QUO VADIS MARRIAGE AGREEMENTS IN INDONESIA

Oleh :       

Dr. EKO WIYONO,SH,MHum

(Senior  Advisor Kantor Hukum Legis Priori Jakarta)

Talking about marriage cannot be separated from the meaning of marriage itself which, according to Wirjono Projodikoro, marriage is the living together of a man and a woman who fulfill certain conditions. Whereas normatively in Article 1 of Law Number 1 of 1974 concerning Marriage is defined as: an inner and outer bond between a man and a woman as husband and wife with the aim of forming a family, a happy and eternal household based on Belief in the One Supreme God.

One of the principles of Law Number 1 of 1974 concerning Marriage is to form a happy and eternal family so that husband and wife need to help and complement each other so that each can develop their personality to help and achieve spiritual and material well-being. So that in an effort to achieve this, one of the things that can happen in a marriage is to make and agree on a marriage agreement.

A marriage agreement is a form of an agreement made based on an agreement between one party and another before the marriage takes place between a man and a woman before the marriage contract is legally held as a husband and wife who are bound by marital ties. So that in general the marriage agreement can be interpreted as a mutual agreement between the two parties of the prospective husband and wife which is made in writing before it takes place or when the marriage takes place between them as husband and wife which is legalized and registered with the marriage registrar. The Marriage Agreement is made with the aim that both parties of the prospective husband and wife who wish to enter into a marriage and each has assets or will receive assets (inheritance for example), intend to separate their respective assets after their parties the prospective husband and wife have agreed. bound by their marriage. So that the function of making a marriage agreement is to legally protect property, both the Innate Assets of each husband and wife or the Joint Assets in a Marriage.

Furthermore, from making a marriage agreement, several benefits will be obtained, including:

1. Separation of assets between husband and wife so that their assets are not mixed;
2. Debts owned by the husband or wife will be the responsibility of each;
3. one of the parties (husband/wife) intends to sell assets, there is no need to seek approval from the other party;
4. If a husband or wife is going to apply for a credit facility from a certain creditor or financial institution, then there is no need to ask for the approval of their partner to guarantee their assets;
5. Guarantee the continuation of family inheritance;
6. Protecting the interests of the wife if the husband is going to practice polygamy;
7. Avoid unhealthy marital motivation;

Referring to the benefits of a marriage agreement as mentioned above, especially in point number 1, namely: The benefits of separating assets between husband and wife so that there is no mixing of assets in their marriage, is an important matter in civil matters in Indonesia, especially regarding aspects law due to the occurrence of divorce from a marriage that has occurred. Which turned out to be a lot of marital disputes because of the mixing of assets in marriage. Therefore the issue of law (legalisue) regarding the agreement on the separation of assets in marriage or marriage agreement is something very important.

The regulation norms regarding marriage agreements in the perspective of the Civil Code are as stated in the provisions of articles 139 to 185 of the Civil Code, where explicitly in article 139 of the Civil Code it is stated: it does not conflict with good morals or with the general order and the following provisions are also respected. From this norm, it can be understood that in the view of the Civil Code the holding of a marriage agreement is intended to agree on arrangements for joint assets in the marriage that they do, so that if it turns out that later after the marriage ends it will be easier and there will be no legal issues in the settlement of assets. those who from the beginning had an agreement as stated in the Marriage Agreement they had made.

Whereas in the Marriage Law Number 1 of 1974, it is determined in Article 29 which in passing states that: “At the time or before the marriage takes place, both parties by mutual agreement can enter into a written agreement which is legalized by the Marriage Registrar, after which the contents apply also against third parties as long as third parties are involved. From the norms of Article 29 of Law Number 1 of 1974 concerning Marriage, it shows that in fact Law Number 1 of 1974 concerning Marriage does not explicitly regulate marriage agreements. however, it is only stated in passing that it is implied that an agreement can be made in a marriage made before or at the time the marriage takes place, but in this provision there is no explicit limitation of the marriage agreement that can be made concerning any subject matter or conditions where it is only determined that the said agreement must be made in writing and authorized by the Marriage Registrar.

