Getting married in Bali to the Indonesian man or woman you love: building a family with someone from another culture is fascinating and exciting.
But marriage is not just romance and a beautiful ceremony. To build a truly strong mixed family, you need to understand the legal side of such a union. You have probably noticed people on expat forums discussing prenups (prenuptial agreements) and postnups (postnuptial agreements). Let's look at what this document is, how to draw one up and why you need it.
If you are married to an Indonesian citizen, or are only planning such a marriage, it is important to understand the property ownership rules in advance. A marriage agreement lets you set the spouses' property regime, separate your assets and reduce the risks involved in real estate and business transactions.
A marriage agreement (perjanjian perkawinan) can be made either before or after the marriage. It includes a perjanjian pisah harta, an agreement on separate ownership of property.
Why you need a marriage agreement
Under Indonesia's marriage law, property acquired during the marriage is the joint property of the spouses (harta bersama). Property each spouse acquired before the marriage, as well as property received as a gift or inheritance, generally remains that spouse's personal property unless the spouses have agreed otherwise.
This matters especially for mixed marriages because of the restrictions on land ownership by foreigners. For example, an Indonesian wife buys a villa in Bali and registers the land in her name, receiving a Hak Milik (freehold ownership) certificate.
A foreigner cannot hold this right. If the spouses have no separate property agreement, a plot bought during the marriage becomes joint property, and the foreign spouse must give up their share within a year of the purchase. Otherwise the Hak Milik is extinguished and the plot passes to the state.
Even before that year is up, joint ownership of the plot complicates registering rights, getting a mortgage and later selling the house.
A separate property agreement (perjanjian pisah harta) lets the spouses set up a separate ownership regime. The agreement must comply with the law and cannot be used to get around the ban on land ownership by foreigners.
The foreign spouse can register a right of use (Hak Pakai) or a lease (Hak Sewa) in their own name.
When to sign the agreement
Spouses can sign the agreement either before or after the marriage is registered. If the wedding is still ahead, it makes sense to discuss a prenup with your future spouse and a notary before the marriage is registered. If you are already married, a postnup can help settle property matters. Its effect on existing assets needs to be assessed separately.
The cost depends on the notary, the complexity of the document and any additional legal services. You can draft the agreement in advance with a lawyer. Legal Indonesia offers consultations as well as drafting of marriage agreements.
Choosing between a prenup and a postnup:
Criterion | Prenup | Postnup |
When it is signed | Before the marriage is registered | After the marriage is registered |
Who it suits | Couples planning to marry | Couples who are already married |
Purpose | To set the property regime in advance | To set or change the property regime after the marriage |
Advantage | Lets you settle property questions before anything is acquired | A chance to agree on separate property if no prenup was signed |
Limitation | Must be prepared before the marriage is registered | Does not automatically change rights to previously acquired property and cannot infringe the rights of third parties |
The agreement is signed before a notary and registered with the same office that registers the marriage: the KUA (the religious affairs office that registers Muslim marriages) or Disdukcapil (the civil registry, for all other couples). No court decision is needed for this. Without registration, a bank, buyer or land office may disregard it.
A marriage concluded outside Indonesia may be recognized in Indonesia, provided it complies with the laws of the country where it was registered and the applicable requirements of Indonesian marriage law.
First you report the marriage to the Indonesian embassy, which issues a certificate. With this certificate and the marriage certificate translated by a sworn translator (penerjemah tersumpah, appointed by Indonesia's Ministry of Law), you go to Disdukcapil.
You have 30 days after the Indonesian spouse returns to do this, and missing the deadline can bring a fine of up to 1 million rupiah.
If you did not go to the embassy, Disdukcapil can issue the certificate itself, based on that translation or on a statement made under personal responsibility. If both spouses are Muslim, the certificate and marriage certificate go to the KUA, where the deadline is one year. Disdukcapil generally requires a marriage agreement executed abroad to be formalized through an Indonesian notary before it can be registered.
How a marriage agreement affects buying property in Indonesia
Without an agreement
If the Indonesian spouse buys property during the marriage, the law treats it as joint property, even if the certificate is in their name alone.
