Postnuptial agreement (so called "Postnup") in Indonesia is a contract entered into and signed by husband and wife after they are legally married. The postnup is a marital agreement legally recognized and valid under the recent ruling from the Constitutional Court in 2015. It means any married couple may enter into a marital agreement during the course of their marriage. Officially Indonesia recognized two types of marital contracts i.e. prenuptial agreement and postnuptial agreement. The difference between the two of them is just the date when you execute it. Therefore, the postnup must also meet the statutory requirements like a prenup do. There are two major laws governing the two contracts. They are the Marriage Law and the Civil Code.
Firstly, the Marriage Law imposed that the marital agreement, both prenup and postnup, must be registered with the marriage registry. The law said the officer of the marriage registry legalizes (“mengesahkan”) the marital contract. The way I see it, they have the authority to approve the postnup and register it with the marriage of the couple. The idea behind this is to create the legality of the postnup between the two spouses. This is very important and can’t be missed. Due to urgency of the postnup’s civil registration, the Ministry of Interior issued a recent guidelines to the marriage registries all over Indonesia of how to administer the proceedings. Secondly, the Civil Code imposed that the postnup agreement, as well as the prenup, must also be registered at the court of law. This is to meet the publicity requirements in order to comply the postnup with other third parties, such as bank as the financier, the government, etc. Failure to do so, will make your postnup is not valid.
As for the content, the postnup must have one very special clause. It must specifically mention about the marriage conducted by the husband and wife. The place and date of your marriage. The postnup shall only take place upon the lawful marriage between the spouses. If they got divorce, the postnup will also automatically obsolete. But the terms and conditions in the postnup may also be used as an entry point for your divorce settlement. You may use the postnup as your only settlement, but you may also create another derivative agreement in order to go with the details such as child visitation and parenting, child support, spousal support, or property division.
Your postnup create the bonafidity to your marriage. It also preserves the rights of an Indonesian spouse in regards to owning the property, especially freehold title (Hak Milik). The Indonesian postnup is for you guys the married couples that thinks joint property regime is no longer required in your marriage. You need the postnup as well, if you’re married under the Indonesian laws and would like to secure assets, regardless your nationalities. You can have it back-to-back between the Indonesian and the foreign documents.
We provide postnup questionnaire to gather input on how your postnup should be. It should supports you, not against you. The last thing you want is a useless piece of paper that doesn’t do you any good. Call us for a consultation or drop us an email to find out more how you can achieve your financial goals for you, your family and loved ones.
The above is provided for informational purposes only and is NOT to be relied upon as legal advice. This information is not a substitute for the advice of an attorney and should not be construed as a solicitation. No attorney-client relationship is established by use of information found within this article nor in this website.
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