Family Law (Part. 1) : Marriage and Pre-Nuptial for Expatriates in Indonesia
Updated: Jun 1, 2020
Whether you are seeking to get married or get divorce to an Indonesian citizen, as foreigners, your union or separation will affect your immigration and property status in Indonesia. To find out more about each process and their legal consequences, read our comprehensive guide below!
Pre-nuptial agreement is a crucial and common legal arrangement for Indonesian-foreigner couples who are thinking of getting married in Indonesia. Governed by Article 199 of the Civil Code, pre-nuptial agreement allows separation of assets between the spouses. The reason to such arrangement is to allow a stronger property ownership over assets such as land and houses. Without the prenuptial agreement, Indonesian law will regard all the freehold properties owned by the Indonesian spouses to be co-jointly owned by their foreign spouses, which is illegal under the Agrarian Law Act. Consequently, the said freehold properties must then be sold within one year or reduced to Right to Use (Hak Pakai), which will reduce the value of the said property.
Article 35 and 36(1) of the Marriage Law provide that “Property acquired during the course of a marriage become community property” and “In regard to the Community Property, Husband or Wife may act on the consent of both parties.” Such provisions will grant both spouses with property rights to sell, transfer, dispose, and deal with each other’s assets after marriage. Having a pre-nuptial arrangement would prevent that by establishing a clear division of assets and rights over them, which helps secure your financial interests. Hence, it is highly advisable for individuals who own many assets to arrange one. Such assets could include retirement savings, shares in companies, or even children from previous marriage.
Soon to be married couples can request a pre-nuptial document through a public notary who will draft the document according to each couple’s unique situation. That being said, pre-nuptial agreement is flexible and can be tailored according to every couple’s needs.
Under the Indonesian Marriage Law, marriages may be performed by Ministers of Religion, officers of the Civil Registry Office (Kantor Catatan Sipil) or the Office of Religious Affairs (Kantor Urusan Agama) for Muslims. Indonesian law upholds religion as paramount aspect of their citizens’ lives and mandates couples to hold the same religion in order to get married, otherwise one party must convert to the other’s religion. Couples then need to lodge a Notice of Intention to Marry with the Civil Registry Office at least 10 days prior to the wedding. After the ceremony the marriage must be registered at the Civil Registry Office to be legal.
Additionally, each party requires to provide a copy of passport and ID card in the country of origin, birth certificates, proof of dissolution of previous marriage or death certificate of former partner (if applicable), proof of residency, four photos (4x6cm) of the couple. Specific to foreigners, they must obtain Certificate of No Impediment to Marriage from their respective embassies to register a marriage to an Indonesian citizen.
By marrying an Indonesian citizen, a foreigner will be eligible for partner visa sponsored by their Indonesian spouse, which allows them to obtain Temporary Stay Permit (KITAS) or even Permanent Stay Permit (KITAP). While KITAS holders must renew their license to stay every 2 years, according to Law no. 6 of 2011 on Immigration, KITAP holders will only need to renew their licenses every 5 years with the option to extend their stay indefinitely as long as their licenses are not revoked. In addition to permanent residency, a foreigner may also apply for Indonesian citizenship through marriage. Pursuant to Law No. 12/2006 on Indonesian nationality law, a foreigner is eligible to become an Indonesian citizen if they:
1. Have resided in Indonesia for at least 5 consecutive years or 10 consecutive years by the time they apply for Indonesian citizenship
2. Are at least 18 years old
3. Are mentally and physically healthy
4. Never commit to any crime that makes you being prisoned for 1 year or more
5. Relinquish their former citizenship as Indonesia does no recognize dual-citizenship.
6. Are able to speak Bahasa Indonesia/Indonesian language
7. Acknowledge the Indonesian Constitution (Pancasila and Undang-Undang Dasar Negara Republik Indonesia)
Like pre-nuptial agreement, post-nuptial agreement contains separation of assets arrangements, with the crucial difference being it is made after the marriage has happened. Post-nuptial is an alternative for couples who do not realize that they need pre-nuptial agreement in the first place and often used to settle financial and property disputes. Common circumstances that might invoke a post-nuptial agreement are when one of the spouses decide to purchase a property under freehold or come to a large inheritance money that they might not expect to get before the marriage.
Although post-nuptial is not a new concept under the Civil Law, Indonesian Marriage Law does not contain provision on post-nuptial agreement. Consequently, Indonesian courts are historically reluctant to give validity to post-nuptial arrangements. Additionally, post-nuptial agreements are held to higher and stricter standards which require the contracts to be created with full disclosure of all assets, be entered into voluntarily by both parties, and have terms that are fair and equitable.
1. Law No. 1 of 1974 Marriage Law Act
2. Law No. 5 of 1960 Basic Agrarian Law Act
3. Law no. 6 of 2011 on Immigration
4. Marriage in Indonesia, https://indonesia.embassy.gov.au/jakt/MarriageInd.html
5. Aturan WNA yang Akan Menikah dengan WNI, https://indonesia.go.id/layanan/kependudukan/sosial/aturan-wna-yang-akan-menikah-dengan-wni
6. Postnuptial Agreements for Mixed-Couples in Indonesia, https://www.expat.or.id/info/postnuptianagreementsinindonesia.html