Protection of Property Rights in Mixed-Nationality Marriages

A prenuptial agreement—whether entered into before or during the marriage—is an important legal instrument for providing legal certainty regarding property ownership in mixed-nationality marriages. Indonesian laws and regulations affirm that the separation of assets through a prenuptial agreement protects the property rights of Indonesian citizens and prevents the commingling of assets, which could conflict with the provisions of the Basic Agrarian Law.

The absence of a marriage settlement agreement in a mixed marriage may prevent an Indonesian (WNI) wife from securing her rights over an apartment unit that has been fully paid for. In its considerations in Supreme Court Decision No. 53 PK/Pdt/2021, the Panel of Judges held that, without such an agreement, the apartment unit becomes joint marital property (harta bersama) shared with her foreign national (WNA) husband. This condition was deemed potentially inconsistent with Articles 21 and 36 of Law No. 5 of 1960 concerning Basic Agrarian Regulations (“UUPA”), which embody the nationality principle and permit only Indonesian citizens to hold land rights.

The buyer’s Indonesian nationality is neither lost nor diminished merely because she married a foreign national, so she remains fully entitled to acquire land rights or building-use rights under Articles 21(1) and 36(1) of the UUPA. The actual legal issue lies not in the buyer’s citizenship, but in the marital property regime governing the marriage. Absent a marriage settlement agreement, any land or apartment purchased during the marriage automatically becomes joint marital property under Article 35(1) of Law No. 1 of 1974 on Marriage (“UU Perkawinan”), giving the foreign spouse an economic interest in the land as well.

The developer’s objection was based on the mixing of marital property. Article 21(3) of the UUPA provides that a foreign national who acquires land rights through the commingling of marital property must relinquish that right within one year of its acquisition. If the right is not relinquished within that period, it lapses by operation of law and the land reverts to the State. On this basis, the developer initially refused to issue the PPJB and AJB in the buyer’s name.

The turning point in the case emerged at the case review (peninjauan kembali) stage, when the buyer submitted new evidence (novum) in the form of a notarized and registered Marriage Agreement Deed. In its considerations, the Panel of Judges deemed this evidence decisive, as it proved the buyer’s marriage was in fact governed by a separation of property. Accordingly, the apartment never formed part of the joint marital estate, leaving the developer with no lawful basis to refuse the transfer of rights into the buyer’s name.

This judicial consideration confirms that a marriage settlement agreement, including one executed before the marriage (a prenuptial agreement), prevents the commingling of marital property from ever occurring under Article 21(3) of the UUPA. As a result, full ownership of the right validly remains with the Indonesian spouse, with no obligation to relinquish it within one year. Notably, the deed submitted as novum in this case was only registered after the marriage had commenced, making it a postnuptial agreement.

The validity of that postnuptial agreement traces back to Constitutional Court Decision No. 69/PUU-XIII/2015, which held Article 29 (1) of the Marriage Law unconstitutional unless interpreted to allow a marriage agreement to be submitted at the time of, before, or during the marriage. The condition is that the agreement be made upon the mutual consent of both parties and ratified by a marriage registrar or notary, after which it also becomes binding on relevant third parties.

Based on all of these considerations, the Panel of Judges held that the developer had committed a default (wanprestasi) against the Purchase Order Agreement dated 26 May 2012, and affirmed the buyer’s status as a good-faith purchaser entitled to full legal protection. This decision confirms the importance of marriage agreements, whether prenuptial or postnuptial, for WNI-WNA mixed-nationality couples seeking to own land-based property assets in Indonesia.

Farra Mutiara Nabila / Nazla Syifa Husna

The information provided in this article does not, and is not intended to, constitute legal advice. Court decisions, legal interpretations, and factual circumstances differ in every case. Readers should contact a licensed attorney for counsel on any specific legal issue.