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  • Prenup question - urgent...

    Hi all,

    Some of you might remember my story, trying to get married the fastest way before giving birth and catholic church in Bali and my own embassy making it very difficult. Anyway, we are almost there after all these months...

    I am now thinking about the prenup agreement and need advice as I am a bit confused:

    I'm the bule, he is the local. I have a PT, which if I am not mistaken, allows me to buy land/property.

    I have been advised to make a prenup agreement, but my question is: If I want to buy, lets say, land together with my husband but the prenup agreement says no joint property.. ?? What are my rights then in case of divorce (or even death of partner)? Is he going to keep it all?? Or the government? Would I be left with nothing?

    If I want to buy land using ONLY my money,.. should I use my husband's name or my PT? Can I use our child's name even if he'll be underage?? Will the property will be just his even though it has been paid with my money??

    I am little bit lost with all this... what will be the right choice in my case?

    Thank you for your help..

  • #2
    I am no expert at all in this... but common sense and a bit of knowledge has prompted me to respond.

    You personally can not own land, the main point of most pre-nups = to enable the couple to legitimately buy/sell land and to guard agains the conflict in Indonesian laws - the one saying a 'bule' can not own land & the one saying that in the event of divorce property is split.
    A pre-nup is pretty much whatever the agreement is between the two people involved- so whatever you and your future husband agree on. In order to fit with the law what you are saying in the prenup is that you are giving up claim to any joint land.
    The PT is not you. So you could write into the pre-nup that any lands & assets owned by the PT will revert to you and not be split in the event of divorce/death.

    It seems like common sense that you can specify that YOUR PT stays yours. If it was me I would keep my business very separate from the marriage. I would buy land in the name of my company. I would assume, there is nothing to stop your company 'selling' it to your family later on down the years.
    <<<I hope this makes sense.

    The risk of being left with nothing is real. Protect yourself and your child, no matter how much you love your husband, as we know the divorce rate is full of people who loved each other at some point.
    Perhaps find a way of splitting your assets up. A bit of land with the PT a bit with your family etc. this would spread the risk.
    Find a really good notaris who speaks good English and talk with them about it in depth.
    Cicak Magnet

    Comment


    • #3
      I'd be very careful. Plenty of us have experience with prenups, but not PT's. Make sure you verify all info thoroughly.
      Sasa Bule is having a bayi!

      Comment


      • #4
        Originally posted by Senyorita View Post
        (1) I have a PT, which if I am not mistaken, allows me to buy land/property.

        (2) If I want to buy, lets say, land together with my husband but the prenup agreement says no joint property.. ??

        (3) What are my rights then in case of divorce .. Is he going to keep it all??

        (4) (or even death of partner)?

        (5) Or the government?

        (6) If I want to buy land using ONLY my money,.. should I use my husband's name

        (7) or my PT?

        (8) Can I use our child's name even if he'll be underage??

        (9) Will the property will be just his even though it has been paid with my money??

        (10)... what will be the right choice in my case?

        Thank you for your help..
        (1) No . A PT PMA (or a PT) cannot own land .

        http://www.livinginindonesiaforum.org/showthread.php/21242-Bjy-land-with-post-nup?p=232557#post232557
        (post no.6 , PMA , PT , CV cannot have land's hak milik)


        (2) With a prenup/separated land/house ownership you can buy , but it will be in your Indonesian husband's name (like as he buying the land/house alone) .

        (3) Yes . There are some ideas to try to protect you (see the references below) .

        (4) You/your child are/is eligible to inherit , but foreigners or dual nationality child must sell the land/house within one year .

        (5) By Law , government can take it if there is no prenup/separated land/ house ownership (but never happened before , as far as this Forum knows) .

        (6) Similar to (2) above , it is a case of buying with a nominee (see references below) .

        (7) See (1) above .

        (8) No , if you want the child to have dual citizenship . Yes if the child is to be Indonesian only , but there will be still other kind of problem .

        http://www.livinginindonesiaforum.or...p-Child-s-Name (dual citizenship cannot own land)


        (9) Yes .

        (10) There are not many choices , and no right one , meaning , no 100% safe choice .


        -----------------------------------------------


        From : http://baliblissrealty.com/legal-aspects/
        How Foreigners Obtain Land?

