FAQ: The Expat Spouse Law

The Expat Spouse Law:

Do we need a Prenuptial Agreement to get married in Indonesia?

 

Few issues stir up such rancorous debate among expatriates as the notion that marriages between Indonesians and non-Indonesians must be preceeded by a Prenuptial Agreement to permit the Indonesian spouse to legally purchase and own property.

The short answer is “NO.”

The longer answer is “if you signed one, you may have been scammed.

The requirement for a prenuptial agreement, known in Indonesian as Akta Pranikah or as a Marriage Agreement Perjanjian Kawin or Premarital Agreement Perjanjian Pranikah, is an urban legend spread sometimes unintentionally by well-meaning but uninformed expatriates and Indonesians, and sometimes intentionally by lawyers, notaris, or prospective spouses in attempts at fraud.

This statement will probably generate hate mail as it goes against much prevailing expatriate folk wisdom.

Although this legend is widely-known and believed among expatriates, my enquiries have shown that it is almost entirely unknown among reputable lawyers or police who investigate frauds. Bringing it up usually elicits a laugh and a head shake of ridicule at the gullibility of foreigners.

Okay, I give up.

In the five years since I first wrote this I have met many, many notaris who insist that the Expat Spouse Law and the requirement for a Prenuptial Agreement is true, and I believe them to be sincere in their beliefs. At the same time, I have met very few lawyers who believe in this law.

Interestingly, notaris are the legal officials who write prenuptials, contracts, and land sales documents. Lawyers deal with the consequences of those prenups, contracts, and sales documents when things go wrong. Many notaris believe their documents to be essential, while many lawyers who have to deal with them later consider them pointless.

I, and most lawyers I know, stand by the following discussion. I have not met a notaris yet who can support their claims based on actual discussion of the underlying laws but, as elsewhere in this website... SO WHAT?

Because the idea of “law” is a combination of what is written in formal statutes, what is enforced regardless of statutes, and what is experienced in the real world.

So in short, many notaris will insist on the existence of the Expat Spouse Law and the need for a Prenuptial Agreeement when they prepare land documents in mixed marriages. If these documents end up in court, your lawyers are likely to roll their eyes at them, UNLESS you have signed a prenuptial agreement giving away all your rights to a share of marital assets. Then you may have a problem.

 

The “Expat Spouse Law”

 

On this website we use the term “Expat Spouse Law” as a shorthand for the reasoning listed here which leads some people to conclude that marriages between Indonesian and non-Indonesians must be accompanied by a Prenuptial Agreement.

The “Expat Spouse Law” comes in two forms:

(1) Any Indonesian citizen with a non-Indonesian spouse is prohibited from owning property in Indonesia unless they signed a prenuptial agreement prior to marriage,

or

(2) Any Indonesian woman with a non-Indonesian husband is prohibited from owning property (or sometimes also a business) in Indonesia they signed a prenuptial agreement prior to marriage.

Any attempt by an Indonesian to own property in violation of these conditions could result in confiscation of the property by the government of Indonesia.

The solution to this is to write a prenuptial agreement before marriage specifying that all properties in Indonesia belong exclusively to the Indonesian partner.

 

Many property and villa websites call attention to this law. Almost every expat Internet forum about Indonesia has at least one thread devoted to this subject, and discussions often become heated.

The general consensus, though not universal, seems to be that the problem is serious and a prenuptial agreement is highly advisable. Law offices both in Indonesia and overseas claim expertise in setting up prenuptials for this purpose for Indonesian-expatriate marriages.

There are also arguments against the existence of the expat spouse law, although they are often greeted with scorn on the expat forums. The most telling argument against the law is that there seems to be no record of the “expat spouse law” ever having been enforced.

There are, however, many instances of expatriate spouses being cheated of all their assets in divorce after signing a prenuptial agreement in an attempt to comply with the “expat spouse law”.

Bert and Ernie nearly come to blows over the expat spouse law...

From the BaliPod.com Forum

Buying Property in Bali for a Mixed Couple

I only excerpt some of the conversation here, and frankly, somewhere along the way I lost track of which one was Bert and which was Ernie.

I have read on a website about indonesian expats that an indonesian woman if married to foreigner can not own any property in indonesia? does it mean this that we can not buy a house on my wifes`s name?

*************

Different Provinces of Indonesia have various laws concerning land ownership (Hak Milik). For example, it would not surprise me that if in Aceh, where a modified Sharia law exists, women would not be allowed to have land ownership regardless of their marriage to another Indonesian or a foreigner. I don’t know if that is fact, I’m just offering that as a hypothetical example.

