Marriage Agreements Before and After the Wedding

A prenuptial agreement, or marriage agreement (perjanjian kawin), is a written agreement between a future husband and wife, or between a husband and wife, that mainly governs their property during the marriage. Since Constitutional Court Decision No. 69/PUU-XIII/2015, it no longer has to be made before the wedding: it can be made before, at the time of, or during the marriage. For it to apply to third parties as well, such as a bank or a buyer, the agreement is made as a notarial deed and then registered.

What a marriage agreement is and why people make one

Without an agreement, the law decides how a couple's property is arranged. Under Article 35 of the Marriage Law, property acquired during the marriage becomes joint property (harta bersama). Property each spouse brings into the marriage, and property received as a gift or inheritance, remains under each spouse's own control unless otherwise agreed. For joint property, a husband or wife acts with the consent of the other spouse (Article 36).

A marriage agreement allows a couple to set different rules. Common reasons:

• one or both spouses run a business and do not want business debts to reach the other spouse's property;
• each spouse wants to be able to sell or mortgage their own property without the other's consent;
• there are children from a previous marriage, or family property that should stay within the family line it came from;
• a mixed marriage between an Indonesian citizen (WNI) and a foreign national (WNA).

A marriage agreement is not a sign of mistrust. It makes the property rules clear from the start, so that both spouses, and outsiders, know which property belongs to whom.

Before or after the wedding: what changed after MK Decision 69/2015

Previously, Article 29 of the Marriage Law was read to mean that an agreement could only be made at the time of or before the marriage. Constitutional Court (MK) Decision No. 69/PUU-XIII/2015, delivered on 27 October 2016, gave the article a new meaning:

• an agreement can be made at the time of, before, or during the marriage, in writing and ratified by a marriage registrar or a notary, and its contents also apply to third parties to the extent that they are involved;
• the agreement takes effect from the date of the marriage, unless otherwise provided in the agreement;
• during the marriage, the agreement can be amended or revoked if both spouses agree, provided that the amendment or revocation does not harm third parties.

The decision arose from an application by an Indonesian citizen in a mixed marriage, but it applies to all couples, including couples who are both Indonesian.

In a postnuptial agreement, the key question is what happens to the joint property that already exists: whether it is divided, stays joint, or is partly transferred. Existing debts to third parties cannot be avoided through this agreement, because a change in the property arrangement may not harm third parties.

What a prenuptial agreement can cover

A marriage agreement mainly governs property, but Article 29(4) also refers to "other agreements". Usual contents:

• separation of property, either in full (no joint property at all) or in part, for example only each spouse's income and business earnings are kept separate;
• responsibility for debts brought into the marriage or arising during it;
• management of each spouse's property, including the authority to sell or mortgage it without the other's consent;
• the sharing of household costs and children's education costs.

There are limits: an agreement cannot be ratified if it breaches the limits of law, religion and morality (Article 29(2)). For Muslim couples, Article 48(1) of the Compilation of Islamic Law (KHI) states that a separation of property may not remove the husband's duty to provide for the household. Parents' obligations towards their children also continue to apply, whatever the agreement says.

Marriage agreements in mixed marriages

The Basic Agrarian Law (UUPA) follows the nationality principle: hak milik (freehold) can only be held by Indonesian citizens, and hak guna bangunan (right to build) only by Indonesian citizens or Indonesian legal entities (Articles 21 and 36). Without an agreement separating property, land bought during the marriage becomes joint property, so the foreign spouse also has a right to it. Article 21(3) UUPA requires a foreigner who acquires hak milik through the mixing of property in a marriage to give it up within one year; if not, the right is extinguished and the land passes to the state.

Article 70 PP 18/2021 confirms that an Indonesian citizen married to a foreigner may hold the same rights to land as other Indonesian citizens, provided that the right is not joint property, as shown by an agreement separating property made as a notarial deed. For couples in a mixed marriage, this agreement is therefore usually prepared before buying land or a house. The purchase process is covered in AJB requirements and process.

How a marriage agreement is made and registered

1. The couple discuss the contents they want, including a list of each spouse's property and debts.
2. The notary checks the parties' identity and status, explains the legal effect of each option, and prepares the draft deed.
3. Both spouses appear before the notary; the deed is read out and then signed. If one party does not understand Indonesian, the contents of the deed are translated or explained to them, by an official translator if needed (Article 43 UUJN, the Law on the Office of Notary).
4. The deed is registered:; Muslim couples: the Head of the sub-district KUA (Office of Religious Affairs), or the Marriage Registrar abroad, enters it in the marriage agreement column of the Marriage Deed and Marriage Book, writing the deed number, the notary's name and the date (Article 40 Permenag 22/2024);; non-Muslim couples: the Population and Civil Registry Office (Dukcapil) makes a marginal note on the register of the marriage certificate and on the marriage certificate extract.

For a prenuptial agreement, the deed is signed before the marriage and then shown when the marriage is registered. Registration matters: without it, third parties may treat the couple's property as joint property. If the marriage was registered abroad, the registration procedure is different.

Documents to prepare

Both spouses

• KTP-el (electronic identity card); for foreign nationals, passport and residence permit (KITAS or KITAP)
• Kartu Keluarga (family card)
• for a postnuptial agreement: marriage book or marriage certificate extract
• a list of each spouse's property and debts, with proof of ownership (land certificates, BPKB vehicle ownership books, bank accounts, shares), especially for a postnuptial agreement

For registration at Dukcapil (non-Muslim couples)

• photocopies of the KTP-el and Kartu Keluarga
• a legalised copy of the marriage agreement deed, with the original shown
• the marriage certificate extract

Frequently asked questions