Starting from the description above, it shows that the regulation regarding the Agreement is originally a Marriage Agreement that could only be made at or before the marriage took place or is called a Prenuptial Agreement. Thus the Marriage Agreement comes into force from the time the marriage takes place and cannot be changed or revoked during the marriage, unless both parties agree to change it.

However, since the Constitutional Court Ruling Number: 69/PUU-XIII/2015, on the constitutional review submission of the norms of Article 29 paragraph (1) of Law Number 1 Year 1974 concerning Marriage which was granted by the Constitutional Court of the Republic of Indonesia, there has been a difference regarding the validity of the marriage agreement between before and after the validity of the said Constitutional Court decision, i.e. the marriage agreement cannot only be made before or at the time of the marriage, but can be made during the marriage lasts. So that the meaning of the Marriage Agreement can not only be made by the husband and wife at the time before and when the marriage takes place, but also can be made by the husband and wife who have been married during the period when their marriage is in progress (Postnuptial Agreement).

From the foregoing it appears that the norms of Article 29 paragraph (1) of Law Number 1 of 1974 and Article 157 of the Civil Code stipulate: A marriage agreement must be drawn up before or at the time the marriage takes place and is drawn up in a notarial deed and ratified by a marriage registrar. Further in Article 29 paragraph (3) of Law Number 1 of 1974: The marriage agreement takes place from the time the marriage takes place between husband and wife during the marriage period. Furthermore, by the Constitutional Court Decision Number: 69/PUU-XIII/2015, it is determined that there is an expansion of the meaning, namely that a marriage agreement can not only be made by husband and wife at the time before and when the marriage takes place but can also be made by husband and wife who have already been married. during the period of time in which their marriage is ongoing. (PostnuptialAgreement).

From the description of the arrangement regarding the Marriage Agreement that has been stated above, it can be concluded that it turns out that what already exists, both the norm of Article 29 of Law Number 1 of 1974 concerning Marriage and the Ruling of the Constitutional Court of the Republic of Indonesia Number: 69/PUU-XIII/2015 is the arrangement of the Agreement Marriage is only related to the matter of the entry into force of the Marriage Agreement, which can be made before or at the time the marriage takes place or during the time when the marriage takes place or takes place. However, there is no norm that explicitly and clearly determines when the marriage agreement ends (?). Does the marriage agreement also end with the end of the marriage itself (?) meaning does the marriage agreement end due to the decision of the marriage either due to divorce or death (?).

This simple question becomes interesting for further analysis and study in connection with the development in society of different understandings about when a marriage agreement ends, whether it will only end if there is an agreement between the two husband and wife parties to revoke the marriage agreement that has been made. made and mutually agreed upon, which is closely related to the principles applicable in the Law of the Agreement in the form of the Consensualism Principle and the basic arrangement of an Agreement as the norms of Article 1338 of the Civil Code and Article 1320 of the Civil Code, where Article 1338 of the Civil Code states: All agreements made legally applies as law to those who make it. An agreement cannot be withdrawn other than by agreement of both parties, or for reasons stated by law as sufficient for that purpose. An agreement must be carried out in good faith, and Article 1320 of the Civil Code which also determines: For an agreement to be valid, 4 conditions are needed, namely: 1. An agreement of those who bind themselves; 2. The ability to make an agreement; 3. A certain thing; 4. A lawful cause; So that as a form of Agreement, a Marriage Agreement made to meet the requirements is binding and cannot be canceled simply without any specific legal action, for example by agreement to terminate the Agreement that has been made or revoked or requested for annulment if there is a violation of the terms so that the Agreement becomes null and void. valid and must be canceled or canceled by law.

There are opinions that arise on the question of when the marriage agreement ends, which is based on the argumentation of thinking that according to them a marriage agreement is in force during the marriage period, where both parties make the agreement, namely husband and wife while still alive, so that if one party dies, the Marriage Agreement ends and the parties automatically become bound by the provisions in the Inheritance Law. This means that they are no longer bound by the marriage agreement that was previously made by them in their marriage. So that this opinion concludes that a marriage agreement will end with the end of the marriage, either because of divorce or because of death. This opinion is based on the norms of Article 38 of Law Number 1 of 1974 concerning Marriage which states that: Marriages can be dissolved due to death, divorce and/or court decisions.

