Article Type: Research Article Article Citation: Prof. Dr. Titik
Triwulan Tutik. (2021). MARRIAGE AGREEMENT FOR THE JOINT ASSETS IN MIXED COUPLE
MARRIAGE ACCORDING IN INDONESIA BOOK OF CIVIL LAW NUMBER 1 OF 1974 POST
DECISION OF THE COURT OF CONSTITUTION NUMBER 69/PUU-XIII/2015. International Journal
of Research -GRANTHAALAYAH, 9(1), 290-301. https://doi.org/10.29121/granthaalayah.v9.i1.2021.3119 Received Date: 15 January 2021 Accepted Date: 31 January 2021 Keywords: Mixed Marriage Marriage
Agreement Joint Property This study aims to analyze the position of the Marriage Agreement for
Joint Treasures in Mixed Marriage from three sides of the law, namely Civil
Law, Law Number 1 of 1974, and Constitutional Court Decree Number
69/PUU-XIII/2015. Hypothesis: Decision of the Constitutional Court Number
69/PUU-XIII/2015 in line with Islamic law that prioritizes equal rights and
obligations between husband and wife in terms of ownership of assets in
marriage. The method: used is normative (dogmatic) legal research, which
is intended to find and formulate legal arguments, through analysis of the
subject matter. While the approach used in this study there are 4 (four) types,
namely: the statutory approach, comparative approach, conceptual approach, and
case approach. The results: of the study show that the Constitutional Court
Decision Number 69/PUU-XIII/2015 has provided a practical solution in
overcoming the problems of a Marriage Agreement on Joint Assets: First, a
marriage agreement can be made before, during and after the marriage is
implemented. Second, ratification of a marriage agreement may be by a notary
public, and effective from the date of the marriage agreement, and may be
revoked. Third, marriage agreements are binding on third parties, especially related
to the position of joint property in the marriage. This means that, Indonesian
citizens have the right to joint property in a mixed marriage as long as the
marriage agreement states that. The ruling is in line with Islamic law that
prioritizes equal rights and obligations between husband and wife in terms of
ownership of assets in a marriage. Conclusion: The legal consequences of the Constitutional Court
Decision Number 69/PUU-XIII/2015 on the status of joint property made a
marriage agreement after marriage which began since the marriage took place
followed by the status of shared property becomes separate if both parties wish
in the agreement, as well as assets to be obtained in the future remain the
property of each party, without having to obtain a court decision regarding the
separation of assets. This ruling is in accordance with Islamic law which
prioritizes equal rights and obligations between husband and wife in terms of
ownership of assets in marriage.
1. INTRODUCTIONMixed marriages in Indonesian law, defined in Law
Number 1 of 1974 concerning Marriage (hereinafter referred to as Marriage Law
1974), Article 57 reads: "What is meant by mixed marriages in this law
is a marriage between two people who in Indonesia are subject to different
laws, due to differences in citizenship and one of the parties of Indonesian
citizenship." The definition means, that: (1) mixed marriages are marriages between two people of the same
sex; (2) subject to different laws; and (3) have a different nationality and
one of the parties (husband/wife) is an Indonesian citizen. Thus, mixed
marriages that are recognized in the context of the rule of law in Indonesia
are limited to differences in citizenship that are subject to different legal
rules rather than religious as is common among celebrities today. The existence of mixed marriages between Indonesian
citizens and foreign citizens, for almost a half century of citizenship
arrangements in referring to Law Number 62 of 1958 on Citizenship (hereinafter
referred to as the Citizenship Act 1958). The problem is, that the 1958
Citizenship Law is no longer be able to accommodate the
interests of the parties in mixed marriages, especially protection for wives
and children. On July 11, 2006 that the
Parliament passed a new Citizenship Act, Law No. 12/2006 (hereinafter referred
to as the 2006 Citizenship Act). The birth of the 2006 Citizenship Act gives new
hope to those who are married to foreign nationality, although the pros and cons still arise, but in general the 2006
Citizenship Act allows the selection of citizenship for Indonesian women in the
hope of providing new enlightenment in overcoming issues concerning the
citizenship status of a wife of mixed marriages. Based on the 2006 Citizenship Act, it clearly states that a wife does not automatically have to submit to the laws that apply
to her husband. Conversely, a foreign woman who marries a male Indonesian
citizen does not automatically obtain Indonesian citizenship, except if within
a period of 3 (three) years after his marriage, stating the statement for that. [1] Even though the 2006 Citizenship Law has made a new
breakthrough in terms of the marital status of husband and wife in mixed
marriages, but other problems that arise in mixed marriages are related to
property obtained during mixed marriages, if it is related to agreements in
marriage. Arrangement of assets obtained during marriage is
regulated in different legal provisions (plurality), namely Civil Law,
