Another Marital Contract in Indonesia called Postnup

Postnuptial agreement  is another marital contract recognized under the laws and regulation in the Republic of Indonesia. It is a contract entered into by husband and wife within the course of their marriage. It is not valid retroactively and only applicable to property acquired after the contract legally executed.

As to other contracts under the legal system in Indonesia, both Article 1320 and 1338 of Civil Code are applicable to the postnuptial agreement. Those two articles are the basic rules for contracts in Indonesia, both for marital agreement as well as non-marital agreement.

Article 1320 of the Civil Code stipulates that in order to be valid, an agreement must satisfy the following four conditions: 1. there must be consent of the individuals who are bound thereby; 2. there must be capacity to enter into an obligation; 3. there must be a specific subject matter; 4. there must be a permitted cause. 

As for Article 1338 of Civil Code imposed that all valid agreements apply to the individuals who have concluded them as law. Such agreements are irrevocable other than by mutual consent, or pursuant to reasons stipulated by the law. They must be executed in good faith.

In view of the above two basic laws in recognizing the validity of the postnuptial agreement in Indonesia, married couples must abide those stipulation before they enter into the contract. Some required terms and conditions imposed by the Article 1320 of Civil Code are applicable thereto:

  1. No consent is valid if it is granted based on mistake or obtained by duress or fraud. So, you need to have an informed consent from your spouse in order to enter into a postnup. A mistake does not render an agreement invalid unless such mistake pertains to the substance of the subject matter of the agreement. Duress against an individual who has entered into an agreement, provides grounds for nullification of the agreement, even if it was committed by a third party who does not benefit from the agreement. Fraud is form grounds for nullification of an agreement, if the fraud by one party is of such nature that it is apparent that the other party would never have concluded the agreement were it not for such deceit. Fraud is not be presumed, but must be proven.
  2. Each individual is authorized to conclude agreements, unless he has been declared incompetent by law. The following individuals are incompetent to conclude agreements: 1. minors; 2. individuals under guardianship. Those individuals are incompetent to enter into agreements may claim for the nullification of the obligations, except for where the law excludes such power.
  3. An agreement must at least have as a subject a matter a property whose nature is determined. The quantity of the matter needs not be ascertained, insofar such quantity can be determined or calculated at a later date. Future properties may be the subject of an agreement. An individual may not however, relinquish an inheritance which has not occurred or conclude an agreement regarding such inheritance, notwithstanding that he has obtained the consent of the testator.
  4. Any agreement without a cause, or concluded pursuant to a fraudulent or prohibited cause, is not be enforceable. In the event that no cause is specified but that there is an existing permissible cause, or if there is a permissible cause other than the one specified, the agreement shall be valid. A cause is prohibited if it is prohibited by law, or if it violates morality or public order. 

 

As for the Article 1338 of Civil Code, the terms and conditions applicable to the postnuptial agreement are as follows:

All valid agreements apply to the individuals who have concluded them as law. In the postnuptial agreement, husband and wife sign the contract. So, the terms and conditions of the postnup applicable to both of them;

Such agreements are irrevocable other than by mutual consent, or pursuant to reasons stipulated by the law. You can't withdraw from the contract just because you changed your mind, and the contract no longer interests you. Your spouse consent in revoking the contract is required;

They must be executed in good faith. Agreements is bind the parties not only to that which is expressly stipulated, but also to that which, pursuant to the nature of the agreements, shall be imposed by propriety, customs, or the law. 

An agreement applies only to the parties thereto. An agreement cannot be detrimental to third parties; third parties cannot benefit from them. When you signed the contract, your parents are not included as one of the parties. You're an adult and you should take responsible for the thing you are doing.

“Our thanks to Mr. Asep Wijaya of Wijaya & Co for sharing this article!”

About the Blog

Welcome to my blog! My name is Asep Wijaya. I am an attorney. I love what I do, I do what I love: being a lawyer. I am passionate about my work. I am always looking for some solutions to come up with for any legal problems of my clients. This blog is about my passion to the works I have been doing regarding legal issues in family and matrimonial law. Postnuptial agreement is one of the solutions available for married couple to proactively address their concerns.

People write postnup for so many reasons. Not only because they don’t have a prenup in the first place, but the idea of having a property separation contract during the course of marriage will enable them to keep up with the issues in their marriage. Over the passage of time, the relationship can often change in many unpredictable ways.

In Indonesia, people know more about prenups than postnups. Maybe because postnups are often held up to greater scrutiny in court, or maybe because prenups literally governed by the Marriage Law. Well, seeing is believing. Those things make postnups are not so popular. They keep to themselves. They mean you no harm. On the other hand, more and more people come to the conclusion that a postnuptial agreement is a necessity. Keep reading this blog, and I will make you believe in the postnups as well as you believe in the prenups.

Asep Wijaya

Asep Wijaya is a family attorney in Indonesia. He works with international clients exclusively for civil cases involving more than one legal system.