There is something that people didn’t get it why the postnuptial agreement in Indonesia is non-debatably legal. The postnup is the breaker of the community property regime in a marriage that has no prenup. So, it’s got to have something that can totally change your marriage situation. When you learn more of this, you will see that the prenup is not the only thing that can get you a property separation. The postnup can deliver the same thing. It serves the same function with prenup. It’s a marital agreement too, but it’s meant for married couples. The difference only lies on the date of signing. I know people may think I am pulling on their legs. I am not. I mean it.
The essence of an Indonesian postnuptial agreement is an Affidavit of Release and Discharge made by one spouse to the other within the marriage. It releases of one spouse’s rights in the community property along with everything that comes with it. Furthermore, he will discharge his spouse of any possible legal action that may be brought against her. This affidavit is a must. Otherwise, the postnup will not be legal. Without it, the postnup is the same thing with a back-dated prenup. A worthless piece of paper. You see now why I insist that the postnup is legal? The postnup and the affidavit, they come together.
The affidavit holds a very important role in a postnuptial agreement. It changes the circumstances that exist in a no-prenup marriage by giving-up one spouse’s share in a community property to the other voluntarily. The rights being released are those connected with the land and everything on top of it such as a building or a house. The affidavit will totally change the regime of a joint property ownership into a separation of property. Furthermore, the affidavit also nominate the other spouse as the property holder within their marriage. She will independently retains the rights and obligations in connection with the land as if no marriage has been consummated before.
I would also highly suggest to enlist all of the previously-acquired property into the affidavit. This is part of the postnup’s characteristic that retroactively applicable to everything that take place before the couple sign the postnup. It means the affidavit will take care of the problems that may arise to the property ownership since they were legally married.
Our thanks to Asep Wijaya, Managing Director of Wijaya & Company for his contribution of this article.
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