especially for non-Muslim citizens and for Muslim citizens the provisions of
the Marriage Law 1974, Presidential Instruction Number 1 of 1991 about
Compilation of Islamic Law in addition to applying Islamic Law itself. According to the provisions of the Civil Law, basically the assets obtained during marriage become one, become joint
property. In Article 119 of the Civil Law, since the marriage begin, there is a joint property between the husband and wife, as long as no
other provisions are held in the marriage agreement. Joint assets, during the
marriage, should not be abolished or changed with an agreement between husband
and wife. Furthermore, that after the dissolution of shared
assets, their shared wealth is divided between husband and wife, or between
their heirs, without question which party the goods came from. The provisions
in the Civil Law are different from the
provisions in the 1974 Marriage Law, Compilation of Islamic Law (KHI) and Islamic Law. These three rules basically divide the two types of assets
obtained during marriage, namely; first, property obtained during marriage
becomes joint property, and second, property inherited from each husband and
wife and property obtained respectively as a gift or inheritance. [2] Marriage Law 1974, regarding the matter of property
in marriage is regulated in Article 35 which states that assets obtained during
marriage become joint property. Meanwhile, the inheritance of each husband and
wife and the property obtained by each as a gift or inheritance are under each
supervision as long as the parties do not specify otherwise. Based on the provisions of Article 35 of the 1974
Marriage Law, that assets obtained by inheritance or gifts cannot be
categorized as joint assets. This provision is in line with Sura al-Nisa verse
32 which basically confirms that every man and woman has a part of what they
are trying for themselves. This provision is reaffirmed, in KHI Articles 85,
86, and 87 which introduce the existence of inherited property (property of each
husband and wife) in a marriage. [3] And between the two assets (the property of each
husband and wife) there will be no mixing.[4] Husband and wife have full rights to their assets as long as the parties do
not specify anything else in the marriage agreement.[5] Regarding mixed marriages, Indonesian citizens
(WNI) who marry foreign citizens, after marriage, are indeed not allowed to
have land rights in the form of Ownership Rights, Business Use Rights or
Building Use Rights. Article 35 of the Marriage Law of 1974 states that
assets obtained during a marriage become joint property. So, there is a mixture
of assets obtained after marriage, and the spouse (who is a foreign citizen)
will also become the owner of the joint property. While referring to the provisions
of Law Number 5 of 1960 concerning Basic Regulations on Agrarian Principles
(PDPA Law 1960), foreigners must not have Ownership Rights,
Business Permit or Building Use Rights. Article 21 paragraph (1) and paragraph (3) of Law
Number 5 of 1960 concerning Basic Regulations on Agrarian Principles (PDPA Law 1960) expressly states, that only Indonesian citizens can use property
rights. And foreigners who after the entry into force of the 1960 PDPA Law who obtained property rights due to inheritance
without a will or a mixture of assets due to marriage, likewise Indonesian
citizens who lose their citizenship are required to release their citizenship
within one year of the acquisition of that right or loss of citizenship.
Furthermore Article 36 Paragraph (1) of the 1960 PDPA Law states that
"those who can have the right to build are: (a). Indonesian citizens; and
(b). a legal entity established under Indonesian law and domiciled in
Indonesia. " Based on these provisions, that a citizen who is
married to a foreigner, after marriage can no longer obtain the Right of
Ownership, or Right to Build, or Cultivation rights, because it will be part of
the joint assets that he has with his foreign national partners. On the basic of these provisions, if an Indonesian citizen wishes to retain land rights
after marriage with a foreign national, the Indonesian citizen must make a
marriage agreement or prenuptial agreement governing the separation of assets. Provisions regarding marriage agreements for
property obtained during the marriage underwent quite revolutionary changes
after the Constitutional Court Decision (hereinafter referred to as MK) Number
69/PUU-XIII/2015 invalidated several provisions in the Marriage Law 1974 and
Law Number 5 of 1960 concerning Regulations Basic Principles of Agraria (read,
PDPA Act 1960) and declared contradictory to the 1945 Constitution of the
Republic of Indonesia (hereinafter referred to as the 1945 Constitution of the
Republic of Indonesia).[6] According to the Court, that a marriage agreement may be made at the time,
before, or during marriage. Letter of the General Director of Population and
Civil Registration of the Ministry of Home Affairs Number 472.2/5876/DUKCAPIL
dated May 19, 2017, a marriage agreement can be made before, during and during
the marriage with a notary deed and reported to the Implementing Agency or the
Citizenship Implementation Unit ("UPT")) Implementing Agency.
