A Muslim couple in Indonesia can use a prenuptial agreement to keep property separate rather than relying on the default rules for joint marital property. For foreigners married to Indonesians, this can also affect how property restricted to Indonesian ownership is treated within the marriage.
What Happens to Property in a Muslim Marriage Without a Prenup?
Under Indonesia’s Marriage Law, property acquired during marriage generally becomes joint marital property. Property that a spouse owns before marriage, or receives individually as a gift or inheritance, generally remains that spouse’s separate property.
For Muslim couples, joint marital property is known as harta bersama. The Compilation of Islamic Law also contains rules on joint and separate property within Muslim marriages.
What Can a Prenup Change?
The Compilation of Islamic Law allows spouses to use a marriage agreement to separate property and regulate certain arrangements for property brought into or acquired during the marriage.
However, separating property does not remove obligations imposed by family law. The Compilation of Islamic Law specifically provides that separation of joint property cannot remove the husband’s obligation to meet household needs.
A prenup can also address financial liabilities between the spouses, but an agreement between husband and wife does not automatically remove the rights of banks, lenders, or other creditors. Existing debts and third-party rights may need to be considered separately.
Why Does a Prenup Matter When One Spouse Is Foreign?
Indonesian land law restricts the land rights that foreigners can hold. A prenup does not give a foreign spouse the right to own Hak Milik land or other land rights reserved for Indonesian citizens.
Instead, separation of property can help establish that qualifying property belongs separately to the Indonesian spouse rather than forming part of joint marital property with the foreign spouse.
This does not mean that an Indonesian automatically loses the ability to own land by marrying a foreigner. The issue is how joint marital property interacts with land rights that are restricted based on nationality.
Can a Prenup Be Made After the Muslim Marriage?
A couple that married without a prenup can still make a marriage agreement after they are married.
Constitutional Court Decision No. 69/PUU-XIII/2015 changed the interpretation of Article 29 of the Marriage Law. A marriage agreement can now be made before the marriage, when the marriage takes place, or during the marriage.
An agreement entered into after marriage is commonly called a postnuptial agreement, or postnup, in English. Indonesian law uses the broader term perjanjian perkawinan, or marriage agreement.
The spouses can agree on when the agreement takes effect, but it cannot prejudice the rights of third parties. This matters where the couple already has property, loans, guarantees, creditors, or other financial obligations.
A postnup therefore does not necessarily change the treatment of every existing asset or debt.
How Is a Muslim Prenup Formalized in Indonesia?
The agreement is made before a notary and cannot contain terms that conflict with Islamic law or Indonesian legislation.
The agreement is then recorded by the relevant Religious Affairs Office (Kantor Urusan Agama, or KUA), or by the relevant marriage registrar overseas. Details of the agreement are recorded in the Akta Nikah and Buku Nikah.
For a foreign-Indonesian couple, completing these formalities can be important when the agreement later needs to be relied on in a property transaction or against a third party.
What Happens to the Prenup After Divorce or Death?
If the couple divorces, the prenup can determine which assets are separate rather than part of harta bersama. For Muslim couples, disputes over joint marital property can be handled by the Religious Courts.
If one spouse dies, the prenup can also help establish which assets belonged to the deceased spouse before the estate is distributed. Property that already belongs separately to the surviving spouse does not become part of the deceased spouse’s estate merely because they were married.
However, a prenup does not allow the spouses to freely rewrite the Islamic inheritance rules that apply to the deceased spouse’s estate. Property separation and inheritance planning are separate issues.
Contact Jarji Zaidan & Partners About a Muslim Prenup in Indonesia
Jarji Zaidan & Partners can assist foreign-Indonesian Muslim couples with drafting, reviewing, or assessing prenuptial and postnuptial agreements in Indonesia. Contact Jarji Zaidan & Partners at info@jarjizaidan-partners.com or via WhatsApp at +62 821-9000-3273 / +62 813-1403-8907.
