Buy property in Indonesia mixed couple

[Markit]

Hey Roy how was Siberia :lol:

I would point out that there is over the entire world an enormous difference in what the law says and what the law does. Just look at the US army's stand on gays (not that that is a particular bug-bear of mine) - gays are not allowed in the Army but no one is allowed to ask... letter of the law is simply ignored.

Same here in Bali - my seller, the son, (Balinese) handles all he legal and banking stuff himself but his mum is on the phone all the time. I am told that she would simply not be accepted as a "full" trading partner - regardless of what the law says!

Me, I'm glad - she tears his balls off everytime she calls - rather him than me :cry:

 

[Roy]

Markit, I can assure you that you have a whole host of “rude awakenings” headed your way, especially as you embark on a nominee based property “acquisition” here in Bali.

What can I say? Some folks can only learn the hard way.

I’ve said it many times before, “expats here ebb and flow like the tide” and in your case, it’s a “no brainer” at what point in the tide you will most likely soon find yourself.

This is not as much a criticism, as it is an observation based on your oft presented misconceptions of what Bali, and the Balinese are all about, as well as your unwillingness to listen to sound advice.

For you, it’s “full steam ahead” and for me, it will be a source of continued entertainment.

 

[Markit]

Your comment on Rude Awakenings seems to indicate that you disagree with some conclusion that i've drawn. What conclusion was that?

I only report it like I see it - course your "knowledge" moves into the parapsychology area and you can "see" things the rest of us mere mortals are hidden. Cause Roy, old buddy, I made a no statements of opinion or conclusions, just said what I say.

Of course it's an age old debating tool to answer questions that were not raised and problems that were never there - oh, I forgot, you are age old :lol:

 

[Roy]

I’m fine with you having it your way Markit, but you might be mindful of the old proverb, “he who laughs last, laughs best.” :wink:

 

[Markit]

Yeah Roy but you might also remember that people that laugh all the time are generally considered crazy... :lol:

 

[vandor]

To summarize where the discussion is:

1. The nominee ownership seems to be a fragile structure.
2. Despite claims on both sides, no one has given a clear answer to the original question.

 

[Markit]

1. The nominee ownership seems to be a fragile structure.

You are absolutely right, but so are all, I repeat, all other forms of sale and purchase.

Sounds like a sweeping statement doesn't it but lets just consider the origins of buying and selling quickly and the one and only true statement: caveat emptor let the buyer beware! and this is in a language that's been dead for 1300 odd years.

So the problems of unsecured buying and selling aren't new ones and it is codified and regulated and stipulated all over the world but still: caveat emptor is the leading moto.

It seems to your humble author that the problems that arise with buying and selling of land here in Bali are the same as anywhere in the world - that the people involved tend to leave their intelligence and understanding back at home. I have heard hair-raising stories of people entering agreements for hundreds of thousands of dollars with taxi drivers that the have met on the road and trusting their Indonesian wives to be honest and nice to them after they have mistreated and abused them for years, duh....

If you use your common sense and don't save money in the wrong place (hire a good lawyer/notary, if you can find one) and just think about what you are doing without the rose-colored glasses or the misapprehension that because you (a clever westerner) have no need to fear being cheated by these third world rice farmers (irony alert :evil: ) then everything should go well. Or as well as it can go anywhere. Don't get greedy, share some of the goodies and you will be paid back in kindness.

Indonesians of any sex can own land in any area of indonesia, as far as I can tell. where the problems come in is that you basically have an agrarian society here with its mores based in a very solid local religiosity and its laws based in Jakarta. This seems to mean that the law says anyone can own land but the mores, at least here on Bali, say only the men are allowed to own land. Therefore if you are a Balinese woman living on Bali you will have the legal right to own land but that may not be of much help if no one will deal with you or recognize your right to do so.

 

[publicaffair]

Hello All,

I was reading all your post here but still cannot find the exact answer to buy property in Indo for mixed couple.

In my case, my father is NZ Citizenship and My mother is Indonesian citizenship, when they got married in Indonesia and bought houses in Jakarta, they cannot use my mother name as they being told by Notary & lawyers/ attorney its simple because she's married to foreigner which make her a foreigner as well, so they have to use my mother daughters name. But its dont make sense because she still can make/ have local company under her name. If she's a foreigner that mean she cannot own local company as well right which mean she have to apply for PMA (foreigner company).

Another case is, I learn this from Julia Perez, an Indonesian actress who married to foreign guy but they married overseas and never registered their marriage in Indonesia, so when they want to get divorce, Indonesian law cannot recognise their marriages which mean according to Indonesian law she never been married yeat to that foreigner.

