It’s possible.
Even if it is, it doesn’t necessarily mean your spouse is involved; lawyers and notaris will sometimes
do this on their own.
There are good reasons for a Prenuptial Agreement, and we will discuss those. Good reasons for a prenup are the same in Indonesia as
they are anywhere else in the world.
But first we will discuss the bad prenups, the ones prepared to deal specifically with the
“Expat Spouse Law” by causing the expatriate spouse to surrender all rights to community assets of the marriage.
Throwing out the baby with the bath water...
The reasoning behind belief in the Expat Spouse Law is based entirely on questions of land ownership as community property in a marriage. EVEN IF the
hypothesis behind the reasoning were true, there would be no need for the expatriate spouse to surrender all community property regardless of consisting of land, bank accounts, automobiles, etc.
And yet that is exactly what Article 3 of the Prenuptial Agreement at the bottom of this page does.
Narrow focus on the expat spouse law
With all the good reasons for writing a prenuptial agreement, there are also good
reasons for not writing a prenup: two young people starting out in life,
expecting to build together a family and a home, are poorly served by a prenup.
In fact the Indonesian laws on marriage (Regulations No 1 Year 1974 Regarding Marriage)
clearly set the priorities all societies hope for:
If you are going into a marriage to build a life and a family, and you do not have
assets, businesses, children, or debts from a previous marriage to protect, the
laws of Indonesia, like the laws of every country, are already set up to encourage
happy and stable family life. An equal distribution of community property from the
marriage is intended to encourage a stable relationship.
The problem comes when young people try to separate assets contrary to the purpose
of the law.
When a young couple runs down to a lawyer or notaris with the urgent need to separate
assets due to the expat spouse law—although those assets do not yet exist because
the couple is just starting out in life—they may end up writing an agreement specifically
disenfranchising the expatriate spouse from the assets of the marriage.
As already noted in the introduction to this site:
No matter how much you love one another, in every relationship there are stresses.
The combination of a prenuptial agreement which destroys the rights of an expatriate
spouse from the very beginning of the marriage, together with the blandishments
of "well-wishers" from the Mafia Hukum, all in the context of the precarious and
easily manipulated legal system in Indonesia, is a recipe for disaster.
Lawyers and Notaris
In another chapter on Lawyers we will go into this in more detail, but here let
us note some problems specifically in connection with prenuptial agreements.
If you are an expatriate and just getting married, you are very likely relatively
new to Indonesia. Maybe you are at the stage of "We are in love! Indonesia is wonderful.
I love everyone and everyone loves me!"
And if so, all our counsel to the contrary will probably not get through to you,
but...it's not really like that. Regardless of how your fiancé feels about you,
not everyone loves you.
To some lawyers—certainly not all, but enough—an expatriate is an opportunity.
In salesmanship it’s called “getting your foot in the door”, build
a relationship,
make the sale.
It doesn’t
matter what you sell, just get the contact, someday they will be back. If the lawyer
says
“you don’t need
a prenup,” the potential customers will leave without a purchase. And knowing
the wide-spread
belief in the need for a prenup, the couple will probably keep looking for another lawyer.
The lawyer is happy to write up the
agreement, but he is under no obligation to tell you that it is a terrible idea,
or that he could have—but didn't—put in other clauses that might have helped protect
you.
Selling an unnecessary prenup could be a very good idea. At sometime in the future,
five years, fifteen years, it doesn't matter because the lawyer expects to still
be around, your marriage may be in trouble. The lawyer has kept in touch through
the years—he is a friendly guy.
So when things become difficult, your lawyer friend is right there to help the
Indonesian spouse. He points out to the advantages written into the
prenuptial agreement, reminding the spouse that in case of divorce, the Indonesian
partner
could
keep everything.
He might be able to reassure the spouse that in the event of divorce, he has understandings
with a good many other lawyers who may end up representing the expat spouse, and he has relationships
with a number of judges. He can practically guarantee that the Indonesian spouse will walk
away with everything.
This may start off as a glittering prospect to the Indonesian spouse, but over time the lawyer will
likely cause as much damage to his own client as to the the opposition. See the case of disbarment of lawyer
Ida Bagus Wikantara.
The advice to “talk to a good lawyer” about a prenuptial is good advice
in most
countries. But Indonesia is heavily controlled by the Mafia Hukum. Lawyers and Notaries are often an active
part of it, so don't assume that your lawyer is really working for you. Taking the
agreement to another lawyer for a second opinion before signing may land you in
exactly the same situation you have with the first lawyer. The two lawyers might even contact one another
and set up a deal for the second lawyer to
represent you should there be a divorce.
The national lawyers association PERADI cannot always discipline their
members for even the most basic ethics violations.
I know this sounds like an incredible scenario. But fact is, it happens a lot.
A real life case
This scam happens frequently, we won't try to list exhaustive examples. But here is
a case
just starting through the courts in January 2016. (All names and identifying details
have been
changed.)
Bill and Yanti
Bill is a British citizen working for a foreign oil consulting firm. Yanti was
a secretary
at the firm when she met Bill. They married in 2008, had two children now five
and three years
old, and bought a house and invested in a plot of land in Jakarta Selatan. Yanti
left her
secretarial
position when the children were born and now stays home to care for them.
Bill was surprised in November 2015 when Yanti demanded a divorce. They had gone
through some
rocky times through the years, but no more than most couples, and Bill felt they
were making
a go of it.
Despite working for a foreign company, Bill had set himself up as an independent
Indonesia-based
contractor in a business owned formally by Yanti, and Yanti signed for his KITAS.
After telling Bill she wanted a divorce, she also told him that she would close
his company
and take all the assets, the children, home, and property, and she wanted him
permanently
out of Indonesia. She would no longer sign his KITAS, which expires in February
2016.
Bill hired a lawyer in December 2015 and asked him to handle the divorce. The
lawyer assured
Bill that he had nothing to worry about, he was entitled to 50% of the family
assets, and
the attorney would certainly obtain them for Bill.
But Bill became more uneasy after talking to friends. Especially worrying was
a Prenuptial
Agreement he
had signed in 2008. His lawyer seemed unconcerned, but Bill became increasingly
nervous at
his lawyer's rather
vague explanations, and so Bill sought other advice.
Here is the English translation:
The last paragraph notes that the Notaris read and explained the meaning of the
agreement to Bill in English before he signed it.
Bill is intellegent and educated, so why would he sign such an outrageously unfair
document which makes him responsible for all family expenses, yet in the event of divorce sends him
home with nothing but the jewelry and the old clothing he had before the marriage?
(Apparently jewelry or clothing or other possessions Bill acquired during marriage might now be the
property of Yanti.)
Because, Bill says, he was in love. Of course he would never have signed in his
home country, but he didn’t
understand the law in Indonesia. He trusted his wife, the lawyer, the notaris,
the Jakarta Post, and the host
of other advisors
who told him “it’s okay, all expatriates must sign a prenuptial before
marriage,
it’s the law, and if you don’t sign a prenuptial your wife can’t
own property,
you can’t
buy house for your family, and the government might take all your assets.”
This is a tough problem. It would scare any lawyer I know, but Bill's lawyer remains
unconcerned.
Whether this is because the
lawyer is supremely competent, or ignorant, or working for the other side, we
will only know
after the trial.
If you’ve signed an agreement like Bill’s, don’t throw away your
old underwear, or else you might have to leave the country naked.
A really bad prenuptial agreement is not always hopeless, but it is a tough battle. See Notaris