When the plot is held under a Sertifikat Hak Milik, this creates a legal risk: the foreign spouse has no right to be a co-owner.
Possible consequences:
- additional checks when the transaction is processed;
- difficulties registering rights;
- additional bank requirements when applying for a mortgage;
- complications when the property is later sold.
The consequences depend on the circumstances of the purchase, the documents and the applicable law.
With an agreement
If the spouses have a separate property regime, a house in Indonesia bought by one of them remains that spouse's personal property (harta pribadi) and does not form part of the joint property (harta bersama).
This separates the spouses' property rights but does not lift the land restrictions on foreigners. That is why any terms of the agreement relating to Hak Milik should be agreed with a notary and a land law specialist.
If the property is bought with a mortgage, you also need to take into account the bank's requirements regarding documents and the property regime.
What to do if land in Indonesia was bought without a marriage agreement
A postnup signed after the property was bought can help put property matters in order, but it does not guarantee protection against every risk. It is best signed within a year of the purchase, since that is how long the law gives the foreign spouse to give up their share in jointly owned land. Here is how to resolve the situation:
1. Discuss your situation with a lawyer and draw up a rough action plan and a draft agreement. To "clean up" property that has already been bought, the agreement should:
- describe the property in as much detail as possible (certificate number, area, exact address);
- state clearly that the property is not joint property (harta bersama) and belongs personally (harta pribadi) to the Indonesian spouse;
- specify the date from which the agreement applies to this property. By law, an agreement signed during the marriage takes effect from the wedding date unless it states otherwise, but for land that has already been bought it is better to spell out the date. The agreement does not retroactively change the rights of the bank, the seller or other third parties.
2. Find a notary who works with mixed marriages.
They will look at when the property was bought and how it is registered, what property regime the spouses currently have, and whether there is a mortgage or other security interest. The notary will tell you which terms are permissible, from when they will take effect and how this affects the rights of third parties (the bank, the seller, creditors).
3. Find out how to register the agreement.
The law does not require a postnup to be confirmed by a court. But if the property has already been bought, the notary may advise obtaining a court order (penetapan) confirming the agreement and its effect on the specific property.
For the bank, buyers and the land office to take the agreement into account, it is registered with the KUA if both spouses are Muslim, and with Disdukcapil in all other cases. If the marriage took place abroad, report it to that office first. No annotation is made on a foreign marriage certificate; a certificate is issued instead.
4. Check the land office (BPN) requirements.
If the property is in Bali, ask the local BPN in advance which documents will be needed to register rights or to sell. A court is not always needed to confirm a postnup: it depends on the situation and on the requirements of the particular authority.
5. If the property is mortgaged, talk to the bank.
An agreement between spouses does not cancel the bank's rights or change the terms of the mortgage.
If you plan to buy another property, it is better to settle the property regime before the purchase.
Can you sell property without a marriage agreement?
Without a marriage agreement, selling property bought during the marriage can be harder, even if the certificate is in the Indonesian spouse's name alone.
If the property is considered joint property, the other spouse's consent will be needed to sell it.
Risks:
- the transaction may be delayed or challenged;
- BPN may request additional documents;
- if the house is mortgaged, the bank's rights and the loan terms will have to be taken into account.
Not every sale without an agreement will necessarily run into problems, and not every postnup needs court confirmation. A lot depends on the particular BPN office, so in Bali it is worth finding out its requirements in advance. Before the transaction, consult a lawyer, a notary and a PPAT (the official who handles land transactions, usually a notary), and check your documents. If there is a mortgage, agree everything with the bank in advance.
What else to include in a marriage agreement
What goes into the agreement depends on the spouses' goals, their assets and their family situation. For a mixed couple that owns property or a business in Indonesia, it is worth covering these issues in addition to separate property:
- Debts and household expenses: which debts each spouse bears individually, how the costs of housing, utilities and the family's day-to-day needs are shared, and how mortgage and business obligations are treated.
