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