaris simply refusing to process a sale because of no prenup and others not even ask you a postnup (the most common case you may get).

Let's say that MK's decision goes in the right direction but believing it's the end of the struggle would be very optimistic. Road is still long before that all UU and regs got amended or repelled.

Addit: I even recently came across a Court decision which in its minute, rejected an argument from the defense which submitted a MK decision to back up their claim!

 

[Davita]

I'm afraid Atlantis may be right and the recent joy of the decision may take quite a while to become a reality.
I'm surprised Perca haven't made any statement, or have I missed something? The only references to the change is what some journalists have written in the media, and that seems a little confusing.

No-one seems to know if the Court issued a PERPU (in lieu of law) or if the UU (Law) will be changed.

If will need to be tested by some mixed couple applying for an agreement to be written so HM property would be totally owned by the WNI. All my friends that could benefit from the 'new' rules are scared to do that, in case it backfires on them, as their properties are registered as if they are not married.

 

[jstar]

.
A Perppu? For this?

 

[atlantis]

Court has no authority to issue a Peraturan Pemerintah Pengganti Undang-Undang (can be spelled both Perpu or Perppu) which can only be passed by the President in condition of emergency and high interest for the nation and must be submitted to the DPR at the next rapat paripurna and have the choice to either agree or reject it without being able to modify it.
In short: no chance that Jokowi even consider it.

 

[Davita]

So...how does the Constitutional Court change the law to permit WNI to make agreements with their WNA spouse to ensure HM property is separate to them?
I read they've done it but no information on how, and when, it's enacted into law.

 

[Om DelOreo]

I'm surprised Perca haven't made any statement, or have I missed something? The only references to the change is what some journalists have written in the media, and that seems a little confusing.

They did, on Facebook: https://www.facebook.com/petisi.perca?pnref=story - scroll down to Oct 27th.

So, in theory, we can create a post-nuptial agreement that stipulates separate ownership instead of the default joint ownership. And, because of that, our Indonesian spouses can, in theory, once again own property as is their Constitutional right.

Did I understand you correctly? Inherited property doesn't fall under the pre-nup rule?

 

[Davita]

Thanks Om...I'm not a member of facebook so cannot open. Is it possible you can copy/paste here so others can read?
I read that the new rule doesn't simply permit post-nups as I assumed it could..... so I'd be interested to read what the Court actually ruled and how it will be implemented.

Inherited property was never considered as joint property between spouses so wasn't necessary to be included on a pre-nup.

 

[Om DelOreo]

BREAKING NEWS!!! BREAKING NEWS!!!
Laporan langsung Masyarakat PerCa Ind dari Mahkamah Konstitusi RI.
Puji syukur ke hadirat Tuhan Yang Maha Esa, hari ini Kamis, 27 Oktober 2016, Pengurus PerCa Indonesia bersama Ike Farida mendengarkan keputusan majelis hakim Mahkamah Konstitusi RI terhadap permohonan pengujian UU Pokok Agraria no. 5/1960 (terkait kepemilikan tanah dan bangunan bagi WNI pelaku perkawinan campuran yang tidak memiliki perjanjian perkawinan) dan UU Perkawinan no. 1/1974 (tentang perjanjian perkawinan).
Setelah membacakan pertimbangan2 aspek hukum terhadap beberapa pasal di UUPA dan UU Perkawinan serta UUD 1945, Majelis Hakim MK RI, memutuskan:
--- MENGABULKAN ---
sebagian permohonan yaitu terhadap Pasal 29:
Ayat 1
Pada waktu atau sebelum perkawinan dilangsungkan kedua belah pihak atas persetujuan bersama dapat mengajukan perjanjian tertulis yang disahkan oleh pegawai pencatat perkawinan, setelah mana isinya berlaku juga terhadap pihak ketiga tersangkut.
Ayat 3
Perjanjian tersebut mulai berlaku sejak perkawinan dilangsungkan
Ayat 4
Selama perkawinan dilangsung perjanjian tersebut tidak dapat diubah, kecuali bila dari kedua belah pihak ada persetujuan untuk mengubah dan perubahan tidak merugikan pihak ketiga.
Dimana, ayat-ayat dalam pasal tersebut PATUT DIMAKNAI sbb:
1. Perjanjian Perkawinan DAPAT DIBUAT pada waktu, sebelum atau SELAMA perkawinan berlangsung, sepanjang terkait dan tidak merugikan pihak ketiga.
2. Perjanjian tersebut berlaku sejak dibuat atau sejak perkawinan berlangsung sepanjang disetujui oleh kedua belah pihak serta tidak merugikan pihak ketiga.
3. Selama perkawinan dilangsungkan perjanjian tersebut DAPAT DIUBAH selama disetujui oleh kedua belah pihak dan tidak merugikan pihak ketiga.
Ini berarti perjuangan Masyarakat PerCa Ind sejak berdiri tahun 2008, untuk mendapatkan solusi atas permasalahan kepemilikan properti berstatus SHM dan HGB bagi WNI pelaku kawin campur, serta dukungan penuh PerCa Indonesia yang diberikan kepada Ike Farida, akhirnya berbuah manis dan memberikan solusi nyata.
Dengan keputusan MK RI di atas, maka seluruh WNI pelaku kawin campur yang tidak memiliki perjanjian perkawinan, mulai sekarang DAPAT MEMBUAT perjanjian perkawinan SETELAH dan SELAMA perkawinan berlangsung untuk mengatur pemisahan harta dengan pasangannya sesuai dengan kesepakatan bersama.
Masyarakat PerCa Ind dan Ike Farida sangat mengapresiasi keputusan Mahkamah Konstitusi RI, yang telah peduli dan berpihak kepada WNI pelaku kawin campur yang selama ini masih terdiskriminasi. Keputusan majelis hakim MK RI adalah sebuah keputusan yang mengedepankan asas keadilan dan mengembalikan hak konstitusi WNI pelaku kawin campur.
Ini adalah KABAR BAIK yang patut disyukuri oleh kita semua. Do'a dan kerja keras kita selama ini telah terjawab. PerCa Indonesia menyampaikan terima kasih penghargaan yang sebesar2nya kepada:
- Majelis Hakim MK RI
- Pemerintah RI
- Ike Farida dan tim hukumnya,
- Prof. Jimly Ashidiqie,
- Forum Kajian dan Konsultasi Pertanahan (FK2P)
- Para saksi ahli: Prof. Yusril Ihza Mahendra, Prof. Ari Hutagalung, DR. Zubaedah
- Para saksi fakta: Septalita Andini, Rulita Anggraini, dan Cahriani Ilsanker, Tony Lim, Alya Hiroko Oni dan Juliani Luthan
- Rekan-rekan media
- Para pengurus dan anggota Masyarakat PerCa Ind
Yang dengan penuh semangat telah mendukung proses uji materi ini sejak mulai pembahasan hingga keputusan hari ini.
Sekali lagi, PUJI SYUKUR kepada TUHAN YME, atas berkah dan karunia-Nya sehingga apa yang telah diperjuangkan tanpa henti selama ini akhirnya dikabulkan dan merubah nasib WNI pelaku kawin campur yang terdiskriminasi.
BRAVO PERCA INDONESIA!

