If you are foreign nationality and plan to marry an Indonesian spouse, you need to get a prenuptial agreement PRIOR to marriage. Considering foreigners are not allowed to have a property in Indonesia, and if you wish to take the quite sensible precaution of a prenuptial agreement for the purpose of protecting yourself and your properties in the event that one of you dies, a prenuptial agreement is a must-have choice.
The Agrarian Law stipulates that foreigner is not allowed to own property in Indonesia, and Indonesian who married to the foreigner will be precluded to own free-title property. The agrarian law refers to Indonesia's Marriage Law assuming joint property ownership in the marriage. Prenuptial agreement concerning separation of property in the marriage is the most possible solution to get around the issue.
The Indonesian government can, by law, take virtually everything away from the grieving party because they did not create such a protective document PRIOR to marriage. To avoid this trouble, it would be prudent to draft a prenuptial agreement complying with the Indonesian laws to ensure that your financial interest(s) will be up-held by the Indonesia court. As one of the Indonesian legal services working for family law cases, especially mixed-marriage cases, we will walk you through the proper procedures how the prenuptial agreement incorporated in Indonesia.
Who Need of a Prenup?
Consider a prenuptial agreement if you suit with at least one of the following conditions:
Person of foreign nationality wishing to marry to an Indonesian partner and wish to own property in Indonesia;
Person who is bringing a lot of assets to the partnership, including all retirement account;
Person who has his or her own business or is a partner in a company;
Person on a fast career track who is likely to earn a hefty salary in the future;
Person who has children from a prior marriage;
Person who is paying for his or her spouse to get an advanced degree likely to result in significant future earnings.
Making a Prenup
Indonesian laws does not provide ready-made frameworks for prenuptial agreement. You and your Indonesian lawyer have more leeway to define your future legal relationship, although you are bound by law, religion, moral, and public order consideration in drafing the agreement.
Begining by collecting all the things you want to be included in the prenuptial agreement. Ask your Indonesian lawyer to draft the agreement and request for recommedation. But you need to take a note that the marriage property will be under your Indonesian spouse's name. Once again, foreigners of are not allowed to own a property in Indonesia. You just need to specify percentage of the property each spouse will get if the marriage was dissolved. Include in the agreement full disclosure of all assets and liabilities, including the value of each asset. Make sure that the terms of the agreement do not promote dissolution. Keep all drafts of the documents by email so that there is a record that you have reviewed every draft. Keep all the drafts, correspondence, and notes so that the file reflects the negotiations and the various resulting revisions. Name and number the drafts in consecutive order such as "draft number three". This record will be very helpful is the agreement is later contested.
Other Prenup's Legal Issues
The agreement should be legalized by the marriage registry office. Civil Registry Office for Non-Moslem or Office of Religious Affairs for Moslem. A premarital agreement also must be recorded with the registrar office at the local district court.
The agreement will take effect for the spouses when the marriage legalized at Civil Registry Office or Office of Religious Affairs and shall take effect against third party since the date of registration with local district court, where the marriage will take place.
If the agreement is not recorded at local district court, then the marriage will considered as if there is not prenuptial agreement exists. Thus, your marriage will have joint-ownership in property. If one of your pass-away, your will have to sell the property within one year. Otherwise, Indonesian government will take possesion.
It is important to understand the need to keep the agreement up-to date. Agreement should be designed to accommodate the passage of time and changes in status, such as the birth of children, and increase or decrease in wealth, or the disability of either party. Since no agreement can take into account all possible eventualities, however, you need to review the agreement periodically, with an Indonesian lawyer, to keep it current.
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