What is a prenuptial agreement or what is prenup in Indonesia? What must be written down? What are the types of prenuptial agreements?
DAFTAR ISI
INTISARI JAWABAN
There are three types of prenuptial agreements, namely:
prenuptial agreement with the sharing of profits and losses;
prenuptial agreement with the sharing of results and income;
prenuptial agreement with the elimination/waiver of any joint property
The marriage agreement or prenuptial agreement does not only regulate property, but the parties can regulate other matters in additional clauses based on the principle of freedom of contract as long as it does not conflict with statutory regulations.
Please read the review below for a further explanation.
This article is an update of the article entitled Types of Prenuptial Agreement written by Sovia Hasanah, S.H. and was first published on Monday, 24 June 2019, and first updated on Wednesday, 21 September 2022.
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Defining a marriage agreement or prenuptial agreement, H. A. Damanhuri HR in Segi-Segi Hukum Perjanjian Perkawinan Harta Bersama, explains that the formal meaning of a marriage agreement or prenuptial agreement is any agreement entered into in accordance with the provisions of the law between prospective husband and wife regarding their marriage, the contents of this agreement are not questioned (p. 1).
Prenuptial Agreement in the Marriage Law
We need to explain that the provisions regarding marriage are regulated in the Marriage Law. Regarding marriage agreements or prenuptial agreements, Article 29 section (1) Marriage Law jo.Constitutional Court Decision 69/2015 explains that at the time, before the marriage takes place or during the marriage bond, the two parties by mutual consent may enter into a written agreement legalized by a marriage registrar or notary, after which the contents shall also apply to third parties as long as the third party is involved (p. 156).
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The Constitutional Court Decision 69/2015 has expanded the meaning of prenuptial agreements so that marital agreements are no longer interpreted only as agreements made before marriage (prenuptial agreements), but can also be made during marriage (postnuptial agreements).
Contents Regulated in the Prenuptial Agreement
It is important to know that the provisions of Article 139 Civil Code state that the prospective husband and wife with a prenuptial agreement can deviate and the laws regarding joint property provided that it does not conflict with good morals or with public order and also respects the following provisions.
Based on this article, the marriage agreement according to the Civil Code is only limited to the separation of property.
However, according to Muchsin in Perjanjian Perkawinan dalam Perspektif Hukum Nasional (p, 7) explains that this prenuptial agreement is not limited to financial or property matters but also accommodates other issues that are important to be agreed upon, such as household crimes, career agreements even though they are married, and others.
Function of Prenuptial Agreement
The function of making a marriage agreement or prenuptial agreement according to Moch. Isnaeni in Hukum Perkawinan Indonesia (Indonesian Marriage Law) is as follows (p. 38).
Made to protect property legally, both the innate property of each party or joint property.
Guidelines that regulate the rights and obligations of husband and wife regarding the future of the family, both in terms of children's education, business, residence, and others as long as they are not contrary to law and decency.
Protect family members from the threat of domestic violence.
Types of Marriage Agreements or Prenuptial Agreements
R. Soetojo Prawirohamidjojo and Marthalena Pohan in Hukum Orang dan Keluarga explain that there are three types of prenuptial agreements that prospective husband and wife can choose from, namely a prenuptial agreement with the sharing of profits and losses, a prenuptial agreement with the sharing of results and income, and a prenuptial agreement with the elimination/waiver of any joint property (p. 88).
Prenuptial agreement with the sharing of profits and losses
In this type of agreement, not all of the husband and wife's assets are mixed into joint property, but only a portion of the husband and wife's assets, which is the profit or loss gained during the marriage. The assets brought into the marriage as well as the assets acquired during the marriage are still private property and are not included in the joint property (p. 90).
Prenuptial agreement with the sharing of results and income
Regarding the sharing of profits and income, Article 164 Civil Code states that the agreement between husband and wife will only have a sharing of income and revenue, and there is no overall sharing of joint property, nor a sharing of profits and losses.
Furthermore, Article 105 Civil Code explains that the husband is the head of the marriage. As the head, the husband is obliged to assist his wife and manage the wife's personal property. In managing the property, the husband must be responsible for any negligence in management. The husband is also not allowed to transfer or charge his wife's property without her consent.
According to Wirjono Prodjodikoro in Hukum Perdata tentang Persetujuan Tertentu, the article indicates that the Civil Code places the husband's role in the family at a greater level, so that losses arising from a prenuptial agreement in the form of joint results and income are borne by the husband (p. 101).
Prenuptial agreement with the elimination/waiver of any joint property
This form of agreement is made if the husband and wife want a full separation of assets throughout their marriage. Later, in the prenuptial agreement, it will be stated that there will be no mixing of assets or joint assets for husband and wife.
These are our answers regarding the types of marriage agreements or prenuptial agreements as asked, hopefully, this will be useful.
