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The Constitutional Court

27 October 2016

The Constitutional Court (MK) granted part of the judicial review of articles in Law No. 5 of 1960 concerning Land Law (Land Law) and Law No. 1 of 1974 concerning Marriage (Marriage Law) requested by a mixed marriage actor, Ike Farida. The Court only granted the judicial review of Article 29 paragraph (1), (3), and (4) of the Marriage Law. While the request for Article 21 paragraph (1) and (3) and Article paragraph (1) of the Land Law and Art. par (1) of the Marriage Law were rejected. It was requested by Ike Farida due related to the ownership requirement of the Land Ownership Rights and Building Usage Rights which may only be owned by Indonesian citizens and Article 29 paragraph (1), (3), and (4) and Article 35 paragraph (1) of the Marriage Law related to marital agreement and community property. 

The reason is that Indonesian cituzens who were married to foreigners cannot have a house with a Land Ownership Rights or a Building Usage Rights status due to the rule of the Marital agreement and Community Property. Article 21 paragraph (3) of the Land Law gives Rights to foreigners to get a Land Ownership Rights because of inheritance or community property due to marriage. However, for Indonesian citizens in mixed marriage they can have the Land Ownership Rights "since the Rights is obtained". Furthermore, the Land Ownership Rights must be released (resold) within one year of obtaining the Land Ownership Rights.

The Court in its verdict number 69/PUU-XIII/2015 gave a constitutional interpretation on Article 29 paragraph (1), (3) and (4) of Marriage Law related to marital agreements. The Court expanded the meaning of the marital agreement which is made according to the legal needs of each couple.

In its ruling, the Constitutional Court declared that Article 29 paragraph (1) of the Marriage Law was conditionally unconstitutional as long as it was not interpreted as "At the time of, before, or while in marriage, both parties to the mutual agreement can submit a written agreement legalized  by the marriage regisrar or notary, after which the contents also apply to the third party as long as the third party is related". Article 29 paragraph (3) of the Marriage Law is declared conditionally unconstitutional as long as it is not interpreted as 'The agreement shall come into force since the time of the marriage takes place, unless specified otherwise in the Marital Agreement'. Whereas, Article 29 paragraph (4) of the Marriage Law is conditionally unconstitutional as long as it is not interpreted as 'During the marriage, the marital agreement can be related to marital assets or other agreements, is unchangeable or irrevocable, unless both parties agree to change or revoke it, and its change or revocation is not detrimental to the third party'.

According to the Applicant, anyone who is married to a foreign citizen as long as they do not have a property separation agreement will never be able to have a house with the status of a Lard Ownership Rights or a Building Usage Rights. Even if there are Indonesian citizens mixed-married having a marital agreement to separate their property, they still cannot buy a house because there is an abligation to give up the Rights in a year. According to the Court, the Article 29 of the Marriage Law only regulates marital agreement made before or during the marriage.

Whilst, in fact is that there is a phenomenon which a husband and wife for some reasons, just feeling the need to make a marital agreement during the marriage. During this marital  agreement must be made before the marriage takes place with a notary deed. According to the Court, the phrase "at the time of before marriage" in the Article 29 pragraph (1), the phrase "... since the marriage" in the Article 29 paragraph (3), and the phrase "during the marriage" in Article 29 paragraph (4) of the Marriage Law limits the freedom of two individuals of when making an 'agreement'. This is contrary to the Article 28E paragraph (2) of the 1945 Constitution as argued by the Applicant, the same opinion was said by the Constitutional Judge Wahidudin Adams when reading the verdict consideration.

Emphasize the principal of nationality
When considering the Articl 21 paragraph (1), (3), Article 36 paragraph (1) of the Land Law concerning the ownership requirement of Ownnership Rights and Building Usage Rights which may only be owned by Indonesian citizens. The Constitutional Court reminded the principle of nationality is contained in Article 1, Article 2, Article 9, Article 20 paragraph (1), Article 21 paragraph (2), Article 30 paragraph (1), Article 31 paragraph (1) and Article 46 paragraph (1) of the Land Law. Article 9 of the Land Law, for example, affirms that only Indonesian citizens who have the Rights to own the land in Indonesia, while foreign citizens (foreigners) or foreign business entities can only have Land Rights, such as the Rights of use. "This automatically prevents the control of land by the foreign parties of the capital owners which in its turn can threaten and undermine the sovereignty of the country".

Regarding the phrase "Indonesian citizens" in Article 21 paragraph (1) and Article 36 paragraph (1) of the Land Law is interpreted by Indonesian Citizens without exception with all marital status, either unmarried Indonesian citizens, Indonesian citizens who marry fellow Indonesian citizens, and Indonesia citizens who marry foreigners, according to the Constitutional Court it will actually restrict the understanding of Indonesian citizens as stipulated in Article 2 and Article 4 of Law No. 12 of 2006 concerning Citizenship. 

If the Applicant's thinking framework is followed it will harm many parties, which within certains limits including the Applicant herself. Thus, the Applicant's argument as long as it concerns the unconstitutionality of Article 21 paragraph (1) and (3) and Article 36 paragraph (1) of the Land Law does not have any legal basis." For Ike, although most of the request were rejected, this verdict was already in accordance with the Applicant's expetation. The bottom line was, the marital agreement that could only be made before or during the marriage bond are unconstitutional. "The  meaning of Indonesian citizens is as expected as well.

Because people like me (mixed marriage actor, red) is included as Indonesian citizens", Ike said at the Constitutional Court Building. She explained that the verdict on Article 29 of the Marriage Law is not only involved mixed marriage, but all common couples can at any time make a marital agreement when needed.