Know Your Rights Vol.7: Prenuptial Agreement
Soetojo Prawirohamidjojo, a legal expert, defined Prenuptial Agreement as an agreement between prospective spouses before or during the marriage regarding their wealth. Prenuptial Agreements are drafted with openness, willingness, and help from an objective party such as a notary. This agreement is also commonly used when approaching these conditions (Haedah Faradz. 2008. Tujuan dan Manfaat Perjanjian Perkawinan):
If there is an unequal amount of wealth between two parties in which one of them has a notably larger amount than the other.
If both parties have a considerably numerous income.
Presuming that each party has their own business, this agreement is made to prevent the bankruptcy of one party from affecting the other.
Both parties are responsible for their own debts if one or both the parties are in debt before the marriage.
From the conditions mentioned, in fact, not only to manage the wealth of spouses, Prenuptial Agreement can be applied to preserve the rights, dignity, and standing of both parties in front of the law as well as to assert the monogamy principle in the marriage.
Law Number 1 of 1974 concerning Marriage (hereinafter termed Marriage Law) is the only law that specifically regulated Prenuptial Agreement implication in Indonesia. According to Article 29 of Marriage Law, these are the rights and consequences of the Prenuptial Agreement:
During or before marriage is held, both parties (wife and husband) with mutual consent are rightful to make a Prenuptial Agreement which will be legalized by Marriage Registrars. Prenuptial Agreement would also affect third parties if needed.
Prenuptial Agreement cannot be legalized if violating the law, religion, and moral boundaries.
The legalized Prenuptial Agreement will be enforced right after the marriage took place.
This agreement cannot be changed unless there is an accord between both parties and the accord is not causing adversely to the third parties.
Additionally, management of marriage wealth is enunciated in Article 35 paragraph (2) Marriage Law, which reads, “Prenuptial property of wife and husband and the properties that are earned by each party as a handout or inheritance, is under each party’s authority unless there is an accord that is stated otherwise.” This regulation is adapted from Customary Law which separates prenuptial property and joint property.
Furthermore, Prenuptial Agreement is brought up in the Indonesian Civil Code Articles 139, 140, 141, 142, and 143 which regulate the prerequisites of the agreement and the substances that should be included in a Prenuptial Agreement. In the articles, it is stated that a Prenuptial Agreement must fit the norm and morality of the society. Secondly, despite the fact that a Prenuptial Agreement upholds a non-discriminative and non-patriarchal principle in marriage, the agreement must not lessen the rights and obligations of the role of a husband. In addition to wealth arrangement between wife and husband, Prenuptial Agreement should not contain inheritance settlement and disproportionate partition of debts from joint profits gained during the marriage. Lastly, anything written in the Prenuptial Agreement must be based on the national law, international law, religion law, customary law, or any laws that are enforced or formerly enforced in Indonesia.
There are no precise data statistics that show how many people implement a Prenuptial Agreement in their marriage. However, we can identify the use of the Prenuptial Agreement in Dr. Hardi and Valentina’s divorce case. It is known based on Valentina’s statement that Dr. Hardi and her have made a Prenuptial Agreement in 1994. In addition, Valentina also stated that in their Prenuptial Agreement there is no joint property, every profit and loss is of each party's responsibility, as well as every earning are in the authority of the one who earned it. That agreement is applicable for either finances or proprietary between the parties. Since their divorce in 2013, Valentina has been suing Dr. Hardi’s for violating the agreement in terms of wealth. Dr. Hardi is prosecuted for taking over 14 land certificates. Having said that, the court dismissed this case as there is no proof of the Prenuptial Agreement Valentina refers to which releases Dr. Hardi from every charge. From this case, we can conclude that the Prenuptial Agreement is a crucial aspect that could help spouses to be aware of and manage their rights to prevent any dispute.
As time goes by, many Indonesian celebrities start to use the Prenuptial Agreement to support and provide their marriage rights, duties, and obligations too, such as Ferry Irawan-Venna Melinda and Habib Usman-Kartika Putri. Meanwhile, out of the country, there are a lot more celebrities who use Prenuptial Agreement and managed to advertise it to society, such as Brad Pitt-Angelina Jolie, Beyoncé-Jay Z, Nicole Kidman-Keith Urban, Kim Kardashian-Kanye West, and Chris Rock-Malaak Compton-Rock.
A prenuptial agreement can be used to make the rights, duties, and obligations of both parties in the marriage clear and unambiguous. Moreover, in the Indonesian Civil Code system, Prenuptial Agreement becomes very significant to manage the wealth between wife and husband. If the agreement is not settled, then according to Article 146 of Marriage Law, all of the wife's earnings during the marriage are in the husband’s authority.
According to a journal written by Greenstein and Brian, Prenuptial Agreement has various advantages and uses, for instance; To sets forth the details of property dispositions in the event of divorce or death; To provide an immune to family assets from claims by the new spouses; To prevent a spouse from obtaining voting rights or claim against other party’s business assets; To provide support for children of a previous marriage, as well as children of the upcoming marriage, etcetera.
The meaning of Prenuptial according to the Webster Dictionary is before marriage. However, The Constitutional Court of the Republic of Indonesia’s Decision Number 69/2015 has given an expansion to the meaning of the thePrenuptial Agreement. The provisions of Article 29 paragraph (1) of the Marriage Law have been amended as follows: “At the time, before or throughout the marriage bond, both parties with mutual consent can make a written agreement legalized by the marriage registrar or a notary, after which the contents also apply to third parties as long as the third party is involved” meaning an agreement between married couples can be created during the marriage in itself, as long as the couples are still married, not only before the marriage occurred. The court made the decision because, before the amendment, the article was considered contradictory to The 1945 Constitution of the Republic of Indonesia. The basis of a marriage agreement is the same as any other agreement, which is to give both parties their freedom, as long as it’s not contradictory to the law, decency, and order. It is in line with Article 28E verse (2) of The 1945 Constitution of the Republic of Indonesia which ruled: “Everyone has the right to freedom to have faith in beliefs, to express thoughts and attitudes, according to his conscience”. Before the amendment, the phrase “At the time, before or when the marriage is held …” is considered to be restraining someone’s right to make an agreement.
