Prenup Rule for Mixed Marriages Abolished
42-year-old policy declared unconstitutional by Constitutional Court
By Moses Ompusunggu/The Jakarta Post
Friday, October 28, 2016
Local spouses of foreigners can now purchase a plot of land or a building without having to create a prenuptial agreement separating the ownership of their property, a 42-year-old policy that has just been declared unconstitutional by the Constitutional Court.
The court decided on Thursday to eliminate the requirement for a prenuptial marriage agreement in Article 29 of the 1974 Marriage Law, paving the way for thousands of Indonesians who are married to foreign nationals to own property as they can now create an agreement on separate ownership during their marriage.
The Indonesian Mixed-Marriage Society (PerCa), which supported the judicial review petition against the law, welcomed the landmark decision, saying it was “a ruling that upholds the principal of justice and gives local spouses the constitutional rights they are entitled to.”
“We fully welcome the ruling by the Constitutional Court, which shows that it cares about and sides with mixed-marriage couples who are often subject to discrimination,” PerCa said in a statement made available to The Jakarta Post on Thursday.
The 1974 Marriage Law treats a husband and a wife equally, allowing them to create a marriage agreement before a civil registry official or notary. Prior to Thursday’s ruling, the agreement, under which a married couple could agree on things such as the separation of property and debt, could only be made before a marriage took place.
The court, however, declared the requirement for a prenuptial contract to be unfair, as it prevented a married couple from separating property ownership during the marriage, thus violating Article 28E of the Constitution. “In fact, many couples mull whether to draw up a marriage contract after their marriage for many reasons,” said presiding judge Wahiddudin Adams, while reading the ruling at the Constitutional Court in Central Jakarta.
“Property ownership in a marriage is one of the factors behind many conflicts between a husband and wife,” Wahiddudin said.
Plaintiff Ike Farida, a PerCa member, said the ruling made it possible for locals who were married to foreign nationals to own property by creating a marriage contract that stipulated the separation of property ownership.
A lot of marriages, including mixed marriages, took place without the prenuptial contract, because most married couples were unaware of the regulation, Ike said.
Ike is a Jakarta-based lawyer married to a Japanese citizen.
In May 2012, she finished paying for an apartment in Casablanca, South Jakarta, but the developer did not give her ownership rights to the unit after it became aware her husband was a foreigner.
The case went to the East Jakarta District Court but Ike lost. The developer refunded the payments, but Ike refused to accept them, because she still wanted to fight to change the law.
“Some friends have been advised by their lawyers to divorce first and get married again just to create a marriage contract that enabled them to own property. They don’t need to do that after this ruling,” Ike said.
Apart from the 1974 Marriage Law, Ike also filed a review of Article 21 and Article 36 of the 1960 Agrarian Law, which prohibit foreigners, and Indonesians in mixed marriages who do not separate their property ownership, from possessing right-to-own permits and right-to-build permits, respectively.
The court decided to uphold the said provisions, citing the principle of nationality used by the Agrarian Law, in which only Indonesians can own property in the country.
“There is no way for foreigners to own property. The principle of nationality is still relevant at present when capital ownership has a pivotal role for Indonesians looking to bounce back from the sluggish economic situation,” Wahiddudin said.