Awareness of the Marriage Law is essential for Indonesian women who marry foreigners to retain their land rights.
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.
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.
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.
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.
of Indonesia international law professor Zulfa Djoko Basuki has criticized the
BPN for referring to the old Dutch citizenship law when it comes to mixed
marriage-related wealth, saying that this interpretation was bad since it was
contrary to legal principles.
Dutch citizenship law has been replaced by Law No. 62/1958 on citizenship.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,” she told The Jakarta Post in a recent interview.
on to say that the BPN’s adherence to the Dutch law infringed one of the most
basic legal principles, namely the principle of simultaneous enforcement.
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,” she said.
a law that regulates specific things (lex specialis) automatically annuls the
law that regulates general things (lex generalis).
in order to regulate the right to own land or property in the context of mixed
marriage, the BPN should adhere to the Marriage Law instead of the Agrarian
Law,” she said.
on the Marriage Law’s requirement for Indonesians marrying foreigners to make
prenuptial agreements if they wish to own property after the marriage, Zulfa
lamented that many Indonesian women failed to make such agreements out of
ignorance about the law.
Indonesians still perceive a prenuptial agreement as having to do solely with
asset division,” she said.
result, many Indonesian women are surprised to find that they cannot buy or own
property after marrying a foreigner.
Property Watch (IPW) executive director Ali Tranghanda said that Indonesian
women’s lack of awareness of the abovementioned principles had caused them to
lose their property ownership rights.
said that if women who married foreigners understood the intricacies of the
relevant laws, they could challenge the BPN’s claim that these women’s freehold
property ownership should be revoked, thereby retaining their rights, even
after they marry foreigners.
BPN still insists on downgrading these women’s rights, then these women could
go further and take the case to the PTUN [state administrative court]. If the
judge rules in favor of these women, it could affect the jurisdiction of the
BPN, rendering its efforts to force these women to sell their property
obsolete,” she said.
said she regretted that so far no women had challenged the BPN or taken their
cases to the PTUN because of their mistrust in Indonesia’s legal system. “This
is a shame, when in fact just one legal action could trigger change for the
whole system. Nobody can act above the law anymore,” she said.
that people who were concerned about the issue needed to conduct educational
programs or information dissemination events to spread knowledge on how women
who marry foreigners could retain their rights.
already have excellent regulations regarding property ownership. We only need
to keep an eye on their implementation. Plus, we also need to make sure that
these women are truly aware of how these laws can be used to protect them. It’s
dangerous when such women are not aware of their rights,” he said.
that the corrupt legal system made it even easier to exploit women who were
ignorant about their rights.
developers are of the view that to allow Indonesian women to retain their right
to own property after they marry foreigners, “they need to be aware of their
rights as well as the regulations stipulated by the three abovementioned laws,
because these are the roots of the problem,” he said.
we need to keep an eye on the implementation of the three laws,” he added.