Prenup and post-nuptial agreements

Episode8

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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.


Hi, not sure if you have come across this.

http://indonesiaexpat.biz/topreads/postnup-agreements-now-legal/

I work for this mob and we have done quite a few post-nups and pre-nups since publishing this. Its quite easy and fuss free.

Basically if you have a prenup or postnup, signed before a notary, it still needs to be registered with both the Indonesian Civil Registry, and District Court. If you were married in Indonesia under Islamic Law (i.e. have buku nikah) then it should be registered at the KUA instead of the Civil Registry. The correct Civil Registry to go to relates to where the Indonesian's KTP is domiciled.

Cheers,

Will
 

scouser59

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Hi, not sure if you have come across this.

http://indonesiaexpat.biz/topreads/postnup-agreements-now-legal/

I work for this mob and we have done quite a few post-nups and pre-nups since publishing this. Its quite easy and fuss free.

Basically if you have a prenup or postnup, signed before a notary, it still needs to be registered with both the Indonesian Civil Registry, and District Court. If you were married in Indonesia under Islamic Law (i.e. have buku nikah) then it should be registered at the KUA instead of the Civil Registry. The correct Civil Registry to go to relates to where the Indonesian's KTP is domiciled.

Cheers,

Will
So as you work for "this mob" , what is a simple form of words that can be used for the postnup ? so our members can copy . I await your reply with interest.
 

Ruserious

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Is it just me or was that article pretty unclear? Maybe it is impossible to get the answer but i wanted to be clearer about:
1. Confirmed Prenups are 100% legal now
2. Prenups are ok or not for property bought before the prenup is signed? Is it only valid for purchases after the prenup is singed?
3. Recommended Notary and example of what to write?

Anyone have a recommended notary in South Jakarta for this?
 

dafluff

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Is it just me or was that article pretty unclear? Maybe it is impossible to get the answer but i wanted to be clearer about:
1. Confirmed Prenups are 100% legal now
2. Prenups are ok or not for property bought before the prenup is signed? Is it only valid for purchases after the prenup is singed?
3. Recommended Notary and example of what to write?

Anyone have a recommended notary in South Jakarta for this?

That article is not great. I only read to the second paragraph before finding a glaring mistake:

Before this ruling, should an Indonesian (who is married to a foreigner, without a prenup) inherit a property with Hak Milik or Hak Guna Bangunan land title, the Indonesian would be compelled to sell the property within one year. Otherwise the property could become National Land.

That is patently wrong. Inherited property is not considered joint property in marriage, so a WNI married to WNA can rightfully inherit and keep such property.

They got confused with the law that states a FOREIGNER (WNA) must sell inherited property within 1 year of inheriting it. Maybe its time Expat Indo writes a correct article on this subject? *hint* @atlantis *hint*

This obfuscation has been intentionally advanced by some unscrupulous notaries in order to pressure mixed marriage couples into unnecessary prenups, and now also postnups.

As for your questions:

1. Yes
2. I doubt that this one can be back dated. My guess is if a WNI purchased a property despite being married to WNA and they then want to enter a postnup, they should do the postnup first, then the WNA should transfer their rights on the property to the WNI.
 

Episode8

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@dafluff

Thank you dafluff for pointing out the mistake in the article, unfortunately I am the author and made the mistake. I will try have it corrected. That paragraph should probably explain that before the ruling the Indonesian in a mixed couple would not be allowed to purchase properties, or may have difficulty selling previously purchased properties. I am open to suggestions.

@Ruserious

2. The postnup should cover properties currently owned.

In the postnup notarial deed, the notaries I work with usually state that all assets are separated since marriage. So effectively if the Indonesian in a mixed couple could purchase a property while married, and without a prenup. This would be considered the property of the Indonesian (no joint).

Generally we would first ask if any of the properties are under finance, if so it could complicate the matter.

I have come across a case where the mixed couple was married overseas in the late 90s and had not registered their marriage at the Indonesia Civil Registry. The Indonesian owned a property. This was not an issue as under Indonesian Law she was not married. However the risk was should anything happen to the Indonesian, the foreign spouse would have no claim to the property.

