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To what extent is a public notary responsible?

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  • To what extent is a public notary responsible?

    When I married in 2007, I was not aware that my Indonesian wife and I needed a prenup. After the birth of our first child, we bought a property and found a notary who could handle the paperwork. My wife and I met her (the notary) on numerous occasions and so she knew that I was a foreigner. During this time the notary never once mentioned the matter of whether we had a prenup. Nor did she inform us of the laws in Indonesia with regard to expatriate-Indonesian marriages and ownership of land and property.
    I know that there are other couples who have experienced the same and were also not informed by the notary of the laws in Indonesia. I also know that it is easy for a notary to handle the legal paperwork when you are buying land and/or property, whereas it is quite another story when and if you wish to sell the aforesaid property.
    In which case, to what extent is a notary responsible for not informing you of these laws? Surely as a notary, he or she must be bound by a code of ethics, as well as by the regulations concerning ownership of property and mixed marriages? Isn't it their duty to inform you of these regulations? Furthermore, I would question whether the notary had broken the law.
    I accept that I cannot own property, but it galls me to think that these laws also disenfranchise my wife and children of our home. This would not be the case if we had been properly acquainted with the laws in indonesia (my fault), and if we had been properly advised by the notary who handled the paperwork.
    I would be most grateful to anyone who can shed light on this matter.

  • #2
    It's already done. Wasn't mentioned then so best not rock the boat now.
    Just keep quiet about it is what I would advise. Many others are also in the same situation.
    The challenge is to be yourself in a world that is trying to make you like everyone else.

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    • #3
      I think the onus is on you. Many people don't seem to care about this, but it could cause problems down the road when you want to sell the property. I'd guess the notary didn't want to lose their fee.

      This site is great for informing people about the "nuts and bolts" of legal requirements in Indonesia. I don't know that I would have even known about the prenup. Atlantis and Marcus really cover these issues well.

      Good luck!
      Sasa Bule is having a bayi!

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      • #4
        Originally posted by Jaime C View Post
        I think the onus is on you. Many people don't seem to care about this, but it could cause problems down the road when you want to sell the property. I'd guess the notary didn't want to lose their fee.

        This site is great for informing people about the "nuts and bolts" of legal requirements in Indonesia. I don't know that I would have even known about the prenup. Atlantis and Marcus really cover these issues well.

        Good luck!
        The prenup agreement is a way to be safe from the fact that an indonesian wife is technically precluded to own a SHM property if married to a WNA with the common rule of joint property concerning any asset acquired during the marriage. However, if the latter is correct, a prenup agreement is not a perfect solution and induces other problems which can be pretty serious, depending on the situation of the couple. Thus, in my opinion, having a prenup is not necessarily much better than not having one.

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        • #5
          If you are so concerned about the ownership or title than you could transfer title to a relative, if they are trustworthy, so if you ever want to sell the title, at least in the first instance, is clear. Given the lack of attention to detail and willingness to expedite anything for a fee, it seems doubtful the buyer or buyer's notaris would check the chain of title to see that it once was colored. And even if it the title was colored, it could be argued that issue was resolved with the transfer to relatives that do have a right of ownership.
          "My country is the world, and my religion is to do good." -Thomas Paine.

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          • #6
            My suggestion is not in accordance to Law - but it is common practice among friends with similar situation as yours: if your wife's KTP is still stating "tidak menikah" (not married), or "cerai hidup" (divorcee) or "cerai mati" (widow) , let it be it - do not ever change her status (on the KTP) as "menikah" (married). So, when she buys and sells the properties, she can use her KTP as a non-married woman.

            But if your wife has changed the status on her "KTP" as "menikah" (married), and you do need a pre-nup, you could try to find a notary - usually the one who almost retired - to arrange a "back dated" prenup for you.

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            • #7
              Has anyone ever managed to get a back dated prenup? We would love to get a house and mortgage but unfortunately the banks won't even look at my Indonesian husband without a prenup. I too had no idea this was necessary when I got married.

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              • #8
                Originally posted by deborahk View Post
                Has anyone ever managed to get a back dated prenup? We would love to get a house and mortgage but unfortunately the banks won't even look at my Indonesian husband without a prenup. I too had no idea this was necessary when I got married.
                I'm sure that some have done this. It's quite a stretch that they'd admit to it on an nternet forum, though.
                Sasa Bule is having a bayi!

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                • #9
                  Getting a postdated prenup is one thing; getting it registered by the court is another...
                  "Science is the philosophy of discovery. Intelligent design is a philosophy of ignorance"

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                  • #10
                    It must be on the judicial price list, though. Probably right below the "reduced sentences for graft" category.

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                    • #11
                      Originally posted by redsnapr View Post
                      Getting a postdated prenup is one thing; getting it registered by the court is another...
                      Exactly.
                      To be honest, the suggestion is ridiculous beside being illegal. It would require to bribe a Notaris, the Pengadilan Negeri AND the Catatan Sipil and to be honest there would still have multiple ways to find out that the prenup is post dated.

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                      • #12
                        Has any mixed couple here managed to get a mortgage without a prenup? I met an older expat living here once who said he actually managed to get a mortgage without a prenup, but that was about 15 years ago.

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                        • #13
                          How could an expat get a mortgage if expats cannot legally own a property.... with or without a prenup?
                          "Science is the philosophy of discovery. Intelligent design is a philosophy of ignorance"

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                          • #14
                            Good point, Red.

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                            • #15
                              I assume the mortgage was in his wife's name and if i am not wrong they bought the house in 1997 just before the monetary crisis in Indonesia as i remember him saying it was difficult to continue paying the mortgage with the interest rate. Bearing in mind, I only met this person one time and do not know him well. I remember being suprised that his wife managed to get a mortgage when they didn't have a prenup.
                              Last edited by deborahk; 25-04-13, 15:10.

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