The subject matters of a Prenuptial Agreement can be anything. Couples might want to create a Prenuptial Agreement to prevent conflicts and to protect themselves from unwanted possibilities that might happen. Based on the freedom of contract principle in Indonesia, couples can freely determine the content of the agreement as long as it is not contrary to law, religion, decency, or public order.
According to the Directorate General of Population and Civil Registration’s Circular Letter Number 472.2/5876/DUKCAPIL, the requirements that need to be fulfilled in order to make a Prenuptial Agreement if the agreement is made before marriage are:
Copy of Identification Card;
Copy of Family Card; and
Copy of Authentic Notarial Deed of Prenuptial Agreement that has already been legalized while showing the original document.
If the agreement is made during the marriage, the requirements are:
Copy of Identification Card;
Copy of Family Card;
Copy of Authentic Notarial Deed of Prenuptial Agreement that has already been legalized while showing the original document; and
Marriage Certificate Quotation
If the agreement is made in Indonesia but the registration is done in another country, the requirements are:
Copy of Identification Card;
Copy of Family Card;
Copy of Authentic Notarial Deed of Prenuptial Agreement that has already been legalized while showing the original document;
Marriage Certificate Quotation or similar document published in the other country; and
Marriage Certificate Report Letter made published in the other country
The registration of the marriage certificate report is done by this step:
The husband and the wife submit the requirements as stated above;
The civil registry officer at The Technical Implementation Unit makes a side note at the certificate register and marriage certificate quotation or publishes a letter of statement for Prenuptial Agreement made in Indonesia but the registration is done in another country; and
Marriage certificate quotation including the side note or statement letter given to each husband and/or wife.
But, if the couple are moslems, the registration of their Prenuptial Agreement is done according to the Directorate General of Islamic Community Guidance Ministry of Religion’s Circular Letter Number B.2674/DJ.III/KW.00/9/2017
The prerequisite for a Prenuptial Agreement to be legitimate is the same as any other agreement as written in Article 1320 Indonesian Civil Code. The four parameters of legitimate agreement are: the agreement between those who bind themselves, the ability to make an agreement, a certain thing, and a lawful cause. The important thing is, in order to legitimize your agreement, it has to be made with notarial deeds and must be registered.
According to Article 29 paragraph (4) of The Marriage Law says: “During the marriage, the agreement cannot be changed, unless both parties agree to change it and the change does not harm the third party.” meaning the subject matters of the agreement can be changed with consent from both parties as long as it doesn't harm the third party if there is any. The question is can we end it? To answer that question, let’s take a look at a case that happened in Indonesia. According to the decision of the District Court of Tangerang Number 277/PDT.P/2020/PN.TNG, the judge granted the application for annulment of the couple’s agreement considering Article 1338 of the Indonesian Civil Code. Article 29 verse (4) of The Marriage Law can also be interpreted for the cancellation of the agreement, it gives a prerequisite that is the consent of both parties, and as long as it doesn’t give any harm to the third party, but any change or cancellation must be registered. Generally, making annulment of an agreement is done with just a notarial deed, but there are several cases of filing an Application for Court Decision on the Cancellation of the Marriage Agreement to the Court.
There is three kinds of Prenuptial Agreement:
Total segregation of property;
Separation of the inherited property only; and
Separation of profit and loss.
Total segregation means that all assets that are acquired before and during the marriage, become the rights of their own. This kind of agreement is common among spouses because the total separation of assets allows them to legally manage their own assets and decide what to do with them.
The separation of the inherited property only means there is a separation of the innate assets of each obtained before the marriage takes place, the inherited assets such as grants, inheritance, parental gifts, own acquisitions, etc. remain in their own possession, but the property acquired after the marriage takes place becomes joint property.
Separation of profit and loss means if there is profit obtained during the marriage, the profit will be divided between husband and wife, but if during the marriage there is a loss or a claim from a third party, then the loss becomes their own responsibility.
Thomas Hobbes once said, “Covenants, without the sword, are but words and of no strength to secure a man at all.”Our rights and obligations to make a Prenuptial Agreement are regulated through Law Number 1 of 1974 concerning Marriage and the Indonesian Civil Code. As soon as your soon-to-be spouse asks you to get married, remind him/her about this agreement and immediately book a notary to draft one! Make sure it’s legalized and ready to be enforced before stepping into marriage.
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Greenstein and Brian R. 1992. Prenuptial Agreement: What They Can and Cannot Accomplish. The CPA Journal Online.
Prawirohamidjojo, Soetojo. 1988. Pluralisme dalam Perundang-undangan Perkawinan di Indonesia. Airlangga University Press.
Haedah Faradz. 2008. Tujuan dan Manfaat Perjanjian Perkawinan. Journal of Dinamika Hukum vol. 8.
Law Number 1 of 1974 concerning Marriage.
Indonesian Civil Code.
The Verdict of Constitutional Court (MK) No. 69/PUU-XIII/2015.
Directorate General of Population and Civil Registration’s Circular Letter Number 472.2/5876/DUKCAPIL.
Directorate General of Islamic Community Guidance Ministry of Religion’s Circular Letter Number B.2674/DJ.III/KW.00/9/2017.
According to the decision of District Court of Tangerang Number 277/PDT.P/2020/PN.TNG.