An Indonesian prenuptial agreement can apply to third parties whose interests are affected by it, subject to the requirements governing the agreement’s effect beyond the spouses themselves.
When Does an Indonesian Prenup Bind Third Parties?
Article 29 of Indonesia’s Marriage Law, as interpreted by Constitutional Court Decision No. 69/PUU-XIII/2015, allows a prenuptial agreement to be made before, at the time of, or during the marriage. An Indonesian prenup made before marriage must be based on mutual consent, made in writing, and approved by the marriage registrar or a notary. Its provisions may also apply to third parties insofar as their interests are affected.
The agreement cannot violate the limits of law, religion, or morality. It takes effect from the date of the marriage unless the agreement provides otherwise.
For marriages recorded through the civil-registration system, prenups are also subject to the applicable administrative recording procedures. These procedures differ according to when and where the marriage and agreement were made or recorded.
How Can a Prenup Affect Creditors and Other Third Parties?
Without a different marital property arrangement, property acquired during marriage is generally joint property, while property brought into the marriage and property received individually as a gift or inheritance generally remains under the respective spouse’s control. A prenup can alter the property arrangements that would otherwise apply between the spouses.
A separation-of-property agreement does not by itself determine which assets may satisfy a debt. A creditor may have rights arising independently from the marital property regime, including through a guarantee or security granted by a spouse.
The type of debt can also affect which assets are available to repay it. Supreme Court Decision No. 80 K/Sip/1976 recognizes that when one spouse takes on debt for the family, the debt can also affect the other spouse’s property. Joint property is used first, but if it is insufficient, the spouses’ separate property may also be used.
Can a Prenup Be Used to Defeat Existing Third-Party Rights?
A marital agreement may be amended or revoked during the marriage by mutual agreement, provided the amendment or revocation does not prejudice third parties.
A creditor or other party therefore cannot be deprived of an existing right merely because the spouses subsequently change how property or liabilities are allocated between themselves.
Jarji Zaidan & Partners Can Advise on Prenups and Third-Party Rights
Jarji Zaidan & Partners advises foreign-Indonesian couples on whether their prenup protects their intended property arrangements when creditors or other third parties have competing rights. Contact us at info@jarjizaidan-partners.com or on WhatsApp +62 821-9000-3273 / +62 813-1403-8907.
