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  • No Pre Nup, consequences

    I have been asked about the law concerning couples without a pre nup and their marriage is either registerred here in Indo or not, and who may want to sell their homes.
    Anyone know what possible problems they may encounter given the fact the transaction was already technically illegal given Indonesia's laws related to foreigners owning land?
    IknowthatyoubelieveyouunderstandwhatyouthinkIsaid, butI'mnotsureyourealisethatwhatyouheardisnotwhatI meant.

  • #2
    Is it a mixed Indonesian/foreigner couple?

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    • #3
      Originally posted by Mauricio View Post
      Is it a mixed Indonesian/foreigner couple?
      Yes, married here and registerred with the authorities also. so the title has the husbands name included.
      They want to sell but are looking for ways/options around the problem.
      Last edited by ohmdafyd; 04-05-09, 16:05. Reason: edit
      IknowthatyoubelieveyouunderstandwhatyouthinkIsaid, butI'mnotsureyourealisethatwhatyouheardisnotwhatI meant.

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      • #4
        There is something impossible/incorrect in the above post.
        If they are married, the husband (or wife) being foreigner, the name of the foreigner can not be on the title, assuming it is an SHM title that we are talking about.
        Would you please doublecheck it.

        What I suspect you may want to describe is:
        - It is a legally married couple
        - There is no prenup agreement, meaning that any properties acquired by the couple is deemed joint property.
        - The husband is foreigner
        - The wife acquired a property/land and had an SHM title issued under her name
        - The couple would like to sell the property.
        - The couple wants to know if the transaction would be at risk, due to the fact that a SHM title shouldn't have been issued since the right of ownership of the indonesian wife was precluded due to the marriage with a foreigner, without a prenup agreement being registered in court.

        Am I correct?

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        • #5
          Originally posted by atlantis View Post
          There is something impossible/incorrect in the above post.
          If they are married, the husband (or wife) being foreigner, the name of the foreigner can not be on the title, assuming it is an SHM title that we are talking about.
          Would you please doublecheck it.

          What I suspect you may want to describe is:
          - It is a legally married couple
          - There is no prenup agreement, meaning that any properties acquired by the couple is deemed joint property.
          - The husband is foreigner
          - The wife acquired a property/land and had an SHM title issued under her name
          - The couple would like to sell the property.
          - The couple wants to know if the transaction would be at risk, due to the fact that a SHM title shouldn't have been issued since the right of ownership of the indonesian wife was precluded due to the marriage with a foreigner, without a prenup agreement being registered in court.

          Am I correct?
          Yes indeed you are correct, the situation is as you have described, my apologies, that's twice today.
          it's been a stressfull day for us and perhaps I should not post comments in this frame of mind

          The couple will pm you directly for any advice you may be able to provide, as I understand there are quite a few of us in this awkward position, would you please post any information you feel may be helpful for future reference.
          IknowthatyoubelieveyouunderstandwhatyouthinkIsaid, butI'mnotsureyourealisethatwhatyouheardisnotwhatI meant.

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          • #6
            I, personally, would tend to stay away from such a seller for, strictly speaking, in the absence of a pre-nup the land for sale may no longer be legally theirs to sell...In Mauricio World, one cannot sell what is not legally one´s property. In Indonesia, however, everything can be arranged.

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            • #7
              Originally posted by Mauricio View Post
              I, personally, would tend to stay away from such a seller for, strictly speaking, in the absence of a pre-nup the land for sale may no longer be legally theirs to sell...

              ...and that is one of their fears..however why does the Law say that land purchased in this manner, a please correct me if again I'm wrong here, must be sold within one year otherwise it reverts to the State?

              They were advised by several Notaries that..'if my wife died I would have a year to either sell or transfer the land in some way out of my ownership" ...is the key here the possible death of a spouse or is it legal to sell or transfer the title?
              Last edited by ohmdafyd; 04-05-09, 20:04. Reason: update
              IknowthatyoubelieveyouunderstandwhatyouthinkIsaid, butI'mnotsureyourealisethatwhatyouheardisnotwhatI meant.

              Comment


              • #8
                Originally posted by omdafyd View Post
                ...and that is one of their fears..however why does the Law say that land purchased in this manner, a please correct me if again I'm wrong here, must be sold within one year otherwise it reverts to the State?

