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Separation of Assets at Anytime

12 November 2016

The Constitutional Court released the deadline for making marriage agreements that regulated the separation of assets. It is beneficial for mixed marriage doers. Words of Congratulations filled in Mrs. Ike Farida's cellphone since Thursday two weeks ago.That day she won the judicial review on the Marriage Law at the Constitutional Court. "Someone even asked me to be a speaker in a seminar". said Ike on last Tuesday.

Ike sued Article 29 of the said law which regulates the Prenuptial Agreement. Initially, according to this rule, couples could only make Prenuptial Agreement before marriage. Ike argued that the regulation discriminates Indonesians who were married with foreigners. "Many intermarried doers are disadvantaged by this rule," said the lawyer whose husband is Japanese.

Ike felt the effects of the rules herself. In May 2012, she bought an apartment unit in Kasablanka area, South Jakarta, for Rp. 3, 05 billion. Ike has paid 30 percent of the down payment. According to the provisions of the purchase letter, Ike could sign an agreement on the sale and purchase agreement no later than 14 days after the payment is made. However, in fact, the developer canceled the transaction because Ike's husband is a foreigner.

The delevoper stated that the couple did not have a Prenuptial Agreement that regulates the separation of assets before marriage. Without this agreement, Indonesians who marry foreigners will automatically share their assets. Even though the Land Law prohibits foreigneirs from obtaining use rights for property. "Even though the transaction is under my name, developers still do not want to proceed with purchase," Ike said.

Ike tried various ways, from filing civil lawsuit to filing reports to the police to get her rights for the apartment. However, Ike's efforts always failed. Thus, in early May 2015, Ike filed a lawsuit to the Constitutional Court, she also received support from the Indonesian Mixed Marriage Association ( PerCa).

Besides reviewing the Marriage Law, Ike reviewed also Article 21 and 30 of the Land Law. According to these articles, only Indonesian citizens can obtain ownership rights and use rights to property. Ike wants to emphasize that Indonesian citizens referred by the article include those who are married to foreigners. However, the judge rejected the addition of the clause by stating that it is already regulated in the Citizenship Act of the Republic of Indonesia.

In the verdict, the Board of Judges only granted the Judicial Review on Marriage Law. The Constitutional Court relaxed the time limit for making Prenuptial Agreements. According to the judge, a married couple can make the agreement after marriage with the consent of both parties and legalized by a notary.

Ike conveyed that this decision greatly helped mixed marriages, "Many have asked how to make this marriage agreement," Ike said. "So we are waiting for the government about the technical rules."

SEPTALITA Andini was shocked when the legal department staff of the apartment developer suggested her to divorce her husband. "They suggested us to separate and then make an agreement to separate our property," said Septalita last Wednesday, recounting the events in 2011 to the media. "After that then we could remarry."

The suggestion from the developer arose when Septalita boght an apartment in Tebet Area, South Jakarta. She ordered an apartment unit for Rp. 600 million in 2008. At that time Septalita was still single. She paid the down payment for Rp. 10 million and took the installment scheme which will be paid off in July 2011. Septalita then signed the sale-purchase agreement..

In July, 2010, Septalita married a Pakistani, "I told the developer about this marriage but they said there was no problem because it ( apartment unit ) was bought when i was single," Septalita said. "So i did not make a Prenuptial Agreement for the separation of assets."

The problem arose when Septalita has paid off the installments in April 2011. The developer refused to take care of the sale and purchase deed under Septalita's name due to th reason that she, who now has one shild, is married to a foreigner. The developer asked for an asset separation prenuptial agreement.

Septalita refused the developer's suggestion to "temporarily divorce" and then remarry after issueing a separation letter. The developer gave another suggestion, namely to issue the sale and purchase deed by reporting the National ID that states the holder's martial status as unmarried/single. "I do not have it because I have changed it (married)," she said. Finally, the developer suggested Septalita to transfer the purchase to the name of her parent or siblins. Initially, this option sounds reasonable. However, the procedure became as complicated as the previous two proposals because the cost for transferring name of ownership turned out to be very expensive. "It is the half the price of an apartment," Septalita said.

Septalita until now has stayed in the apartment without a sales purchase deed. The developer will go back and forth to confiscate the house if Septalita does not immediately take care of the deed. "Because of that, I am happy with the victory of Mrs. Ike." She said, "I want to manage the asset separation prenuptial agreement."

Rulita Anggraini also has a bitter experience about marriage agreement. Rulita married a US citizen at the Setiabudi Office of Religious Affairs, South Jakarta, in November 1993. Before the holy matrimony, Rulita did not make asset separation prenuptial agreement.

Problems arose in 2006, when the husband and wife decided to buy an old house in the South jakarta area. Banks refuse credit applications that they submit due to the reason that there is no asset separation prenuptial agreement. Finally, the married couple pays in installments to the owner of the house with their own money.

Rulita paid off the house's payment in February 2007. Problem occured yet again when she was going to take care of the sale and purchase deed. The notary who manages the deed refused, again because Rulita's husband was foreigner and there was no prenuptial agreement. "The Notary suggested that i change the status on my National ID into unmarried/single or transfer ownership to someone else,' she said.

Rulita reluctantly transfer the ownership's name of the house into her mother's. the sale and purchase deed can finally be processed. At the same time, Rulita and her mother made another agreement to confirm the ownership of the land.

The Chairperson of the Indonesian Mixed Marriage Association ( PerCa ), Juliani Luthan said the story of Ike, Septalia and Rulita is only a small part of the problems that often encountered by mixed marriage doers. "There are 800 members of the association who also have similar stories," she said.

This woman who is married to an American citizen said, currently the Indonesian Mixed Marriage Assiciation is designing a socialization of the formulation of the Constitutional Court under Mrs. Ike farida's name to several regions. "Because, now the key is in the hands of the notaries and the government," she said. "Dont let a member ( PerCa ) make an agreement but the notaries dont understand."

Director of Legislative Litigation of the Ministry of Law and Human Rights, Yusnan Hilmi said the government would not issue any rules relating to the Constitutional Court's verdict. "The Courts verdict can be carried outr on its own since it is reading," Yusnan said, Thursday last week. "There is no need to formulate the rules."