Nuptial Agreement in Indonesia: A New Change in Indonesian Marriage Law

DOI

10.2991/iclgg-17.2018.4How to use a DOI?

Keywords

Indonesian Marriage Law; Nuptial Agreement; Characteristic.

Abstract

Recently, there has been a new change in the Indonesian marriage law. The change is especially about the provision on prenuptial agreements in the Article 29 of the Act Number 1 Year 1974 on Marriage, resulting from the decision of Indonesian Constitutional Court’s Decision Number 69/PUU-XIII/2015. Before the Constitutional Court’s decision, the nuptial agreements must be made before the marriage, so called prenuptial agreement, which may only be changed if it was agreed by the parties and all such changes do not harm the third parties. In October 2015, the Indonesian Constitutional Court made a judicial review on this provision that was conducted related to the provision of Government Regulation Number 103 Year 2015 on Ownership of Dwelling of Residency House By Foreign Persons Domiciled In Indonesia that stipulates that Indonesian citizens who have married with foreign citizens without previously creating prenuptial agreement, will not be able to have rights to the land. Article 3 (1) of the Government Regulation specifies that Indonesian citizen who has married with foreigner can own the rights to the land if it is not a community property that is evidenced by the segregation of assets between husband and wife, which is made by notarial deed. In accordance with the Indonesian Constitutional Court’s decision, the Article 29 of the Law Number 1 Year 1974 on Marriage shall be construed differently. Postnuptial agreement is now allowed to be made in Indonesia. This change may not only have positive sides, but also negative sides when the parties create postnuptial agreement in bad faith that may harm the third parties. This paper attempts to elaborate issues regarding nuptial agreements in Indonesia. This paper also compares the characteristics of nuptial agreements in Indonesian law and Dutch law, especially on definition, scope, requirements of validity, time, form, and legal protection for the third party. Secondly, this paper tries to find lessons learned regarding nuptial agreements from Dutch law for Indonesian marriage law reform, particularly regarding nuptial agreements. The analysis will be using statute approach, conceptual approach, and comparative approach.

Copyright

© 2018, the Authors. Published by Atlantis Press.

Open Access

This is an open access article distributed under the CC BY-NC license (http://creativecommons.org/licenses/by-nc/4.0/).

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TY  - CONF
AU  - Agus Hernoko
AU  - Erni Agustin
AU  - Faizal Kurniawan
AU  - Mahendri Putri
PY  - 2017/11
DA  - 2017/11
TI  - Nuptial Agreement in Indonesia: A New Change in Indonesian Marriage Law
BT  - Proceedings of the International Conference on Law, Governance and Globalization 2017 (ICLGG 2017)
PB  - Atlantis Press
SP  - 24
EP  - 27
SN  - 2352-5398
UR  - https://doi.org/10.2991/iclgg-17.2018.4
DO  - 10.2991/iclgg-17.2018.4
ID  - Hernoko2017/11
ER  -