The solution was a nuptial agreement, then civil registration, then registration of the nuptial agreement with the civil registry and district court. The procedure for the registration is clear since about July this year, previously it wasn't so. I have seen it done in Jakarta, Tangarang, and Padang. No worries.

In the end, if a mixed couple has any intention of buying a home in Indonesia, or should the Indonesian want to hold shares in a PT Lokal, it is a good idea to have a prenup or postnup.
 

dafluff

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@dafluff

Thank you dafluff for pointing out the mistake in the article, unfortunately I am the author and made the mistake. I will try have it corrected. That paragraph should probably explain that before the ruling the Indonesian in a mixed couple would not be allowed to purchase properties, or may have difficulty selling previously purchased properties. I am open to suggestions.

So to clarify, you work for Putranto Alliance.

However, instead of linking to an identical article on your own website (http://www.putranto-alliance.com/en...white-papers/postnup-agreements-are-now-legal), you link to an article you wrote to indonesiaexpat.biz. Why not directly link to your own website?

The same article on your own website also makes the "mistake" that claims WNI spouses in mixed marriages are unable to inherit and keep property. A rather fatal mistake for an organization that is supposed to provide legal advice.

Furthermore, while it pushes the pre and postnup, it does not mention some rather MAJOR drawbacks of having them, merely that it has "tax consequences".

Here is something to consider: If you enter either a prenup or postnup, then by Indonesian law any money or gifts transferred between husband and wife becomes taxable income! This is because all gifts except between parents and children are taxable income in Indonesia. This becomes a rather large issue if the WNA spouse buys the property and gifts it to the WNI spouse, as is often the case.

Even worse, for those who managed to buy a property before the postnup, then suddenly declare that the assets are separate, the government can rightly claim that it was defrauded from tax income due to them at the time of purchase. The WNI spouse could find themselves owing back taxes and penalties back to when they received the "gift" of the money to buy the property.

Finally of course there is the drawback for the WNA spouse that they have absolutely no recourse to any of the property if the WNI spouse feels like selling it for whatever reason, regardless if it was the WNA spouse who paid for it. The WNA spouse could quite literally be kicked out of the house at a whim.

In my opinion both prenup and postnup are foolish to enter into, for both WNA and WNI spouse. If they wish to stay legal, then just rent or use Hak Pakai. Remember, the WNI spouse can still inherit and keep inherited property, so there is very little incentive for them either. This is probably why the mistaken belief that they have to sell inherited property within 1 year keeps being drummed up.

Finally, in the history of the Republic of Indonesia, I have yet to come across a case where land was confiscated by the state due to mixed-marriage ownership. If there is such a case, I would love to hear a citation. What I have seen citations of are divorce cases where there was no prenup, and where the judge awarded compensation to the WNA spouse for jointly owned property. Something that would never be granted if there was a pre or postnup.
 
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Burungkecil

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That is patently wrong. Inherited property is not considered joint property in marriage, so a WNI married to WNA can rightfully inherit and keep such property.
Not all notaries would agree with you I'm afraid Dafluff. I've asked about this over the years because my wife's father is a quite successful businessman now in his eighties and I wouldn't want my wife to miss out on her right to inherit simply because I'm a WNA. Over the last couple of years I have asked no less than six notaries and the score is 3-3. Three agreed with you that inherited property could be inherited without a problem while the other three made the point that the law is applied differently depending on ethnicity and cultural traditions.
For a pribumi couple (native Indonesian) the law is indeed that the inherited property doesn't become a joint asset ('harta gono-gini or harta campur').
However, according to half of the notaries I put the question to, different rules apply to marriages between WNI and WNA. And I should add that the three that told me this did seem more knowledgeable.

http://irmadevita.com/2012/kewarganegaraan-status-pemilikan-tanah-warisan-pada-perkawinan-campuran/

Having said all that, the average official won't have a clue about this because they rarely encounter such a situation.
 

Burungkecil

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We completed the postnup process several weeks ago including registering it with the same KUA that recorded our marriage 17 years earlier.
I don't want to share the wording of our agreement because each couple's requirements are different and personal however suffice to say that it doesn't differ much from the examples of prenups that you can find online.