Departing from this, this opinion further states that because according to Article 1063 of the Civil Code which states: Even in a marriage agreement, no one can renounce his right to the inheritance of a person who is still alive, then in a marriage even though there is a marriage agreement made by the the husband and wife, then the marriage agreement will end if the marriage ends or breaks up. The purpose of this opinion is that even though there is a marriage agreement, if one of the parties dies so that the marriage ends or breaks up, then automatically the parties are no longer subject to their marriage agreement and they are subject to inheritance law. where according to the provisions of the Inheritance Law for the party that has lived the longest remains as an heir and still gets a share of the inheritance even though the inheritance originates from or was obtained during the marriage period, based on the provisions of the norms of Article 1063 of the Civil Code supported by the norms of Article 830 of the Civil Code which also determines : Inheritance only lasts because of death. So that with the death of one of the parties, the legal relationship between the husband and wife shifts into the domain of inheritance law. In terms of inheritance, the party that lives the longest is a legal heir according to the provisions of Article 832 of the Civil Code that: : Heirs based on the law are those who are entitled to become heirs are blood relatives, both legal and out of wedlock and the husband or wife who has lived the longest. In fact, the portion as specified in Article 852 a of the Civil Code states that: In the case of the inheritance of a husband or wife who died first, the wife or husband who lived the longest, in carrying out the provisions of this chapter, is equated with a legitimate child of the deceased.

In fact, this opinion is based on the Ruling of the Supreme Court of the Republic of Indonesia Number: 804/PK/Pdt/2009 which states: Position of heirs to inheritance in marriage with a separation agreement: “Husband does not get inheritance as a result of a separation agreement in accordance with Article 1338 of the Civil Code is an erroneous decision of the Judge in giving a decision, even though Defendant I has made a separation agreement with the heir, it will not erase his rights as heir “;

However, on the contrary, opinions also emerged stating that the marriage agreement was made based on a mutual agreement between the husband and wife both before and during and during their marriage, so that according to the provisions of Article 35 of Law Number 1 of 1974 concerning Marriage it turns out that: By If there is a marriage agreement, personal or innate assets will become the rights of each, because there is no joint property, thus the inheritance will be divided based on the contents of the agreement. In this regard, because based on the Marriage Agreement that has been made by both parties there is no mixing of assets so that there is no Joint Assets in the Marriage, logically according to the law there is no portion of the Inheritance that can be divided when one of the parties in the marriage dies who it is seen that their marriage has ended. This means that with the death of a husband or wife in a marriage, the position of the wife or husband who has lived the longest is truly legally domiciled as an heir, but no longer gets a share of their inheritance rights because in their marriage there is a marriage agreement which has legal consequences that there is no joint property in their marriage because Separation of Assets has been carried out. This argument is quite logical, meaning that when both husband and wife are still alive in their marriage, there are no joint assets and there are no rights for each of the assets acquired in their marriage, even after the marriage is deemed to have ended due to the death or death of one of them. parties between them even get the right to share in the inheritance. So the question arises according to the law that if after their marriage ends the party who lives the longest still gets the right to share in the inheritance of the Joint Assets in the Marriage, then why is a Marriage Agreement held that makes there no Joint Assets, after all, those who live the longest will still be get a share of the rights of the Joint Assets in their marriage if one of the parties later dies and the marriage agreement ends.

