Many young people no longer think of a successful marriage as a natural and just based on love, but a sense of selfishness sometimes still arise when his affair reaches its peak.
Now days pre-nuptial agreements are not to be a taboo topic, despite of the fact that pre-nuptial agreement that has been written in the MarriageAct No. 1 in 1974 and also written in Indonesia Civil Code (ICC).
- What is a prenuptial agreement?
Under the Marriage Law Article 29 paragraph (1) states:
“At the time before the marriage held, both parties upon mutual agreement can be entered into a written agreement approved by the Civil Registrar of marriage, after which it shall also apply to third parties through third parties involved “.
Based on the above we can see the terms of the validity of the prenuptial agreement :
- Made before the marriage held;
- Contains about things that do not violate the limits of the law, religion and morality (Article 29 paragraph (2) in conjunction with Article 139 ICC);
- Passes by a Notary Public in
- In please register in the Civil Register of Marriage (Non Islam) / Office of Religious Affairs (Islam) in accordance with their legal domicile citizen.
Thus, the covenant of marriage was entered into force since the marriage held.
2. What is the content of the prenuptial agreement ?
As the general agreement, which is concern about the deal between the parties that promise something, same thing with prenuptial agreement. However, in general, prenuptial agreement is about the property of the marriage, such as:
- Unity gain and loss;
(Article 163 ICC says all debts both husband and wife together, which is created during the marriage, should be counted as a loss together. What are stolen from the evil one of the couple does not include loss of joint “)
- Unity yields and incomes;
- There is no unity at all in property
In the Indonesia Civil Code which was created in the Dutch period, and the Marriage Act was clear and very beneficial to both parties which states as follows:
Article 35 paragraph (1) : The treasures acquired during the marriage becomes joint property;
Article 35 paragraph (2): an innate property of their respective husbands and wives and property, each of which is obtained as a gift, is under the supervision of each, as long as the parties do not make other promises.
From here we can see, the law assumes that the union of a woman and a man in a house under the sanctity of marriage is also a legal one, and including united in the property acquired after marriage
3. What are the prohibition contents of the prenuptial agreement?
- not contradict with the proper morality or with the public order, and the following regulations must also be heed. (Article 139 ICC);
- shall not diverging the rights which arisen from the authority of the man as husband, and from the authority as a father, nor from the rights which the law has given to the one who lives (Article 140 (1) ICC) ;
- shall not reduce the rights the entitle to the husband as the head of matrimony; but without prejudice to the power of the wife to put condition on her to manage the personal property, both moveable and immovable property, including enjoying her own income liberally (Article 140 paragraph (2) ICC );
- Husband and wife will not remove any of the rights granted to them the law to inherit the heritage treasures of their offspring in a straight line down (grandchildren);
- If the property is terminated unity, should not be agreed that the husband or the wife will pay the debt that is greater than the benefits in the union’s property;
- Should not be included a statement claiming that their marriage bond only subject to the applicable laws in a foreign country or may be some customs (Article 143 ICC).
I personally as a lawyer who also one time being a wife as my nature was created as a woman, argued that the legislation that has existed since ancient times has been very efficient and good for both parties, because that makes the law is not Just the people who are experts in the field of law but also to those skilled in philosophy and law have been thinking about the impact of hundreds of years, but still human and law must also evolve and develop.
So in my opinion, there should be no prenuptial agreement, because the union of a man and woman become one flesh (as in the Bible) under a sacred bond called marriage, and they also became one of the law.
However, in the case of mixed marriages citizens and foreigners seem at the present time, it is imperative to make a prenuptial agreement, why? because it was feared would be difficult in terms of the purchase of goods not moving, such as houses and land, why (?)
4. Why you should make a prenuptial agreement?
5. Why separate the property?
I am totally disagree with this reasoning, because every citizen has the right to every centimeter of land in the motherland Indonesia, so the government can not prevent a citizen who is married to foreigners without making prenuptial agreement to buy land in Indonesia, it is a I can not accept. But, let’s see who can be accepted for the following reasons:
- To prevent the purchase of land or property in Indonesia that can easily be owned by foreigners marrying foreign citizens to obtain property rights to the property in Indonesia.
Having noted these reasons, it is true that a foreigner should not have property rights to the property in Indonesia, they were only given the right to cultivate, rights to use state land, or the Right Rental Property for Buildings on the basis of a written agreement with the owner rights to the land in question as the Agrarian Law No. 5 of 1960 that his time was also determined and can be extended one time only.
There have been many areas in Indonesia are owned by foreigners married to local citizens in order to get a soil with a low price. One example of an island in the province, almost 80% already owned by foreigners that the resale value is extremely low, most foreigners are foreigners Australia, they bought land near the beach, build a resort, set the claim on land that does not allow the local citizens to pass the coast infact the local residents are citizens of livelihood of fishermen. There are many other issues and it can be discussed in another topic.
If our review above talking about the “benefit principle” by foreigners against citizens, now let’s discuss the “benefit principle” of a citizen against foreigners.
One big advantage of prenuptial agreement is to protect your assets before and after marriage, because indeed it is a crucial point in time that makes things easier just by clicking on a gadget.
Each person would have never imagined to meet with a woman or man that is qualified to “gold digger“. So that the prenuptial agreement, you are able to avoid a gold digger.
I have handled several cases of “unpleasant acts” by a “Gold Digger” and that became my clients are foreigners, of course, my client became the injured party in this relationship, but the law is fair enough and the foreigner won the case.
Following reasons as the separation of property described in Article 186 ICC :
- When her husband, a real misdeed, squandering the goods of joint matrimonial property, and allow households in danger of collapse.
- If for chaos and ugliness of the husband property maintenance, property insurance for his wife and marriage to what the law is the right wife to be missing, or if due to negligence in the maintenance of the wife’s marital property, that property is at risk .
6. Can the Prenuptial Marriage Agreement be renewed?
Under the Marriage Act Article 29 Paragraph (4) wrote that the Prenuptial Agreement can not be changed, unless there is consent of both parties and do not harm third parties (Third Party if it has been included in the prenuptial agreement before)
Based on the descriptions above and legal analyst on prenuptial agreements between citizens and foreigners, it is not wrong to be wary of things that are not desirable in the future, although it is not expected to be happen. As a proverb says “prepared the umbrella before it rains”.