Local spouses of foreigners can now purchase a plot
of land or a building without having to create a prenuptial agreement
separating the ownership of their property, a 42-year-old policy that has just
been declared unconstitutional by the Constitutional Court.
The court decided on Thursday
to eliminate the requirement for a prenuptial marriage agreement in Article 29
of the 1974 Marriage Law, paving the way for thousands of Indonesians who are
married to foreign nationals to own property as they can now create an
agreement on separate ownership during their marriage.
The Indonesian Mixed-Marriage
Society (PerCa), which supported the judicial review petition against the law,
welcomed the landmark decision, saying it was “a ruling that upholds the
principal of justice and gives local spouses the constitutional rights they are
entitled to.”
“We fully welcome the ruling
by the Constitutional Court, which shows that it cares about and sides with
mixed-marriage couples who are often subject to discrimination,” PerCa said in
a statement made available to The Jakarta Post on Thursday.
The 1974 Marriage Law treats a
husband and a wife equally, allowing them to create a marriage agreement before
a civil registry official or notary. Prior to Thursday’s ruling, the agreement,
under which a married couple could agree on things such as the separation of
property and debt, could only be made before a marriage took place.
The court, however, declared
the requirement for a prenuptial contract to be unfair, as it prevented a
married couple from separating property ownership during the marriage, thus
violating Article 28E of the Constitution. “In fact, many couples mull whether
to draw up a marriage contract after their marriage for many reasons,” said
presiding judge Wahiddudin Adams, while reading the ruling at the
Constitutional Court in Central Jakarta.
“Property ownership in a
marriage is one of the factors behind many conflicts between a husband and
wife,” Wahiddudin said.
Plaintiff Ike Farida, a PerCa
member, said the ruling made it possible for locals who were married to foreign
nationals to own property by creating a marriage contract that stipulated the
separation of property ownership.
A lot of marriages, including
mixed marriages, took place without the prenuptial contract, because most
married couples were unaware of the regulation, Ike said.
Ike is a Jakarta-based lawyer
married to a Japanese citizen.
In May 2012, she finished
paying for an apartment in Casablanca, South Jakarta, but the developer did not
give her ownership rights to the unit after it became aware her husband was a
foreigner.
The case went to the East
Jakarta District Court but Ike lost. The developer refunded the payments, but
Ike refused to accept them, because she still wanted to fight to change the
law.
“Some friends have been
advised by their lawyers to divorce first and get married again just to create
a marriage contract that enabled them to own property. They don’t need to do
that after this ruling,” Ike said.
Apart from the 1974 Marriage
Law, Ike also filed a review of Article 21 and Article 36 of the 1960 Agrarian
Law, which prohibit foreigners, and Indonesians in mixed marriages who do not
separate their property ownership, from possessing right-to-own permits and
right-to-build permits, respectively.
The court decided to uphold
the said provisions, citing the principle of nationality used by the Agrarian
Law, in which only Indonesians can own property in the country.
“There is no way for
foreigners to own property. The principle of nationality is still relevant at
present when capital ownership has a pivotal role for Indonesians looking to
bounce back from the sluggish economic situation,” Wahiddudin said.
Moses Ompusunggu
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