- Business and corporate assets. If one or both spouses hold shares in Indonesian companies (PT) or foreign legal entities, it is worth setting out how those shares and related assets are treated under the chosen property regime. Particular attention should be paid to the foreign spouse's business in Indonesia. A marriage agreement does not in itself legalise prohibited ownership structures, including the use of a nominee owner to get around investment restrictions.
- Children: residence, support and education. How the costs of education, healthcare and children's day-to-day needs are shared. Wishes regarding where the children will live and their contact with each parent in the event of a separation. Bear in mind that such provisions do not take away the court's right to decide based on the child's best interests.
- Inheritance. A marriage agreement can help separate the spouses' personal assets and thereby make inheritance planning easier, including protecting the interests of children from previous marriages. This clause does not replace a will and does not override the separate rules of inheritance law. If the Indonesian spouse dies, a widow or widower and children with foreign citizenship who inherit Hak Milik without a will must sell or transfer the land to an Indonesian citizen without a second citizenship within a year of the death. Otherwise the right is extinguished and the land passes to the state.This rule applies to a child with dual citizenship until they choose one of them, which they must do no later than three years after turning 18 or marrying. Under the Civil Code, the foreign spouse remains an heir, with or without a marriage agreement, and can receive their share in money from the sale of the land. If the deceased was Muslim and the spouse is of another faith, the spouse is not considered an heir, and the court may award them no more than a third. Hak Milik cannot be left to a foreigner in a will: such a transfer is void, and the land passes to the state. Inheritance questions are best reviewed with a notary or lawyer who knows Indonesian law and the family's circumstances.
- Language and amendments. It is important for the foreign spouse to fully understand the content of the document and its consequences, so whether a certified translation or a bilingual text is needed should be agreed in advance.
Getting a marriage agreement step by step
- Prepare a list of assets and liabilities. Include existing property, company shares, bank obligations and planned purchases.
- Agree the terms with your spouse and prepare a draft. Have a lawyer review the agreement in light of the list from the first step and your family situation, and make any necessary changes.
- Go to a notary, show them the draft and find out which documents are needed to register the perjanjian perkawinan. If any shortcomings are found, add to or amend the text.
- Execute the agreement before the notary, obtain a court order (if necessary) and register it with Disdukcapil or the KUA.
- Present the agreement in purchases and sales, loan applications and other transactions where it is relevant to the specific property or deal.
A specific case
Let's consider a situation where the foreign spouse had savings from before the marriage. After signing a perjanjian pisah harta and registering their marriage to an Indonesian woman, the couple plan to buy a house in Bali for their family with the foreign spouse's money. How should the paperwork be done so that both spouses feel legally protected?
Option 1. The foreigner wants to give his future wife money for a house as a wedding gift and does not intend to claim back the money spent, or any part of it, in the event of a divorce. The process: a notarial deed of gift of money (hibah) stating the amount and confirming its source → transfer to her account → signing of the marriage agreement before a notary → marriage → registration of the agreement with the KUA or Disdukcapil → purchase of a Hak Milik villa in her name.
The separate property agreement confirms that the plot is not part of the joint property. Note that Indonesia's Civil Code prohibits spouses from giving each other property while the marriage lasts (inexpensive gifts are an exception), and a separate property agreement does not lift this ban.
Courts have already annulled such gifts of land, so it is safer to make the gift before the wedding, either in a separate deed or directly in a marriage agreement signed before the wedding. This option does not work for a couple who are already married: the remaining route is a loan (Option 2).
A gift made before the wedding may be subject to income tax for the recipient: the law exempts gifts between parents and children but does not mention brides and grooms. The rate rises with the amount and goes up to 35%. Discuss this step with a tax adviser.
If the wedding does not take place, a wedding gift has no effect under the Code. But the money will already be in her account, and without her consent it can only be recovered through the courts.
Option 2. A loan to the wife. Instead of a deed of gift, a notarial loan agreement for an amount equal to the money invested, or for the part of it the husband wants back in the event of a divorce. The husband remains a creditor but not a co-owner. Repayment can be tied to events: the sale of the house, a divorce, a specific date or the death of one of the spouses.
