DISCLAIMER: This is a long post as it contains a lot of technical information.
There are many things you should consider prior to getting involved in a mix marriage, and making a prenuptial agreement is one of them. Here you’ll find some basic information of what a prenuptial agreement is, why you should get one, and how to prepare it. It is based on my experience preparing a prenuptial agreement while my then-fiancée and I were still in the US, with our plan to move to Jakarta after getting married. I’m writing this in English so your foreign spouse can also read and understand the situation/requirements, since I rarely found any information in English that applies to our circumstance when I was doing my research.
What is a prenuptial agreement?
Prenuptial agreement (commonly referred as prenup) or perjanjian pra nikah is an agreement that is created between a bride-to-be and groom-to-be prior to the officiation of marriage. Again, you need to prepare and sign this document before you get married. The content of agreement itself can be adjusted according to what you consider important, but typically it discusses what might happen in case dissolution of marriage occurs (divorce): how you will split your properties (house, apartment, land, funds in bank accounts, etc), who gets the custody right for your child/children if any, alimony settlement and so on.
Why should you get a prenuptial agreement?
In Indonesian culture, the whole idea of planning your own hypothetical divorce even before the marriage takes place are typically frowned upon. It’s still a taboo to talk about separation of marriage. However, if your goal is to reside in Indonesia permanently instead of moving to your spouse’s homeland, you might want to consider these two constitutions:
Undang-Undang Perkawinan No. 1 Tahun 1974
Pasal 35 ayat 1
Harta benda yang diperoleh selama perkawinan menjadi harta bersama.
Undang-Undang Pokok Agraria
Pasal 21 Ayat 1
Hanya warga-negara Indonesia dapat mempunyai hak milik.
Pasal 21 Ayat 3
Orang asing yang sesudah berlakunya Undang-undang ini memperoleh hak milik karena pewarisan tanpa wasiat atau percampuran harta karena perkawinan, demikian pula warga-negara Indonesia yang mempunyai hak milik dan setelah berlakunya Undang-undang ini kehilangan kewarga-negaraannya wajib melepaskan hak itu di dalam jangka waktu satu tahun sejak diperolehnya hak tersebut atau hilangnya kewarganegaraan itu. Jika sesudah jangka waktu tersebut lampau hak milik itu dilepaskan, maka hak tersebut hapus karena hukum dan tanahnya jatuh pada Negara, dengan ketentuan bahwa hak-hak pihak lain yang membebaninya tetap berlangsung.
Basically, the first constitution states that any property that was acquired after the marriage takes place becomes a community property. All community property is split equally in the occurrence of divorce. However, the second constitution states that a foreigner may not legally own a land in Indonesia. Therefore, an Indonesian who marries a foreign citizen will automatically lose his/her right to own a land in Indonesia. Any ownership of land acquired by the Indonesian before and after the marriage will be neutralized, and you have one year after the marriage is officiated to either sell the land to a third party or transfer the land ownership to your family member. If this is not done within one year, the land will be considered a property of the government. Read: as a couple you can never fully own a land in Indonesia. No bueno.
To avoid this sticky situation, you need to create a prenup, which pretty much legally proclaims the separation of property. This means you have agreed that everything you own is yours and everything your spouse owns is his/hers. In the event of divorce, you have no right to claim your spouse’s property, and similarly your foreign spouse has no right for any land in Indonesia you might have purchased after you get married. Read: as a mix marriage couple you can still buy a land in Indonesia as long as it’s under the Indonesian spouse’s name.
Ok, I’m sold. How do I make a prenup?
All of the information I found on the internet was pretty much for prenup drafting in Indonesia. You simply hire a notary public (notaris) who is able to draft the prenup, then sign the document before him/her. The challenge is to find a notary public who understands the circumstance and has experience drafting a prenup. Like I said, prenuptial agreement is still uncommon in Indonesia. For details on which notary public is capable of helping you, please do your own search.