Regarding the reporting of the marriage agreement, the Civil Registration
Officer at the Implementing Agency or the UPT of the Implementing Agency makes
a marginal note on the register of the deed and the marriage certificate. Consideration of the Constitutional Court Decision
Number 69/PUU-XIII/2015 dated October 26, 2016, stipulates that Article 29
paragraph (1) of the 1974 Marriage Law is interpreted "At the time, prior
to being carried out or during the marriage contract both parties upon mutual
agreement may submit a written agreement. which is validated by the marriage
registrar or notary public, after which the contents also apply to third
parties as long as the third party is involved". Thus, regardless of the marital procedure / administration, Indonesian
citizens who engage in mixed marriages (married to foreigners) in order to
obtain legal protection especially for assets obtained during marriages due to
the provisions of the PDPA law 1960 Act can make marriage
agreements at the time, before held or during the marriage bond of both
parties. If this is not the case, then the disadvantaged are the Indonesian
citizens themselves, whereas in accordance with the 1945 Constitution of
Indonesia, that every citizen is equal in law and government, including the
ownership of property in the form of Property Rights, Building Use Rights and
Use Rights. Business. Based on this fact, the study with the title
Marriage Agreement on Joint Treasures in Mixed Marriage According to the Civil
Code and Law Number 1 of 1974 Post Constitutional Court Decision Number
69/PUU-XIII/2015 is very urgent to do. Based on the background of these problems, the
legal issue in this study is whether Indonesian citizens who are married to
foreigners are not entitled to joint property in the form of Ownership Rights,
Business Permit or Building Use Rights. From these legal issues the following
problems can be formulated, First, how is the position of the marriage
agreement for property obtained during mixed marriages according to the Civil
Code? Second, what is the position of the marriage agreement for property
obtained during mixed marriages according to Law Number 1 of 1974 concerning
Marriage? Third, what is the position of the marriage agreement for property
obtained during mixed marriages after Constitutional Court Number
69/PUU-XIII/2015? The research objectives are, First, to examine the
position of the marriage agreement for property obtained during mixed marriages
according to the Civil Code. Second, review the position of the marriage
agreement for property obtained during mixed marriages according to Law Number
1 of 1974 concerning Marriage. Third, analyze the position of the marriage
agreement for property obtained during a mixed marriage after the
Constitutional Court Number 69/PUU-XIII/2015. In accordance with the study focus of the problem,
the theory used in this study includes the theory of citizenship in mixed
marriages, and marriage agreement theories related to material rights.
