Markit wroteWhy does that rule them out? They are Indonesian and whatever else too, but in the first instance, Indonesian and therefore can rightfully own property here.
Hi Markit,
It is unfortunately not as simple as that. Here is where the problem is:
Pasal 21 UU 5/1960 ttg peraturan dasar pokok pokok agraria
(1) Hanya warga-negara Indonesia dapat mempunyai hak milik.
(2) Oleh Pemerintah ditetapkan badan-badan hukum yang dapat mempunyai hak milik dan syarat-syaratnya.
(3) Orang asing yang sesudah berlakunya Undang-undang ini memperoleh hak milik karena pewarisan tanpa wasiat atau percampuran harta karena perkawinan, demikian pula warga-negara Indonesia yang mempunyai hak milik dan setelah berlakunya Undang-undang ini kehilangan kewarganegaraannya wajib melepaskan hak itu di dalam jangka waktu satu tahun sejak diperolehnya hak tersebut atau hilangnya kewarganegaraan itu. Jika sesudah jangka waktu tersebut lampau hak milik itu dilepaskan, maka hak tersebut hapus karena hukum dan tanahnya jatuh pada Negara, dengan ketentuan bahwa hak-hak pihak lain yang membebaninya tetap berlangsung.
[B](4) Selama seseorang di samping kewarganegaraan Indonesianya mempunyai kewarganegaraan asing maka ia tidak dapat mempunyai tanah dengan hak milik dan baginya berlaku ketentuan dalam ayat (3) pasal ini[/B].
If you read article 21 of the land law pasted above, the paragraph 4 clearly rules out that anyone with dual citizenship may be authorized to hold a SHM. It is well documented that many notaris ignore the very law and regulations that they are supposed to know, which explain why Gilbert's friend was allowed to put a SHM under the name of his dual citizen kid (post #22). However it is NOT legal. You can do it, many have done it as well as many mixed couple without prenup have been able to buy and sell SHM without much trouble, but it isn't legit and it may leave you open to extortion at different level.
Basically here is a translation of paragraph 4: "As long as a person holds a foreign citizenship in addition to his Indonesian citizenship s/he may not own any land with an ownership right (read SHM) and the stipulation in paragraph 3 of this article is applicable to him/her.
It means that if someone acquires a citizenship other than Indonesian s/he has 1 year to sell it. Dual citizen kids are de facto excluded of the possibility to own SHM, until they release any foreign citizenship.
A bit of law history. This article 21 and the whole land law have been drafted in 1960 at a time when Indonesia was trying to repossess all lands from the last dutch remaining in Indonesia. Quite a few dutch gained Indonesian citizenship through marriage but still had their dutch one and this article was intended to them. Dual citizenship as we know it now was at the time not a real legal possibility. In 1962 it was even clearly prohibited with the then Citizenship law (UU 58/1962). If you had any foreign citizenship, you were automatically loosing your Indonesian one and therefore anyone with dual citizenship was in fact not Indonesian legally. In 2006, the citizenship law has been modified, allowing mixed couples kids to hold dual citizenship but the land law still remains as it is and forbids them to be bearer of a SHM. Article 21 (3) has never been abrogated nor amended and is still very valid and used in civil court.
Anyway, whatever the nationality of the kid is, I would NOT advise to put a SHM under the name of a kid who is under 18 [B]*[/B], if there is even a remote possibility that you have to sell it or even to just use it as a collateral.
Article 48 of the marriage law ([I]UU 1/1974, ps 48:Orang tua tidak diperbolehkan memindahkan hak atau menggandakan barang-barang tetap yang dimiliki anaknya yang belum berumur 18 (delapan belas) tahun atau belum pernah melangsungkan perkawinan, kecuali apabila kepentingan anak itu menghendakinya[/I]), along with the Civil Code forbid parents to sell or pawn immovable assets of a kid unless if they can prove that it is done in HIS interest. If the sale is sought in order to finance the kid's education it may work. However if it is done because the couple wants to acquire a bigger house or anything not directly related to the kid, the couple may have heaps of troubles.
Last, Markit, it's not at their 18th birthday (cf: your last sentence) that mixed kids will have to choose their sole citizenship, but before their 21st one. When they will remain with only 1 citizenship, as long as it is the Indonesian one, they will then be eligible to hold a SHM.
[B]*[/B] or even 21, depending on what legal definition you take to define what is an underage kid.
Now, back to my beer... :icon_wink:
