There is no fixed number of years after marriage when it becomes too late to sign a postnuptial agreement in Indonesia. A couple can make one while they are already married, and the agreement takes effect from the date of marriage unless they specify another date.
Once validated, the agreement can also apply to other parties where their interests are affected. Existing rights involving those parties can be important when determining what a postnup made later in the marriage can achieve.
Can You Sign a Postnup Years After Marriage?
Constitutional Court Decision No. 69/PUU-XIII/2015 allows a marital agreement to be made before, at the time of, or during marriage. Both spouses must agree to the written agreement, which can be validated by the marriage registrar or a notary.
The agreement takes effect from the date of marriage unless the spouses specify another date. It may also be changed or revoked during the marriage, but this requires the agreement of both spouses, and the change or revocation cannot harm affected third parties.
Can a Postnup Cover Property the Couple Already Owns?
Property acquired during marriage is generally joint property. Property owned before marriage and property received individually as a gift or inheritance during marriage generally remain under the respective spouse’s control unless a marital agreement provides otherwise.
Because a postnup takes effect from the marriage date unless another date is specified, property acquired before the agreement was signed is not automatically outside its scope.
If a bank already holds security over an asset, changing the property arrangement between the spouses does not by itself remove the bank’s existing rights.
What About Land Owned by an Indonesian Spouse?
Only Indonesian citizens may hold Hak Milik, or right of ownership, over land. This is particularly relevant in marriages between Indonesian and foreign nationals.
A foreigner who obtains Hak Milik by inheritance without a will, or by mixing marital property, must release the right within one year of acquiring it. If this does not happen, the Hak Milik is extinguished by law and the land falls to the state, while existing rights held by other parties over the land remain protected.
A postnup can establish separation of property after the marriage has taken place. However, where an Indonesian spouse has already acquired land, signing a postnup should not automatically be treated as resolving the position created by the earlier acquisition.
The type of land right, when and how the land was acquired, the property arrangement applying to the spouses, the terms and effective date of the postnup, and any existing rights over the land can affect the result.
Contact Jarji Zaidan & Partners About a Postnuptial Agreement
Jarji Zaidan & Partners assists foreigners and their Indonesian spouses with postnuptial agreements. Contact us today at info@jarjizaidan-partners.com or on WhatsApp +62 821-9000-3273 / +62 813-1403-8907 for guidance.