In Bali, Indonesian women, regardless of what Province in Indonesia they are from are allowed to have land in their names if they are single or married to another Indonesian or a foreigner.

Wherever you are planning to buy property in Indonesia it is essential to consult with an attorney. A notaris is simply not good enough...you need an attorney in the area where the land is located who is knowledgeable both with local customs, the land office, and the courts. Regardless of whether or not your Indonesian wife and you currently have children through that marriage, it is essential to have the attorney draw up a last will and testament stipulating to whom in her family (Indonesian) the Hak Milik would revert to in the event of her death, and that for you as the surviving non Indonesian spouse, a Hak Pakai, or land use agreement would become in effect. This might all seem complicated, but a good attorney can sort it all out for you and the fees you will pay for the expertise of an attorney, and the documents they prepare is well worth the cost of very unpleasant surprises later down the road. Cheers.

*************

I was of the understanding (though I could be wrong), that regardless of where you are in Indonesia, if your wife wishes to purchase land as Hak Milik, because she is married to a foreigner, you need to have a pre-nup that meets certain criteria.

*************

As mentioned earlier, various Provinces of Indonesia may have different requirements, but here in Bali, that is just urban legend. My wife has five different pieces of property in her name (five Hak Milik) all purchased after we were married, all duly recorded, and all very legal. If you have doubts, then contact an attorney.

*************

BaliLife is right unfortunately. Nothing to fear, but in case of trouble it could be used against your wife.

*************

Sorry Bert, but you can’t just get away with a comment, “BaliLife is right unfortunately” and a glib, “that’s it!”

Good grief! You know Ibu Murni here in Ubud, if not personally, but by reputation. She’s had a number of “western husbands” and it would be entertaining as hell for me to witness anyone telling her all that land and businesses she owns (post marriages) is really not hers! Hell, that would be an Ubud revolution!

You know as well as I know that land ownership in Bali is also tied into Banjar adat. If that is where you are headed by your last comment, then why not explore that as well? I’m game if you are.

*************

Hallo,

there must be something wrong.

As we have been told since many years and still now from our notaris and also from foreigners incl. one property-agent from Australia living and working here, an indonesian woman married with a foreigner cannot own land because of her marriage 1/2 of the land belongs to her foreign husband.

And that is not allowed according to indonesian law.

Am I right or are there other new possibilities?

*************

The husband has to sign that he cancels his rights on the property, that's how it works according to my knowledge. That's all fine, as long as the wife is alive. If she dies, her family may come up with claims on the property.

*************

No ... that is not right, but there is a quirk, which Bert alluded to, but did not elaborate.

First off, forget, forget, and forget some more what a bloody notaris tells you, let alone another foreigner (which would include me). Consult an attorney...a lawyer, and as I’ve said a billion times...a lawyer who resides and practices law in the same regency as where the property in question is located! A notaris CANNOT argue a case in a regency court!

*************

Bert mentioned only one hint “ ...in case of trouble.” What could be meant by Bert’s term “trouble?” Well, one example would be if the couple (mixed) within the village failed to participate in fund raising events for the maintenance of the likely many pura (temples) within the village. Another form of trouble could be abuse against staff hired from within the village to work at one’s home. Another form of “very big trouble” could mean drugs or pedophilia, and another big trouble problem could simply be getting the pembantu pregnant...an especially BIG problem if that girl was the daughter of the head of the village! If you are a foreign male, married to a Balinese lady, (or any other Indonesian) then good luck if your wife dies. Without the respect and appreciation of the village you live in, not to mention a strong family of in-laws, then indeed, the adat portion of your land situation can, as Bert alluded, go wrong. BUT...I have never heard of this “going wrong” against ANY Balinese woman who held a Hak Milik. This idea of land being taken away from any Balinese, be they man or woman is preposterous, and I challenge ANYONE with a verifiable story of any such incident in Bali to share that story right here, and with details that can be verified.

The bottom line here is that rarely will a regency court (or the Polda, who is meant to enforce the ruling), go directly against village adat. That is a point which is often woefully misunderstood on this forum, and all the other forums I have read.