 

[jstar]

Something else to consider, that if and when it gets changed, if probably will not be retro-active. (The text of law only applies on a moment in time when it is active.) So all these people who -in the past- let the WNI spouse buy a hak milik property (since her KTP said not married or the notary did not pay attention or just did not care), could still sit on a time bomb in the future. For new purchases after the implementation it's a different story of course.

 

[Davita]

Thanks to Om for the copy from his facebook account.
This is the best Google translate of the relevant information I can come up with.....

People immediately report Ind patchwork of Constitutional Court.

Praise to the presence of God Almighty, today Thursday, October 27, 2016, the Board of rag Indonesia along with Ike Farida listening panel decisions of the Constitutional Court on the petition for the Basic Agrarian Law (BAL) no. 5/1960 (related to ownership of land and buildings for the citizen actors mixed marriages who do not have a marriage agreement) and the Marriage Law no. 1/1974 (about the marriage covenant).

Having read consideration legal aspects to some of the provisions in the BAL and the Marriage Act and the 1945 Constitution, the judges of the Constitutional Court of Indonesia, decided:

Grant--- ---
part of the petition which is against Article 29:

paragraph 1
On or before the marriage took place both parties by mutual consent may submit a written agreement approved by the employees of the marriage registrar, after which it shall also apply to third parties lodged.

paragraph3
The agreement entered into force since the marriage took place.

paragraph4
During the marriage dilangsung such agreement can not be changed unless both parties consent to change and the changes do not harm third parties.

Where passages in the article WORTH interpreted as follows:

1.CAN BE DONE marriage agreement in time, before or DURING the marriage takes place, all related and do not harm third parties.
2.The agreement is valid from the time created or since the marriage lasted all agreed by both parties and does not harm third parties.
3.During the marriage took place the agreement CAN BE CHANGED for approval by both parties and do not harm third parties.

This means that the struggle patchwork Ind Society since its foundation in 2008, to get a solution for the problem of property ownership status of SHM and HGB for the citizen actors intermarrying, and the full support given to the rag Indonesia Ike Farida, finally sweet fruit and provide real solutions.
By decision of the Constitutional Court of Indonesia at the top, then all citizens interbreed actors who do not have a marriage agreement,from now CAN MAKE AFTER the marriage covenant and marriage DURING underway to organize the separation of property with his partner in accordance with the collective agreement.
AFTER the marriage covenant and marriage DURING underway to organize the separation of property with his partner in accordance with the collective agreement.
Ind patchwork society and Ike Farida highly appreciate the decision of the Constitutional Court, which has been caring and pro-citizen offenders interbreeding that still discriminated against. RI panel of judges decision is a decision that emphasizes the principles of justice and restore the constitutional rights of the citizen actors mixed marriages.

paragraph 2 seems to be missing and may be relevant.

My read is the Judges decided to make any arrangement concluded before marriage (previously titled pre-nup) to be available after marriage, so long as it did not harm a third party.