According to the Theory of Citizenship in Mixed Marriage, that the citizenship
of husband/wife follows two theories, namely the theory of legal unity and the
theory of equality. The theory of legal unity requires that the citizenship of
the wife follow the status of the husband both when the marriage takes place
and then after the marriage runs. Meanwhile, according to the theory of
equality, that marriage does not affect a person's citizenship at all, in the
sense that each of them (wife or husband) is free to determine their attitude
in determining their citizenship or that the husband and wife continue to be
citizens of origin even though they are husband and wife. Meanwhile, according to the Marriage Agreement
Theory is related to material rights, that the marriage agreement brings legal
consequences to the separation of shared assets in the marriage. In other
words, the purpose of making a marriage agreement is to make a deviation from
the provisions regarding joint assets [Article 119 of the Indonesian Criminal
Code]. With this, the parties are free to determine the legal form they want
for the assets which are the object of their citizenship. Some of the results of previous studies that are
related to research conducted by researchers, and are the basis for developing
research are; First, Damian Agata Yuvens’s research from University of Indonesia 2016, with the title Critical Analysis of the Marriage Agreement
in the Constitutional Court Decision Number 69/PUU-XIII/2015. The essence of
the research is the examination of several provisions in the Law of the
Republic of Indonesia Number 5 of 1960 concerning Basic Regulations on Agrarian
Principles and the Law of the Republic of Indonesia Number 1 of 1974 concerning
Marriage aimed at ensuring that Indonesian citizens married to citizens
foreigners can continue to have land rights with the title Ownership Rights and
Building Use Rights. Second, I Nyoman Putu Budiartha’s research from the University of Warmadewa Bali in
2017, with the title Law Enforcement Dilemma MK No.69 / PUU-XII / 2015 (Mixed
Marriage Issues Without a Marriage Agreement), in essence, that a marriage
agreement can be carried out during marriage. It can even be changed or revoked as long as both parties agree. Third, Eva Dwinopianti's research from the 2017
Yogyakarta Islamic University of Indonesia, with the title Implications and
Legal Effects of the Constitutional Court Ruling Number 69/PUU-XIII/2015 on
Making Deed of Marriage After Marriage Agreement Made before a Notary, which
essentially implies that the Constitutional Court Decision Number
69/PUU-XIII/2015 regarding the drafting of marriage agreements after marriage
made before a Notary Public amend the legal mechanism for the making of a
marriage agreement that can now be made as long as the marriage contract takes
place by the Notary without having to be preceded by the establishment of an
authorized court. Based on the results of the previous research,
although the research is similar to the position of the marriage agreement and
property during the marriage, there are substantial differences with the
author's research, because the issue of the author's research relates to
whether Indonesian citizens who are married to foreigners are not entitled to
joint property in the form of ownership rights, by focusing on; First, what is the position of the marriage agreement for property obtained
during mixed marriages according to the Civil Code? Second, what is the
position of the marriage agreement for property obtained during mixed marriages
according to Law Number 1 of 1974 concerning Marriage? Third, what is the
position of the marriage agreement for property obtained during mixed marriages
after Constitutional Court Number 69/PUU-XIII/2015? So that the elaboration of
the writer is not solely focused on the Constitutional Court Decision Number
69/PUU-XIII/2015, but also how Civil Law Studies, Marriage Law, Compilation of
Islamic Law, and Islamic Law studies are expected to be more comprehensive. The benefits of this research are contributing
thoughts for the development of law, especially civil law both from the
perspective of general civil law (BW) and Islamic civil law, especially family law
concerning the position of marriage agreements on property obtained during
marriage (theoretical aspects). It is also expected to be a reference for the
preparation of further research, and at the same time be used as a reference
for religious justice in decision making, especially concerning the
distribution of assets obtained during marriage during divorce in order to
provide legal protection to private rights (practical aspects). In accordance with their background and purpose,
research on a Marriage Agreement for Joint Assets in Mixed Marriage According
to Law Number 1 of 1974 Post Constitutional Court Ruling Number
69/PUU-XIII/2015 is a normative (dogmatic) legal research,[7] which intended to find and formulate legal arguments,[8] through analysis of the main problem. While the approach used in this
study there are 4 (four) types, namely: the statute approach; comparative approach, conceptual approach, and case approach. The research steps undertaken are collecting legal
materials, both primary and secondary legal materials related to the research
topic. All secondary legal materials are recorded using a card system. The
cards are arranged based on the main research problems and systematic writing
that has been formulated. All research results obtained from the legal
materials mentioned above are searched for relationships between one another
using deductive and inductive reasoning to produce propositions and concepts in
the form of definitions, descriptions and classifications as a result of
research. 2.