*************

Roy - you write as though there are a sound set of laws that have been adequately tested over the years and have been subject to a transparent non-corrupt process. We all know in Bali, just like the rest of Indonesia, money talks. What Bert referred to is absolutely correct. While all is well she might not have any problems, but if somebody starts sniffing around like so many Indonesians do in search of a pay-off, the fact that she owns land and is married to a foreigner without a 'contract' or 'pre-nup' that removes any claim the spouse has over the land, then yes - "there could be trouble". I personally don't trust Indonesian law, therefor consulting an attorney is not necessary - all they would advise me on is what may be written in Indonesian Law which carries about as much weight as what was written on page 4 of this month's Cosmo or page 6 of last month's Woman's Weekly. When it comes to testing any Indonesian law, ESPECIALLY in regard to non capital crime matters such as this, your rights mean nothing - all that matters is who's willing to pay a larger bribe. That includes your Banjar - I don't care how special you think your relationship is with them.. When they see the opportunity to squeeze a buck out of you, they will - thinking otherwise is just naive.

*************

Practically you will find hardly any problems. But if it comes down to it....

Plenty of notaries I have consulted say the same.

If your wife ever has a legal dispute, it goes beyond Adat (It can) and they pull the "foreign mixed ownership" card....

There is a difference in Adat practices and Indonesian Laws, and normally things are solved Adat wise, but things can go beyond that.

I have seen this in my wife's village.

There was a "problem", and the police was called. Kepala Desa told the police however that these things are solved "in the village". Police kindly explained that the "problem" concerned an Indonesian Law problem, and they would take the case gladly, but if the village could solve it, it was fine too.

*************

Bert, are we discussing the right of a Balinese woman to own property when married to a foreigner, or the foreign husband’s “right” for Hak Pakai after she is dead? As you know, these are very different issues.

BaliLife, you write,

“While all is well she might not have any problems, but if somebody starts sniffing around like so many Indonesians do in search of a pay-off, the fact that she owns land and is married to a foreigner without a 'contract' or 'pre-nup' that removes any claim the spouse has over the land, then yes - "there could be trouble".”

You are totally wrong, and you clearly have NO idea how things work within a banjar in Bali. What you would like to think could happen, never would! There is NO way in hell that anyone “sniffing around”, or whatever could think of stealing land from a Balinese woman who just so happened to be married to a foreigner and with land in her name! Good grief! Just what do YOU really know about Bali??!! Just where on earth is this unmitigated baloney coming from?

BaliLife continues...

“I personally don't trust Indonesian law, therefor (sic) consulting an attorney is not necessary.”

Good Grief! AND Good Luck! The whole point of an attorney is to navigate you through the murky waters! Are you serious with that comment?

*************

HEY! You guys win. After all, why should I care anyway? You guys handle your affairs the way you see fit, and I’ll handle my affairs the way I see fit. There is absolutely NO point in my arguing this topic any further.

*************

BERT! To hell with the nortaris! They DO NOT PRACTICE LAW! OK? Mengerti? They cannot argue a case in court! They can ONLY serve as a witness. Geez...just ask one of them!!!

*************

Bert says,

"If your wife ever has a legal dispute, it goes beyond Adat (It can) and they pull the "foreign mixed ownership" card.... "

That might be the case in your village Bert, but in my village? NO WAY!

*************

Also in "your" village my friend. Things don't always end with Adat. Depends a bit on parties involved....

And as far as your distrust of Notaries concerning legal advice, up2you.

*************

Of course not Roy - your banjar respects you, loves you, worships you and sees you as one of their own.. None of which (if true) would likely stop them from taking your last dime if presented with the opportunity. Again, you're obviously as naive a mouse going for a chunk of cheese. I think it's nice at least that you feel you're so special, as misguided as you may be.

*************

"Also in "your" village my friend. Things don't always end with Adat."

How do you "know" Bert? Do you live in Bunutan-Kedewatan? NO. In fact, you don't even live within the Gianyar Regency.

What goes on up your way is something I expect you to have great knowledge about. It's your turf, and you should know.

And as far as your distrust of Notaries concerning legal advice, up2you.

*************

Indeed, it is up to me, and the fact remains, they cannot argue a case in court. They are not lawyers Bert, and I think I know you well enough that when the push becomes a shove, it won't be a notaris you call on. Or, am I wrong?

You paint a too negative image here

*************

I despise the image that is regularly painted in colors of greed.

Its not so. Yes tourists are cheated, profits are made, like anywhere else. Try Amsterdam...

Especially when you are living in Bali, and have a good relationship with your hosts.... If you don't, well....

It is my experience, that foreigners should be more afraid of other foreigners than the locals....

