Question:
Some people choose to make an agreement before marriage. Actually, how useful is the agreement? Then, what must be arranged in a prenuptial agreement? And how to legalize it? Is it enough with a stamp or must be legalized in a notary? Please enlighten.
Dika Tappalang Answer:
Thank you for your question.
Previously, I would explain the contract law. In the Civil Code of Law (KUH), Article 1320 states that for the validity of an agreement four conditions are required:
1. Agree that those who bind themselves;
2. Skills for making an engagement;
3. A certain thing;
4. A reason that is lawful.
In the first point, it was stated that the agreement could only occur if both parties agreed, without coercion and deception and error, in making an agreement. This was stated clearly in Article 1321 of the Civil Code which states that "there is no agreement that is valid if it is agreed to be given because of an error, or obtained by coercion or fraud". If the agreement is carried out because it is forced, erroneous or cheated, then the agreement is invalid.
Furthermore, in the second point stated that in the agreement, the parties must be competent. That is, the two parties must not be under control or imperfect reason. In addition, another requirement is that the parties are not immature children as explained further in Article 1329 of the Civil Code: Each person is authorized to make an agreement, unless he is declared incompetent for that matter.
In terms of "certain things", referring to an object or item that is worth the money agreed upon, including items that are new in the future. So, the agreement requires that there is an object of agreement in the form of goods worth money. These provisions are clearly explained in Article 1332 and 1334 of the Civil Code.
The last requirement is that the agreement must be based on a lawful cause. In this case it does not conflict with law or decency. If the agreement violates laws or decency such as an agreement to sell narcotics, the agreement violates the legal conditions of an agreement. Because narcotics are goods that are prohibited from being sold according to law. These provisions are regulated in Article 1337, namely "A cause is prohibited, if prohibited by law, or if it is contrary to good morality or public order".
If you want to make a premarital agreement, it is strongly recommended to follow the legal conditions of an agreement as explained above. The pre-marriage agreement itself, has been regulated in Law Number 1 of 1974 concerning Marriage. In Article 29 paragraph 1 of the Law on Marriage, junto (jo). The Constitutional Court Decision Number 69 / PUU-XIII / 2015, for example states that "At the time, before it is held, or during the marriage bond, both parties to the mutual agreement can submit a written agreement legalized by the Marriage Registrar or Notary, after which the contents also applies to third parties as long as the third party is caught".
There are many benefits of pre-marital agreements, especially to minimize problems that will arise in the future. For example, if there is a prospective husband and wife who make a premarital agreement related to the assets that will be produced by the parties become the rights of the parties themselves, and in the marriage, there are problems, the parties just follow the initial agreement. The connection with what was agreed upon in the pre-marital agreement, as quoted from the article Shanti Rachmadsyah, SH entitled "Mixed Marriage (2)" which cited the opinion of Anita D.A. Collaboration that the things promised in the pre-marital agreement include:
1. Default assets, both assets obtained from each business or from a grant, inheritance or only obtained by each person during a marriage.
2. All debts carried by a husband or wife in their marriage made by them during the marriage will still be borne by the husband or wife.
3. The wife will take care of her personal property both movable and immovable with the task of collecting (enjoying) both her assets and work or other sources.
4. To take care of the property, the wife does not need help or power from her husband.
5. And so on.
Regarding the legality, in Article 29 paragraph 1 of the Law on Marriage, junto (jo). The decision of the Constitutional Court Number 69 / PUU-XIII / 2015 stated that the agreement, to be legally strong, must be ratified in the presence of a Marriage Registrar or Notary. However, an agreement that is only made and agreed upon by both parties is accompanied by witnesses (at least 2 witnesses) who are still legally valid as contained in article 1338 paragraph 1 BW which confirms that all agreements that are legally made are valid invite those who make it.
Thank you
Burhan, SH (Advocate and Legal Consultant)
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