AGREEMENT OF MARRIAGE FOR JOINT TREASURE IN MIXED
COUPLE MARRIAGE
2.1. MIXED MARRIAGE ACCORDING TO THE LEGAL SYSTEM IN
INDONESIA
Mixed marriages in Indonesia are regulated in three
applicable legal provisions, namely the Civil Code for non-Muslims, and for
Muslims regulated by the Marriage and Islamic Law which are adapted in the Compilation of Islamic Law (KHI). Before the promulgation of the 1974 Marriage Law,
mixed marriages were regulated by the Koninklijk Besluit dated 29 December 1896
No. 23.[9] This regulation is called Regeling op de Gemengde Huwelijk which is better
known as Gemengde Huwelijk Regeling, with the abbreviation G.H.R which is
commonly referred to as Mixed Marriage Rules.[10] The meaning of mixed marriages in accordance with
Article 1 of the GHR is a marriage between "people" who are
"in" Indonesia subject to different laws. This definition is very
broad in scope, does not limit the meaning of mixed marriages in marriages
between Indonesian citizens or between Indonesian marriages and marriages that
take place in Indonesia, provided that the parties that hold marriages in
Indonesia are subject to different laws which are mixed marriages.[11] In the definition of the provisions of Article 1 of
the GHR, including marriage between two people who are Indonesian citizens who
are in Indonesia subject to two different legal rules that carry out marriages
outside Indonesia or also between an Indonesian citizen and a foreign citizen
are also included mixed marriages. Except when parties or parties who were
previously subject to all or part of the BW marriage law, then their marriage
applies the provisions of Article 83 of the Civil Code. Based on the provisions of Article 1 of the GHR and
Article 83 of the Civil Code, those included in the definition of mixed
marriages include: 1) between two Indonesian citizens, one belonging to the European group and
the other to the Eastern Chinese group; 2) between two Indonesian citizens, one belonging to the Eastern Chinese
foreign group and the other to the non-Chinese Eastern Eastern class; 3) between two Indonesian citizens including one European or Eastern Chinese
foreigner and a foreign national. In addition, according to the provisions of Article
1 of the GHR, marriages between two people in Indonesia that belong to the same
group, but are subject to different laws also include mixed marriages. for
example, Bumiputera (native inhabitants), people who are Christians and Bumiputera people who are Muslims. Likewise,
with two Easterners besides Chinese, one of whom is an Indonesian citizen and
the other a foreign national. Now what about the definition of marriage according
to the Marriage Law? The Marriage Law provides a slightly different definition
from the definition of GHR provisions. The meaning of mixed marriages regulated
in Article 57 of the Marriage Law is: What is meant by mixed marriages in this Law is for
marriages between two people who are subject to different laws in Indonesia,
due to differences in citizenship and one of the parties is a foreign national
and one of the parties is an Indonesian citizen. Article 57 restricts the marriage of mixed
marriages to marriages between an Indonesian citizen and a person who is not an
Indonesian citizen, so that they include marriages between fellow citizens of
different laws and between Indonesian non-citizens. With the effectuation of Law Number 1 of 1974, the provisions stipulated in the GHR referred to as
already stipulated in the Marriage Law are declared invalid. Because Article 57
of the Marriage Law Number 1 of 1974 emphasizes differences in citizenship and
or subject to different laws, the provisions of the GHR still apply as long as
the person performing the mixed marriage is a person as regulated in Article 57
of the Marriage Law No. 1 of 1974.[12] Purnadi Purbacaraka and Agus Brotosusilo provide
the definition of international marriage as follows: International marriage is a marriage that contains
elements of using. The using element can be in the form of a
bride having different citizenship with the other bride, or both brides having
the same citizenship but the marriage takes place in another country or a
combination of both.[13] The difference in the law has caused several kinds
of mixed marriages, namely: 1) Intergentiel Marriage explains which law or what law applies, if a marriage arises between 2 (two) people, each with the same or different nationality, who are subject to
different legal regulations. For example, Indonesian citizens from Europe are
married to native Indonesians. 2) Interlocal Mixed Marriage arranges legal relations
(marriages) between native Indonesians from each customary environment. For
example, Minang people marry Javanese. 3) Interreligious Mixed Marriage (interreligious) Regulates the legal
relationship (marriage) between 2 (two) people, each of whom is
subject to different religious law regulations. For example, Muslims with
Christians.[14] In the 1974 Marriage Law it has been determined
that the legality of marriage in Indonesia is based on each religion and
belief.[15] Therefore regarding mixed marriages that are held in Indonesia must be
done based on Indonesian marriage law so the marriages of marriage must be
based on religious law and must be noted if both parties, the prospective
husband and wife adhere to the same religion will not cause problems, but if
different religions, then there will be legal problems between religions. The problem will not be complicated if one party to
merge/follow the religion of the other party by the willingness, but this
difficulty arises if both parties still want to maintain their beliefs.
