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The Constitutional Court of Indonesia has granted judicial review on Article 29 paragraph (1) of Law Number 1 of 1974 concerning Marriage (“Marriage Law”) through Decision Number 69/PUU-XIII/2015. Previously Article 29 paragraph (1) of the Marriage Law limits making nuptial agreements or division of property agreements after the marriage takes place.

Article 29 paragraph (1) Marriage Law states that:

At the time of or before the marriage took place, with the mutual consent of both parties, they may enter into an agreement approved by the Civil Registrar of marriage, after which it shall also apply to third parties as long as it involves them as well.”

With the Constitutional Court’s Decision Article 29 paragraph (1) of the Marriage Law has been changed to:

Article 29 paragraph (1) Marriage Law in conjunction with Constitutional Court Decision No. 69/2015:

“At the time of, before it takes place, or during the marriage, with the mutual consent of both parties, they may enter into an agreement approved by the Civil Registrar of marriage or Notary, after which it shall also apply to third parties as long as it involves them as well.”

Therefore, the Constitutional Court’s Decision broadens the meaning of the marital agreement so that the marital agreement is no longer interpreted only as an agreement made before the marriage (prenuptial agreement) but can also be made after the marriage takes place (postnuptial agreement).

The Constitutional Court’s decision was then followed up with requests from citizens to its lawyers to make a marital agreement. Therefore, we submit the following example of a comprehensive prenuptial agreement.

NUPTIAL AGREEMENT

This agreement is made and entered into on, ………………. dated ………………., by and between:

1. XXX, Indonesian Citizen, holder of Indonesian Identity Card Number ………………., having his domicile at ………………. hereinafter referred to as ………………. “HUSBAND”;

and

2. XXX, Indonesian Citizen, holder of Indonesian Identity Card Number ………………., having her domicile at ………………. hereinafter referred to as ……………….  “WIFE”;

HUSBAND and WIFE hereinafter referred to as “the Parties”.

Witnesseth:

  • Whereas the Parties, respectively at present unmarried and plan to be married to each other on ……………….;
  • Whereas the Parties are in good health and are financially self-supporting;
  • Whereas Neither Party has previously been married nor has any children at present;
  • Whereas HUSBAND presently has not any rights, claim, or interest in or to the property, income or estate of WIFE, likewise WIFE currently has not any rights, claim or interest in or to the property, income or estate of HUSBAND by reason of their nonmarital relationship occurred between the Parties prior to the execution of this agreement. Also, the Parties are not indebted one to the other;
  • Whereas the Parties by this agreement intend to make a fair and reasonable disclosure of their respective property and financial obligations, one to the other;
  • Whereas the Parties by this agreement intend to define and express their respective rights to the title, income, or property held by each party presently, and to title, income, and property they might acquire after the marriage of the Parties is conducted.

Based on the above provisions, the Parties agree and covenant on the matters as set forth in the following:

Article 1

Effective Date

This agreement shall be effective on the date of their contemplated marriage be done and the effectiveness of this agreement is expressly conditioned upon/by virtue of the marriage. If for any reason and fault of either party, the contemplated marriage does not take place, then this agreement shall not be effective nor have any binding force to the Parties.

Article 2

The Parties Voluntarily Sign this Agreement and Without any Force from Whomsoever

The Parties acknowledge and agree that they are fully aware of and understand the contents, legal effect and consequences of this agreement and that the Parties sign this agreement voluntarily free from duress, fraud, undue influence, coercion, or misrepresentation of any kind in relation to the content of this agreement.

