A postnuptial agreement signed overseas does not automatically determine the ownership of assets in Indonesia. For a foreigner married to an Indonesian citizen, its effect depends on the Indonesian asset or right for which the agreement is being relied upon, including whether it is intended to separate marital property or establish that land held by the Indonesian spouse is not joint property.
When Can a Foreign Postnup Be Relied on in Indonesia?
A postnup may be valid under the law of the country where it was made but still not establish the property arrangement required in Indonesia. Its terms, form, and governing law must be considered alongside the Indonesian rules applying to the asset.
There can also be documentary requirements when a foreign agreement is presented to an Indonesian authority or used in an Indonesian legal process, such as an Indonesian translation and authentication where required. Completing these formalities does not by itself mean that the agreement creates the intended property arrangement in Indonesia.
If the foreign agreement does not establish the required position under Indonesian law, an Indonesian marital agreement may be one way to address the issue.
Can an Indonesian Postnup Resolve the Problem?
Since a 2016 Constitutional Court decision, Indonesian law has allowed spouses to enter into a marital agreement during marriage rather than requiring it to be made before or when they marry. This allows a foreign-Indonesian couple to enter into a separation-of-property agreement even after the marriage has taken place.
This does not simply “correct” the foreign postnup. Instead, the Indonesian agreement can establish the property arrangement needed in Indonesia. Where a foreign agreement already exists, the terms of the two agreements should be checked for conflicts over the same assets.
The Indonesian agreement must also be properly executed and recorded where required, particularly when it is intended to affect the rights of other parties.
What Happens to Property the Couple Already Owns?
Making a postnup during marriage does not necessarily mean that it applies only to assets acquired after it is signed. The agreement can provide for when the new property arrangement takes effect, but it cannot be used to prejudice against rights already acquired by third parties.
For example, changing the marital property arrangement cannot simply eliminate an existing creditor’s rights over property. For assets acquired before the postnup, the acquisition date, the agreement’s effective date, and any existing third-party rights must be considered.
What if the Indonesian Spouse Already Owns Land?
Land requires particular attention because foreigners cannot hold Hak Milik, or right of ownership, over Indonesian land.
Current Indonesian land rules allow an Indonesian citizen married to a foreigner to hold land rights available to Indonesian citizens where the land is not joint marital property and the separation of property is evidenced by a notarized agreement.
A postnup made during marriage can be relevant where the Indonesian spouse already owns land, but it should not be treated as an automatic fix for an existing title issue. The acquisition date, whether the land formed part of joint marital property, the type of land right, the agreement’s effective date, and any existing third-party rights determine how the postnup affects the property.
Contact Jarji Zaidan & Partners About a Foreign Postnup in Indonesia
Jarji Zaidan & Partners can review the existing agreement and advise whether an Indonesian marital agreement or another legal step is needed. Contact us today at info@jarjizaidan-partners.com  or on WhatsApp +62 821-9000-3273 / +62 813-1403-8907.
