Married to an Indonesian: land, joint property and the prenup

The Indonesian spouse can own freehold like any citizen — with one condition most couples have not met. Without it, the law gives the foreign spouse one year to give the land up.

Perkawinan campuran, harta bersama, prenup, postnup: ten questions and the article for each

Couples usually meet this subject through a listing or an agent who says the Indonesian spouse can simply buy. Sometimes that is right. Whether it is depends on one document most couples do not have, and on three articles in three different laws. The table puts each question next to the rule that answers it.

The default is joint property, and that is the problem

Indonesian marriage law starts from community. Property acquired during the marriage becomes joint property (Law 1/1974 art. 35(1)); property each spouse brought in, and gifts or inheritances either receives, stay under each spouse's own control, unless the parties agree otherwise (Law 1/1974 art. 35(2)). Joint property can only be dealt with with the consent of both (Law 1/1974 art. 36(1)).

A mixed marriage is a marriage in Indonesia between two people subject to different laws because of different citizenship, one of them Indonesian (Law 1/1974 art. 57). The marriage law applies to it like any other. The land law does not treat it like any other, because one spouse cannot hold hak milik at all (UUPA (Law 5/1960) art. 21(1)).

Put the two together. An Indonesian spouse buys freehold land during a marriage with no separation of property. The land is joint property, so the foreign spouse now has a share of a right no foreigner may hold. The land law has an article for exactly this.

The one-year rule

A foreigner who acquires hak milik by inheritance without a will, or through the community of property in a marriage, must give it up within one year (UUPA (Law 5/1960) art. 21(3)). If that does not happen, the right lapses and the land falls to the State.

That is why the separation of property matters more in Bali than it would in most marriages. It is not a statement about trust between spouses. It is the difference between the Indonesian spouse holding freehold land and nobody holding it.

What PP 18/2021 article 70 actually requires

The 2021 regulation settles the Indonesian spouse’s position in two sentences. Article 70(1): a citizen married to a foreigner may hold the same land rights as any other citizen. Article 70(2): provided the right is not joint property, evidenced by a notarial separation of assets between husband and wife (PP 18/2021 art. 70).

Two details follow from the wording. The agreement has to be a notarial deed, not a private document. And it has to cover the land — a notary asked to make the transfer deed will want to see it before the land goes into the Indonesian spouse’s name. Who makes which deed.

Already married without one? The 2016 ruling

As enacted, the Marriage Law allowed the agreement only at or before the marriage, endorsed by the marriage registrar (Law 1/1974 art. 29(1)), and nothing could be done once the couple was married. That changed in 2016. The Constitutional Court held that article 29 must be read so that the spouses may make a written agreement at, before or during the marriage, endorsed by the marriage registrar or a notary (Constitutional Court Decision 69/PUU-XIII/2015).

The same ruling reworded the rest of the article: the agreement takes effect from the marriage unless it provides otherwise, may cover the marital property or other matters, and may be changed or revoked by both spouses so long as that does not prejudice third parties. So a couple married without a separation of property can make one before buying. Whether an agreement made during the marriage reaches property already acquired is a question for the drafting notary; our reading of “unless it provides otherwise” is that the agreement itself must say.

The nominee trap, in its marital form

The version of this that ends badly is not the couple who never thought about it. It is the arrangement designed around it: the foreign spouse pays, the land goes in the Indonesian spouse’s name, and a side agreement gives the foreigner the benefit. UUPA article 26(2) makes any act meant to pass hak milik to a foreigner, directly or indirectly, void by operation of law — and payments made cannot be reclaimed (UUPA (Law 5/1960) art. 26(2)). Marriage does not change that. How nominee structures fail.

What the foreign spouse can hold is what any foreigner can hold: hak pakai for a home in their own name (PP 18/2021 art. 49(2)(e)), a lease, strata title, or HGB through a company. The full list, term by term.

Before an Indonesian spouse buys: four questions

1. Is there a separation of property, by notarial deed?

If not, make one before the purchase, not after.

2. Does it clearly cover this land?

The notary making the transfer deed will ask. Better that the answer is yes.

3. Whose money pays for it, and is that written down anywhere else?

A side agreement giving the foreign spouse the benefit of the land is the nominee problem again.

4. What happens on death or divorce?

Inheritance and divorce between spouses of different nationalities involve law this page does not cover. What each structure does on death.

We are not lawyers or notaries and give no advice on any marriage. We are paid a fixed fee per enquiry whether you buy or not; this page sets out the articles so you know what to ask.

Questions on this page