                They were advised by several Notaries that..'if my wife died I would have a year to either sell or transfer the land in some way out of my ownership" ...is the key here the possible death of a spouse or is it legal to sell or transfer the title?
                Sorry I didn't mean to hijack this thread but I have the same question also for Atlantis (our inhouse expert). I have 2 houses in Indo and a piece of land one I bought before I met my hubby and the other after we married and both are on my name while the land on my mum's name (haven't got the time to change it to mine). We did register our married in Kantor catatan sipil when we lived in Jakarta so we are 'legally married'. My question is could I name my husband or my son in my will to inherit both houses, and when I died do they really have to sell it on within one year and if not the State will take it off from them? This doesn't sound right. Because I don't really want them to sell it and I want my son (he does too of course) always has tie with Indonesia as I come from a big family and we are very close. But if they have to because that's what the law says then so be it. I just have to find another way for my son to be able to have a crash pad in Indo. Thanking you in advance.
                Last edited by littleiyut; 04-05-09, 21:35.

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                • #9
                  Indonesian law provides that a property held by a foreigner must be sold within one year for several reasons including the one that you describe, an inheritance. In many cases, that allows one year to set up a new ownership Structure.

                  In the case of the earlier issue, no REPUTABLE Notary would execute a Sale and Purchase Agreement for a Hak Milik land title in the name of an Indonesian married to a foreigner without a Pre-Nuptial Agreement. Therefore, as is often the case in Bali (I've had several friends have to deal with similar, though not identiical isssues), the (Presumably) Indonessian wife PROBABALY had a KTP/KK showing her status as single when "They" purchased the land. Unless there is a messy divorce involved, perhaps this could also suggest a solution?
                  Last edited by dontpanic; 04-05-09, 22:07.

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                  • #10
                    Originally posted by dontpanic View Post
                    In the case of the earlier issue, no REPUTABLE Notary would execute a Sale and Purchase Agreement for a Hak Milik land title in the name of an Indonesian married to a foreigner without a Pre-Nuptial Agreement.
                    I am afraid that outside of Bali and Jakarta, 99% of the Notaris will execute an Akta Jual Beli without considering the buyer's husband/wife. The problem will arise during the sale process, where by law the husband/wife of the seller will have to decline his ID and sign the Akta Jual Beli.
                    This problem typically occure in places where foreigners are still sparse... meaning anywhere apart Bali and some "touristic spots". Notaris in those places are used to deal with the possibility that the buyer is married to a foreigner. In many other places they would just assume that the husband/wife is WNI... or worth, they will not think about the problems that may occure. Reputable Notaris are not available everywhere in the archipelago...
                    Last edited by atlantis; 04-05-09, 22:26.

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                    • #11
                      French Logic?

                      Originally posted by atlantis View Post
                      I am afraid that outside of Bali and Jakarta, 99% of the Notaris will execute an Akta Jual Beli without considering the buyer's husband/wife. The problem will arise during the sale process, where by law the husband/wife of the seller will have to decline his ID and sign the Akta Jual Beli.
                      This problem typically occure in places where foreigners are still sparse... meaning anywhere apart Bali and some "touristic spots". Notaris in those places are used to deal with the possibility that the buyer is married to a foreigner. In many other places they would just assume that the husband/wife is WNI... or worth, they will not think about the problems that may occure. Reputable Notaris are not available everywhere in the archipelago...
                      So if what you say is correct, then there should be no problem with selling either so there is no problem?

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                      • #12
                        What I think he is saying that the sale may be invalid/illegal because a foreigner has no right to own property, let alone sell it. In other words, the sale cannot legally take place at all. If the notaries and the buyer/sellers persist in the transaction, that still doesn´t make it legal.
                        Last edited by ; 04-05-09, 22:43.

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                        • #13
                          I give up!!

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                          • #14
                            Originally posted by littleiyut View Post
                            My question is could I name my husband or my son in my will to inherit both houses, and when I died do they really have to sell it on within one year and if not the State will take it off from them?
                            If your son has double citizenship as per law 12/2006 AND decide to be Indonesian when he will reach the age of 18, he could inherit of the SHM tittles.
                            A way to secure the house for your husband in the event of you die first would be to nominate an Indonesian national as the heir of the Hak Milik with the condition that your husband is the beneficiary of an Hak Pakai atas Hak Milik on the house/land.
                            These are suggestions but should be discussed and veified with a proper counsellor at law

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                            • #15
                              I give up!! If in doubt, please read my above posts which provide all necessary information. Hak Pakai atas Hak Milik is a very expensive and very uncertain Structure. Detailed solutions are relevant ONLY after the general issues have been resolved. With respect to Atlantis.
                              Last edited by dontpanic; 04-05-09, 23:00.

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