An Indonesian postnuptial agreement can address company shares that one spouse already owns, but it does not automatically turn existing joint shares into separate property.
Are Existing Corporate Shares Joint or Separate Property?
Under Indonesian marriage law, property acquired during marriage generally becomes joint property. Property owned before marriage, or received personally through inheritance or as a gift, generally remains separate property unless the spouses have agreed otherwise.
The same rules can apply to company shares.
Shares acquired during marriage may be joint property even if only one spouse is registered as the shareholder. This means the name in the company’s shareholder records does not determine by itself whether the shares are joint or separate property between the spouses.
Can a Postnup Separate Shares Acquired During the Marriage?
A postnup can address shares that already exist. However, if shares acquired during the marriage have already become joint property, signing a postnup does not automatically turn them into one spouse’s separate property.
The agreement should clearly state how the existing shares will be treated. It can also address dividends and money received if the shares are later sold.
The agreement should clearly state when the new property arrangement takes effect, especially when it covers assets acquired before the postnup was signed.
Does the Postnup Change Who Owns the Shares?
Changing how shares are treated between spouses does not necessarily transfer the shares themselves.
If one spouse remains the registered shareholder, the postnup can deal with the spouses’ rights over the shares without changing the company’s shareholder records.
If the shares are to be transferred to the other spouse, separate corporate procedures may be required. The transfer may need to follow the company’s articles of association and any applicable approval or transfer requirements.
What if the Shares Are Pledged or Subject to an Existing Agreement?
Existing third-party rights can limit what a postnup achieves.
If shares have already been pledged as security or are subject to another agreement, a later postnup does not automatically cancel those arrangements.
The postnup should also be properly made and recorded where required for it to apply to third parties.
What Happens to the Shares During Divorce?
If the marriage ends, shares treated as separate property would generally remain outside the division of joint property. If the shares remain joint property, their value may need to be considered when the couple’s property is divided.
Protect Existing Corporate Shares with Jarji Zaidan & Partners
Jarji Zaidan & Partners can advise foreign and Indonesian spouses on structuring postnuptial agreements that cover existing corporate shares and other business assets. Contact Jarji Zaidan & Partners at info@jarjizaidan-partners.com or via WhatsApp at +62 821-9000-3273 / +62 813-1403-8907.
