davita
Thanks for your info...you clearly have legal knowledge which I don't have. I just read news and other's opinion and points of view...much like your opinion.
Recently I did ask, on this forum, if anyone had results from the Association who are currently petitioning the court... but no-one has responded and I haven't heard or read any other feedback....otherwise I would have posted.
My wife's girl friend did ask a notary to convey some land she wished to buy but the notary refused quoting 'as she was married to a foreigner' law prevented this transaction.
I'm well aware of how things are done in Indonesia and not everything [B]is[/B] lawful and most laws [B]are[/B] ignored till something happens where law enforcers have to 'get off their arse.'
That doesn't mean it will forever be the same....and it appears the foreigner usually loses. The Susi Johnson story comes to mind.
Cisco Kid
Davita, Please see my -->> line item responses to your welcome remarks, below:
Hi BBBSFH and welcome to the forum.
Your first post was very informative but this sentence has me confused.
"The Indonesian Constitution didn’t make a citizen’s land rights contingent upon not marrying a foreigner. There’s no law that backs this up."
In an article some years ago Rainy Hendriany, a prominent legal opinion on foreigner's affairs, said the following....
"The only semi-exception to this is that should a foreigner marry an Indonesian citizen, providing that a pre-nuptial agreement (Usually referred to in Indonesia as a Separation of Assets) is entered into PRIOR to registration of the marriage, then the Indonesian spouse may hold Hak Milik land title."
-->> Far be it from me to challenge such a highly regarded professional as Bali Notaris Rainy Hendriany, however I believe it is fair to say that (a) it is her opinion and interpretation of the law, rather than the law itself, that is on the table here and (b) thousands of Indonesians who have foreign spouses with no pre-nup, freely buy and sell land every day, without penalty or disruption, and have done so since the '60's. In the entire 30 years I've been studying legal matters here, not one of those conveyances has ever been overturned or even questioned. You raise a good point that, assuming there is such a law, it is easily circumvented by the simple expedient of the Indonesian spouse buying land in her maiden name. But surely if he/she were in a mixed marriage without a pre-marital agreement, and there was a law precluding his/her land ownership under those circumstances, no notaris would officiate the akte jual beli, given his lawful duty as a quasi government land official to inquire of his client as to his/her marital status. And does not the recordation by BPN of the sertifikat hak milik in the name of the Indonesian married to a bule, carry the conclusive legal presumption of legitimacy? And ought we not to consider that even IF there were such a law, that its abject lack of enforcement relegates it to the de facto status of non-existence?
Also Wijaya...another prominent legal office ...write this on their website...'As for mixed-marriage couples in Indonesia, a prenuptial agreement is highly recommended. This is the ultimate legal solution to get around the issues that have been around since 1960. The Basic Property Law imposed legal constraints in property ownership for an Indonesian married to a foreigner.
-->> Legal citation conspicuously omitted. Lawyers love advocating pre-marital agreements as another way to earn fees.
Furthermore, referring to the Marriage Law assuming joint property ownership in every marriage registered under Indonesian laws, conducted by Indonesian(s), or voluntarily submits to the Indonesian legal system. The joint property ownership requires consent from your spouse in the event you are performing any legal action in relation to the marital property. As foreigners are not allowed to own property in Indonesia, such consent cannot be retrieved because the foreign partner is not in the legal position to give it to his/her spouse in the first place. This makes perfect sense. So, you're stuck between the statutory requirements for consent, and the ineligibility of your foreign partner to produce it for you.'
-->> Legal citation conspicuously omitted. Comment: every foreign spouse of an Indonesian owns a 50% community property interest in property acquired in this Country during the marriage. I don't have a legal citation but being a foreign spouse, my Indonesian lawyer has secured my 50% community property ownership interest in the Denpasar District Court. Mind you it is not formal ownership registered in my name, but is still an enforceable half-interest in terms of use and participation in revenues derived from the land. An interesting footnote or two here: there is also the principle of "community debt" in this jurisdiction. So if you maintain the property or improve it, the other spouse must contribute 50% of that cost too. Second, no bank will lend either spouse funds on the property as collateral without the written consent of both.
Both those articles, and many others I've read, seem to contradict your above statement. In addition, there is an Association of WNI married to foreign spouses that are currently petitioning the Constitutional Court to amend this marriage law which prevents them purchasing Hak Milik, without having a pre-nup. I cannot believe the Constitutional Court would even hear their case (2 hearings already) if the law did not exist.
-->> If you have copies of any documents from this case or even the case no., please let me have it. In return, when I examine the complaint and determine the actual statutory basis of Plaintiffs' claim for relief, I shall likewise share it with you or anyone else. But my hunch is, the ConCourt will dismiss the case for lack of a claim upon which relief can be granted. But I very much want to read the record of this proceeding and follow it every step of the way. Any feedback on the case no. or other reference to this action, would kindly oblige.