Article 3

Property and Financial Condition or Obligation Disclosures

a. The Parties agree that prior to the execution of this Agreement, HUSBAND shall disclose or notify the property and financial obligation or liabilities to WIFE, in which a list of the property and financial obligations or liabilities shall be set forth in Exhibit “A” attached hereto. It is necessary to be understood that the figures and amount of the property and financial obligation or liabilities in the Exhibit “A” shall not be exact figures nor amounts. Still, they are intended to be reasonably accurate and are warranted to be the best estimates of such figures and amounts of HUSBAND. WIFE expressly and voluntarily waives any right to disclosure of the HUSBAND’s property and financial obligations or liabilities beyond the disclosure provided by HUSBAND;

b. The Parties agree that prior to the execution of this Agreement, WIFE shall disclose or notify the property and financial obligation or liabilities to HUSBAND, in which a list of the property and financial obligations or liabilities shall be set forth in Exhibit “B” attached hereto. It is necessary to be understood that the figures and amount of the property and financial obligation or liabilities in the Exhibit “B” shall not be exact figures nor amounts. Still, they are intended to be reasonably accurate and are warranted to be the best estimates of such figures and amounts of WIFE. HUSBAND expressly and voluntarily waives any right to disclosure of the WIFE’s property and financial obligations or liabilities beyond the disclosure provided by WIFE;

c. The Parties agree that disclosures, as set forth in Article 3a and 3b above, are not an inducement to the Parties to enter into this agreement. The Parties agree that each party is willing to enter into this agreement regardless of the nature or extent of the present or future assets, liabilities, income, or expenses of either party and regardless of financial arrangement made for his or her benefit by the other.

Article 4

Rights Incident to Parties’ Nonmarital Relationship

The Parties acknowledge and agree that they have not previously entered into any other contract or agreement, which might create any consequence either materially or formally to the property or income of each party acquired in any way whatsoever. The parties declare that presently have no claims nor any right, interest in whatsoever form to the property which has existed or will exist, income or inheritance of the parties, or any right to support, maintenance or rehabilitation of payments of any kind whatsoever from the other party by reason of the parties’ nonmarital relationship. The Parties in this matter declare that each party has been advised by their Legal Counsel under the provision of the laws of the Republic of Indonesia, concerning nonmarital relationship and agree that the Parties do not have any right and/or obligation one to the other by based on the parties’ nonmarital relationship.

Article 5

Separate Property Interests in Premarital and Postmarital Assets and Acquisitions

a. The Parties agree that all property, including the property set forth in Exhibit “A” belonging to HUSBAND at the commencement of their contemplated marriage, and any property acquired by HUSBAND during that marriage by gift, bequest, devise or descent, shall be and remain his separate property. The Parties further acknowledge and agree that all rents, issues, profits, increases, appreciations, and income from the separate property of HUSBAND, and any other assets purchased or otherwise acquired with the foregoing proceeds, shall be and remain HUSBAND’s separate property. The parties agree that a change in the form of HUSBAND’s asset as a result of the sale, exchange, hypothecation or other disposition of such assets, or a change in the form of doing business shall not constitute any change of property characterization, and such assets shall remain HUSBAND’s separate property regardless of any change in form. WIFE shall have no right, title, interest, lien, or claim under the laws of any state in or to any of HUSBAND’s separate property assets;

b. The parties agree that all property, including the property set forth in Exhibit “B” belonging to WIFE, the commencement of their contemplated marriage, and any property acquired by WIFE during that marriage by gift, bequest, devise or descent, shall be and remain his separate property. The Parties further acknowledge and agree that all rents, issues, profits, increases, appreciations, and income from the separate property of WIFE, and any other assets purchased or otherwise acquired with the foregoing proceeds, shall be and remain WIFE’s separate property. The parties agree that a change in the form of WIFE’s asset as a result of the sale, exchange, hypothecation or other disposition of such assets, or a change in the form of doing business shall not constitute any change of property characterization, and such assets shall remain WIFE’s separate property regardless of any change in form. HUSBAND shall have no right, title, interest, lien, or claim under the laws of any state in or to any of WIFE’s separate property assets.