        Many foreign individuals in Jakarta, Bali and elsewhere also hold residential property indirectly through arrangements (often called nominee or trustee arrangements) where Indonesian individuals or companies are legal titleholder on behalf of foreigners. Under such arrangements, the foreigner generally funds the Indonesian purchasing the property and then takes a formal or informal security interest in the land purchased. These relationships are largely built on trust between the foreigner and the Indonesian and any contractual legal rights the foreigner has may be difficult to enforce. Nevertheless such arrangements are pretty common and many long-lived and appear to satisfy both parties.


        -----------------------------------------------


        by 2012 BPI Bali Real Estate , partial copy :
        The freehold property option for foreigners. The most used (and unfortunately for the unwary, misused) option is to use an Indonesian name holder for your property, with who you make contracts. These contracts give you the right to use the property. See for more information below. We cannot stress enough that these contracts should be checked and double checked. No matter how friendly the people are that offer their help, ask advice from a well know legal company ...

        Procedures for Property Acquisition. All transactions of land rights must be via deeds executed before a land deed official at the local office of the Pejabat Pembuat Akta Tanah (PPAT) where the land is located and must be registered in the regional office of the National Land Agency. The PPATs are privately managed offices (usually run by a notary) authorized by the National Land Agency to handle land acquisition matters. Although there is no regulation that contracts have to be in Indonesian language, it is recommended having contracts and agreements always drawn up and executed in Bahasa Indonesia (or two languages) to prevent later arguments that the local partner did not fully understand the content.

        Property Sales Tax. When property is sold there is tax to be paid by both the selling and the buying party. This is 5%, for each, over the amount that is on the sales contract. Please note that the amount on the sales contract can be different from the actual price agreed upon. The tax has to be paid to the notary handling the transaction. Project developers usually include all in their pricing schemes, but when negotiating please ask how sales tax will be handled. Many a foreigner got an unpleasant surprise after agreeing on a price and hearing of the extra tax.

        Documents drawn up at the Notary. There are four documents needed: Number one describes that the foreigner gives money to the Indonesian name holder to buy land and property and the Indonesian gives this land and property to the foreigner to use it, out of his free will. The document also describes that the name holder gives the foreigner permission to sell , to rent it out or rebuild the house or property. It states that the agreement, if necessary, passes automatically to the heirs, as well of the foreigner as the name holders. It states that all of the property costs (electricity, water and taxes) have to be paid by the foreigner. The official 'Sertipikat' will be in the foreigners possession as well as the statement of cession, signed by the name holder. Only with this 'Sertipikat Hak Milik' it is possible to sell the land. In the second document the selling of the property is granted to the foreigner. The name holder gives his explicit permission to do so. In the third document the name holder gives permission to rent out the house or property. The fourth document commits the name holder to co-operate, if the time ever comes that foreigners can own land and property in Indonesia, in making the foreigner being the new name holder on the 'Sertipikat'. In case the law changes in the disadvantage of foreigners, the name holder will co-operate in changing the agreement into a lease-contract of 50 years with option for another term.

        Hak Pakai for foreign investors

        The government offers foreign investors land rights that are relevant to the nature of their business. Prospective buyers of land for any purpose should consult the local government authorities on land use, planning and zoning. Based on a Presidential Decree issued in June 1996, foreigners domiciled in Indonesia are allowed to own one residential property. To meet the regulations of ownership of a house or an apartment, a foreigner must be deemed to be "beneficial to national development" and must be either:

        * An Indonesian resident (domiciled permanently in Indonesia) in possession of a permanent resident permit
        * A non-resident (domiciled in Indonesia only at particular times) in possession of appropriate visit and immigration stamps in his/her passport.

        A foreigner can purchase or construct a house built only on land with the right of use (Hak Pakai), the right of use with the right of proprietorship, or the right of lease (Hak Sewa). An apartment can only be purchased by a foreigner on land with right of use (Hak Pakai). Foreigners are not, however allowed to purchase houses or apartments classified as "low cost housing" or "very low-cost housing".

        Ownership is limited to 25 years, and can be extended for another 25 years provided that the foreigner remains an Indonesian resident or meets the status requirements. If the foreigner departs from Indonesia, the property must be sold or transferred within one year after departure. If the foreigner or his family does not use the house for more than 12 consecutive years, then the foreigner forfeits the "being domiciled" status, for the purpose of owning residential property.


