Buy property in Indonesia mixed couple

[KaBIm]

it ain't easy to find decisions of Indonesian District Court (Pengadilan Negeri) or High Courts (Pengadilan Tinggi) online. However one can find much better with more than 6000 decisions of justice took by the Supreme Court (Mahkamah Agung) concerning land issues in case of divorce or dispute of ownership for example. Joint ownership is reputed in all case for couples with no prenup, whatever a land title certificate says.
If anyone is interested to read more:
http://putusan.mahkamahagung.go.id/app- ... 19f776d242

Hoping that the link works... :mrgreen:

 

[KaBIm]

Hi Bambang,
Long time no read,

I have quoted all my sources (articles of law + reference of the law) for verification purpose and would be very interested that you quote me anything supporting your assertion/assumption.

You are making an assertion based on your interpretation of the law which is not supported by any precedent. Then you ask for proof that something doesn't exist. If it doesn't occur in the next 100 years would that be proof?

It could be equally argues that "the proviso that the rights of other parties which encumber the lands remain in existence" negates your assertion. No need though because what you are asserting is an invention.

What is an invention? The joint property in marriage? The legal risk for a mixed couple owning a SHM title? The articles of law that have been quoted? the fact thn an indonesian married to a foreigner has his/her right of ownership precluded?
Note that I acknowledged that no decision of justice enforced this article 21 section 3 concerning mixed couple (meaning an effective confiscation of the land). However, a risk exists due to the way the law has been drafted, and it is reason enough for me to advise anyone willing to marry an indonesian to have a prenup to eliminate this potential problem.

Now if you have a doubt about the interpretation of "harta bersama" in a married couple, I invite you to browse the link I submitted to find me a decision of justice that contradicts me. As I said, I'll be happy to stand corrected.

 

[bambang]

And out of those 6,000 cases which ones support your assertion that an Indonesian woman can lose her land to the state if she is married to a foreigner and doesn't have prenup?

The purpose of a prenup is protect the right of the individuals names in the prenup.The assertion that a prenup is required for protection against the state is ludicrous. I don't care how many notaries, lawyers or professors say otherwise. In Indonesia they're a dime a dozen.

 

[KaBIm]

The purpose of a prenup is protect the right of the individuals names in the prenup.The assertion that a prenup is required for protection against the state is ludicrous.

:shock: I don't recall having said that "a prenup is required for protection against the state " but that the prenup is required in order to avoid that the right of the indonesian being precluded. By establishing that the couple are two separate parties, the prenup avoids that a SHM hold by the indonesian spouse would be own also in part by her foreign husband.

I am wondering what made you think that I was saying "a prenup is required for protection against the state"??? This is absolutely stupid. Is my english that bad? Where did you find such thing in my posts???

Now, a question for you Bambang: would you advise to two people, one being indonesian, one being a foreigner, not to sign a prenup, ignoring the stipulations of the Civil Code, the Land Law and the Marriage Law?
Personally I would strongly advise them to sign one. I am eager to hear YOUR interpretation of the law concerning it.
If in need, I would be glad to forward you any text you may wish for study purpose, if you don't hve them. This is an interesting topic, IMHO, that desreves a discussion.

 

[bambang]

Kabim but the nuances of what you are asserting obviously escape you. Your straw man argument about harta bersama is irrelevant. Restricting the rights of an Indonesion woman to own property is something that would not be tolerated as Roy correctly points out.

The prenup as you keep going on about is not a remedy. What if an Indonesian woman becomes wealthy after marriage to a foreigner? Is she to be forever barred from exercising the right of every Indonesian citizen to own land. Of course not. Cite a case that proves otherwise. If she does exercise her right you say she is at the mercy of the state in that the state can assume ownership. Absolute rubbish.

 

[bambang]

This is an interesting topic, IMHO, that desreves a discussion.

So suddenly this it is not polemic anymore but a discussion? Classic!

 

[KaBIm]

Restricting the rights of an Indonesion woman to own property is something that would not be tolerated as Roy correctly points out.

And it is why I believe, there is no will of enforcing the law.

Loosing the land to the state is a possibilty if a foreigner is found being owner of a SHM title. Do you agree with it?
Do you agree that an husband becomes owner in part of any assets bought by his wife during the marriage time?

 

[KaBIm]

This is an interesting topic, IMHO, that desreves a discussion.

So suddenly this it is not polemic anymore but a discussion? Classic!

A polemic is arguing just for the sake of it, IMHO. A discussion brings facts. I brought articles of law, took time to tranlate them and discuss them and would hear any argument brought by anyone in this topic, as long as it is argumented with articles of law and/or decision of justice... Same as I did. If it is just to say "that's rubbish", I am sorry to say, Bambang, that it is gonna be hard to make a point.
In all the articles I quoted and translate, if you can give me an interpretation that make sense and that differs from mine, I listen and am ready to stand corrected. If not, I leave you here.

 

[bambang]

Loosing the land to the state is a possibilty if a foreigner is found being owner of a SHM title. Do you agree with it?