*************

bert, as you probably know, I respect you and your viewpoint (certainly more so than i do the other main contributor to this thread) - and yes, i'm likely being overly negative purely in defiance of roy's nonsense. for that i apologize. but still having said that bali is full of people wanting to take your buck - but that's the same anywhere in the world. the question is, how credible is the legal system that protects the rights of individuals? i think in the case of indonesia overall, one can safely sum up, that it's not very credible..

and the fact remains, they cannot argue a case in court

*************

they could if they bought a law degree - it would likely only cost USD $800 from a reputable institution..

******

 

There are more authoritative views:

Attorney Asep Wijaya of Wijaya & Co. explains it like this:

As for mixed-marriage couples in Indonesia, a prenuptial agreement is highly recommended. This is the ultimate legal solution to get around the issues that have been around since 1960. The Basic Property Law imposed legal constraints in property ownership for an Indonesian married to a foreigner. Furthermore, referring to the Marriage Law assuming joint property ownership in every marriage registered under Indonesian laws, conducted by Indonesian(s), or voluntarily submits to the Indonesian legal system. The joint property ownership requires consent from your spouse in the event you are performing any legal action in relation to the marital property. As foreigners are not allowed to own property in Indonesia, such consent cannot be retrieved because the foreign partner is not in the legal position to give it to his/her spouse in the first place. This makes perfect sense. So, you're stuck between the statutory requirements for consent, and the ineligibility of your foreign partner to produce it for you. This is the delicate situation that must be overcome and anticipated by your Indonesian Prenup. The last thing you want is to have legal complications with the property ownership and then end-up loosing the lot (as you could imagine!).

Original is at Wijaya & Co

From an article Hadromi & Partners quoting lawyer M. Iqbal Hadromi in Indonesia Expatriate Issue 153 17 November 2015 page 10:

We advise expats intending to marry Indonesians to put in place a pre-nuptial agreement prior to the marriage. One important reason for this is that Indonesian marriage law stipulates join propery ownership in all marriages registered in Indonesia, whereas Indonesian land law stipulates that foreigners are not allowed to own property in Indonesia. Consequently, if an Indonesian marries a foreigner, he or she will not be able to legally own property in Indonesia. The pre-nuptial agreement will then provide a legal basis for property separation in the mixed marriage and as a result maintains the rights of the Indonesian spouse to own property in Indonesia.

See the original at Hadromi & Partners

From an article Foreigners May Own Homes by reporter Prima Wirayani, The Jakarta Post 13 January 2016

[The new law] also stipulates that Indonesians who marry foreign nationals will not lose their right to own freeholds as long as they have notarized prenuptial agreements in place; such agreements prevent mixture of spouses‘ assets.

Indonesian women who marry foreigners need to have sufficient understanding of the 1974 Marriage Law, the 1958 Citizenship Law and the 1960 Agrarian Law to enable them to retain their right to own freehold property.

Article 35 of the 1974 Marriage Law states that a person cannot retain all assets obtained prior to marriage or assets inherited during marriage, unless the couple makes a prenuptial agreement. The definition of assets here covers land and property. Meanwhile, articles 29 and 36 of the Marriage Law require Indonesians who marry foreigners to make prenuptial agreements in order to buy and own property if they wish to do so after they marry.

Original is at Foreigners May Own Property or online.

It all sounds pretty clear.

The underlying statute to the expat spouse theory is the Undang-Undang No 5 Tahun 1960 Agraria Bagian III Pasal 21, which states:

 

 

Or in English:

REGULATIONS No 5 YEAR 1960

BASIC LAWS for the FOUDATION of LAND OWNERSHIP

PART III SECTION 21

(1) Only Indonesian citizens may own property (through hak milik).

(2) The government regulates the legal bodies which can have hak milik and the conditions thereof.

(3) A foreigner who after these Regulations come into effect acquires property ownership (hak milik) because of inheritance-without-a-will or a mix of assets because of marriage, or also an Indonesian citizen who has property ownership (hak milik) and after these Regulations come into effect loses citizenship must release that ownership within a period of one year after acquiring that ownership or losing that citizenship. If after that period the ownership is not relinquished, then that right is cancelled by law and the property falls to the state, with the provision that the rights of others burdening the property remain in effect.

(4) As long as someone besides having Indonesian citizenship also has foreign citizenship then they may not have land with hak milik and to them also article 3 applies.

 

Also Undang-Undang No 1 Tahun 1974 Regarding Marriage, which states:

 

UNDANG-UNDANG REPUBLIK INDONESIA

NOMOR 1 TAHUN 1974 TENTANG P E R K A W I N A N

BAB V

PERJANJIAN PERKAWINAN

Pasal 29

1. Pada waktu atau sebelum pelrkawinan dilangsungkan, kedua pihak atas persetujuan bersama dapatmengadakan perjanjian tertulis yang disahkan oleh Pegawai pencatat perkawinan, setelah mana isinya berlaku juga terhadap pihak ketiga sepanjang pihak ketiga tersangkut.