I'm aware of many WNI, usually female, married to a foreign spouse, who use their maiden name to buy 'Hak Milik' and not disclose...I just wonder the penalty if caught.
-->> I have never heard of anyone "getting caught" for owning land while married to a bule w/o a pre-nup. And can you imagine the infinite chaos that would result from such selective, random enforcement? Literally millions of SHM's would be nullified, billions of dollars lost and an international outcry of retroactive/selective enforcement, instability of this Country's already beleagured legal system, etc., etc. So again I refer back to my above statement that even if there were such a statute, its total lack of enforcement during a 50 year window, gives it the de facto status of non-existence.
-->> I am guided always by an unrequieted objective to know exactly what the law really is based on the black and white and actual first-hand experiences. I am always grateful for any corrections of my opinions or statements. Any and all feedbacking based on legal citations or the equivalent will only serve the greater good in the international community in Indonesia.
Thank you for calling my attention to any percieved innaccuracies.
balisafeharbor
Cisco Kid
I know, admire and respect Susi. She and I both use the same lawyer. Her knowledge of all things Indonesian & Bali in particular, is exceptional. I often turn to her for input. We've also been known to imbibe in some bubbles down at the pantai on occassion.
Whenever an Indonesian lawyer gives me that kind of story, I insist on seeing the law itself. I assure you that half the time they don't produce it, and the other half of the time when they do, it doesn't say what they say it said. It ranges from something entirely different or at best something sort of similar but not specifically supportive.
Around here the written law is (a) in short supply and (b) even when it does exist, is nearly a state secret when it comes to getting a copy. There are no law libraries open to the public that I know of. Then too there is always the hassle of getting it translated only to find out that it doesn't say what you thought it would say. Much more common is "law by innuendo", i.e., what the guy talking to you says it is (no questions asked). I was raised under the guiding axiom, "question authority".... an American product of the 60's. I've gone to lawschool in 4 countries: U.S., U.K., France & Indonesia. What I can say is this, in the sekolas hukum, future lawyers are taught only about how to protect the rights of their fellow citizens. There is not one single course about how to protect the rights of foreign investors of hard currency in Indonesia. So by default, that's where I have made my living here since 1994. I've learned a lot through hard knocks and from some great teachers (such as, Karen Mills, Esq., the late Mochtar Lubis, the late Adnan Buyung Nasution, the late Kris Sindhunatha and the late Amir Sufarradin). Its a fluid legal landscape to say the least, hence the permanent learning curve.
Let's stay in touch for further feedbacking along the way....
balisafeharbor
Cisco Kid
This turns out to be useful info.
I just logged onto the percaindonesia site
and found the ConCourt case no.
69/PUU-XIII/2015, indicating the
complaint contesting Act No. 5 of 1960
was only filed sometime this year.
So my staff is now busy obtaining a
docket sheet indexing all filings in chrono.
Am also getting my hands on Act No. 5.
Can't thank you enough for giving
me the link to the site.
I'll take it from here, feedbacking you
(& by extension, all readers) along
the way.
This is real progress. Much appreciated.
Regards,
balisafeharbor
--------------------------------------------------------------------------------
davita
Re: post #47.
Excellent...Thank you. I await any news.
There was another thread more pertinent to this subject and closer in date. I'm not sure if admin could have recent info transferred from this thread to the link below....I'll leave it as a suggestion.
The content is possible 'homework' for new member 'babrams' to contemplate as this subject has been thrashed many times...usually by others, like myself, with much less legal knowledge or conviction.
Link:
https://balipod.com/forum/threads/mixed-marriage-property-ownership-in-bali.9554/
Markit
Get that one framed Davita!
Cisco Kid
In case you're that interested, I just found what purports to be an English translation of Act No. 5 of 1960.
Tried to paste the link in here, but it was disallowed by the site admin.
Will read it soon's I come up for air this p.m.
Anyone who wants a copy of that link, just e-mail info at balisafeharbor dot com and I'll send it.
Markit
What a wonderful breath of fresh air! Where have you been all my (Bali) life Abraham (sp). In the past 3 or 4 years I've run into so many who are making a lovely living on the fear and loathing surrounding everything "property" in Bali/Indonesia and after examining the stories of innuendo/rumor/black magic/lies they had to say through the prism of (follow the money) skepticism I've arrived at the same conclusions you've expressed Mr. Safeharbor.
The only fly in my ointment is that you also appear to have a financial interest in your opinions... oh, well it's back to the drawing board.
I will continue to propound this non-fearful, pro-land purchase and positive to Indonesia sympathies until I have some [B][U]hard[/U][/B] evidence to the contrary.
Go and sin some more
Markit
Cisco Kid
[b]not a sales pitch...[/b]
Markit, thank you for your feedback.