It appears this decision is for ALL Indonesians. It mentions the problems of the contradicting laws (re: mixed marriage) but the solution didn't specify only for mixed marriages...only to the Marriage Law. I read elsewhere a change to the Agrarian Law was rejected.

It also seems their decision means it is immediate but I don't know how it's implemented into law....that is what I thought Atlantis was referring to in his post #26.
It is one thing to make a verbal proclamation but until it modifies, codifies in a statute or is gazetted as a law...it is only an interpretation which may not yet be accepted by Notaries when making those agreements.

Maybe some brave soul should test the case?

 

[centurion]

It should be effective immediately after publishing in the Official Gazette and because the article 29 was declared unconstitutional it would be like it never existed-it applies to all cases from before, now and future.

Not many bylaws regulating this matters so it should be applicable immediately, if there are bylaws exist that contradict the verdict they are not valid any more ( i.e. now the post-nup has to be recorded in Catatan Sipil or KUA, the fact that maybe these institutions are not yet aware of it). Also we should consult our notaries to hear their feedback as well.

As I heard PerCa already submitted request to Ministry of Law to issue instructions to relevant institutions concerning the application of the Constitutional Court decision.

Would like to hear other opinions as well.

 

[fastpitch17]

http://en.tempo.co/read/news/2016/11/01/055816595/Postnuptial-Now-Allowed-in-Indonesia

TEMPO.CO, Jakarta - Indonesians married to foreign nationals do not to need to create a prenuptial agreement to separate the ownership of their property now, since a Constitutional Court change to a marriage regulation last week.
Article 29 of the 1974 Marriage Law, was declared unconstitutional last Thursday (Oct. 27) enabling Indonesian mixed married couples to own property as they can now create a postnuptial agreement on separate ownership during their marriage.

 

[Davita]

I understood, from news reports, posts on this thread...and other conversations, that Pre-Nup agreements were now abolished and WNI's just needed to notarize an agreement to separate HM property from their WNA spouse.
So...when I read the report below in today's Jakarta Post I was confused. I don't understand what it's about considering I thought the matter was settled. Anyone know what this article below means in practice.

Ike is Ike Farida is WNI married to a Japanese who, with the Perca group, has brought this case before the courts.

"The regulation stipulates that Indonesians who marry foreign nationals require a notarized prenuptial agreement in order to buy and own property after they marry.
That stipulation, she said, referred to a now-abolished Article 29 of the Marriage Law to prevent mixture of spouses’ assets.
Last September, prior to the abolition of Article 29 on Oct. 27 by the Constitutional Court, Ike had filed for a review of PP No. 103/2015 by the Supreme Court.
Following the Constitutional Court’ s decision to eliminate the requirement for a prenuptial marriage agreement in Article 29 of the 1974 Marriage Law, Ike saw more reason for a review of the 2015 regulation, as it had created confusion through the non-uniformity of rules on property ownership.
As a member of the Indonesian Mixed-Marriage Society (Perca), Ike assisted the organization in filing for another judicial review of the same government regulation Wednesday, this time also pointing to the contradictions with existing laws.
In their petition, Perca specifically cites three laws, the 1960 Agrarian Law, which stipulates that all land ownership should have a social benefit, Law No. 12/2011 on the formation of legislation, and Law No. 39/1999 on human rights.
“How is it possible to discriminate against Indonesian citizens [just because] they are married to foreign spouses?†Ike noted on her human rights concerns about the regulation.
The document called on the government to pay attention to confusion caused by the laws, she said, but would leave it up to the authorities whether to revise it, create new regulations or abolish it completely.
“It’s sad that we are discriminated against, it’s extremely sad. And it’s not only us who are discriminated against, but also our children,†Ike says.
Perca head Juliani Luthan noted that the review petition on PP No. 103/2015 was important for the organization, as it affected its more than 1,140 members. She urged clarification on the regulation, which she said appeared to be out of sync with existing rules, especially the 1945 Constitution.
“The Constitution clearly states that an Indonesian citizen has full rights to property ownership, both right-to-own permits and right-to build permits,†Juliani said.
She called on the government to eliminate PP No. 103/2015 entirely or at least abolish Paragraph 2 in Article 3 of the regulation."

 

[jstar]

That PP defined you need a residence in RI for Hak Pakai, David. So in fact it even got more strict since before it was not necessary to have an ITAS/P.

 

[Davita]

That PP defined you need a residence in RI for Hak Pakai, David. So in fact it even got more strict since before it was not necessary to have an ITAS/P.

Thanks Jstar...I read that before but couldn't see what it would have to do with a mixed marriage case... but I've done some more research and it seems to me the lady is bringing this new case because Para 2 in Article 3 in PP 103/2015 seems to contradict Para 1....and other recent amendments to the marriage law.

This case simply appears to clean-up laws that are contradictory....good luck with that in Indonesia...:lol:

Article 3

Para 1. An Indonesian Citizen who has married a foreigner has the same rights to land as other Indonesian Citizens.

Para 2. The right to the land as referenced in para (1) is not a joint property that is evidenced by the separation agreement of assets between the husband and the wife, which is made by notarial deed.