Mixed Marriage: the Implication on Property owns by Indonesian

Jan 26, 2022 | Corporate & Compliance

In the last few decades, the technology is developing rapidly. The rapid development easily connects people from different countries with diverse cultural background. Nowadays,  people can communicate and interact quickly and easily.

This condition has changed many things, including marriage, which is known as mixed marriage. The trend of mixed marriage can be found easily everywhere, including in Indonesia.

In Indonesia, Mixed Marriage is regulated under the Law Number 1 of 1974  concerning Marriage (hereinafter Indonesia Marriage Law). According to the Article 57 of the Indonesia Marriage Law, Mixed Marriage is defined as:

“the Marriage held between two people in Indonesia who complies to different law because the nationality differences and one of the Party is an Indonesia citizen”.

Simply, mixed marriage is the Marriage held between a man or woman of Indonesian nationality and other people from different nationality or foreigner. Marriage can take place in Indonesia or in other country.

Responding to the trend of Mixed Marriage in Indonesia, there are several things need to be highlighted. Before deciding to conduct a Mixed Marriage, the Indonesian spouse need to check on two things, namely:

  1. Whether the law of your spouse obliges you to give up your nationality;
  2. Whether or not you own any land and properties.

In the event that Indonesian spouse doesn’t need to give up on their nationality, then the property shall be remain as his/her asset. However, in terms of asset and property, for Indonesian spouse who marry foreigners need to have a sufficient understanding of the Indonesian Marriage Law as well as the Law Number 5 of 1960 concerning Agrarian Law (hereinafter Agrarian Law), in order to enable them to retain their right to own freehold title on their property.

According to the Article 1 of the Indonesian Marriage Law, mixed marriages can result in the Indonesian spouse losing his or her freehold land and the right to purchase more land under freehold title. The idea of this provision was to avoid foreigner to own land under joint assets from the mixed marriage.

This provision is in accordance with Article 21 paragraph (1) of Agrarian Law, which clearly stated that only Indonesian citizen can own a freehold title. Hence, the foreigner can not obtain a freehold title.

By having mixed marriage, there will be joint marital property between Indonesian spouse and the foreigner, which include the land and properties. Bearing in mind that according to the Article 21 paragraph (1) of the Agrarian Law, it is understood that foreigner cannot obtain a freehold title. Thus, the Indonesian spouse must release their freehold property within one year of the marriage. The release can be done by selling or granting it.

Responding to this issue, it is important to form a prenuptial agreement. A prenuptial agreement has the ability to separate the Indonesian spouse’ property assets from the joint asset agreement under the future marriage. The prenuptial agreement distinguishes which asset belongs to the Indonesian spouse and is to be controlled indefinitely.

Based on the abovementioned, it can be concluded that in the event of mixed marriage, there will be joint marital property between Indonesian spouse and the foreigner, which include the land and properties. Bearing in mind that according to the Article 21 paragraph (1) of the Agrarian Law, it is understood that foreigner cannot obtain a freehold title. Hence, it is important to form a prenuptial agreement. The prenuptial agreement distinguishes which asset belongs to the Indonesian spouse and is to be controlled indefinitely. Therefore, the Indonesian spouse can retain their right to own freehold title.

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