Option 3. The land is hers, the house is his. The wife buys the land under Hak Milik (with money the husband gave her before the wedding or lent her), and the foreign husband obtains Hak Pakai over that land and builds a house with his own money. Hak Pakai over Hak Milik land is granted by a deed before a PPAT for up to 30 years and only comes into being once registered with the land office. It can later be renewed with a new deed if the landowner agrees.
This way each spouse has their own registered right: the wife owns the land, and the husband has the right to use the plot his house stands on. Hak Pakai can only be sold or transferred to someone else if the deed allows it. If the husband stops meeting the legal requirements, he will have a year to give up or transfer the right, or it will be extinguished.
Divorce is not among the grounds for ending Hak Pakai listed in the law, but the right ends with the deed, and what happens to the house is determined by the deed's terms. In practice this arrangement is inconvenient because it affects how easily the property can be sold.
To obtain Hak Pakai, a foreigner needs an immigration document: a visa, passport or stay permit. Ask before the transaction whether the PPAT will accept a visa or passport without a stay permit. The house must be classed as high-end housing and, in Bali, cost at least 5 billion rupiah. One plot of up to 2000 m² can be held per person or family; anything larger requires the minister's permission.
The statutory minimum price also applies to a house on the wife's land, but check with a lawyer how it is calculated when the foreigner builds the house himself. A foreigner acquires an apartment not under Hak Pakai but as owned property, and the threshold for it in Bali is 2 billion rupiah.
Marriage scams and how to avoid them
Fraud in and around mixed marriages can come from either side: both foreigners and Indonesians fall victim. This does not mean every partner is suspect: most marriages are genuine, but checks are useful for everyone.
1. Romance scams (before the marriage and early on)
Requests for money on an urgent pretext (a sick relative, a debt, a visa). Offers to "invest together" in land, a villa or a company in the partner's name before the marriage. Fake documents about identity, marital status or income.
How to avoid them: don't transfer large sums without a notarial deed of gift or loan, and don't buy property before the marriage. Check your partner's status (single, divorced) through official authorities. If your partner is rushing you, that is a warning sign.
2. Property scams
Nominee schemes (registering land in a front person's name): "let's buy Hak Milik in your wife's or a friend's name and transfer it later." The law treats such agreements as void, and the foreigner bears the risk of loss.
The same property sold twice, a forged certificate, a property that is mortgaged or under dispute.
A lease with a verbal "promise to extend" that is not in the contract.
Pressure to "sign today", documents in a language you don't understand.
How to avoid them: check the certificate at BPN (owner, encumbrances), and hire your own lawyer, notary or PPAT rather than the one the seller suggests. Insist on a translation. Land rights and mortgages should be visible in the register, and lease terms, including extensions, should be written into the contract.
3. Money and "family needs"
Constant requests after the wedding to transfer money "to the family" or "for the business".
Pressure to sign loans, powers of attorney or guarantees you did not discuss in advance.
Your money being moved into third parties' accounts.
How to avoid them: keep separate accounts and documents, record transfers with a clear stated purpose, and don't sign general powers of attorney.
4. Marriage for status
A sham marriage for a visa or housing rights: one of the spouses has no intention of living as a family.
Selling a "service": an intermediary promises a quick marriage, citizenship or land rights for money.
How to avoid them: don't trust promises of "guaranteed citizenship" or "land ownership through marriage". The conditions are set by law, and marriage alone does not grant them. Under the immigration law, a sham marriage for a visa or citizenship is punishable for both spouses: up to five years in prison, a fine of up to 200 million rupiah, or both.
5. Forgeries and intermediaries
Forged marriage agreements, PPAT deeds and notary seals.
"Agents" who take an advance payment for services and disappear.
Notaries or lawyers willing to set up a dubious scheme: afterwards, all the liability falls on you.
How to avoid them: check the notary and PPAT (registration, reviews, office address), attend the signing in person and get copies of all documents. Agreements must be registered, not just signed.
General rules
Don't sign anything important in a hurry.
Hire an independent lawyer and notary whom you have chosen yourself.
Put everything significant in writing, with no "verbal agreements".
Keep copies of documents and translations separately from your partner.
You can add one right now!