Article 6

Joint Efforts in Managing Each Party’s Separate Property Interests

a. The parties acknowledge and agree that HUSBAND may devote considerable personal time, skill, service, industry, and effort during their marriage to the investment and management of his separate property and the income thereof. The parties acknowledge and agree that even though the expenditure of HUSBAND’s time, skill, service, industry, and effort might constitute or create a community property interest, community property income, or community property asset in the absence of this agreement, no such community property interest, income, or asset shall be created thereby, any income, profits, accumulation, appreciation, and increase in the value of the separate property of HUSBAND during marriage shall be and remain HUSBAND’s separate property entirely;

b. The parties acknowledge and agree that WIFE may devote considerable personal time, skill, service, industry, and effort during their marriage to the investment and management of his separate property and the income thereof. The parties acknowledge and agree that even though the expenditure of WIFE’s time, skill, service, industry, and effort might constitute or create a community property interest, community property income, or community property asset in the absence of this agreement, no such community property interest, income, or asset shall be created thereby any income, profits, accumulation, appreciation, and increase in the value of the separate property of WIFE during marriage shall be and remain WIFE’s separate property entirely.

Article 7

Joint Efforts in Managing the Other Party’s Separate Property Interests

The parties acknowledge and agree that during their marriage, one party may choose to contribute considerable personal time, skill, service, industry, and effort to the investment and management of the other party’s separate property and the income thereof. The parties acknowledge and agree that even though any such contribution might constitute or create a community property interest, community property income, or a community property asset in the absence of this agreement, no such community property interest, income, or asset shall be created thereby. The parties further agree that any such contribution shall not create any other claim, right, lien, or interest whatsoever, in favor of the party contributing the personal time, skill, service, industry, and effort, in or to the other party’s separate property and any income, profits, accumulations, appreciation, and increase in value thereof during the parties’ marriage.

Article 8

Separate Property Earnings, Deferred Compensation and Employee Benefits

The parties agree that any earnings, income or benefits, no matter their nature, kind or source from and after the marriage, including but not limited to salary, bonuses, stock options, deferred compensation, and retirement benefits, shall be the separate property of the party earning or acquiring such earnings, income or benefits as though the contemplated marriage had never occurred. There shall be no allocation made of any such earnings, income, or benefits between community property and separate property, and such earnings, income, or benefits shall be entirely the separate property of the party earning or acquiring the same. The parties acknowledge their understanding that in the absence of this agreement, any earnings, income, or benefits resulting from the personal services, skills, industry, and efforts of either party during the contemplated marriage would be community property.

Article 9

Property Purchased with Borrowed Funds

The parties acknowledge that from time to time, either of them may obtain loans to purchase the property, which is secured by the property in which the borrower may have any interest. The proceeds of any such loan shall be the borrower’s separate property, notwithstanding that the lender may intend that repayment be made from income acquired during the marriage or from assets acquired during the marriage. Any property purchased with such borrowed funds and any property that secures a loan shall remain the borrower’s separate property.

Article 10

Waiver of Rights in Respective Assets

The parties agree that each party waives and relinquishes, to the fullest extent lawfully possible, all right, title, claim, lien or interest, whether actual, inchoate, vested or contingent, in law and equity, under the laws of any state or law, in the other’s property, income, and estate by reason of the proposed marriage, including without limitation, the following:

All shared assets, semi-shared assets, and rights to semi-marital property;

The right to a probate family allowance;

The right to a probate homestead;

The rights or claims of inheritance, courtesy, or any statutory substitute now or hereafter provided under the laws of any state in which the parties may die domiciled or in which they may own real property;

The right to inherit property from the other by interstate succession;

The right to receive property that will be transferred from the deceased party by placing a will in a will signed before this agreement;

The right to choose to receive a will from another party;

The right to take justified part of the law of a spouse who dies first;

The right to be appointed as administrator of the deceased party’s estate, or as executor of the deceased party’s will, unless appointed pursuant to a will executed after the date hereof;

The right to have exempt property set aside;

Any right, title, claim, or interest in or to the property, income, or estate of the other by reason of the parties’ nonmarital relationship.

Article 11

Property Transfers Between Parties

The parties agree that nothing contained in this agreement shall be construed as a bar to either party’s transferring, conveying, devising or bequeathing any property to the other. Neither party intends by this agreement to limit or restrict in any way the right to receive any such transfer conveyance, devise or bequest from the other made after the parties’ marriage. However, the parties specifically agree that no promises of any kind have been made by either of them about any such gift, bequest, devise, conveyance, or transfer from one to the other.

