Davita, Please see my -->> line item responses to your welcome remarks, below:
Hi BBBSFH and welcome to the forum.
Your first post was very informative but this sentence has me confused.
"The Indonesian Constitution didn’t make a citizen’s land rights contingent upon not marrying a foreigner. There’s no law that backs this up."
In an article some years ago Rainy Hendriany, a prominent legal opinion on foreigner's affairs, said the following....
"The only semi-exception to this is that should a foreigner marry an Indonesian citizen, providing that a pre-nuptial agreement (Usually referred to in Indonesia as a Separation of Assets) is entered into PRIOR to registration of the marriage, then the Indonesian spouse may hold Hak Milik land title."
-->> Far be it from me to challenge such a highly regarded professional as Bali Notaris Rainy Hendriany, however I believe it is fair to say that (a) it is her opinion and interpretation of the law, rather than the law itself, that is on the table here and (b) thousands of Indonesians who have foreign spouses with no pre-nup, freely buy and sell land every day, without penalty or disruption, and have done so since the '60's. In the entire 30 years I've been studying legal matters here, not one of those conveyances has ever been overturned or even questioned. You raise a good point that, assuming there is such a law, it is easily circumvented by the simple expedient of the Indonesian spouse buying land in her maiden name. But surely if he/she were in a mixed marriage without a pre-marital agreement, and there was a law precluding his/her land ownership under those circumstances, no notaris would officiate the akte jual beli, given his lawful duty as a quasi government land official to inquire of his client as to his/her marital status. And does not the recordation by BPN of the sertifikat hak milik in the name of the Indonesian married to a bule, carry the conclusive legal presumption of legitimacy? And ought we not to consider that even IF there were such a law, that its abject lack of enforcement relegates it to the de facto status of non-existence?
Also Wijaya...another prominent legal office ...write this on their website...'As for mixed-marriage couples in Indonesia, a prenuptial agreement is highly recommended. This is the ultimate legal solution to get around the issues that have been around since 1960. The Basic Property Law imposed legal constraints in property ownership for an Indonesian married to a foreigner.
-->> Legal citation conspicuously omitted. Lawyers love advocating pre-marital agreements as another way to earn fees.
Furthermore, referring to the Marriage Law assuming joint property ownership in every marriage registered under Indonesian laws, conducted by Indonesian(s), or voluntarily submits to the Indonesian legal system. The joint property ownership requires consent from your spouse in the event you are performing any legal action in relation to the marital property. As foreigners are not allowed to own property in Indonesia, such consent cannot be retrieved because the foreign partner is not in the legal position to give it to his/her spouse in the first place. This makes perfect sense. So, you're stuck between the statutory requirements for consent, and the ineligibility of your foreign partner to produce it for you.'
Both those articles, and many others I've read, seem to contradict your above statement. In addition, there is an Association of WNI married to foreign spouses that are currently petitioning the Constitutional Court to amend this marriage law which prevents them purchasing Hak Milik, without having a pre-nup. I cannot believe the Constitutional Court would even hear their case (2 hearings already) if the law did not exist.
-->> If you have copies of any documents from this case or even the case no., please let me have it. In return, when I examine the complaint and determine the actual statutory basis of Plaintiffs' claim for relief, I shall likewise share it with you or anyone else. But my hunch is, the ConCourt will dismiss the case for lack of a claim upon which relief can be granted. But I very much want to read the record of this proceeding and follow it every step of the way. Any feedback on the case no. or other reference to this action, would kindly oblige.
I'm aware of many WNI, usually female, married to a foreign spouse, who use their maiden name to buy 'Hak Milik' and not disclose...I just wonder the penalty if caught.
-->> I have never heard of anyone "getting caught" for owning land while married to a bule w/o a pre-nup. And can you imagine the infinite chaos that would result from such selective, random enforcement? Literally millions of SHM's would be nullified, billions of dollars lost and an international outcry of retroactive/selective enforcement, instability of this Country's already beleagured legal system, etc., etc. So again I refer back to my above statement that even if there were such a statute, its total lack of enforcement during a 50 year window, gives it the de facto status of non-existence.
-->> I am guided always by an unrequieted objective to know exactly what the law really is based on the black and white and actual first-hand experiences. I am always grateful for any corrections of my opinions or statements. Any and all feedbacking based on legal citations or the equivalent will only serve the greater good in the international community in Indonesia.
Thank you for calling my attention to any percieved innaccuracies.