Moreover, because the Civil Registry Office (now the Office of Population and
Civil Registry) based on Presidential Decree Number 12 of 1983, no longer
functions to marry off. But in reality, it often happens for the couple to
easily marry based on the religion of one party, and then after their marriage
is ratified, they return to their respective beliefs. In Indonesia interfaith
marriage is still a problem that still needs to be resolved as well as possible
for its citizens. Regarding the legitimacy of mixed marriages, there
are no specific arrangements, so that in practice the citizenship often occurs
and to facilitate the couple marry based on the religion of one party, but then
after the marriage is ratified, they return to their respective beliefs.
Besides that, there are also couples who have marriages abroad, only then
registered in Indonesia. Based on this, because the issue of mixed marriages
is not possible to be eliminated, then for the existence of legal certainty as
citizens, an arrangement is made regarding the validity of mixed marriages. 2.2. MARRIAGE
AGREEMENT FOR COMMON ASSETS IN MIXED MARRIAGE
Mixed marriages actually carry quite complicated
legal consequences, which are related to the position of the husband/wife, the position of children, and the position of property. Article 2 of the GHR stipulates that a woman (wife)
who engages in mixed marriage, as long as the marriage has not broken, is
subject to the laws applicable to her husband, both public and private law. The
point is that the wife follows the husband's legal status. From this provision
it is clear that for the wife there is no other choice, other than submitting
itself to the husband's law. In addition, this provision also does not provide
freedom for the wife to determine which legal choices apply to her after she
has made a mixed marriage. Having the husband's public legal position by his
wife does not mean that the wife based on the provisions of Article 2 of the
GHR obtains the citizenship of the sumi. Whether the wife gains citizenship and/or loses her
own citizenship, depends on the citizenship law of the husband and wife's
country. According to the Indonesian Citizenship Law and the Citizenship Act in
many other countries, the wife does not automatically obtain the husband's
citizenship and lose his own citizenship. The wife may not lose her own
citizenship and not obtain the husband's citizenship. Because the rights and
obligations of the public (the right to choose and be elected, the right to
obtain education, conscription, compulsory tax on foreigners, etc.) are
generally related to citizenship, whereas citizenship is determined by the
citizenship law. Then the GHR for a wife's public legal position can be said to
have no meaning. Article 11 of the GHR stipulates that children born
of mixed marriages that have been carried out before the entry into force of
the GHR, obtain the position of public and private law of their fathers.
Whereas according to Article 12 of the GHR, the position of children referred
to in Article 11 of the GHR as legitimate children of fathers and mothers
cannot be disputed, because in the marriage certificate there are defects or
because there is no marriage certificate, if the children are treated as
legitimate children and the mother's father live openly as husband and wife. Marriage Law 1974 Article 62 states, that in a
mixed marriage the position of children is regulated in accordance with Article
59 paragraph (1), which states, "Citizenship obtained as a result of
marriage or marriage terminates determines the applicable law, both regarding
public law and civil law." Regarding the citizenship status of children born
from mixed marriages regulated in Article 4 letters b to f the Citizenship Act
which is basically determined, that every child born second and/or one of his
parents (father and/or mother) is an Indonesian citizen then he classified as
an Indonesian citizen. Exceptions for children whose parents are of foreign
nationality which results in the child having dual nationality, after they are
18 (eighteen) years of age or married, they must declare their choice of
citizenship.[16] Based on this provisions, basically the citizenship status of a child born from mixed
marriages in which one of his parents is an Indonesian citizen is recognized as
an Indonesian citizen until the person is 18 (eighteen) years old or has
married so they have the right to choose their nationality.[17] Even the loss of Indonesian citizenship to one of the parents of a child
born from mixed marriages does not automatically apply to nationality until
their citizenship is 18 (eighteen) years of age or married, unless the consequence
of making the child dual citizenship - so they must state choose one of his
citizenship.[18] In the context of applicable law in Indonesia, the
regulation of assets obtained during marriage is regulated in different legal
provisions (plurality), namely Civil Law, especially for non-Muslim citizens
and for Muslims citizens the provisions of the Marriage Law 1974, Instruction
President Number 1 of 1991 concerning the Compilation of Islamic Law
(hereinafter referred to as KHI) in addition to applying Islamic Law itself. According to the provisions of the Civil Code, that
basically the assets obtained during marriage become one, become joint
property. In Article 119 of the Civil Code. Regarding property in marriage the
1974 Marriage Law, is regulated in Article 35 which states as follows: 1) Property obtained during marriage becomes joint property. 2) The inheritance of each husband and wife and the property obtained by each
as a gift or inheritance are under each supervision as long as the parties do
not specify otherwise. Based on the provisions of Article 35 of the 1974
Marriage Law, that assets obtained by inheritance or gifts cannot be
categorized as joint assets. This provision is in line with the word of God in
Sura al-Nisa verse 32 which basically confirms that every man and woman has a
part of what they are trying for themselves. 3.