If you married via the KUA (Muslim), the registration process for the postnup is as follows
http://bimasislam.kemenag.go.id/uploads/files/SE-Pencatatan-Perjanjian-Perkawinan.pdf

If you married via the Kantor Catatan Sipil see here
http://dukcapil.kalbarprov.go.id/c_/uploads/2017-05-23-14-27-20-011.pdf

If anyone in Jakarta is looking for a notary to draw up a postnup then you can PM me. The one we used was very patient and helpful, but of course we take no responsibility if it all goes pear-shaped. If you only intend to fire questions at her without any intention of using her services then please don't contact me because I don't want to waste her time.
 

Episode8

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@dafluff

Yes I work for Putranto Alliance. I posted to this thread genuinely wanting to help, without the intention to solicit more business. I neither own the business nor receive commission for extra business. In hindsight I probably should have posted the article from the company website, I did not put very much thought into it. I participate in this forum for personal reasons and not for the company.

Thank you for making very valid points. Especially on tax. Readers of this thread are now better informed of the potential pitfalls of nuptial agreements. I have since update the Putranto Alliance website to remove the error on inheritance. It is still not a great article, for that I apologize. I will also make a comment on the Expat website linking to this thread and request them to make the same correction. There really is a lot of material to cover in what you have brought to light. Here is the link to the updated text.

http://putranto-alliance.com/en/resources/detail/344/white-papers/postnup-agreements-are-now-legal

Just to give everyone a little background of where I come from. I am Swiss/Australian/Singaporean married to a wonderful Indonesian woman and we raise a toddler together. We just moved to Makassar from Jakarta for my wife's employment. The prenup for us was a must. She is more than capable of purchasing properties and running a business in her own right. Being married to foreigner would have hindered her ability to both own a home and hold shares in a PT Lokal. I am uncertain whether the same would apply to a CV or a UD, could an Indonesian married to an WNA participate in a CV or UD? Nowadays, I am finding my situation more common than the traditional male bule breadwinner of my parents generation. No offence to my mother, she's awesome, its just my oil and gas father had much greater earning power. Therefore I cannot assume that the expatriate is the only contributor of money to the purchase of property.

Regarding Tax. I do agree with you that the taxman does have the right to claim the unpaid tax on the gift from husband to wife with a nuptial agreement in place. However it is arguable whether the Tax department would recognize husband and wife as separate tax entities in the first place. I don't believe that the taxman really knows what to do about prenups and postnups yet. I have not seen any case where the taxman has gone after a wife who received the money from their WNA spouse to purchase a property for a family home or investment property. Anyway, a lot of more savvy people took care of this risk by participating in the Tax Amnesty scheme. Post tax amnesty, there are other potential methods to minimize the risk of tax liabilities of "gifts" from spouses with nuptial agreements in place. Best speak to a creative tax adviser for that.

Before entering any legal agreement it is very important to be completely informed of the risks. It is best to seek advice from multiple sources and make your own judgement on what you find to be an acceptable risk.

Indonesia having global taxation on all residents (if you live here more than 6 months a year) means that the pensions, capital gains, rental income, overseas salaries, among others are all subject to the Indonesian progressive tax rate after the deduction of the tax treaty. Now with AEOI coming in to play, who knows what the taxman is going to do with all this new data they receive on the expats living in Indonesia. It is terrifying what they may come up with. Personally I want to leave and cancel my NPWP, but situation is that I need to live in Indonesia for now, and I kind of like it here (sorry maybe this rant belongs in another thread).

Ownership in SHM and HGB under the personal name of WNA is just not yet possible. I do agree that Hak Pakai is a good option, however for some reason, Hak Pakai has become synonymous with long term lease agreements of land in Bali. Even some notaries do not have an adequate understanding of Hak Pakai, and it is also being confused further with the the recent regulation stating the amounts of 10 billion for land and 3 billion for apartments in Jakarta. The best option would be Hak Pakai atas tannah negara. Has anyone come across some recent comprehensive writing of Hak Pakai? According to my understanding, the administration of Hak Pakai is just like HGB, renewable indefinitely (25 years, then 20 years, repeat).