        What do foreigners have to do if they want to use an Indonesian nameholder? It is best to use a well known company to arrange your contracts, and it is not unusual to ask a second opinion about the contracts. Important issues are inheritage and marriage. A foreigner married to an Indonesian woman, needs to have a marriage contract f.i. ...
        Choose the right Indonesian Partner to "own" your property or land. This may take some time and asking around. Talk with foreigners in your area, and don't haste.


        ---------------------------------------------


        http://www.livinginindonesiaforum.or...-using-nominee (nominee)
        Last edited by marcus; 05-03-14, 12:32.

        Comment


        • #5
          I bow down to Marcus' superior knowledge on these matters, I was mistaken in the belief that companies could own land... not an area I know anything much about.
          Trust what marcus tells you - he is very reliable with his info.
          Cicak Magnet

          Comment


          • #6
            Thank you so much for your replies, thank you Marcus for clarifying everything. Forgive me all if I sound bodoh but... forgetting that I have a PT (actually a PT PMA) and focusing on my plans of buying land/property in the future.. what are really the benefits of making a pre-nup agreement to avoid joint property? Having or not a pre-nup will not allow me to own anything, and having a prenup will mean that I will use my husband's name to buy, he will be the only owner of it, and then if we are ever to divorce, he will be keeping it all right? So which option do I actually fit in?? I am so confused at the moment..

            Comment


            • #7
              Just a thought, curious as to how this might work/ how much sense it makes : get your husband to get a mortgage from the bank & you pay it, then if things go sour in a few years you have not lost everything in the way you would have had it been an up front cash payment...
              Cicak Magnet

              Comment


              • #8
                I have just got some advise from a friend and wonder if it makes any sense... I'm just trying to figure out how to get hold of what I have paid for in the event of a catastrophic ending of my marriage.. Let's say me and my husband buy a piece of land after we marry (well actually HE buys it using both my money and his money). He will be the only owner of that land. But what if automatically after buying the land, I rent that land for my use/my company use for x years... (of course not paying for it but signing a contract as if I did..) Would this make sense? I could enjoy the land and he wouldnt be able to sell it or take it away from me in case we divorce... or am I talking nonsense here?? Just wondering if this could be a solution to my worries about not getting hold of anything in the event of our relationship going wrong. ??

                Comment


                • #9
                  Yep, you could do that.
                  Cicak Magnet

                  Comment


                  • #10
                    I cannot see that a lease would provide much protection. If the owner sells the real estate, the lessor would simply have a new landlord, one that would expect the rent to actually be paid.

                    Comment


                    • #11
                      gender differences

                      [COLOR=#232323][FONT=Verdana]Regarding Marcus item #5 in post #4, it is important to bear in mind that much of Indonesian "law" is adat, or local connections, or simply trust in "live and let live".[/FONT][/COLOR]
                      [COLOR=#232323][FONT=Verdana]
                      [/FONT][/COLOR]
                      [COLOR=#232323][FONT=Verdana]My wife bought some property in her hometown in Java two years ago. While we were scouting around looking at deeds of sellers (to be sure we were dealing with an actual owner, not a self-appointed representative of an owner who might later milk commissions from both ends), I noticed that it is common for deeds to bear the name of the Indonesian husband if the owner of record is shown as a woman (e.g., inherited it from her father).[/FONT][/COLOR]
                      [COLOR=#232323][FONT=Verdana]
                      [/FONT][/COLOR]
                      [COLOR=#232323][FONT=Verdana]Despite recent modernizations, I think there is still this kind of bias, namely the husband has some control over his Indonesian wife's (inherited or purchased) land. So, you can imagine that a foreign wife is even more disadvantaged.[/FONT][/COLOR]
                      [COLOR=#232323][FONT=Verdana]
                      [/FONT][/COLOR]
                      [COLOR=#232323][FONT=Verdana]AFAIK, from talking to an American lawyer friend who is a long-time expat in Jakarta and has handled mixed marriage divorces, the prenup is (theoretically) required when an Indonesian woman buys land and has a foreign husband. This is partly due to legalities about divorce/inheritance possibly causing the land to be transferred to a foreigner (must sell within 12 months, as noted by Marcus in point #4) but it also relates to whether the culture supports the notion that an Indonesian wife can own land under her own name.[/FONT][/COLOR]
                      [COLOR=#232323][FONT=Verdana]
                      [/FONT][/COLOR]
                      [COLOR=#232323][FONT=Verdana]I was even told by my lawyer friend that an Indonesian woman who marries a foreigner loses her right to own land unless there is a prenup. However, a close Indonesian friend who does housing development in Central Java said it's rarely enforced, especially outside the capital. And we had two notaris confirm this "flexibility" before we made the purchase.[/FONT][/COLOR]

