Prenuptial agreement in Indonesia requires two registrations. Registration at a district court, and registration at marriage registry. Indonesian legal system divides marriage registry into two. Civil registry for Non-moslem individuals, and Office of Religious Affairs (so called “Kantor Urusan Agama/KUA”) for Moslem individuals. Those two registrations are very crucial as each of them takes effect to the legality of your Indonesian prenup.
Legally speaking, those two (2) registrations comes from different source of law. The registration at the marriage registry imposed by the Marriage Law. The law needs the couples to register it with the marriage registry in order to make the agreement legally binding between them, and applicable to each spouse. The 1974 Marriage Law in Article 29(1) stipulates that: “At the time of or before the marriage took place, with the mutual consent of both parties, they may enter into an agreement approved by the Civil Registrar of marriage…” As for the registration at a district court, it is required by the Civil Code. Article 152 of Civil Code states: “No stipulations in the prenuptial agreement which deviate entirely or partially from the provisions regarding legal community property shall apply to third parties, earlier than from the date of copying such stipulations in a public register, which shall be done with the court clerk at the court of justice, within whose legal jurisdiction the marriage was executed.” The idea is to keep the prenup can be upheld and legally binding against other third party. Who’s the third party? It’s the husband and wife. The third party can be anybody beside those two. It can be either the banks they loan money to, it can be either other people that may purchase their properties. So, the two registration are required in order to have a conclusive legal binding prenup.
What if, for some reason, your marriage couldn’t be performed and registered in Indonesia. It must be conducted overseas, outside Indonesia. May be the place has sentimental meaning for some individuals. But they may consider Indonesia as the place to get marry in Indonesia if they knew what will happen to their Indonesia prenup if they get marry abroad. Well, registering their marriage overseas might cause their prenup lose one registration, which is registration at a marriage registry. Reporting your overseas marriage is not the same with registering your marriage abroad. On the reporting marriage certificate certifies that it’s not a marriage certificate. It means that your Indonesian prenup cannot be registered the same time you report your foreign marriage at a marriage registry.
What does this mean? It means that your prenup is voidable. By whom? By either party in the prenup. By husband or wife. Either you or your wife may submit any motion to the court and ask them to legally annul it. If the motion application for prenup annulment is granted, then your marriage falls under the definition of joint property ownership. The Marriage Law shall applicable to your marriage. When the prenup is cancelled, the “shield” is open, and you’re exposed. This is not good. Therefore, make sure that every formalities required by the prevailing laws are met. I am Asep Wijaya writing for the Wijaya Law Review. Thank you for reading.
Our thanks to Asep Wijaya, Managing Director of Wijaya & Co for sharing this information with us!