The other option for a WNA is to the own the shares of a PT PMA which then buys HGB land. This is still possible, but getting more complected with BKPM scrutiny. Many Principle Licences have been cancelled, and Indonesia, understandably, is only really providing benefits for "Big" companies. Administering a company that you don't really need could end up being costly with the monthly and annual tax reporting, BPJS, LKPM, salaries, book keeping and others. I personally found this to be a headache.

With regards to the prospect of separation between mixed couples, the best solution is probably to have a loving equal relationship and enjoy the rest of your lives together. But in the event of a divorce, with a nuptial agreement in place, the landed property will indeed belong to the Indonesian. Also as a foreigner in Indonesia, we are only one laporan masyarakat to Immigration away from being deported. Be very aware of this.

I will ask around for any case of confiscated land. I have not heard of such as well, but the prospect is always there should the Indonesian government decide to enforce this.

Cheers all.

ps: i especially enjoyed
Lebaran Bonus and considerations for household staff
and
Forming a company in Indonesia – How can foreigners play a role?
 

dafluff

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Not all notaries would agree with you I'm afraid Dafluff. I've asked about this over the years because my wife's father is a quite successful businessman now in his eighties and I wouldn't want my wife to miss out on her right to inherit simply because I'm a WNA. Over the last couple of years I have asked no less than six notaries and the score is 3-3. Three agreed with you that inherited property could be inherited without a problem while the other three made the point that the law is applied differently depending on ethnicity and cultural traditions.
For a pribumi couple (native Indonesian) the law is indeed that the inherited property doesn't become a joint asset ('harta gono-gini or harta campur').
However, according to half of the notaries I put the question to, different rules apply to marriages between WNI and WNA. And I should add that the three that told me this did seem more knowledgeable.

http://irmadevita.com/2012/kewarganegaraan-status-pemilikan-tanah-warisan-pada-perkawinan-campuran/

Having said all that, the average official won't have a clue about this because they rarely encounter such a situation.

Then the 3 that disagree are wrong, yet I am surprised that the other 3 got it right. For those that disagree, simply ask them to produce a law that states mixed-marriage WNI lose their right to control their own assets brought into the marriage or inherited assets. There isn't one.

Even that article you linked repeats the same claptrap about pasal 21 ayat (3)) UU No. 5 Tahun 1960, and arrives at the wrong conclusion she confidently wrote in bold and italics. Here is the relevant pasal in full:

Pasal 21
(1) Hanya warga-negara Indonesia dapat mempunyai hak milik.
(2) Oleh Pemerintah ditetapkan badan-badan hukum yang dapat mempunyai hak milik dan syarat-syaratnya.
(3) Orang asing yang sesudah berlakunya Undang-undang ini memperoleh hak milik karena pewarisan tanpa wasiat atau percampuran harta karena perkawinan, demikian pula warga-negara Indonesia yang mempunyai hak milik dan setelah berlakunya Undang-undang ini kehilangan kewarga-negaraannya wajib melepaskan hak itu di dalam jangka waktu satu tahun sejak diperolehnya hak tersebut atau hilangnya kewarga-negaraan itu. Jika sesudah jangka waktu tersebut lampau hak milik itu dilepaskan, maka hak tersebut hapus karena hukum dan tanahnya jatuh pada Negara, dengan ketentuan bahwa hak-hak pihak lain yang membebaninya tetap berlangsung.
(4) Selama seseorang di samping kewarga-negaraan Indonesianya mempunyai kewarga-negaraan asing maka ia tidak dapat mempunyai tanah dengan hak milik dan baginya berlaku ketentuan dalam ayat (3) pasal ini.

Ayat 3 translated:

Foreigners who after this law becomes valid acquires hak milik due to inheritance or joining of property due to marriage, also WNI who owns hak milik and loses their citizenship, must relinquish that hak milik within 1 year of acquiring it....etc etc.

