|Implications of Mixed Marriage for Indonesian Women’s Property Ownership|
Awareness of the Marriage Law is essential for Indonesian women who marry foreigners to retain their land rights.
Indonesian women who marry foreigners need to have sufficient understanding of the 1974 Marriage Law, the 1958 Citizenship Law and the 1960 Agrarian Law to enable them to retain their right to own freehold property.
Article 35 of the 1974 Marriage Law clearly states that a person can retain all assets obtained prior to marriage or assets inherited during marriage, unless the couple makes a prenuptial agreement. The definition of assets here covers land and property. While articles 29 and 36 of the Marriage Law require Indonesian who marry foreigners to make prenuptial agreements in order to buy and own property if they wish to do so after they marry.
The National Land Agency (BPN), however, uses the old Dutch citizenship law, which stipulates that Indonesian women who marry foreigners are automatically considered foreigners. This principle is then applied to the 1960 Agrarian Law, which stipulates that foreigners are not allowed to own freehold property and may only be granted leasehold title.
This may explain why some Indonesian women who marry foreigners sell their land to the BPN out of fear that they will lose it or have their ownership status reduced to a 70-year leasehold title, which has to be renewed every 25 years.
The old Dutch citizenship law has been replaced by Law No. 62/1958 on citizenship. The new law states that Indonesian women who marry foreigners are free to choose their citizenship. Therefore, they can still be Indonesians if they choose to be.
With the issuance of the new law, the old law is automatically annulled. Therefore, with the issuance of Law No. 62/1958 on citizenship, the old Dutch law no longer applies. Indonesian women who marry foreigners but still choose to be Indonesians still retain their right to own freehold property.
Furthermore, a law that regulates specific things automatically annuls the law that regulates general things.
Commenting on the Marriage Law’s requirement for Indonesians marrying foreigners to make prenuptial agreements if they wish to own property after the marriage, many Indonesian women failed to make such agreements out of ignorance about the law. As a result, many Indonesian women are surprised to find that they cannot buy or own property after marrying a foreigner.
The lack of awareness of the abovementioned principles had caused them to lose their property ownership rights. These women’s freehold property ownership should be revoked, thereby retaining their rights, even after they marry foreigners.
The opinions expressed do not constitute investment advice and specialist advice should be sought about your specific circumstances.
Published on our website on Sep.14, 2015