Article 12

Management and Control of Separate Property Interests; Executing Arrangements

The Parties agree that each party shall retain and enjoy sole and exclusive management and control of his or her separate property, both during lifetime and upon death, as though unmarried. In order to accomplish the intent of this agreement, each of the parties agrees to execute, acknowledge and deliver at the request of the other, his or her heirs, executors, administrators, grantees, devisees or assigns, any and all such deeds, releases, assignments for other instruments, and such further assurances as may be reasonably required or requested to effect or evidence the release, waiver, relinquishment, or extinguishment of the rights of the said party in the property, income or estate of the other under the provision of this agreement, and to assure that each party shall have sole and exclusive management and control of his or her separate property.

To elaborate the provision on Article 12 mentioned above, the following provision shall apply:

12.a.  The Parties hereby acknowledge that HUSBAND shall have the full and unrestricted right to manage, transfer, rent, sell, secure, grant, encumber in whatsoever form or otherwise act and/or transact in any and all of the properties belonging to HUSBAND as stipulated in this agreement, whether moveable or immoveable, tangible or intangible, actual or inchoate without the knowledge or consent of WIFE and further that HUSBAND is entitled to exclusively possess and receive the benefits of any proceeds and income whether generated from the said property or his employment or any of HUSBAND’s other resources;

12.b.  The Parties hereby acknowledge that WIFE shall have the full and unrestricted right to manage, transfer, rent, sell, secure, grant, encumber in whatsoever form or otherwise act and/or transact in any and all of the properties belonging to WIFE as stipulated in this agreement, whether moveable or immoveable, tangible or intangible, actual or inchoate without the knowledge or consent of HUSBAND and further that WIFE is entitled to exclusively possess and receive the benefits of any proceeds and income whether generated from the said property or her employment or any of WIFE’s other resources;

12.c. WIFE hereby grants to HUSBAND irrevocable power and full authority to sign any and all documents, deeds, acts, and consents and to appear before and provide information to relevant third parties and government instrumentalities on WIFE’s behalf in order to carry out the purposes and intentions of this agreement generally and the purposes and intentions of this agreement.  This power of attorney shall be irrevocable and shall not terminate for any reason including but not limited to those reasons specified in Articles 1813 and 1814 of the Indonesian Civil Code;

12.d. HUSBAND hereby grants to WIFE irrevocable power and full authority to sign any and all documents, deeds, acts and consents and to appear before and provide information to relevant third parties and government instrumentalities on HUSBAND’s behalf in order to carry out the purposes and intentions of this agreement generally and the purposes and intentions of this agreement.  This power of attorney shall be irrevocable and shall not terminate for any reason, including but not limited to those reasons specified in Articles 1813 and 1814 of the Indonesian Civil Code.

The Parties agree that from time-to-time they shall execute and deliver all such further documents, powers of attorneys, instruments and further assurances and do or refrain from doing all such further acts and things as the other party may from time-to-time reasonably require to effectively carry out or better evidence or perfect the intentions and purposes of this agreement.

Article 13

Debt Obligations on Separate Property Interests

All obligations (including principal and interest) incurred due to or as a consequence of the purchase, encumbrance or the guaranty of the separate property of either party, whether real, personal or mixed and all taxes, insurance premiums, and maintenance cost of said separate property, shall be paid from said party’s election, there is no community property by the terms of this agreement. To the extent that either party uses his or her separate property to pay the foregoing obligations of the other party, there shall be no right to reimbursement for such expenditures.

Article 14

Unsecured Debt Responsibility

All unsecured obligations of each party, no matter when incurred, shall remain the sole and separate obligations of each party, and each party shall indemnify and hold the other harmless from liability therefor. Each party’s unsecured obligations shall be paid from each respective party’s separate property income or separate property funds, at such party’s election, there being no community property by the terms of this agreement. To the extent that either party uses his or her separate property to pay unsecured obligations of the other party, there shall be no right to reimbursement for such expenditures.