I'm getting married to Aussie guy the end of this year and he always love Bali and would like to live in Bali. This is worried me a lot because many people said Indonesian women who married to foreigner cannot own "hak milik" house in Indonesia (which include Bali as well). I'm not Balinese, which I'm sure those adat rules dont apply for me as the balinese label me as an outsider.

So please anyone who can give me 100% answer to this. Thank you. It would be good if there's a clear Indonesian rules refer to this problem since there's lots of Indo women married to foreigner.

 

[Markit]

1) Go to a lawyer in Bali.
2) Hire him.
3) Go to another lawyer in Bali.
4) Hire him too.
5) Take lawyer 1 with you to the meeting with lawyer 2 to watch lawyer 2 :shock: .
6) Discuss your problems with lawyer 2.

Joking aside, you do need the services of a lawyer IMHO. Any information you would receive here would only be anecdotal and your situation is serious and needs professional help.

 

[Bert Vierstra]

If you have a marriage contract you as an Indonesian woman can own property.

The problem arises when there is "mixed ownership". With a prenup, there isn't

 

[goldminer]

Hi Bert, so do you mean the problem is having property in both names in mixed marrige, but if in, say an indo wifes name only, its ok? And what has a prenup got to do with it. Thanks :?

 

[Bert Vierstra]

No.

Even if its on your Indo's wife name only and you don't have a prenup, its sort of shady.

If you are married you own things together, and if the husband is a foreigner, well, its not allowed.

A prenup stating you don't own things together, changes things.

 

[goldminer]

mmmm, so does a 'prenup' have to be done before the nuptials, or can be done after...if you know what i mean :roll:

 

[Bert Vierstra]

Ask your Notary, if you know what I mean.

 

[spicyayam]

From everything I have read, you need to get the pre-nup before you get married.

 

[goldminer]

Well, i dont understand this. My wife owned property before we were married, we have no prenup, but dont have a problem with anyone because she does own property. She uses her maiden name in indo, so what is stopping her buying more property, in her name????

 

[Bert Vierstra]

Nothing. And many people in the same situation do.

However. IF and I say IF you ever run into trouble of some sort, they can use this against you.

 

[Bert Vierstra]

BTW search for prenup on the forum, we have talked about this before...

 

[KaBIm]

To make a complex problem short, I'd like to quote two articles of law that will help to have a better understanding of it:

Article 21, section 1 Basic Land Law of the Republic of Indonesia number 5/1960/Pasal 21, ayat 1 Undang-Undang nomor 5 tahun 1960 tentang Peraturan Dasar Pokok-Pokojk Agraria:

(1) Only Indonesian citizens can have a hak milik (Hanya warga-negara Indonesia dapat mempunyai hak milik)

Article 35, section 1 Marriage act of the Republic of Indonesia number 1/1974/ Pasal 35, ayat 1, Undang-Undang nomor 1 tahun 1974 tentang Perkawinan:

(1) Property acquired during a marriage become joint property (Harta benda yang diperoleh selama perkawinan menjadi harta bersama).

Basically it means that the right of ownership of an Indonesian woman, married to a foreigner is precluded. Since anything own by a couple is joint property, even a land title under the name of the indonesian spouse would be, by half, the property of the foreigner. And this is not allowed by law. Therefore an Hak Milik title is off limit of a legally married mixed couple (there is solution however to prevent that, developped later). This article about "harta gono gini" is reinforced by the article 119 of the Indonesian Civil Code that stipulates that "from the moment of execution of the marriage, there shall exist by law community of property between the spouses to the extent that no other stipulations have been made in the prenuptial agreement. Rules regarding community property cannot be revoked or amended by mutual agreement between the spouses for the duration of the marriage." Interestingly this same article of law offers a way to overcome the problem:
A prenup agreement, establishing that the two parties are two clearly separate parties and that any assets acquired after or possessed prior to the mariage are not joint property would subrogate the joint property rule established by the indonesian marriage law. Thus, if a mixed couple buy a house/land, and sign a prenup agreement (obviously prior to the marriage) the SHM title will be legally established under the indonesian spouse's name... and the Indonesian spouse will be the sole owner, with all consequences it may has...

What could happen if there is no prenup agreement?