The reason I let it drop that we do this commercially is to indicate the professional
level of my opinions. The fact that clients pay for our techniques, implement them
with long-lasting security, should give some degree of comfort to readers here.
In fact every potential client we have hears all that I have said in this forum on a
complimentary basis. So I am not trying to "sell" you or anyone else on anything.
We have more than enough work, clients, intake, etc. So I'm not at all into hustling
potential business for our Office by what I have written. There are other professional
sources for this kind of service on Bali, and everyone should evaluate to whom they
entrust their affairs carefully.
I've been doing this kind of work here since 1995 and am quite confident about what
I have to say. I think we would all agree that when potential buyers are able to make
informed decisions, everyone wins. That is my goal in participating in this forum.
Any time there may be questions or doubts about anything I mentioned, clarification would
be gladly given, quickly.
Cheers, Bali Safe Harbor
davita
I've just remembered that the Association I referred in post #40 is called 'Perkawinan Campuran Indonesia (PerCa Indonesia). The members comprise (mainly women) who are in mixed marriages with foreigners.
This group, I believe, were instrumental in having the Constitutional Court (MK) overturn the Nationality Law so that children of mixed marriage, in RI, can have Dual Nationality until age 21.
I read they are now challenging the 'law regarding property rights' which, according to their petition, denies them ability to own Hak Milik (SHM) as they are married to foreigners.
The last I read of this it had a second reading, I think in July/August 2015, but cannot find any results.
Their website is in bahasa Indonesia which I cannot read, and the content doesn't personally affect us, so I didn't pursue.
Markit
I did not mean to belittle your contribution in any way SH but I need to keep faith with my own morals (guffaw, what the feck did he say?!!!) and suspend judgement on contributions that show subjective or monetary interest on what they have written. There have been many, many and many that have come, seen and fecked off again, hat in hand.
I sincerely hope you don't join that list.
Let me be the first to welcome you and you can post anything (links) you want after 10 contributions.
Selamat Bintang!
Cisco Kid
That makes 2 of us then.
BSH....
Fred2
Davita
They are disputing Articles 21 of the Agrarian Law, as well as Articles 29 and 35 of the Marriage Law.
Dr Arie Hutagalung states that the Agrarian law which is a higher law (constitution) only states that a person that is a Indonesian citizen can own property and that the marriage law discriminate against Indonesians who marry foreign nationals.
Cisco Kid
aku juga.... regards,
bsh
davita
I don't think PerCa are contesting the Agrarian Law No. 5 1960. That verifies their stance that ALL Indonesians have the right to own Hak Milik Land.
They are contesting that THEY are excluded because the Marriage Act (?) says all property after marriage is community property and, if they are married to a foreigner, the 'interpretation' that they are excluded from their Agrarian Right because of the Marriage Act (excluding a pre-nup to obviate the community right).
Thanks fred2...seems we agree and i was writing same time as you.
Cisco Kid
Still need to read the court file, which with all the translations, may take time, but it
sure looks like its the the marriage law is in conflict with the Agraria law of 1960, which
the plaintiffs say controls. I believe they are correct and that the marriage law cannot dilute
the land ownership rights conferred by Agraria.
Cisco Kid
sorry Fred 2, but I never tell anyone how to "get around" the law here or anywhere else.
That's your impression because you seem to have misunderstood what I have written here.
I only advocate total compliance with the law, as explained to me by many Indonesian
legal practitioners and what I have read over the years. I only believe in totally transparent,
lawful transactions, and rely entirely on notaris and advokats whom I engage, to keep them that way.
I have read Agraria Law no. 5 and have always felt it said nothing about Indonesians entering
mixed marriages losing their marriage rights. bsh
davita
babrams@balisafeharbor.co wroteStill need to read the court file, which with all the translations, may take time, but it
sure looks like its the the marriage law is in conflict with the Agraria law of 1960, which
the plaintiffs say controls. I believe they are correct and that the marriage law cannot dilute
the land ownership rights conferred by Agraria.
Well I hope you and PerCa are correct because it wouldn't need a new law...just a simple and reasonable explanation of precedence and interpretation by MK if Agrarian Law trumps the Marriage Law in respect of this issue...QED.
Fred2
I only advocate total compliance with the law
Immigration.
Our clients never need to stand in line at the Immigration office. You never have to obtain stamps or fill out applications. You never worry about compliance. You never even talk to Immigration officials. Nor do you pay any “extra” money. We do it all for our clients. Totally turnkey.
Your words not mine?
Fred2
The difference between Hak Tanggungan (Indonesian)and mortgage (West)as explained to me.
In mortgage, if the debtor could not fulfill his/her obligations, the land is transferable
This could not happen in Hak Tanggungan, as the creditor cannot own the land, but only has the right to sell them via auction.
Any other ?????
