Pre-Nuptial agreements revisited

[atlantis]

I don't see for example, why a simple spousal consent about the ownership of the particular property would not be sufficient, instead of a prenup or postnup.

The marriage law give a spouse the joint property of any asset. The indonesian civil code says in its article 119 (KUHPer, Buku I, Bab VI "harta bersama menurut undang-undang dan pengurusannya", bagian 1 :
Sejak saat dilangsungkan perkawinan, maka menurut hukum terjadi harta-bersama menyeluruh antara suami-istri, sejauh tentang hal itu tidak diadakan ketentuan-ketentuan lain dalam perjanjian perkawinan. Harta bersama itu, selama perkawinan berjalan, tidak boleh ditiadakan atau diubah dengan suatu persetujuan antara suami-istri

[FONT=Arial][SIZE=2][FONT=Arial][SIZE=2]I hope that the above article will definitively clarify the question. Many other articles in various laws and regulations express the exact same idea. same goes with the jurisprudence. It is a principle that has NEVER been challenged to my knowledge.[/SIZE][/FONT]

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For non indenosianist a translation of the aricle 119 KUHPer would be:

From the moment of execution of the marriage, there shall exist by law community of property between the spouses to the extent that no other stipulations have been made in the prenuptial agreement. Rules regarding community property cannot be revoked or amended by mutual agreement between the spouses for the duration of the marriage.

[FONT=Arial][SIZE=2][FONT=Arial][SIZE=2]Very clear indeed and no doubt should subsist.[/SIZE][/FONT][/SIZE][/FONT][FONT=Arial][SIZE=2]

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[Hombre de Maiz]

Sounds to me that no post-nups are allowed.

[atlantis]

Saying that if someone does not have a penup, then "game over" or "you need to divorce, transfer the ownership twice, do a prenup and remarry again" sounds as much nonsense as the weird interpretation according to which "in the absence of a prenup the foreign party is forced to own the property which is an illegal situation and therefore the government could confiscate the property". The purpose of prenups is to agree BETWEEN the marrying parties about their interests and not to provide protection for BOTH of them against Indonesia's attempts to confiscate their properties!

Sorry to disagree. To me, what is a non sense is that people may marry without knowing or researching the legal implication it has. This forum and its sister website exist for 12 years for example and though I don't know for sure if it has been the case, I think that the question has always been discussed. Anyway, reputable lawyers and notaris have been here for many more years.

I've just done a small experiment typing "marriage in indonesia" in google and found a link to www.expat.or.id proposed on the first page.

[atlantis]

Erm... I've just re-read the thread and just found out that in my post #8 in this thread I already quoted the article 119!!!
Question to you sour sally: Did you REALLY made any research at all before asking me to do it for you!?

The Indonesian Civil Code says so. I did quote the exact article of the KUHPer in one of the thread concerning prenup.

Atlantis, can you give the exact reference? Could not find it.... thanks

Sorry if it sounds a bit rude, but you may understand my point...

[Sour Sally]

From the moment of execution of the marriage, there shall exist by law community of property between the spouses to the extent that no other stipulations have been made in the prenuptial agreement. Rules regarding community property cannot be revoked or amended by mutual agreement between the spouses for the duration of the marriage.[LEFT]

OK, but the law does not say that a party can not renounce/waive any claim based on the law of community of property during the marriage. In fact the law includes several examples for that.

[atlantis]

There shall exist a community of property and rules regarding community property can not be revoked for the duration of the marriage is not enough?
Well, if it is not enough for you, it is enough for the judges and a quick browse a few perkara on Mahkamah Agung website should be enough to remove any doubt you may have... Anyway, feel free to draft a postnup agreement and to submit it to any court or notaris over a land issue.

"In fact the law includes several examples for that." Care to elaborate?

[Sour Sally]

"In fact the law includes several examples for that." Care to elaborate?

Just search the term "renounce" in the law, you will find a couple of points, Art 132 for example.

Anyway, the law community property is designed to protect the married parties in case they don't have a prenup, and not to give a weapon to the State to confiscate properties. Do you agree with that?

Certainly, there might be people at the BPN who look for money, but in practice, if a case like that would land at the court (I am not aware of any confiscations, maybe you are), any judge, which is sane, would decide that in the case of the particular property, the law of community property can not be applied word by word because that contradicts the Agraria law, simply because

1. That makes sense, and going ahead with confiscating the property saying that "by the marriage an alien illegally and against its own intents gained ownership in a property" does not.
2. The rules about the law of ownership are designed to regulate the matters which are not regulated in the prenup, and using the confusion created by careless law makers to confiscate private properties would be unfair and would contradict the Constitution.

