After the marriage, property acquired during the marriage shall be treated as joint property. This is applicable either both spouses are working, or only one spouse whose working. Regardless whose the bread maker in the family, assets secured after the date of marriage fall into the definition of marital property. Either you're a housewife, or a stay at home dad, both you are entitled to assets accumulated by your spouse. You're entitled to half of it. It's yours too. They are your assets. They belong to both of you. Therefore, in the event of marriage dissolution, the assets are subject to property division. All the assets must be divided evenly.
For some couples, community property is not for them. They have different situations. They may need different measures. They need something else. Something sophisticated. They need a prenuptial agreement. If you've decided to go ahead with a prenup, you have to sign it before you said: "I do" in the holy matrimony. That's why they called it PREnup. It has to executed before the marriage. You know it. She knows it. Everybody knows it. You just have to sit together and talk about it.
The Legal Grounds
Prenuptial agreement in Indonesia is very strong. It is legally recognized and protected. The legal grounds have been there decades ago. Those are the laws and regulations from the Civil Code, as well as the Marriage Law. Indonesian legal system takes the prenuptial agreement very serious indeed. You can't possibly miss them. This is our state of the art rules and regulation to protect you, your family, and your assets.
The situation where couples who need a prenuptial agreement is applicable under Article 119 of Civil Code stipulated as follows: From the moment of execution of the marriage, it shall arise by law joint marital property between the spouses to the extent that no other stipulations have been made in the pre-nuptial agreement. Rules regarding community property cannot be revoked or amended by mutual agreement between the spouses for the duration of the marriage."
Further, Article 35 of Marriage Law stipulate as follows: 1) Properties acquired during the marriage will become joint property; 2) Separate Properties of husband and wife, and properties acquired as gifts and inheritance are under each party's control unless otherwise specified.
You can consult your Indonesian lawyer regarding issues that you want to include into your marital contract. You can include assets, child custody, child support, property division in the event of divorce, etc. You can include anything and put there on your contract. Your choice. As long as they are legal and morally acceptable, you can include them. No problem.
Why You Should Sign One?
Your prenuptial agreement is your rule of the game, because it has your name on it. You are one of the parties of the agreement. Therefore, it is better for you if the prenup is being "tailor made" and customised for you and your spouse. That's why, our firm provide you with a questionnaire. A list of questions with sets of answers so you don't have to worry how to come-up with response. If you don't see your answer, you can specify otherwise.
Basically, these are the reasons why you should sign a prenuptial agreement:
- A prenuptial agreement is a tool to legally protect your assets, both acquired before the marriage, and during the course of marriage.
- It can be used to protect members of your family from domestic violence. When it is a legal fact in Indonesia, it can be mirrored elsewhere in the world.
- To set you free from your spouse's general liabilities. The last thing you want is to pay off your spouse debts with your assets.
- Your prenup serves as a set of rights and obligation in running your marriage. It's like a manual book for your car. A marriage is far more complicated than a car. In that case, it must have also a manual of how you should be able to run the family. Many marriage fails, and it's a good idea to have one for your own matrimony. You know, just in case.
What Issues Can be Included?
You can include almost anything into your prenuptial agreement. Some issues that usually we include into our firm's clients are:
- Separation of assets. This issues is usually included because you want to separate assets acquired before and during the marriage. Usually, people do this because they want to protect their family from business risks, such as liquidation, business debts if their company going wind-up, or any other potential issues such as legal constraints. Risk from legal constraints can happen when you're getting married to a foreigner. There is a stipulation in Indonesia's Basic Property Law that a foreigner is not allowed to own a property in Indonesia. Sadly, the Indonesian married to the foreigner is precluded to own the property as well. So, you need a prenuptial agreement to get around the issues.
- Child custody. This is very interesting, especially for newly wed couples. Usually they don't really pay attention to this issue as all is about love. So, they think child custody is not really an important issue. Really, they need the advice and they should take it from seasoned lawyer in the business. You should definitely take our advice here. Something that may look just fine, can turned upside down in no time. Your prenuptial agreement is your protection. Our prenuptial agreement is valid under the laws in Indonesia, but it recognized worldwide.
- Property division in the event of divorce. This is the crucial part. Who gets what. One spouse finances the purchase of their assets, and the other spouse could not possibly get away with everything. You need to protect your investment. In the future, assets grow and you entitle to your share. The prenuptial agreement can protect your rights, regardless how much you contribute.
Who You Talk to?
If you think you are the person who need a prenuptial agreement, please contact us. We can forward a questionnaire that can lead you to what you should included into your prenuptial agreement. We do the hard work, so you don't have to.
My name is Asep Wijaya. Thank you for reading my posts!
Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!