2. Perjanjiantersebut tidak dapat disahkan bilamana melanggar batas-batas hukum, agama dan kesusilaan.

3. Perjanjian tersebut berlaku sejak perkawinan dilangsungkan.

4. Selama perkawinan berlangsung perjanjian tersebut tidak dapat dirubah, kecuali bila dari kedua belah pihak ada persetujuan untuk merubah dan perubahan tidak merugikan pihak ketiga.

BAB VII

HARTA BENDA DALAM PERKAWINAN

Pasal 35

1. Harta benda diperoleh selama perkawinan menjadi harta bersama.

2. Harta bawaan dari masing-masing suami dan isteri dan harta benda yang diperoleh masing-masing sebagai hadiah atau warisan, adalah di bawah penguasaan masing-masing sepanjang para pihak tidak menentukan lain.

Pasal 36

1. Mengenai harta bersama suami atau isteri dapat bertindak atas persetujuan kedua belah pihak.

2. Mengenai harta bawaan masing-masing, suami dan isteri mempunyai hak sepenuhnya untuk melakukan perbuatan hukum mengenai harta bendanya.

Pasal 37

1. Bila perkawinan putus karena perceraian, harta bersama diatur menurut hukumnya masing-masing.

Or in English:

CIVIL CODE OF THE REPUBLIC OF INDONESIA

NUMBER 1 YEAR 1974 REGARDING MARRIAGE

Chapter V

MARRIAGE AGREEMENTS

Section 29

1. At the time or before a marriage takes place, the two parties upon mutual agreement can create a written agreement whih is legalized by marriage registrar, after which the contents come into effect also against a third party as far as a third party is involved.

2. The above mentioned agreement cannot be legalized if it violates the law, religion, or morals.

3. The above mentioned agreement comes into effect when the marriage takes place.

4. As long as the marriage is in effect, the above mentioned agreement cannot be changed, except if the two parties mutually agree to change the agreement and the change does not cause a loss to a third party.

CHAPTER VII

PROPERTY IN THE MARRIAGE

SECTION 35

1. Assets acquired during the course of a marriage are assets in common.

2. Assets brought into the marriage individually by the husband and wife and the assets acquired as gifts or inheritances, is under the control of each individually as long as the two sides do not otherwise make agreements.

SECTION 36

1. Regarding assets in common, a husband or wife may act with the consent of both parties.

2. Regarding individual assets, a husband or wife have full legal right to act individually regarding that property.

SECTION 37

1. If a marriage is ended by divorce, the assets in common are to be arranged according to the laws of each.

 

 

Prenuptial agreements and failure to register the marriage as a solution...

Surveying the internet forums, clearly many expatriates have written prenuptial agreements before marriage—and it is very clear that a prenuptial agreement must be written prior to marriage, not after marriage.

Other expatriates now tremble in fear and regret because, not knowing about this law, they failed to write a prenuptial. They sometimes resort to a stop-gap solution of failing to register their marriage at the Kantor Catatan Sipil or the Kantor Agama, apparently through fear that government officials troll the lists of mixed marriages searching for land to confiscate.

 

Fallicies...

To examine the Jakarta Post article first:

The articles says “ Article 35 of the 1974 Marriage Law states that a person cannot retain all assets obtained prior to marriage or assets inherited during marriage, unless the couple makes a prenuptial agreement. ” But reading the actual Article 35 above, you will see that it says nothing of the sort. Article 35 states exactly the opposite of the Jakarta Post claim: assets acquired during the marriage are assets in common, and assets owned by either party before marriage remain individual property.

The article goes on: “...articles 29 and 36 of the Marriage Law require Indonesians who marry foreigners to make prenuptial agreements in order to buy and own property if they wish to do so after they marry.” No they don’t.

Article 29 simply states that a couple can, if they wish, write a prenuptial agreement prior to marriage. It mentions nothing about mixed citizenship marriages.

Article 36 states that assets in common—that is in general, assets acquired during the marriage—may be disposed of only with consent of both parties. Also that individual assets—in general, assets owned by each party before the marriage—remain the private property of each individual. Again, nothing about mixed marriages.

Clearly, the reporter did not actually read the laws before he wrote the article.