[atlantis]

Just search the term "renounce" in the law, you will find a couple of points, Art 132 for example.

Article 132 has been tailored to protect a wife from debts contracted by her husband. It is in case of debts contracted by a silly husband that a wife can release her rights to joint property. Irrelevant in the case which interests us.

"Istri berhak melepaskan haknya atas harta-bersama; segala perjanjian yang bertentangan dengan ketentuan ini batal; sekali melepaskan haknya, dia tidak boleh menuntut kembali apa pun dari harta-bersama, kecuali kain seprei dan pakaian pribadinya. (s.d.u. dg. S. 1938-276.) Dengan pelepasan ini dia dibebaskan dari kewajiban untuk ikut membayar utang-utang harta-bersama. (s.d.u. dg. S. 1938-276.) Tanpa mengurangi hak para kreditur atas harta-bersama, si istri tetap wajib untuk melunasi utang-utang yang dari pihaknya telah jatuh ke dalam harta-bersama; hal ini tidak mengurangi haknya untuk minta penggantian seluruhnya kepada suaminya atau ahli warisnya"

[atlantis]

For your perusal, I give you an interesting link (in bahasa Indonesia) on the topic:
http://pusdiklat.law.uii.ac.id/index...-Campuran.html
I did attend a seminar on this topic given by Pak Winanto Wiryomartani a bit more than a year ago and can tell you that he knows what he is talking about. Much more than I do in fact, and none of the advokat, calon advokat, notaris or masyarakat umum such as me had anything to add at the end of his speech.

[Sour Sally]

Article 132 has been tailored to protect a wife from debts contracted by her husband. It is in case of debts contracted by a silly husband that a wife can release her rights to joint property. Irrelevant in the case which interests us.

This is true. However, it shows that it is possible to renounce from the law of joint property.
This does not matter too much anyway, since the whole case of the prenup/mixed marriage chaos is based on the INTERPRETATION of two contradicting laws. There is no law which says that an Indonesian party in a mixed marriage can not own property, or can only own property with a prenup (such law would probably fail at the Court of Constitution). Unfortunately so far no one took the effort to fix the mess, instead everyone seems to focus on producing nonsense documentation as a remedy for the problem. But lets' face it, neither claiming that "the state can confiscate the property of an Indonesian, because by the mixed marriage the alien spouse is forced irrevocably to own the property, and this is an illegal situation", nor the proposed remedy by "a prenup designed as a defense against the state" make any sense, I think we all agree about that.
Of course, if we follow this interpretation, we get to the conclusions advocated by Pak Winanto Wiryomartan. But the fact is that there are two contradicting laws, and either the Agraria law, or the mentioned paragraphs of the Civil Code have to be relaxed in the particular case, otherwise the result is nonsense!

[atlantis]

This is true. However, it shows that it is possible to renounce from the law of joint property.

No. it shows it can be done in a defined frame by a wife of an indebted husband. Don't try to see what is not existing.

This does not matter too much anyway, since the whole case of the prenup/mixed marriage chaos is based on the INTERPRETATION of two contradicting laws.

Once again, the law are NOT contradicting. Saying it is I am afraid a poor understanding of them or plain bullshit. Sorry.

There is no law which says that an Indonesian party in a mixed marriage can not own property, or can only own property with a prenup (such law would probably fail at the Court of Constitution). Unfortunately so far no one took the effort to fix the mess, instead everyone seems to focus on producing nonsense documentation as a remedy for the problem. But lets' face it, neither claiming that "the state can confiscate the property of an Indonesian, because by the mixed marriage the alien spouse is forced irrevocably to own the property, and this is an illegal situation", nor the proposed remedy by "a prenup designed as a defense against the state" make any sense, I think we all agree about that.
Of course, if we follow this interpretation, we get to the conclusions advocated by Pak Winanto Wiryomartan. But the fact is that there are two contradicting laws, and either the Agraria law, or the mentioned paragraphs of the Civil Code have to be relaxed in the particular case, otherwise the result is nonsense!

Do you have any idea who Pak Winanto Wiryomartani is?
Alternatively you can also contact ANY mixed marriage association. They will ALL confirm you what I wrote here and are actively lobbying for a change of this situation.
Anyway, you may decide to do your own mix with the law, to understand it the way you want and to interpret it the way you want. At the end of the day, if one tries to sale a piece of SHM land owned by a WNI married to a foreigner, who would not have a clear surat perjanjian pisah harta, one will soon enough understand that your interpretation is plain wrong. Try also to produce a postnup and see how far it brings you. Sorry to sound harsh, but I don't see anything more to say for you to get it. I will end my participation here. Flogging a dead horse ain't my cup of tea.

