Constitutional Court Allows Prenuptial Agreements to be Drafted After Marriage

The Constitutional Court (“Court”) has rendered Decision No. 69/PUU-XIII/2015 (“Decision”) after review of several articles originally set out under Law No. 5 of 1960 on Basic Provisions on Agrarian Principles (“Basic Agrarian Law”) and Law No. 1 of 1974 on Marriage (“Marriage Law”).In essence, this Decision now enables married couples, including mixed-marriage couples, to enter into prenuptial agreements after their wedding, while the Marriage Law previously regulated that prenuptial agreements could only be drawn up before marriage or at the time of marriage. [1] FactsOn 11 May 2015, Mrs. Ike Farida and her lawyers (“Petitioner”) submitted a petition to the Court requesting a judicial review of Article 21 (1), (3), and Article 36 (1) of the Basic Agrarian Law, as well as Article 29 (1), (3) and (4) and Article 35 (1) of the Marriage Law. In her petition, the Petitioner argued that these articles had infringed upon her constitutional rights as an Indonesian citizen to secure a Freehold Title (Hak Milik)and/or Right-to-Build Title (Hak Guna Bangunan) for land and buildings located in Indonesia, [2] as she was married to a foreign citizen (“Mixed Marriage”). [3] Pursuant to Article 21 (1) of the Basic Agrarian Law, Freehold Titles can only be granted to Indonesian citizens. Article 21 (3) of the Basic Agrarian Law then stipulates that any such right must be relinquished if its holder loses his/her citizenship or if the right becomes owned by a foreign citizen due to inheritance, or as part of the joint assets of any Mixed Marriage. As for Right-to-Build Titles, Article 36 (1) of the Basic Agrarian Law limits the holding of said titles to Indonesian citizens and legal entities only.Meanwhile, Article 35 (1) of the Marriage Law regulates that any assets acquired during a marriage become the joint assets of the couple. This provision applies to Mixed-Marriage couples, and was reinforced under Directorate General of Human Rights Letter No. HAM2-HA.01.02-10 dated 20 January 2015. Nonetheless, this letter also stipulates that any joint assets in the possession of a Mixed-Marriage couple (“Mixed-Marriage Assets”) can be separated if a prenuptial agreement existed between the couple either before or at the time of their marriage. [4] Pursuant to Article 29 (1) and (3) of the Marriage Law, a prenuptial agreement may be drawn up either before or at the time of a marriage, and applies during the marriage. Article 29 (4) of the Marriage Law then stipulates that any such agreement may not be subsequently amended, unless such amendment is agreed upon by the married couple in question and does not harm any third parties.In the case of the Petitioner, Mrs. Farida was denied the right to possess a multi-dwelling unit by its developer, even though the Petitioner had fully paid for the unit, because the Petitioner was engaged in a Mixed-Marriage which meant that the multi-dwelling unit would have been a jointly held asset between her and her foreign husband. This was because the Petitioner had not signed any prenuptial agreement either prior to or at the time of her marriage in order to separate any joint assets from those of her husband. [5] PetitionBased on the above considerations, the Petitioner then decided to petition the Court to declare that a number of phrases set out under the said articles in fact ran contradictory to Indonesia’s 1945 Constitution and were therefore invalid. The phrases concerned were as follows: [6]