Ayat 4 translated:
When someone has another nationality besides WNI, then he/she can no longer own hak milik, and ayat 3 applies to them.

As you can plainly see, nothing about mixed marriage WNI. It only says foreigner, or WNI who lost their WNI status (in other words, again foreigner), or dual nationals, can not own Hak Milik.

The conclusion that a mixed marriage WNI can not purchase Hak Milik during the marriage is solely because according to Undang-undang Perkawinan (Marriage Law), UU no 1, 1974, assets purchased during the marriage becomes joint assets (unless a prenup was signed).

However, the very same law is clear that property owned prior to marriage, property gifted or inherited remain under individual control.

UU no 1, 1974
Pasal 35
(1) Harta benda yang diperoleh selama perkawinan menjadi harta bersama.
(2) Harta bawaan dari masing-masing suami dan isteri dan harta benda yang diperoleh masing masing sebagai hadiah atau warisan, adalah di bawah penguasaan masing-masing sepanjang para pihak tidak menentukan lain.

Pasal 36
(1) Mengenai harta bersama, suami atau isteri dapat bertindak atas persetujuan kedua belah pihak.
(2) Mengenai harta bawaan masing-masing, suami dan isteri mempunyai hak sepenuhnya untuk melakukan perbuatan hukum mengenai harta bendanya.

Translations:

Pasal 35
(1) Property acquired during marriage becomes joint property.
(2) Property brought into the marriage by husband or wife, and property acquired by them as gifts or inheritance, remain under their individual control, unless they agree otherwise.

Pasal 36
(1) In dealing with joint property, husband and wife must act with agreement of both sides.
(2) In dealing with property brought individually into the marriage, husband and wife have full right to act on their property.

I mean it is literally written black and white.
 

dafluff

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Yes I work for Putranto Alliance. I posted to this thread genuinely wanting to help, without the intention to solicit more business. I neither own the business nor receive commission for extra business. In hindsight I probably should have posted the article from the company website, I did not put very much thought into it. I participate in this forum for personal reasons and not for the company.

Thank you for making very valid points. Especially on tax. Readers of this thread are now better informed of the potential pitfalls of nuptial agreements. I have since update the Putranto Alliance website to remove the error on inheritance. It is still not a great article, for that I apologize. I will also make a comment on the Expat website linking to this thread and request them to make the same correction. There really is a lot of material to cover in what you have brought to light. Here is the link to the updated text.

http://putranto-alliance.com/en/resources/detail/344/white-papers/postnup-agreements-are-now-legal

Thank you for your response and your clarification and also for updating the article. It is really important for me that we get the most complete information out for the expat community. In regards to prenup and postnup there are a few pitfalls that needs to be known before entering into one, and in my experience here in Bali, many notaries either don't know about them, or don't care. This has made me a bit allergic to the words prenup and postnup, so I apologize if my criticism was on the harsh side.

Indonesia having global taxation on all residents (if you live here more than 6 months a year) means that the pensions, capital gains, rental income, overseas salaries, among others are all subject to the Indonesian progressive tax rate after the deduction of the tax treaty. Now with AEOI coming in to play, who knows what the taxman is going to do with all this new data they receive on the expats living in Indonesia. It is terrifying what they may come up with. Personally I want to leave and cancel my NPWP, but situation is that I need to live in Indonesia for now, and I kind of like it here (sorry maybe this rant belongs in another thread).

This issue has come up once or twice in the forum, and is definitely an area that we need to be aware of in the future. So far the tax department will not issue NPWP to you if your sole income is foreign pensions, even though technically they could tax that, and maybe one day in the near future they will figure this out.

Ownership in SHM and HGB under the personal name of WNA is just not yet possible. I do agree that Hak Pakai is a good option, however for some reason, Hak Pakai has become synonymous with long term lease agreements of land in Bali. Even some notaries do not have an adequate understanding of Hak Pakai, and it is also being confused further with the the recent regulation stating the amounts of 10 billion for land and 3 billion for apartments in Jakarta. The best option would be Hak Pakai atas tannah negara. Has anyone come across some recent comprehensive writing of Hak Pakai? According to my understanding, the administration of Hak Pakai is just like HGB, renewable indefinitely (25 years, then 20 years, repeat).

