Buy property in Indonesia mixed couple

[bambang]

So Vandor is correct you did offer legal advice and that advice is seriously flawed. Of course nothing could happen to shorten a person's life is that what you are suggesting?

The personal attacks I guess are a signal that you have exhausted your extensive legal arguments.

 

[vandor]

I believe that saying on a public forum that a prenup for whoever considering marrying an indonesian national is superfluous would be an irresponsible attitude (or at least one that shows poor knowledge/understanding of the law). It costs only IDR 500.000 or so, doesn't hurt and protect you against any change in the interpretation/enforcement of the law.

I think, the cost is only one of the considerations. If people could secure all properties by only spending IDR 500.000 on some paperwork I guess, most people would go for a prenup outright.
But in fact, a prenup is a very serious document (it might be the most important one you sign in your life) - and this fact seemingly has not been covered in this topic yet. If someone is not comfortable with the contents the prenup put in front, then he/she should not sign it, let there be notaries/lawyers around emphasizing the importance of "protecting you against the state's confiscating habits" in a rush-rush-rush...

 

[KaBIm]

So Vandor is correct you did offer legal advice and that advice is seriously flawed. Of course nothing could happen to shorten a person's life is that what you are suggesting?

The personal attacks I guess are a signal that you have exhausted your extensive legal arguments.

I love you Bambang. you are a flamer. The short historic of your few posts here shows it.

I really like the bit about "The personal attacks"... I thought that I read things like "Absolute rubbish", "Kabim and all of his learned friends have this 100% wrong" and "So suddenly this it is not polemic anymore but a discussion? Classic!" in your posts.

Say', you won't be offended if I give you a miss from now, will you? :wink:

 

[bambang]

Vandor makes an excellent point and it again demonstrates Kabim's lack of understanding of the possible ramifications caused by a prenup and why it is probably not a viable remedy for many people let alone those already married.

To suggest that not following his advice to get a prenup is irresponsible is in itself just that.

 

[KaBIm]

But in fact, a prenup is a very serious document (it might be the most important one you sign in your life) - and this fact seemingly has not been covered in this topic yet.

Agreed about the "serious document" bit. Basically in the case of a mixed couple, agreeing to be two separate parties often means that the couple will buy assets such as lands on the name of the indonesian spouse possibly using money earnt by the foreign spouse. These assets would remain the property of the indonesian spouse in case of a dissolution of the marriage. It is no light decision and one should understand all the consequences of it.

If someone is not comfortable with the contents the prenup put in front, then he/she should not sign it,

Agreed again. Ideally, and to be recognised in court as valid in an Indonesian court, a prenup should be drafted both in Indonesian and in a language that the foreign spouse understands. Ideally again, there should exit drafts of the prenup that show that negociations/discussions took place.

 

[bambang]

Say', you won't be offended if I give you a miss from now, will you?

I couldn't care less and that's what the ignore button is for. Meanwhile I'm sure you won't be offended if I carry on correcting any further misinformation put about by you.

 

[KaBIm]

Silahkan say'...

You should even dig in the archives... I am sure there is some posts of mine that needs "correction" of an expert such as you.

 

[vandor]

Just noted (not relating to the main topic)

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...

I would be very interested if you could elaborate on that. What legal structure, legal references etc. Thx

 

[bambang]

These assets would remain the property of the indonesian spouse in case of a dissolution of the marriage. It is no light decision and one should understand all the consequences of it.

Yet here you are advising people to use this imperfect remedy to a non existant problem, passing it off in the first instance as being of no significance except for the small fee.

 

[Bert Vierstra]

1. As an alien, you can only own the "hak pakai" until your residence permit is valid, which is most likely 1 yr.
2. There are many alternatives to "hak pakai", such as "hak guna bangunan", which is a much better choice.

Hak Pakai is 25 years, and not tied to a Residence Permit.

HGB cannot be owned by foreigners.

 

[Bert Vierstra]

This topic started with one superstition: “the Indonesian party of a mixed marriage can not legally own a property in Indonesia.”

I don't understand the "superstition" here.

I have been told by many that its better to have a prenup made up if you are planning to have your future wife own property.

At the other hand, there are plenty of Indonesian wifes (of foreigners) owning property without a prenup.

Its not giving problems normally, but in case of problems, it could be used against you, since it is legally a bit shaky.

I also heard a member of the forum telling she (indo woman with foreign husband) had a postnuptial drawn up at the notary, before buying land....

http://www.expat.or.id/info/postnuptian ... nesia.html

 

[vandor]

Hak Pakai is 25 years, and not tied to a Residence Permit.

HGB cannot be owned by foreigners.