My case is quite different, as Sean and I were still in the US when we prepared and signed the prenup. We simply couldn’t go back to Indonesia to create the document because he had his job and I was trying to graduate. I came across an Indonesian law firm website, which states the following:
“In the event that you’re living abroad, or your marriage will be performed outside Indonesia and you cannot come to Indonesia just to sign a prenuptial agreement. You still can have a legally recognized prenuptial agreement by meeting the following legal formalities:
The Choice of Law. Your prenup must be governed under the laws of the Republic of Indonesia. There are several requirements in order to comply with this: a) it must be written and signed in the Indonesian language (English version may be provided for mutual understanding), b) the prenup clearly states that Indonesian law is the law of choice, and therefore c) an Indonesian court must be used as the forum to resolve any dispute. Article 31 (1) of Law number 24 of 2009 regarding Flag, Language, State Symbol, and Anthem stipulates that: “Indonesian language must be used in the memorandum of understandings or agreements involving government institutions, government agencies, Indonesia’s private organizations or Indonesian citizens.” Any legal documents not complying with this rule may be null and void.
Indonesian Embassy Attestation. Since Indonesia is not a member of the Hague Convention on Abolishing the Requirement for Legalization for Foreign Public Documents, you must sign your prenup at the nearest Indonesian Embassy or must be attested by the consul staff at the Consulate. The place of signing must be the same country where you’re registering your marriage. This is related to the reporting of your overseas marriage.”
We hired Yenny Teng-Lee as my representative and the principal drafter of our prenup. She is an Indonesian who moved to the Bay Area (US) and started her family law practice based on California law. Why did we pick her? Simply because she was referred to me by another Indonesian lawyer in South California and I thought she would understand the situation. Since she’s only licensed to practice California law, she advised us to get another lawyer in Indonesian as a consultant to make sure that the content of our prenup is in accordance to Indonesian law, and to translate the document from English to Indonesian. This part is a little bit easier since Yenny helped making referrals for us. We also had to hire a third lawyer to represent Sean. Yup, instead of hiring one notary public we ended up paying three different lawyers. The total costs end up being comparable to if we had bought tickets to fly home and create the prenup in Jakarta.
A lot of drama occurred during our prenup preparation. Sean had to switch lawyers twice because the first one backed out due to personal reasons, while the second one was incompetent and he kept trying to reassure that I wasn’t marrying Sean for a greencard. Uh, Sir, we told you so many times that we are moving to INDONESIA. I don’t need that greencard (for now). We finally found someone who understood what we are trying to do although he did question my motive of marrying Sean once. On another note, the Indonesian lawyer charged us a lot more than we agreed to because they think the documents are not as “simple” as Yenny described. If you have been my friend on facebook for more than three months when this piece was written, then you’ll also be familiar with the so-called Fedexgate, which I’m not going to discuss here because I just want to bury the hatchet.
This is me amidst the whole prenup preparation fiasco. Source: dailymail.co.uk
We have the prenup! Now what?
As opposed to the quoted information above, which states that the prenup has to be signed at the nearest Indonesian Embassy (KBRI) or Consulate General of Indonesia (KJRI), Yenny found another legally feasible sequence of actions:
- Sign the prenup before a notary public. Yes, people, we signed our prenup at the UPS store. It cost us $10 per document.
- Have the notary seal authenticated by the Secretary of State. In California, it’s located in Sacramento, fortunately 30 minutes away from Davis.Be prepared to be $20 poorer per document.
- Legalize the prenup at KBRI or KJRI. Whip out $20 per document and they only accept cashier’s check or money order.
- Get married!
Your fight is not over, my friend
Once we arrived in Jakarta, we have 90 days to report our marriage at Dinas Kependudukan dan Catatan Sipil. Don’t forget to include your prenup and its translated version as attachments to the other required documents. The officer might not be familiar with the purpose of prenup, but just insist that you would like to include the prenup in your marriage registration.
Phew. I can’t believe how tiring it is to type up all this information. I started my online research in January and we hired my lawyer in February. We had to move back our official wedding date to August 16 because of some complications (thanks, Fedex!) that prevented us from signing and legalizing the prenup as planned. It’s an exhausting and expensive process, but I am happy we did it as a safety net for our unknown future. One thing for sure, I knew I found someone who loves me because he was willing to go through all this vortex of madness just to put a ring on my finger.
More boring (but important) bureaucracy stuff coming up!