                      Comment


                      • #12
                        Originally posted by martindo View Post
                        [COLOR=#232323][FONT=Verdana]I noticed that it is common for deeds to bear the name of the Indonesian husband if the owner of record is shown as a woman (e.g., inherited it from her father).[/FONT][/COLOR]
                        I should clarify this. What I noticed was that the woman's name was sometimes written with "wife of X" following it, even though she legally was sole owner.

                        Comment


                        • #13
                          Originally posted by Senyorita View Post
                          I have just got some advise from a friend and wonder if it makes any sense... I'm just trying to figure out how to get hold of what I have paid for in the event of a catastrophic ending of my marriage.. Let's say me and my husband buy a piece of land after we marry (well actually HE buys it using both my money and his money). He will be the only owner of that land. But what if automatically after buying the land, I rent that land for my use/my company use for x years... (of course not paying for it but signing a contract as if I did..) Would this make sense? I could enjoy the land and he wouldnt be able to sell it or take it away from me in case we divorce... or am I talking nonsense here?? Just wondering if this could be a solution to my worries about not getting hold of anything in the event of our relationship going wrong. ??
                          It's true. The highest title of land ownership is Freehold title (Sertifikat Hak Milik /SHM) and the second highest is Building Rights Title (or HGB). Only Indonesian citizen could own the SHM title, and foreigner could only get HGB. However, when you rented a property from any Indonesian citizen (the owner) they should abide by the rules of Renting Law of which they couldn't sell, renovate, transfer, or even use the property as security debt...so practically speaking, the renter will have FULL CONTROL of the property until the rent agreement is over.

                          One thing that u should take into account is that the renting agreement is better to be sewn within your prenup.
                          I have been living for more than 7 years in Indonesia and during these time I've been buying and selling properties for several times. Just make sure u have a good lawyer to cover/waive every law necessary in your prenup. My lawyer usually use 3 subs-contract beside the prenup. (debt agreement -> PRENUP <- property renting agreement)

                          Comment


                          • #14
                            Originally posted by martindo View Post
                            [COLOR=#232323][FONT=Verdana]I was even told by my lawyer friend that an Indonesian woman who marries a foreigner loses her right to own land unless there is a prenup. However, a close Indonesian friend who does housing development in Central Java said it's rarely enforced, especially outside the capital. And we had two notaris confirm this "flexibility" before we made the purchase.[/FONT][/COLOR]
                            Correct!! just to add something here.
                            1. Actually The Couple in your example still has 360 days after the date of marriage to transfer or sell their property (the woman's property)..,otherwise, the government will seize the property.
                            2. Don't listen to the notary, they are not Law Enforcer. They just want to finish their services ASAP to get your money.
                            The Indonesia Land Body could detect this miss-conduct and you'll be falling to many traps in the near future.

                            Comment


                            • #15
                              Originally posted by martindo View Post
                              I should clarify this. What I noticed was that the woman's name was sometimes written with "wife of X" following it, even though she legally was sole owner.
                              I think you might be confusing this with the common ownership of property between spouses. We just bought land, where one parcel was owned by a woman and another neighbouring parcel was owned by her son. Each had a living spouse. there was no difference in how the sale was treated based on gender. In both cases the approval of the spouse was needed for the sale to be approved, i.e. the woman's husband had to agree, and also the son's wife had to agree. The reason is, even if a woman owns land, due to common ownership of assets amongst spouses, it effectively belongs also to her husband. And vice versa where the genders are the opposite. If a woman wants to sell her land, her husband therefore has to agree. It is a legal issue relating to marriage, and not a gender issue.

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