[Sour Sally]

No. it shows it can be done in a defined frame by a wife of an indebted husband. Don't try to see what is not existing.

The law does not say that this can not be done in another frame. But anyway, this does not count for the whole thing.

Once again, the law are NOT contradicting.

Of course, the law are inconsistent and contradicting. One law says that properties are jointly owned, whilst the other does not allow this. What is this if not a contradiction???

Do you have any idea who Pak Winanto Wiryomartani is?

No, and I don't care too much.

Alternatively you can also contact ANY mixed marriage association. They will ALL confirm you what I wrote here and are actively lobbying for a change of this situation.

Of course, because instead of focusing on the core of the problem (the contradiction in the law) the focus on the same nonsense interpretation.

[atlantis]

The law does not say that this can not be done in another frame. But anyway, this does not count for the whole thing.

Wrong again. The law specifically says that joint property is reputed for any asset but authorises in 1 case a woman to release her right on joint property in a precise case. It does not list any other exception.
Do you understand bahasa Indonesia? Surely not.

Of course, the law are inconsistent and contradicting. One law says that properties are jointly owned, whilst the other does not allow this. What is this if not a contradiction???

Please, quote here the reference of the law, in Bahasa Indonesia, saying that a a law does not allow joint property.
You are anything but a person with a law background I am afraid. No offense intended. If you don't understand law matters, please don't add to the confusion.

[Sour Sally]

This whole structure of arguments about prenup/mixed marriage/property ownership somehow reminds me to the tale about the emperor's new clothes. According to the tale, the whole court, the country and the emperor himself admitted the existence of the invisible clothes until a child came around and said: come on, the emperor does not have clothes at all!!! Just like that, so many people invest so much effort in arguing about nonsense, and finding ways how to get around a confusing law, instead of solving the problem!

To make a prenup as a defensive document against the Government is not a rational fix.

In fact, if an alian marries an Indonesian
1. the alien does not gain ownership in the property, because the Agraria law does not permit it - that makes sense.
2. saying that the alien gains ownership in the property and that voids the ownership of the Indonesian spouse does not make any sense.

To make this clear, the lawmakers should only make a very small amendment of the Civil Code: in Article 119, in the end of the first sentence they should include "...or any law stipulates otherwise" and in that case the whole confusion is gone. Pak Winanto Wiryomartani and other renowned lawyers should lobby for this change (shame on them, they did not do it so far, and instead of that they focus on advocating nonsense). That would pass the lawmakers in a minute, because this is logical anyway, and solves a long standing problem too.

Let's face: the emperor does not have clothes on!

[atlantis]

Yawn.

I note that you did not give any reference of an article of law which does not allow joint property, nor you gave any example of contradicting laws.

Also,

To make this clear, the lawmakers should only make a very small amendment of the Civil Code: (edited) That would pass the lawmakers in a minute, because this is logical anyway, and solves a long standing problem too.

It clearly shows your poor understanding of law matters and your lack or inexistence of research about the topic.
1. An amendement is not passed in a minute because it has consequences on a cascade of other statutes of equivalent or lower rank.
2. It would then mean that any statute related to it should be amended. A lot of work for a very tiny number of people involved in fact.

We could argue forever, but I am afraid it is pointless and as I said earlier, I am not into flogging dead horses. The law is clear on it. Any asset is reputed joint property in a marriage. The Civil code say so. The marriage law say saw. All the statute of lower rank that complete them say so. No contradiction about it. This is the rule unless a prenup has been signed stipulating otherwise. Without a prenup, a foreigner married to an Indonesian is de facto owner for half of the said asset. The 1960 agrarian law clearly stipulates in its article 21:

Bahasa Indonesia

(1) Hanya warga-negara Indonesia dapat mempunyai hak milik.
Proposed Translation
(1) Only Indonesian citizens can have a hak milik (free hold land title).

Bahasa Indonesia
(2) Oleh Pemerintah ditetapkan badan-badan hukum yang dapat mempunyai hak milik dan syarat-syaratnya.
Proposed translation
(2) The Government is to determine which corporate bodies can have a hak milik and the conditions for it.

