Can a prenuptial agreement that is drawn up in Germany be applicable in Indonesia, especially in relation to the right of Indonesian Citizens to remain in possession of property with the status of ownership? If applicable, what procedures should be followed? Does it have to be legalized at the Indonesian Embassy where the marriage took place and does it have to be reported to the Civil Registry Office in Indonesia? Thank you in advance for your explanation.
With the prenuptial agreement, which regulates the segregation of the assets of an Indonesian Citizen (Warga Negara Indonesia/ "WNI") and a foreign citizen (Warga Negara Asing/ "WNA"), then the said Indonesian Citizen will still have the right to ownership of land.
Hence, what if the prenuptial agreement is made abroad?
Please read the review below for a further explanation.
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Prenuptial Agreement
Prior to answering your question, let us first explain that a prenuptial agreement is a written agreement between a husband and wife, which is made before or during a marriage, as regulated by Article 29 Law Number 1 of 1974 on Marriage ("Law 1/1974") namely:
At the time of or before the marriage, both parties with mutual consent may enter into a written agreement validated by the marriage registrar, after which its content shall also apply to the third party as long as the third party is involved.
The agreement cannot be legalized/ validated if it violates law, religion, and decency.
The agreement comes into force from the moment the marriage takes place.
As long as the marriage takes place, the agreement cannot be changed, unless there is an agreement from both parties to change it and the change is not detrimental to the third party.
The Decision of the Constitutional Court Number 69/PUU-XIII/2015affirms that prenuptial agreements can be made at the time of, before, or during the marriage, and the prenuptial agreements can be legalized by a notary. In this decision, the Constitutional Court stated the followings (pp. 156 -157):
Article 29 Section (1) Law 1/1974 has no legally binding force as long as it is not interpreted as "At the time, before the marriage took place, or during the marriage bond, both parties with mutual consent may submit a written agreement which is legalized by the marriage registrar or notary, after which its content shall also apply to the third party as long as the third party is involved”;
Article 29 Section (3) Law 1/1974 has no legally binding force as long as it is not interpreted as "The agreement comes into force from the moment the marriage takes place unlessotherwise specified in the prenuptial agreement”;
Article 29 Section (4) Law 1/1974 has no legally binding force as long as it is not interpreted as "During the marriage, the prenuptial agreement may be regarding marriage assets or other agreements, it cannot be changed or revoked, unless there is an agreement from both parties to change or revoke it, and the amendment or revocation is not detrimental to the third party”.
Prenuptial Agreements that are Made Abroad
In order to answer your question, we assume that the prenuptialagreement you are inquiring about is drawn up in Germany according to German law. Meanwhile, the prenuptialagreements according to Law 1/1974 must be made in accordance with Indonesian law and must be validated by marriage registrars or notaries in Indonesia. Therefore, that prenuptialagreements that are made according to German law cannot be directly enforced or applied.
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In this regard, Giovanna Calista Fortunella in her research entitled The Validity of Prenuptial Agreements Made Abroad in the Perspective of International Private Law in essence, states that prenuptialagreements which are made abroad are invalid if they are not registered in the civil registry office and that the civil registry office will only conduct the registration if there is a stipulation from the District Court.
Therefore, basically, prenuptialagreements which are made in Germany need to first obtain a stipulation from the District Court and then be registered in the civil registry office. However, it should also be noted that any documents which are drawn up abroad, if they are going to be used in Indonesia, for example, such as being used/submitted to certain government agencies, first need to be legalized at the local Embassy of the Republic of Indonesia. In addition to the Embassy, the legalization is also conducted at the Ministry of Foreign Affairs and the Ministry of Law and Human Rights. You can read the full explanation of this legalization in the article entitled Are Foreign Documents Needed to be Legalized at the Indonesian Embassy?
In addition to the above methods, in our opinion, you can also draw up a new prenuptialagreement according to Indonesian law. You can read about the procedure for the registration of prenuptialagreements in Indonesia in the article entitled PrenuptialAgreements Which Are Not Registered in the Court, Are They Valid?
Indonesian Citizens’ Right to Ownership of Land
Basically, assets/properties acquired during the marriage become joint assets. As set out under Article 119 Indonesian Civil Code:
From the moment the marriage takes place, then according to the law there are joint assets between husband and wife, as long as there are no other provisions in the prenuptial agreement. The joint assets, as long as the marriage is still ongoing/taking place, may not be abolished or changed with an agreement between husband and wife.
Quoting the article entitled Land Ownership Status for Foreigners Who Have Become Indonesian Citizens, if an Indonesian Citizen is married to a foreigner, then there will be a mixture of assets, and the partner who has the status of a foreign citizen will also become the owner of the assets of the party whose status is Indonesian Citizen. Therefore, Indonesian Citizens who are engaged in a mixed marriage are not allowed to have any right to ownership of land. However, Indonesian Citizens who are engaged in mixed marriages may have the right to ownership of land, if the persons concerned have prenuptial agreements that regulate the segregation of assets.
This is based on the stipulation that the prenuptial agreement allows husband and wife to deviate from the regulation on joint assets as long as it does not conflict with the laws and regulations as regulated in Article 139 Indonesian Civil Code, namely:
By prenuptial agreement, the prospective husband and wife may deviate from the laws and regulations on joint assets, as long as it does not conflict with morals or general rules and the following provisions are also heeded."
Therefore, it is necessary to separate marital assets between Indonesian Citizens and foreigners that are listed in the prenuptial agreement as described above so that Indonesian Citizens can still have the right to ownership of land.
These are the answers we can provide, we hope you will find them useful.
Giovanna Calista Fortunella, Keabsahan Perjanjian Perkawinan yang Dibuat di Luar Negeri Ditinjau dari Hukum Perdata Internasional Indonesia, Thesis, Faculty of Law Universitas Brawijaya, Malang, 2017.