1. Non-Indonesian residents can not own a Hak Pakai.
2. You are completely right about the HGB, it can not be directly owned by a foreigner. But I need to add that HGB can be owned by a company which is owned by an alien, so a foreigner can indirectly own HGB.

 

[vandor]

I don't understand the "superstition" here.

I have been told by many that its better to have a prenup made up if you are planning to have your future wife own property.

You are right that it makes a lot of sense to have a prenup. But the purpose of the prenup is to prevent the disputes of the spouses in case of a divorce, and not to "provide protection against the State".

A prenup as suggested by Kabim would say that the alien party cancels all his/her rights on the properties acquired during the marriage. This is not fair to the alien party, and I suppose many foreigners only sign such agreements because some notaries say they have to.

The superstition I referred to is the following: "Alien parties in a mixed marriage have to sign a prenup in which they cancel their rights to the properties acquired during the marriage, otherwise the State could confiscate the property, because via the marriage it becomes a joint property, and that is an illegal situation".

 

[Bert Vierstra]

Lets not complicate thing here.

HGB is not an alternative for Hak Pakai, Hak Pakai, requires "residency", but is not tied to the term stated in a "residency permit".

A prenup allows people (especially local women) to own things more safely, like land.

And the "government" taking things after the foreign husband died, is not superstition. It happens. There have been situations where they took the car and other things after "he" died.

 

[vandor]

Lets not complicate thing here.

HGB is not an alternative for Hak Pakai, Hak Pakai, requires "residency", but is not tied to the term stated in a "residency permit".

A prenup allows people (especially local women) to own things more safely, like land.

And the "government" taking things after the foreign husband died, is not superstition. It happens. There have been situations where they took the car and other things after "he" died.

1. HGB is one of the possible "Haks", Hak Pakai is another.
2. I am not so sure that Hak Pakai is not tied to the expiry of the residence permit.
3. If a foreigner enters a prenup with these terms, what is going to protect the foreign spouse's rights in case the Indonesian spouse dies first?
4. Owning a car is very different from owning a property.

 

[Bert Vierstra]

What's your problem Vandor?

HGB is not an alternative to Hak Pakai, and you say its just another Hak???

Hak Pakai is a 25 year arrangement, show me a residency permit for 25 years. I know some notaries ask for a Kitas when signing a Hak Pakai, but a Kitas is 5 years max with yearly renewals. The law says that if you loose your "domiciled" status, you have to sell within a year.

If a foreigner enters a prenup, I hope his wife mentions him in her will. He can then sell it within a year.

The car sample is just to show that even if people are married, "they" can come in and take things, and you better be prepared. It could be a car, but also a bank account or whatever.

 

[vandor]

HGB is not an alternative to Hak Pakai, and you say its just another Hak???

Hak Pakai is a 25 year arrangement

Both HGB and Hak Pakai are 2 of the 4 possible "Haks" over a piece of land (the four are as follows: Hak Milik, Hak Guna Usaha, Hak Guna Bangunan and Hak Pakai).
Hak Pakai, by law, must be registered in the buku tanah and at Land Affairs Office (I am quoting the law)

 

[vandor]

..."they" can come in and take things, and you better be prepared. It could be a car, but also a bank account or whatever.

No, they can not just come out of the blue, and pick up things and take that away. Despite the fact that there are problems with law enforcement here, there is law in Indonesia. Of course, one would have to do the proper background work, and make sure that they way he/she holds the assets complies with the law. If it does, I believe, he/she will be able to defend the case against the State in front of a court.

For the cars, bank accounts, etc. without knowing the details (inlcuding the legal aspects), it would be too early to say that the Government just robbed them.

 

[milan]

Since Kabim says he's busy, let me jump in and tell you in a simple term in trying to assist from my points of view. Wife Indonesian: let her have the property in her name but make a Notary agreement between you and her that 50% of the rights is yours.
When there's a child, it automatically should fall onthe child as long as he's 18 or so and being that this child is yours, then it is automatic that the property is yours should your Indonesian wife is deceased even as a foreigner although not in writing unless you also what to have that done with the Notary (which is not so pleasant for the child to know the distrust ).
This should apply vice-versa for the Indonesian man with a foreigner wife.

 

[gilbert de jong]

Hi fellowmembers,

just my vision, or rather said my opinion on things....Why or how could one care about some law or prenup, if your wife just died?? I think I would have other things on my mind then some right to some patch of land.......
In a difforce, I guess in most cases the foreigner is a little wealthier or financially better off then the wife....so why not let her have the land as some sort of divorce-settlement? And if there are kids involved, I think that's just another reason to let your ex-wife keep the land/house... But hey that's just me...
friendly greetings.......Gilbert.