To the state? No, unless the wife dies and the husband doesn't dispose of the land within the timeframe allowed. if what you are asserting were true there would be no need for the any timeframe because the joint ownership wouldn't be recognised or possible in the first place.

On divorce, the wife would assume full ownership or the husband could sell his 50%.

Do you agree that an husband becomes owner in part of any assets bought by his wife during the marriage time?

Yes but this doesn't preclude any Indonesian citizen owning land, married to a foreigner or not.

And it is why I believe, there is no will of enforcing the law.

It's not a question of will, the "law" you are asserting is an invention.

Yes thank you Kabim for the translations. Sorry to say none of them supports your assertion and yes Kabim best to leave it there, you haven't made out your case nor supported it with any "facts" or precedent or answered the glaring and obvious weanesses in it.

 

[vandor]

Law is a science and does not allow lot of room for speculation. You are entitle to have "impressions", but let me tell you that you are wrong on it.

I think, you are very wrong with that statement. There are a lot of people who think they are top scientists on legal topics, but have not too much clue about the legal practicalities.

One has to understand that the period of one year before the land falls to the State doesn't start when and if the State find out of the situation, but from the date the foreigner marries the indonesian lady. It implies that technically the land belongs automaticaly to the state after 1 year of marriage if the couple hasn't transfer the SHM to an eligible person. The words are sharp and let very few roopm to any other interpretention.

Where did you here this?

Didn't I quote and translate you the article of law that implies it?

It does not imply it. It is the interpretation of the prenup-producing notaries/lawyers which does.

 

[vandor]

If this was true, then, going along a similar logic, in an inheritance case the date of the inheritance would be defined as the death of the deceased.

You are mixing up everything.

I am not. It is the text of the law which put the two things next to each others.

 

[vandor]

Putting a SHM in her name at a very young age is may be a way to influence her decision later

The possible worst solution is to put a property on a child’s name. Once the property is on the child’s name, you will face incredible difficulties if you want to sell that particular property until the child becomes an adult. You will need all authorisations of the Indonesian childcare authorities etc. etc. you can imagine all the hassles.
I suggest you be very careful with following this “advice”.
Sometimes there are self nominated “legal experts” on this forum – I find it irresponsible to give legal advised without knowing the circumstances and carefully counting on the consequences. Instead of this forum, look for advice from qualified lawyers.

 

[KaBIm]

I suggest you be very careful with following this “advice”.
Sometimes there are self nominated “legal experts” on this forum – I find it irresponsible to give legal advised without knowing the circumstances and carefully counting on the consequences. Instead of this forum, look for advice from qualified lawyers.

Vandor, if you read well and take a look at the smiley, it is in no way an advise.

 

[vandor]

I suggest you be very careful with following this “advice”.
Sometimes there are self nominated “legal experts” on this forum – I find it irresponsible to give legal advised without knowing the circumstances and carefully counting on the consequences. Instead of this forum, look for advice from qualified lawyers.

Vandor, if you read well and take a look at the smiley, it is in no way an advise.

noted

 

[vandor]

It's not a question of will, the "law" you are asserting is an invention.

It is not Kabim's invention - it's a very wide spread superstition.

 

[bambang]

I would advise you and Made to make a will, transfering the SHM property to the kid, in the event of Made passing away first, and entitling you a "hak pakai".

Looks like advice to me.

 

[vandor]

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

Now there is a second superstition: “the Indonesian party of a mixed marriage can legally own a property in Indonesia, but needs a prenup to protect from confiscating by State, because the law forces the expat party to own the property, which is illegal otherwise”.

I think, it is time to kill the second superstition too…

 

[vandor]

I would advise you and Made to make a will, transfering the SHM property to the kid, in the event of Made passing away first, and entitling you a "hak pakai".

Looks like advice to me.

This was meant to be an advice, and its wrong.
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.

 

[KaBIm]

I would advise you and Made to make a will, transfering the SHM property to the kid, in the event of Made passing away first, and entitling you a "hak pakai".

Looks like advice to me.

Erm... you are a funny lad, Bambang.
In the post you quote, if you haven't understand it, I advise the poster to make a will to transfer the SHM to the kid in case the indonesian national (Made) dies. The poster being a foreigner, she can not receive the SHM. I believe that Made still have some nice years up front, and that by the time he passes away, the kid won't be that much of a kid. However, if you have a better solution to propose to answer the question of the poster, I hear you.
You are pretty good at blowing dust Bambang... Try again :wink:

 

[KaBIm]

I would advise you and Made to make a will, transfering the SHM property to the kid, in the event of Made passing away first, and entitling you a "hak pakai".

Looks like advice to me.

This was meant to be an advice, and its wrong.
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.

1. The poster (Mimpi manis) is a resident, therefore she is eligible for an hak pakai. The kid is an Indonesian, therefore h is eligible for a SHM
2. The poster, from what I know about her situation, can not receive a hak guna bangunan.

You may have not noticed it, but it was an advice in response at her question about her personal situation involving her husband and her kid.