If the States finds out of such situation, legally speaking, the SHM could be nullified and the land could fall to the State with no compensation (article 21, section 3 and article 26, section 2 of the Basic Agrarian Law 5/1960).
However, to date, I haven't find in the jurisprudence of the dozens of decision of justice that I have consulted on the land matter while researching land law, any decision where a mixed couple with no prenup and a SHM established under the indonesian spouse's name was depossessed of their land. It does not mean that it will never happen, because there is a legal risk, but to be honest I bet that there is hundreds of mixed couples that are in this situation.

Why Indonesian spouses of foreigners still get issued SHM even when the couple has no prenup?

One should blame incompetency and greed. Legally speaking the notaris who conduct the sale should check the marital situation of both buyers and sellers. However, in many cases, especially outside Bali where people are not yet used to deal with foreigners and the subtilities of the law that regulates our rights, notaris are not doing properly their job. Since the Akta Jual Beli (AJB) at the signature of the sales requires only the signature and ID of:
- the buyer
- the seller
- the seller's spouse
the notaris fail to check the ID of the buyer's spouse (in this case, a foreigner) and therefore give a miss to an important detail: the fact that a foreignr is married to the Indonesian buyer. The Badan Pertahanan Nasional (BPN, the National Land Agency) tranfers the SHM under the name of the Indonesian spouse, contravening to the law without even knowing it. Note, that sometimes notaris just ignore the marriage law and it's implication. I already talked to a couple of notaris (outside Bali) who were not really aware of the legal consequence the harta gono gini rule may have when a foreigner is involved. This is sad but unfortunately true.

What other problem may arise when a mixed couple buy a SHM land with no prenup?

The problem may well be different when and if this couple want to sell their land. Since the authorisation, signature and ID of the spouse's seller is mandatory to draft the AJB, both the Notaris and BPN may raise an eyebrow and discover that a SHM has been established with no legal basis. I know of at least one case where the couple has been asked a huge bribe to proces the sale and transfer the SHM to the new owner.

If anyone intends to marry with an indonesian national, then a prenup agreement should be seriously considered to overcome any subsequent problems.

I hope that the above would help to understand better this legal problem. However, if not clear, feel free to ask more precisions.

More informations on property topics and other law related problems are also given in the archives of this link:
http://www.livinginindonesiaforum.org/f ... y.php?f=39

 

[KaBIm]

In my case, my father is NZ Citizenship and My mother is Indonesian citizenship, when they got married in Indonesia and bought houses in Jakarta, they cannot use my mother name as they being told by Notary & lawyers/ attorney its simple because she's married to foreigner which make her a foreigner as well, so they have to use my mother daughters name. But its dont make sense because she still can make/ have local company under her name. If she's a foreigner that mean she cannot own local company as well right which mean she have to apply for PMA (foreigner company).

There is a lot of confusion here.
1) Even under the 1958 Citizenship Act, which has been abrogated and replaced in 2006 an indonesian woman married to a foreigner was not automatically loosing her indonesian citizenship. Therefore, the notaris/lawyer either were incompetent or their advises have been incorrectly interpreted or reported (see my above post about mixed couples and prenup)
2) A PT (which is what you call a "local company") can be legally owned by a foreigner and foreigners aren't restricted to PMA scheme when it comes to doing business in Indonesia. I guess that "agents" specialised in PMA creation would prefer it however... :wink:

Another case is, I learn this from Julia Perez, an Indonesian actress who married to foreign guy but they married overseas and never registered their marriage in Indonesia, so when they want to get divorce, Indonesian law cannot recognise their marriages which mean according to Indonesian law she never been married yeat to that foreigner.

Correct. "JuPe" not having reported to the Catatan Sipil her overseas marriage is considered legally "single" under Indonesian law, even if she married abroad. Therefore she could marry anyone in Indonesia without having to divorce her french (?) husband. As simple as that.

I'm getting married to Aussie guy the end of this year and he always love Bali and would like to live in Bali. This is worried me a lot because many people said Indonesian women who married to foreigner cannot own "hak milik" house in Indonesia (which include Bali as well). I'm not Balinese, which I'm sure those adat rules dont apply for me as the balinese label me as an outsider.

My only question is: are you indonesian citizen? There is something I don't get, here. You say:
- my father is a kiwi
- my mother is Indonesian
- they married in Indonesia
Assuming that you born beforer Aug, 1st 2006, you shouldn't be indonesian (unless your parents were not married yet when you born or you became indonesian by a process of naturalisation after 2006???). Can you elaborate on this point?

It would be good if there's a clear Indonesian rules refer to this problem since there's lots of Indo women married to foreigner.

There is a clear Indonesian rule. Very clear indeed. It is just that it not easily available sometimes and that there is plenty of confusion and wrong or incomplete informations circulating.