Yes, Hak Pakai is poorly understood still, but it is essentially as good as HGB, with a few limitations in place on size of property and price. There are no comprehensive writings on this, probably because it has almost never been in use (people preferring HGB and HM), and only recently gained popularity in expat circles as a way to "own" property.

The other option for a WNA is to the own the shares of a PT PMA which then buys HGB land. This is still possible, but getting more complected with BKPM scrutiny. Many Principle Licences have been cancelled, and Indonesia, understandably, is only really providing benefits for "Big" companies. Administering a company that you don't really need could end up being costly with the monthly and annual tax reporting, BPJS, LKPM, salaries, book keeping and others. I personally found this to be a headache.

The PT PMA's purpose can't be to just own a HGB land, so unless there is an actual business, then you are completely correct, it is not worth it.

With regards to the prospect of separation between mixed couples, the best solution is probably to have a loving equal relationship and enjoy the rest of your lives together. But in the event of a divorce, with a nuptial agreement in place, the landed property will indeed belong to the Indonesian. Also as a foreigner in Indonesia, we are only one laporan masyarakat to Immigration away from being deported. Be very aware of this.

Amen to that, but when that fails its why we have lawyers, yes? Just a note that the WNI person with a prenup does not need to wait for a divorce for the property to belong to them. It belongs to them outright the minute they put their name on it. They can literally turn around and sell the property the minute the ink is dry on the contract, and there is nothing the WNA can do about it.


Thank you. Looking forward to reading more from you as well!
 

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I have been totally confused by pre and post nuptials since arriving 4 years ago. In particular, I am confused about the impact on my Indonesian wife and her assets when married to a foreigner.

Can someone clearly answer a few questions:
1. Does a postnup only apply to marriage separation or does it also cover death.
2. My wife owned a PT and a CV company alone with the house prior to marriage. Would she have to sell these on my death if no postnup existed and she is married to foreigner (KITAP holder).
3. I paid for land we bought in Manado prior to marriage but we declared the gift in the tax amnesty and paid tax. Would there be a requirement to sell on death as she married to a foreigner.
4. We also have a commercial property in Bekasi that we are developing and is being paid for by joined contribution. Would there be a requirement to sell on death as she married to a foreigner.

We both bought assets into our marriage and to a certain extent these assets remain separated in the sense that we manage the assets individually. I like financial investments and my wife likes land.

I am not interested in having an agreement in case of separation but am interested in making sure my wife gets all on death and that her own assets are protected.

I am older so I expect to go first and have prepared a document for my wife detailing how to access all my financial assets and the Australian superannuation and war widows pension entitlements. However, I just want to make sure that I cover all bases and hence the questions..

Any information would be greatly appreciated.
 

Burungkecil

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Then the 3 that disagree are wrong, yet I am surprised that the other 3 got it right. For those that disagree, simply ask them to produce a law that states mixed-marriage WNI lose their right to control their own assets brought into the marriage or inherited assets. There isn't one.

The point that the three notaries were making was that in their opinion pasal 35-37 of UU Perkawinan 1974 doesn't apply for Westerners. When it comes to family and marriage law Europeans/Westerners are subject to KUH Perdata (burgerlijk wetboek).

"Bagi mereka yang dulunya secara histories tunduk pada BW (e.g. Europeans/Westerners) maka UU Perkawinan mengenai harta perkawinan belum berlaku karena perbedaan asas antara hukum harta perkawinan menurut BW dengan UUP"

And according to KUH Perdata ALL assets accrued before or during a marriage are joint assets unless (I presume) there is a prenup/postnup.

However, I have just stumbled on another article regarding Hukum Perdata which says the following:
Pada persatuan bulat dan utuh harta kekayaan suami-istri, tetap dimungkinkan adanya harta pribadi suami atau istri. Harta ini diperoleh dengan cuma-cuma dengan ketentuan pewaris atau penghibah dalam memberikan benda-benda tersebut memberikan syarat bahwa benda-benda tersebut tidak masuk dalam persatuan.
Meaning that in marriages subject to Hukum Perdata though a husband and wife's assets are shared each spouse can own private assets providing a third party either giving them a gift or leaving them an inheritance states that the asset being given/willed is meant for one specific spouse and not intended to be shared by the couple.

