Postnuptial agreements, also known as postmarital agreements, are agreements entered into after a marriage has taken place, but before the parties seek to divorce. There are many reasons why a couple might wish to draw-up a postnuptial agreement. Among others, a couple that did not sign a prenuptial agreement before marriage may later determine that they want to have some sort of financial plan in place in the event of death or divorce.
The harsh reality is that the courts tend to assume that a prenuptial... View full description
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Foreword
Postnuptial agreements, also known as postmarital agreements, are agreements entered into after a marriage has taken place, but before the parties seek to divorce. There are many reasons why a couple might wish to draw-up a postnuptial agreement. Among others, a couple that did not sign a prenuptial agreement before marriage may later determine that they want to have some sort of financial plan in place in the event of death or divorce.
The harsh reality is that the courts tend to assume that a prenuptial agreement is always valid, but they have the opposite reaction to the postnuptial agreement; the assumption is, in the majority cases, that this type of agreement is not valid.
Indonesia's Marriage Law only recognizes prenuptial agreements, (''prenup'' for short) a written contract created by two people before they are married. The 1974 enacted law only discussing the matrimonial agreement that must be drawn-up prior to marriage. Indeed, the law regarding the validity and enforcement of postmarital agreements is not well developed in Indonesia. But if we dig a little bit deeper, Indonesian Civil Code provides special provision concerning property division in the course of marriage.
Property Division in the Course of Marriage
In accordance with Indonesian Civil Code, the wife may, in the course of marriage, request a division of assets, in the following circumstances, PROVIDED FURTHER that the division of assets pursuant to mutual agreement shall be invalid: a) In the event the husband, due to patent misconduct, has squandered the community property, and has exposed the houshold to ruin; b) If, due to a husband's misconduct and mismanagement of his affairs, his wife is in imminent danger of losing the security of her dowry and her entitlements pursuant to the law; c) And also if due to grosss negligence in the management of the community property, such property might be endangered.
The division of assets shall, prior to taking place, be made public. Failure to do so shall render the implementation invalid. The judgment granting permission for division of assets shall be effective from the date on which lawsuit is filed. The wife, may, during the proceedings, with the approval of the judge, take precautionary measures to prevent the assets from becoming lost or squandered.
The Postnuptial Agreement
The judgment granting permission for the division of assets, shall lapse by law, if the division of assets, which should be evidenced by an authenthic deed, does not take place, or, if within a period of one month after the judgment is granted, no legal claims have been filed by the wife seeking division which claims shall be continued regularly.
The authentic deed, although it is not commonly referred to as a postnuptial agreement, may be useful to couples seeking to enter into a postmarital agreement after a significant financial change or a period of marital conflict.
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