Article 15

Discharge of Living Expenses

The parties’ joint living expenses shall be paid from a joint account to be established following the parties’ marriage and into which each of the parties shall contribute their salaries from employment during marriage. The term: joint living expenses” as used in this paragraph, includes but not limited to: food; household supplies; utilities, telephone, laundry, cleaning; clothing; medical and dental expenses; medical, life; accident and auto insurance; gasoline, oil and auto repairs; automobile purchase and/or lease payments; entertainment; support of any minor children that are the issue of the contemplated marriage and joint gifts to the third person. The commingling of each party’s separate property salaries in the aforesaid joint account shall not change the character of such salaries as the contributing party’s separate property, and neither party shall acquire any right in the salary of the other by reason of such commingling.

Article 16

Responsibility for Income Taxes; Effect of Joint Return

WIFE shall pay the state and income taxes on her income, and shall indemnify and hold HUSBAND free and harmless therefrom. HUSBAND shall pay the state taxes on his income, and shall indemnify and hold WIFE free and harmless therefrom. If the parties elect to file joint income tax returns, neither party shall be required to pay more income taxes than he or she would have paid if he or she had filed a separate return. The election, if any, to file, state or local income tax returns, gift tax returns, or other returns using a joint filing status shall not constitute any form of transmutation or the creation of any community property or any other.

Article 17

Support Liability

Nothing contained in this agreement shall be construed as absolving either party of the statutory obligation to support the other during the marriage or to affect in any way the obligation to support any children of the contemplated marriage. In the event of a separation or marriage dissolution, each party’s obligation to support the other shall be determined and governed under the laws of the State of. The Republic of Indonesia.

Article 18

Parties and Person Bound

This agreement shall bind the parties to the agreement and their respective heirs, executors, administrators, representatives, assigns, and any other successors in interest.

Article 19

Waiver of Responsibility

a. The Parties acknowledge and agree that every debt or obligation in any form and any amount made by HUSBAND or any member of HUSBAND’s family will be HUSBAND’s responsibility and/or his family’s, and shall not burden WIFE or any member of WIFE’s family as a result of HUSBAND and WIFE’s marital relationship;

b. The Parties acknowledge and agree that every debt or obligation in any form and any amount made by WIFE or any member of WIFE family will be WIFE responsibility and/or his family’s, and shall not burden HUSBAND or any member of HUSBAND family as a result of WIFE and HUSBAND marital relationship.

Article 20

Voluntary Arms’ Length Negotiations

The Parties acknowledged and agree that this agreement is voluntarily entered into by and between them and that, prior to the date of this agreement, neither party has engaged in business activities with the other, neither party has consulted the other with respect to advice or information concerning the management of their respective business affairs, property or investment decision and neither party have relied on the other with respect to the foregoing. The parties specifically acknowledge that neither party has ever offered business advice and that their relationship as of the date of the execution of this agreement is a purely personal relationship of two engaged individuals intending to be married to each other at a future date.

Article 21

Execution Formalities

The parties specifically agree that forthwith upon their execution of the agreement, their respective signature shall be acknowledged by a notary public, in their presence. The parties further acknowledge that the date which is set forth on the first page of this agreement is the actual date on which they and each of them are signing this agreement. This agreement or a memorandum of this agreement may be recorded at any time and from time to time by either party in any place or office authorized by law for the recording of documents affecting title to or ownership status of the property, real or personal, specifically including, but not limited to, any county in which either party resides during the marriage and any county in which either party owns or may own real or personal property.  

Article 22

Applicable Law

This agreement is executed in Jakarta and shall be subject to and interpreted under the laws of Indonesia.

Article 23

Invalidity and Severability

This agreement has been jointly prepared and negotiated by counsel for each of the parties and shall not be construed against either party. If any term, provision, or condition of this agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.

IN WITNESS WHEREOF, HUSBAND and WIFE as the parties have executed this Premarital Agreement on the date set forth on the first page of this agreement.

______________________

HUSBAND

______________________

WIFE


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