As I said yesterday, I doubt that many officials are even aware of the difference in law but any foreigner in a mixed marriage where there is a sizable inheritance at stake would be wise to seek good legal advice.
 

dafluff

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The point that the three notaries were making was that in their opinion pasal 35-37 of UU Perkawinan 1974 doesn't apply for Westerners. When it comes to family and marriage law Europeans/Westerners are subject to KUH Perdata (burgerlijk wetboek).

"Bagi mereka yang dulunya secara histories tunduk pada BW (e.g. Europeans/Westerners) maka UU Perkawinan mengenai harta perkawinan belum berlaku karena perbedaan asas antara hukum harta perkawinan menurut BW dengan UUP"

The 1974 UU Perkawinan was specifically made to annul the various marriage laws that existed prior to it. Says so in Pasal 66 of it:

Untuk perkawinan dan segala sesuatu yang berhubungan dengan perkawinan berdasarkan atas Undang-undang ini, maka dengan berlakunya Undang-undang ini ketentuan-ketentuan yang diatur dalam Kitab Undang-undang Hukum Perdata (Burgerlijk Wetboek), Ordonansi Perkawinan Indonesia Kristen (Huwelijks Ordonantie Christen Indonesiers S.1933 No. 74), Peraturan Perkawinan Campuran (Regeling op de gemengde Huwelijken S. 1898 No. 158), dan peraturan peraturan lain yang mengatur tentang perkawinan sejauh telah diatur dalam Undang-undang ini, dinyatakan tidak berlaku.

Furthermore, it also says in pasal 59, that mixed marriage conducted in Indonesia is subject to UU Perkawinan, nothing else.

Finally at the beginning of UU Perkawinan it states "perlu adanya Undang-undang tentang Perkawinan yang berlaku bagi semua warga negara". So in case of mixed marriage abroad, it would be strange to argue that the laws from a different country (in case they do not recognize separation of inherited assets) overrules a law applying to an Indonesian citizen, in Indonesia, over a property in Indonesia.

The assertion that KUH governs mixed marriage could maybe be argued if the mixed marriage was performed in Indonesia prior to 1974, but a bit late to get a prenup now, but may get a postnup, I guess? :becky:
 

dafluff

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Can someone clearly answer a few questions:
1. Does a postnup only apply to marriage separation or does it also cover death.
2. My wife owned a PT and a CV company alone with the house prior to marriage. Would she have to sell these on my death if no postnup existed and she is married to foreigner (KITAP holder).
3. I paid for land we bought in Manado prior to marriage but we declared the gift in the tax amnesty and paid tax. Would there be a requirement to sell on death as she married to a foreigner.
4. We also have a commercial property in Bekasi that we are developing and is being paid for by joined contribution. Would there be a requirement to sell on death as she married to a foreigner.

1. A postnup in the case we are talking about here is simply an agreement of assets separation. With one, it would be like you and your wife are not married when it comes to financials. Not sure what you mean if it applies to death?

2. Your wife is WNI, so why would she need to sell anything on your (WNA's) death?. The issue that a postnup "solves" is the WNI's inability to purchase certain types of property in a mixed marriage. As noted before, this does not include inherited and gifted property, nor does it include property owned prior to marriage. If, god forbid, she dies first, and you inherit this property, then you must dispose of it within 1 year. However as these assets are hers, she can will it to someone else, say children.

3. Similar to number 2. No issue here for her. Issue for you if you inherit it. Although without prenup, technically you shouldn't have been able to buy this land.

4. Probably same as number 3, depending on what type the property is. If it is hak milik, then same as 3. If it is HGB and you have a PT PMA owning it, then completely different answer.
 

[email protected]

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1. A postnup in the case we are talking about here is simply an agreement of assets separation. With one, it would be like you and your wife are not married when it comes to financials. Not sure what you mean if it applies to death?

