The Right of Children of Mixed Marriages to Own a House

PERTANYAAN

I am an Indonesian Citizen and my wife is a foreigner. When we agreed to buy a house through the mortgage loan program, the bank refused, because we did not have the right to own the land and building. Some developers suggested that the right to own the land/building should be given to my child (3 years old, Indonesian Citizen) and processed through the court, which after that we reapply to the bank.

My question is, will an Indonesian Citizen who marries a foreigner automatically lose that right? What laws protect us as minority citizens? Is there any way we can buy a house through a bank loan? If I give this ownership to my underage child, what legal measures do I need to take and pay attention to? Thank you in advance.

INTISARI JAWABAN

It is important to understand that property acquired during a marriage is joint property unless there is a marriage agreement that stipulates otherwise. So, in a mixed marriage without a marriage agreement, the property acquired during the marriage (buying a house or land) violates the provision of property rights which is only for Indonesian Citizens, because your wife is a foreign citizen.

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Hak Anak dari Perkawinan Campuran untuk Memiliki Rumah, written by Bernadetha Aurelia Oktavira, S.H., and published on Tuesday, 20 June 2023.

This article is the second update of the article with the same title written by Letezia Tobing, S.H., M.Kn., and was first published on Wednesday, 22 February 2012, and first updated on Thursday, 13 July 2017.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Marital Property in a Mixed Marriage

According to your explanation, we see that regarding your marital status, where you as an Indonesian Citizen are married to your wife who is a foreign citizen is a mixed marriage. Article 57 Marriage Law stipulates that mixed marriage is a marriage between two persons which in Indonesia are subject to different laws, due to differences in citizenship and one of the parties is an Indonesian Citizen.

Then, you mentioned that the purchase of a house through the Home Ownership Loan (in Bahasa Indonesia known as KPR) a.k.a. mortgage loan program by you and your spouse was rejected by the bank. We assume that you are planning to buy a house with freehold land. This is related to the property in your marriage, namely properties acquired during marriage shall become marital property,[1] unless there is a marriage agreement stipulating otherwise.[2] Meanwhile, prenuptial properties of each husband and wife and property acquired by each of them as gifts or inheritances shall be under their respective control as long as the parties do not specify otherwise.[3]

The marriage agreement can be made at the time, before, or during the marriage bond. This is regulated in Article 29 Marriage Law jo. Constitutional Court Decision Number 69/PUU-XIII/2015.

Based on the explanation above, it can be concluded that if you do not have a marriage agreement, then the house you buy will become joint property between you and your foreign wife (this causes the mixing of assets). This will result in your foreign spouse owning half of the property rights to the land and building (house) and violates the provision of property rights which is only for Indonesian Citizens.

Property Rights Regulation for Indonesian Citizens Only

Referring to the provisions of the Agrarian Law, only Indonesian Citizens can have property rights,[4] thus your wife cannot have property rights. Therefore, if you do not have a marriage agreement with your wife, you will not be able to own a freehold land because the land and house purchased during the marriage will become joint property.

However, you can make a marriage agreement before buying the freehold land and house. With a marriage agreement, you can agree that there is no joint property in marriage so that you as an Indonesian Citizen can own freehold land. What is obtained and owned by you as the husband and your wife's ownership remains in the control of each.

Also read: Right to Land and Building for Foreigners in Indonesia

Status of Children of Mixed Marriages

As for the citizenship status of your child, basically, every child born from a mixed marriage is legally considered to have dual citizenship until the child is 18 years old or married, he/she must declare choosing one of his/her citizenship. This is in accordance with the provisions of Article 6 section (1) jo. Article 4 letter c Law 12/2006.

Meanwhile, Article 26 section (2) Agrarian Law emphasizes the right of ownership to land:

Any sale and purchase, exchange, grant, testamentary gift, and other actions which are intended to directly or indirectly transfer the right of ownership to a foreign citizen, to a citizen who in addition to their Indonesian Citizenship has foreign citizenship, or to a legal entity except for those stipulated by the Government as referred to in article 21 section (2), are null and void by law and the land fell to the State, provided that the rights of other parties that encumbered them remain to continue and all payments that have been received by the owner cannot be reclaimed.

So, based on these legal provisions, you also cannot transfer ownership of the land title to your 3-year-old child because he or she still has dual nationality as a result of a mixed marriage.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Law Number 5 of 1960 on Basic Agrarian Principles;
2. Law Number 1 of 1974 on Marriage as amended by Law Number 16 of 2019 on the Amendment to Law Number 1 of 1974 on Marriage;
3. Law Number 12 of 2006 on Citizenship of the Republic of Indonesia.

Court Decision:

Decision of the Constitutional Court Number 69/PUU-XIII-2015.

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[1] Article 35 section (1) Law Number 1 of 1974 on Marriage (“Marriage Law”).

[2] Article 29 section (1) Marriage Law jo. Decision of the Constitutional Court Number 69/PUU-XIII-2015.

[3] Article 35 section (2) Marriage Law.

[4] Article 21 section (1) Law Number 5 of 1960 on Basic Agrarian Principles.