Bahasa Indonesia
(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 didalam 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.
Proposed translation
(3) A foreigner who, following the enactment of this Law, acquires a hak milik by way of inheritance without a will or by way of joint ownership of property resulting from marriage and an Indonesian citizen holding a hak milik who, following the enactment of this Law, looses Indonesian citizenship is obliged to relinquish this right within one year following the date the hak milik is acquired in the case of the former or following the date upon which Indonesian citizenship is lost in the case of the latter. If following the expiry of the said time period, the right is not relinquished, then the said right is nullified for the sake of law and the land falls to the State with the proviso that the rights of other parties which encumber the lands remain in existence.

Bahasa Indonesia
(4) Selama seseorang disamping 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.
Proposed translation
(4) As long as one with Indonesian citizenship concurrently holds foreign citizenship, he/she cannot have land with a hak milik status, and the provision as meant in paragraph 3 of this article should apply to him/her .

Having read the above, I propose you to re-read your posts and to note the contradictions, non sense or false statement that they contain. Examples abound I am afraid:

Post #44

In fact, if an alian marries an Indonesian

1. the alien does not gain ownership in the property, because the Agraria law does not permit it - that makes sense.

2. saying that the alien gains ownership in the property and that voids the ownership of the Indonesian spouse does not make any sense.

If you read the article 21, verse 2 you will understand that i) the law clearly acknowledges that a foreigner may gain property through marriage -it already contradicts your assumption- and ii) the right of ownership of the WNI is void because in this case, the right has to be relinquised in a time frame set by law.

Post #37
[QUOTE=Sour Sally;659922. The rules about the law of ownership are designed to regulate the matters which are not regulated in the prenup, and using the confusion created by careless law makers to confiscate private properties would be unfair and would contradict the Constitution.[/QUOTE]
This is just blablablaing. You have not read nor understood the Undang-Undang dasar RI. Same could be said anyway about your knowledge and understanding of the the UU 5/1960 or the KUHPer or the UU 1/1974. Please quote me the articles motivating your baseless assumptions.

Post #40

There is no law which says that an Indonesian party in a mixed marriage can not own property, or can only own property with a prenup (such law would probably fail at the Court of Constitution).

Feel free to elaborate on it after having read and understood the pasal 21, ayat 2 UU 5/1960. The right of an indonesian spouse is precluded when the asset is reputed joint property (meaning no surat perjanjian pisah harta) in the case of a mixed marriage. I would also be very interested to hear about your elaboration about the "Court of Constitution". Please, quote the article of the UU dasar the law infracts and feel free to elaborate on it. I would be very glad to argue with you on the ground of the UUD.

Post #29

Concerning the topic of land ownership, the obvious reason for this chaos about prenups is that the marriage law and the land ownership law contradict to each others

I am still waiting that you point at us the contradiction you've claimed. Indeed, they are not contradicting, they are completing each others. Not even a small hole for a constitutional review on the topic of ownership for a WNI married to a WNA. If there were, there is a long time that a review to challenge the law would have been lodged by association such as KPC Melati or Srikandi.

Post #37

Just search the term "renounce" in the law, you will find a couple of points, Art 132 for example.

Here again one may think that the assumption is intellectually dishonest. You are trying to give weight to a baseless assumption by stating that there is a "couple of points, Art. 132 for example". You obviously had no idea what Art 132 was about at the time you wrote it and just took the reference of it from my post #8. The article 132 is clearly irrelevant in the case we are discussing and have stated why. However since I assume from "couple of point" and "for example" that you are aware of others, feel free to state them and provide the exact reference... Care to elaborate on it?

Post #44

Pak Winanto Wiryomartani and other renowned lawyers should lobby for this change (shame on them, they did not do it so far, and instead of that they focus on advocating nonsense). That would pass the lawmakers in a minute, because this is logical anyway, and solves a long standing problem too. Let's face: the emperor does not have clothes on!

I am asking you a genuine question: do you think that with the little or non existent knowledge of the law you have displayed in your your 8 posts you are in a position to tell to "Pak Winanto Wiryomartani and other renowned lawyers" what they should do, amend or lobby? Heck, I believe I have a fair understanding of the Indonesian laws and Indonesian law system, but when and if I talk to a reputed lawyer, I do not try to give him a lesson on what he should do. I first try to make sure I understand what is discussed. We clearly not have the same approach. You can continue to tell yourself tales: the right to hold SHM of a WNI married to a foreigner is precluded unless a surat perjanjian pisah harta has been signed and notarised prior to the wedding. Period.
I believe I can rest my case. I won't waste more time answering obviously biased and non motivated arguments. Over and out.