Of course no one should pick up their legal advice from a newspaper article (or a website!), but the Jakarta Post is the most widely-read English language publication in Indonesia and it influences the thinking of many thousands of people.

AND the reporter, failing to do independent research, apparently only repeated conventional wisdom or information gleaned from unreliable sources.

 

Looking at the Hadromi & Partners article:

Hadromi advises:

Indonesian marriage law stipulates join property ownership in all marriages registered in Indonesia...

True. See Section 35 of the Marriage Law.

Then “Indonesian land law stipulates that foreigners are not allowed to own property in Indonesia.

Also true, from Article 1, Section 21 of the Agraria Land Law 1960.

And then

Consequently, if an Indonesian marries a foreigner, he or she will not be able to legally own property in Indonesia.

Not true. Hadromi makes a leap in logic here.

 

Understanding the Agraria Land Law

There is a problem with the Agraria Land Law 1960 because it does not state clearly what it means by “right of ownership.”

The problem of vaguely-written law and imprecise definition of terms is common all throughout Indonesian law; it was discussed at length earlier in this website, and it causes endless problems in all areas of law.

Section 21 states “hanya warganegara Indonesia dapat mempunyai hak milik.” or “only a citizen of Indonesia may possess right of ownership.

There are dozens of variations of “hak” and “milik” in Indonesian, none of which have precise legal definitions. For instance, “hak milik, hak memiliki, memiliki hak, mempunyai hak, memiliki barang, memiliki harta” etc.

Clearly this Agraria law is not refering to “hak milik” or “right of ownership” in general, because this is a land law, so they must be refering to the right to own land and property. An Agraria law doesn't affect the right of an expatriate to own rubber sandals, a car, or a bank account.

What the Agraria law seems to be refering to is what is now called “Sertifikat Hak Milik” or “Certificate of Freehold”.

In 1960 when this law was written, most land was not held through Sertifikats. The land office Badan Pertanahan Nasional or BPN has been converting traditional land titles or documents called “pipil” to Sertifikats for decades, but much Indonesian land is still held outside of Sertifikats.

In fact the Agraria Law 1960 itself established the existence of Sertifkat Hak Milik in Section ???, so the term Sertifikat Hak Milik was not in common use when this law was written.

Indonesian land law was and remains nationalistic, starting with the need to nationalize land belonging to Dutch or Chinese owners after independence in 1952. Many Chinese, and of course Europeans, although living for generations in the new Indonesia, formerly the Dutch East Indies, were not granted citizenship at independence. The late 1950s and early 1960s were a time of increasing nationalist, socialist, and racial tension under Sukarno. The Agraria law allowed the government to seize properties belonging to Chinese or Europeans in which only one partner in the marriage had citizenship.

The Agraria Law 1960 was also based upon the existing marriage law. In 1960 and prior to the new Marriage Law of 1974, marriages were regulated under Section 119 BW/KUHPerdata. This law provided that all individual assets prior to marriage became mixed or common property at marriage. Hence the statement in the Agraria Law “A foreigner who ... acquires property ownership because of ... a mix of assets because of marriage

With the new Marriage Law of 1974, and with Indonesia now under Suharto's New Order, pre-existing assets remain individual assets after marriage and there is no longer a mix of assets because of marriage. This is discussed in much excellent detail by notaris Grace Giovani here.

The Marriage Law 1974 recognizes individual property as distinct from marital property in common. Failing any other provision, property acquired during the marriage is marital property in common regardless of under whose name it is held. For example, a husband who has acquired shares in a company or has a bank account solely in his name is required to disclose that property as common property subject to equal distribution between the partners in the event of divorce.

The implications of the Agraria Law 1960 are simple: only an Indonesian citizen may acquire a Sertifikat Hak Milik. Property held with a Sertifikat Hak Milik is marital property in common in the event of divorce—unless, of course, the expatriate partner has signed a prenuptial agreement giving up that right.

Regardless of whatever arguments advisors, lawyers, notaries, or prospective spouses may advance, this is how it is commonly enforced in the Indonesian courts.

Dealing with this successfully in an actual court proceeding depends on the experience of the attorney handling the case. The law itself is reasonably clear, but there is much room for word play with hak milik, such that opposing lawyers can sometimes take advantage by asserting that expatriates have no rights to any marital property in Indonesia.

And as stressed at the start of this website, there is no 100% security of any relationship or contract or legal proceeding in Indonesia. Being on the right side of the law is a long way from winning a case at law. Being on the wrong side is even worse.

 

On the next page we will disuss Is this a scam?