Furthermore, although the Constitutional Court Decision Number: 69/PUU-XIII/2015 changes the norm of Article 29 paragraph (1) of Law Number 1 of 1974 concerning Marriage to read: At the time, before it takes place or while in the marriage bond of both parties upon mutual agreement, a written agreement can be submitted which is ratified by a marriage registrar or a notary, after which the contents also apply to third parties as long as a third party is involved, BUT the provisions of paragraph (4) still read: “As long as the marriage lasts, the marriage agreement can be related to marital assets or other agreements, it cannot be changed or revoked, except if both parties have an agreement to change or revoke, and the change or revocation does not harm third parties,” so that this gives meaning that a marriage agreement cannot be changed or revoked during the marriage, unless there is an agreement between the parties to agree to revoke the marriage agreement. This means that the marriage agreement can only end if it is revoked or changed by the agreement of both parties. Therefore another question arises: If after the marriage ends due to the death or death of one of the parties, then the agreement must be revoked so that the existing marriage agreement ends, it is impossible because it is impossible for people who have passed away to revoke the marriage agreement made in their marriage.

Developed in various articles regarding the Marriage Agreement that by expressing the opinion that with the existence of a Marriage Agreement in a marriage bond between husband and wife, it is necessary to pay attention that the Marriage Agreement creates legal consequences in the form of: 1. Separation of both Innate Assets and Assets acquired after marriage become the assets of each respectively; 2. Regarding Inheritance, it cannot be given directly to the child (husband/wife), even if there is a written notarial letter regarding the property; 3. For Indonesian citizens, they can buy property in Indonesia even if they are married to a foreigner;

Based on this, especially in number.2 it is stated in the opinion that the marriage agreement has caused legal consequences including in the form of inheritance in marriage where there is a marriage agreement, direct inheritance to children (husband/wife) cannot occur, meaning in marriages where there is a marriage agreement then making it affect the part of the inheritance rights of the child (husband/wife) where their position as heirs of the inheritance rights cannot just happen inheritance, but there must be a written agreement in a notary letter which determines regarding assets whose legal status has become that legacy.

Based on all the descriptions that have been stated above, there are 2 (two) opinions with different directions, namely one party is of the opinion that the Marriage Agreement will end with the end of the marriage with the argument that marriages can end due to divorce, death and or a Court decision so that with the death of one of the husband/wife parties, the marriage ends causing legal consequences The marriage agreement also ends and the legal construction of the marriage turns into inheritance and the husband/wife who has lived the longest who has the position of heir gets a share of the inheritance of joint assets in marriage even though their marriage has Separation of Joint Assets in Marriage based on an agreement set forth in a Marriage Agreement.

On the other hand, the opinion that leads to the Marriage Agreement does not end with the death or death of one of the husband/wife parties in their Marriage, because the Marriage Agreement which is an Agreement as a form of an Agreement can only end if it is also agreed to be Revoked or Amended by the agreement of both parties husband and wife. So that even though one party dies, mutatis mutandis the longest-living husband/wife does not receive the right to share in the inheritance of the joint assets in their marriage, even though their position remains as heirs because there is a marriage agreement that they have made so that there is a separation of joint assets in the marriage. their Marriage, and the agreement is still valid because it has never been revoked or amended by the agreement of the husband/wife parties to the marriage agreement that they have made and mutually agreed upon. The logical argumentation is that when they were both still alive in the marriage, it was agreed that there would be a separation of joint assets in their marriage, how come after the death of one of the parties there is no longer a marriage agreement for separation of joint assets in the marriage, so if you still get a share of the After the death of joint property in marriage, why make a marriage agreement that separates their joint property, after all, if one of the parties dies, they will still receive a share of the rights to the inheritance from the joint property in their marriage.

Therefore, from opinions that differ from each other’s arguments as stated in the description above, it finally comes down to all of us, namely: Where will the marriage agreement in Indonesia go with the occurrence of views that are mutually opposite as mentioned above (?) we cannot deny that indeed a marriage agreement cannot be made without marriage. However, there is no provision stating that the marriage agreement is legally erased/terminated when the marriage also ends. In fact, there is no provision governing the termination of the marriage agreement in Law Number 1 of 1974 concerning Marriage itself. Qua vadis Marriage Agreement in the repertoire and development of law in the Indonesian legal state.

Hopefully it can provide benefits and become material for reflection for us legal people who are aware that law lives in the dynamics of people’s lives.

Thank You.