2. Your wife is WNI, so why would she need to sell anything on your (WNA's) death?. The issue that a postnup "solves" is the WNI's inability to purchase certain types of property in a mixed marriage. As noted before, this does not include inherited and gifted property, nor does it include property owned prior to marriage. If, god forbid, she dies first, and you inherit this property, then you must dispose of it within 1 year. However as these assets are hers, she can will it to someone else, say children.

3. Similar to number 2. No issue here for her. Issue for you if you inherit it. Although without prenup, technically you shouldn't have been able to buy this land.

4. Probably same as number 3, depending on what type the property is. If it is hak milik, then same as 3. If it is HGB and you have a PT PMA owning it, then completely different answer.

Thank you for the response. Much appreciated. Your comments are basically what I previously understood but reading the article at post 61 made me start to doubt the legitimacy of my wife's property ownership.

My question about death related to an WNI owning certain types of property in mixed marriage. My confused thinking was if she (we) had purchased property that she wasn't entitled to purchase being in a mixed marriage then the lack of a postnup may impact on distribution of my estate. The commercial property we currently rebuilding with intent to sell, may or may not fit in to this category. However, when I think about it further it will only be my financial interests that will be distributed on death as I have no official part ownership of our land or building assets.

I currently do not have a valid Indonesian will but I think I will have to get one drawn up. Not having one is a result of articles I have previously read about wills in Indonesia and my bank telling me that all financial assets will be released to my wife on death.
 

Burungkecil

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Hi Dafluff. At the time I spoke to various notaries we didn't go into intricate detail about the reasons why a postnup was necessary to protect my wife's inheritance but it seemed like the safest thing to do. I was just reading that although UU Perkawinan 1974 (the Marriage Law) replaced KUHP BW with respect to marriage some parts of KUHP BW still apply in other aspects of the law. One area where KUHP Perdata BW is still applicable is for the rules of inheritance (hukum waris).
http://www.jurnalhukum.com/pengatur...-perdata-setelah-berlakunya-uu-pokok-agraria/

The following article points out the difference between the Marriage Law and KUHP BW but also indicates that there is a way for those subject to the latter to avoid their inheritance becoming a joint asset.
http://www.jurnalhukum.com/harta-benda-dalam-perkawinan/

Perhaps this is why some of the notaries I spoke to saw the need for my wife and I to make a postnup.
 

jktjoe

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Here is something to consider: If you enter either a prenup or postnup, then by Indonesian law any money or gifts transferred between husband and wife becomes taxable income! This is because all gifts except between parents and children are taxable income in Indonesia. This becomes a rather large issue if the WNA spouse buys the property and gifts it to the WNI spouse, as is often the case.

Dafluff do you think that there is a strong risk of this? If a hypothetical situation where a property is in WNI name already without a pre or postnup and the WNI has not been filing tax returns then are you suggesting it would be better to just keep quiet rather than do a postnup?
 

dafluff

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Dafluff do you think that there is a strong risk of this? If a hypothetical situation where a property is in WNI name already without a pre or postnup and the WNI has not been filing tax returns then are you suggesting it would be better to just keep quiet rather than do a postnup?

Regarding taxation risks, I don't know. I think it is fairly low if neither spouse has filed taxes before, unless the property is really high value. That said, there is a completely new level of enforcement right now than in previous years due to the current administration's desire to increase tax receipts.

As for the hypothetical: if it was me, I would not make a post-nup. However, everyone's situation is different.
 

jktjoe

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As for the hypothetical: if it was me, I would not make a post-nup. However, everyone's situation is different.

Dafluff thank you for your reply. In the event that there is no post or prenup have you heard of any cases of where the WNI has passed away and what happened to the property? Would it be safer to have a will certifying that the property will go to a (hopefully trustworthy) Indonesian relative who will then help with the disposal or is it ok to have a will stating it goes to the WNA and they then have the 1 year to dispose of it as per other rules? Also what happens if no will is present?

My worry is not so much that the government would start taking over properties now but what would happen if something goes wrong (although i do worry about the former a bit too).
 

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