Postnuptial agreement in Indonesia is an agreement between a husband and a wife. It’s pretty much the same with a prenuptial agreement. We call them: Marital Agreements. The only difference is timing in signing them. As you can see, prenup must be signed prior to your marriage, and postnup signed after you said: ” I do.” If a prenup does recognized by laws, what makes you think a postnup does not even exist? It’s a product of a legal system too. A postnup is state of the art agreement that exists in our legal system to overcome the situation where a married couple did not create such a protective document like a prenup. As long as a postnup created with equal opportunity to review the agreement, and both parties in the agreement are voluntarily enter into it, I see no problem why a postnup should not exist.
A postnup may be used as an instrument to create property separation in a matrimony, especially if you didn’t sign any prenup. It is signed during the course of a marriage. The postnup must have information regarding your marriage details i.e. when and where, and its registration credentials from the marriage registry. These shall differentiate the postnup from its predecessor i.e. prenup. As for the marriage, prenup will only valid upon the lawful marriage between the two parties. If there were such thing as a legally recognized after-married prenuptial agreement, the postnup would be it.
The prenup, as you know it, creates separation of property since you get marry. The postnup, creates it on the day you sign it. What if you had any property prior you sign a postnup? Well, they said the property remain jointly owned because they afraid it might jeopardizing the interests of any third party. Why is that? Like for example, if you put the property under mortgage. What if there wasn’t any? Can you transfer the whole lot to your spouse and nominate her as the title holder of the property in the matrimony? Well, I would say yes. I believe a background check should be first conducted to the Land Registry Office. They will let you know if the property is being disputed or not. Thereafter, you should voluntarily sign an Affidavit of Release and Discharge. It’s legally transfer your share to your spouse. Remember, we recognized two methods to transfer property i.e sale and purchase which the parties entitled to 10% tax, and Hibah (a gift to your related individuals such as children, siblings) which you entitled to pay only 5% tax. So, transferring your share in a property to your spouse within a postnuptial agreement proceeding must be done with extreme careful. We have tax issues involve here.
You know, there’s this something that makes the postnup works legally like a prenup. It’s the legal ground that gets the wife’s position in owning property secured when a couple have a postnup. I mean, without any postnup an Indonesia spouse may not be able to own a property in Indonesia. It’s the injust situation that gets a postnup legally upheld by a court. In another words, a non-prenup mixed marriage may jeopardizing an Indonesian spouse’s rights when he/she wants to purchase property in Indonesia. So, this would be it: the Indonesian postnup. It exists.
Our thanks to Asep Wijaya, Managing Director of Wijaya & Company for his contribution of this article.
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