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Questioning Property Ownership of Mixed Marriage Indonesians

26 February 2016

Government Regulation No. 103 2015 concerning Housing Ownership or Occupancy by Foreigners Domiciled in Indonesia intended to regulate ownership of residential houses for foreigners. 

However, on the contrary it is seen as legal uncertainly for Indonesian citizens who marry foreigners ( mixed marriage citizens ) to own land rights.The regulations was issued by President Joko Widodo on December 22, 2015, replacing Reg. No. 41/1996. The regulation stipulates the period of ownership ( usage rights ) for foreigners longer than the previous rule of 80 years ( old rule 50 years ). In addition, in the regulation there is a definition of 'foreigners', namely foreigners who are not Indonesians citizens whose existence provides benefits, conduct business, works, or invest in Indonesia.

The regulation also stipulates the inheritance rights of foreigners to their heirs, or to other people who have eligibility to replace their positions. As long as the heirs qualify as 'foreigners', the heir has the right to inherit.

Another addition from Reg. No. 103 is regarding the definition of property which in the previous regulation did not regulate the definition of 'single housings' or 'flats'. Reg. No. 103 regulates 'single housings' or 'flats' that can be owned by foreigners must be new, not used units. With these restrictions, the government stressed that such facilities, still woud not threaten the nationality principle adopted by the Land Law No. 5/1960 concerning Basic Regulations on Agrarian Principles.

Judging from the title, Reg. No. 103/2015 is intended for foreigners. But the regulation stipulated a rule for Indonesian mixed marriages, namely article 3 ( 1 ) stating that ;Indonesian citizens who carry out marriages with foreigners can have rights to land that are secure with other Indonesian citizens." Is the Article an affirmation that the government does not distinguish Indonesian citizens' intermarriages with other Indonesian citizens to own land ( ownership rights and Building Usage Rights) ? The answer is yes.

Then what are the rules before the birth of this regulation? Are the rights of Mixed Marriage Indonesian not the same? Has it not been 55 years since the land law stipulated the right of all Indonesian citizens to be equal? Lan Law article 9 ( 2 ) stipulates that: Every citizen, both men and women have the same opportunity to obtain rights to land and to get benefits and results both for themselves and their families. So, if it has been regulated about the equality of rights, why is it regulated yet again in the regulation concerning foreigners?

In Article 3 ( 2 ) of Reg. No. 103 stipulates that: Right to land as referred to in paragraph (1); not constituting joint assets as evidenced by the agreement on separation of property between husband and wife, which is made by notarial deed. Paragraph (2) raises many questions and confusion from the public, especially Indonesian citizens who intermarry.

First, do mixed-marriage Indonesian citizens must have an 'asset separation agreement' with their foreign partners if they want to buy/sell land? If yes, does that mean mixed-marriage Indonesian citizens are treated unequally? (Despite in paragraph (1) states that the rights as equal). If the answer is no, then what is the purpose of this article?

Second, should the agreement to separate the assets made by the Notary be carried out before, or during the marriage period? Reg. No. 103 Article 3 (2) is not regulated when the agreement is made. Third, can the agreement before the notary bind a third party ( such as a bank developer ) ? Is it a requirement or is it only for the purpose of proof of ownership of land? If Reg. No. 103 Article 3 (2) is intended as proof of a third party, then it is clear that the provision os contrary to the Civil Code Article 1340, which essentially the agreement only binds the party that makes it - not binding on a third party.

Fourth, is the agreement on the separation of property the same as the Marriage Agreement in Marriage Law No.1/1974 ? If yes, then why not include the Marriage Law as reference material in its information?

Could it be that the formulator neglected to take into account the impact of Reg. Article 3, which caused confusion for the public such as notaries/Land-deed Drafter Officer, lawyers, developers, and banks? In fact, some National Land Agency officials, notaries, officials from the Ministry of Law and Human Rights still have their own answers. The Agreement on Separation of Assets in Article 3 (2) of Reg. No. 103 must be explained in more details, e.g. ( in its explanation): it is interpreted as a means of proof later in the event of divorce, inheritance, or when the land is sold to another party. So clearly the ownership of the land rights is not part of the joint assets. For this reason, the government should immediately improve by including an explanation, or issuing land laws that guarantee legal certainty.

The emergence of questions related to the purpose of the issuance of the regulation is likely to continue, because the inconsistency between the regulation and the law above is so sharp and substantial. No matter how elegant, good or economical the rules are, if they harm society, they must immediately be replaced or deleted. To quote John Rawls in A Theory of Justice: Justice is the first virtue of social institutions as truth is of systems of thought. A Theory however elegant and economical must be rejected or revised if it is untrue; like wise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.