News update on Marriage Agreement Under Indonesian Constitutional Court Decision No. 69/2015

MARRIAGE AGREEMENT IS VALID EVEN MADE DURING MARRIAGE

Constitutional Court of the Republic of Indonesia has made another significant amendment to the laws and regulations in Indonesia, in which under its Decision No. 69/PUU-XIII/2015 dated October 27, 2016 (“Decision 69/2015”) has annulled prenuptial agreement provision as stipulated under Law No. 1 of 1974 on Marriage (“Marriage Law”).

Under the foregoing Decision, the Constitutional Court deemed that Article 29 paragraph (3) and (4) of Marriage Law has violated spirit of any person in Indonesia to have their rights especially regarding the freedom of contract principle as regulated under Indonesian Civil Code and Indonesian Constitution. It was known that Article 29 paragraph (3) and (4) of Marriage Law specifically limited that agreement of marriage can be made only before the marriage. Therefore, since the Decision 69/2015 is decided by Constitutional Court, such marriage agreement can be made by any husband and wife in Indonesia even though the marriage has been conducted.

With no limitation for establishing the marriage agreement, it may give a freedom for any persons who have marriage relationship in Indonesia to determine any things that related to their marriage, including to their properties, benefits and obligations, which obtained before and during their marriage is occurred. Furthermore, any required requirements to implement the above marriage agreement still need to be fulfilled, among others the marriage agreement is required to be legalized by local religious affairs officers or appointed notary, and provisions or substances of the marriage agreement shall not contravenes with the prevailing laws and regulations, good morals, and public order.

November 4, 2016

HERLANGGA NUGRAHA PRAYA, Attorneys at Law

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