New Constitutional Court Judgment on Prenuptial Agreement


Bride hand with a pen signing wedding license

Indonesia recognizes prenuptial agreement particularly under Law Number 1 Year 1974 concerning Marriage (“Law 1/1974”). Although Law 1/1974 uses the term “Perjanjian Perkawinan”, or literally means “Marriage Agreement”, the concept is the same as that of common prenuptial agreement.

Based on Law 1/1974, a prenuptial agreement shall be made at the time of or before marriage. Furthermore, a prenuptial agreement shall enter into force at the time the marriage becomes legally effective in accordance with the prevailing laws and regulations. During marriage, a prenuptial agreement can not be amended, unless otherwise agreed by the parties to the agreement and such an amendment shall not be made to the detriment of any third party.

In 2015, some Articles of Law 1/1974, including those concerning prenuptial agreement, were challenged before the Constitutional Court (Mahkamah Konstitusi/”MK”) through a judicial review petitioned by an Indonesian woman who is married to a foreigner. After going through several proceedings, on 27 October 2016, MK finally granted the petition partially through its Judgment Number 69/PUU-XIII/2015 which was declared in an MK’s plenary session. The judgment, in regards to prenuptial agreement, includes the following:

  1. Article 29 paragraph (1) of Law 1/1974 shall be read as:

At the time of, before or during marriage both parties, upon mutual consent, may file a written agreement to be validated by the relevant marriage registration authority or notary public, upon which the agreement shall also apply to any third party as long as such a third party is involved therein.

  1. Article 29 paragraph (3) of Law 1/1974 shall be read as:

The agreement shall be effective since the performance of marriage, unless stipulated otherwise under the said prenuptial agreement.

  1. Article 29 paragraph (4) of Law 1/1974 shall be read as:

During marriage, prenuptial agreement can be of marital properties or of any other agreements, it can not be amended or revoked, unless otherwise agreed by both parties and such an amendment or revocation shall not be made to the detriment of any third party.

*bold texts indicate new insertion

Based on the above, prenuptial agreements in Indonesia do not have to be concluded only at the time of or before marriage but they can also be made during marriage. However, further regulations are expected to be issued in order to implement this Constitutional Court judgment.

The contents of this article are intended to convey general information only and not to provide legal advice or opinions. If you require legal assistance, you may contact Hadromi & Partners Law Firm as below:

HADROMI & PARTNERS LAW FIRM
Setiabudi Atrium, 4th Floor, Suite 404 – 405
Jl. H.R. Rasuna Said Kav. 62, Jakarta 12920, Indonesia
Telephone : (62-21) 520 7040 (hunting)
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