An Indonesian postnup can separate property between spouses, but it cannot simply remove rights that an existing creditor already holds.
Does It Matter Whether the Debt Came Before or After the Postnup?
If a separation-of-property arrangement was already in effect before the debt arose, the creditor deals with the spouses under an existing property arrangement. The position is different if one spouse already owes money and the couple later changes their property arrangement, because a marriage agreement cannot be changed in a way that harms existing third-party rights.
Proper recording is also important if the spouses want to rely on the postnup against third parties.
Can a Creditor Challenge Changes to the Couple’s Property?
If spouses enter into a postnup after a debt has arisen and claim that certain property now belongs separately to the spouse who does not owe the debt, the creditor may dispute whether that arrangement can be used against its existing claim.
This is different from declaring the entire postnup invalid. The creditor may instead argue that the postnup cannot be relied on against its claim.
Ownership becomes particularly important if property is transferred after a creditor claim has arisen. The creditor may have grounds to challenge the transfer if the legal requirements are met.
What Happens if the Creditor’s Challenge Succeeds?
A successful challenge does not necessarily mean the postnup stops applying between the spouses. The result may instead be that they cannot rely on the postnup, or a particular property arrangement connected with it, against that creditor.
The creditor may then be able to pursue the relevant property despite the spouses’ attempt to treat it as separate.
Contact Jarji Zaidan & Partners About Postnups and Creditor Claims
Jarji Zaidan & Partners can advise foreign and Indonesian spouses on drafting or reviewing postnuptial agreements where existing debts or creditor claims may affect the separation of property. Contact Jarji Zaidan & Partners at info@jarjizaidan-partners.com or via WhatsApp at +62 821-9000-3273 / +62 813-1403-8907.