ANALYSIS OF MARRIAGE AGREEMENT AGREEMENT IN THE
POST-MIXED CONSTITUTIONAL COURT OF MARRIAGE NUMBER 69/PUU-XIII/2015
3.1. LEGAL ANALYSIS
OF THE CONSTITUTIONAL COURT DECISION NUMBER 69/PUU-XIII/2015
On October 27, 2016, the Constitutional Court (MK)
had issued Decision Number 69/PUU-XIII/2015 which in its citizenship granted
the request for judicial review of the provisions regarding the Marriage
Agreement regulated in Article 29 paragraph (1), paragraph (3) and paragraph
(4) Marriage Law 1974. The Constitutional Court's ruling has created a new
legal norm related to the Marriage Agreement as follows 1) At the time, before it takes place or during marriage, both parties with
mutual agreement can submit a written agreement that is ratified by the
marriage registrar or notary, after which the contents also apply to third
parties as long as the third party is involved. 2) The agreement cannot be ratified if it violates the limits of law, religion
and decency. 3) The agreement is valid since the marriage is carried out, unless specified
otherwise in the Marriage Agreement. During the marriage, the marriage agreement can be
regarding marriage assets or other agreements, can’t be changed or revoked, except if from both parties there is an agreement
to change or revoke, and the change or revocation does not harm a third party. The provisions of Article 29 of the Marriage Law of
1974 following the Constitutional Court's Decision contain new legal norms
regarding the Marriage Agreement, namely: 1) A Marriage Agreement Can Be Made After A Marriage Is Made; 2) Ratification of a Marriage Agreement by the Notary Public; 3) May be effective from the date of the Marriage Agreement; 4) Marriage agreements may be revoked Materially, the Constitutional Court's decision
above is a responsive legal ruling if this is related to Sellnic Nonet's legal
theory which states that good law in modern society is law that responds to the
wishes of its citizens. In this case, related to the petition which the constitutional rights of Indonesian citizens who have mixed marriages
without a marriage agreement lose their constitutional rights to have a Right
of Ownership (HGB) for land because there is no marriage agreement meaningful
according to Article 35 paragraph (1) The 1974 Marriage Act took place joint
property. Therefore, if an Indonesian citizen who conducts a mixed marriage
without a marriage agreement when purchasing ownership rights/HGB rights on the
land will also be owned by the foreign national of the husband or wife of the
Indonesian citizen, even though the ownership rights/HGB on the land cannot be
given to the foreigners according to Article 21 paragraph (3) and 26 paragraphs
(1) of the Basic Agrarian Law 1960. This will clearly
harm the mixed-married Indonesian citizen because even though as Indonesian
citizens it is evidently prevented from ever having the Right of Ownership/HGB
on the land. With the decision of the Constitutional Court that
permits a marriage agreement during the marriage bond which is in fact also a
marriage agreement can take effect after the marriage takes place and can even
be made changes or revocation as long as both parties (husband and wife) agree
and not harm a third party. Of course, this legal ruling is a new legal
instrument that gives a breath of fresh air to Indonesian citizens who engage
in mixed marriages while still maintaining their citizens will be able and have
the opportunity to have ownership rights/HGB on land, this is no longer in
conflict or in accordance with their Constitutional Rights as regulated in
Article 28 H paragraph (4) of the 1945 Constitution. 3.2. IMPLICATIONS
OF THE CONSTITUTIONAL COURT DECISION NUMBER 69/PUU-XIII/2015
The Constitutional Court
verdicts, will obtain permanent and binding legal force since after being
pronounced before an open public hearing,[19] which means that, the Constitutional Court's decision immediately obtains
permanent and binding legal force after being pronounced and no other legal
remedies can be taken (final and binding). The legal consequences of the
Constitutional Court Decision above which granted the Petitioner's petition
were null and did not have binding legal force over a legal norm requested by
the Petitioner, therefore in this case Article 29 paragraph (1), (3), and (4)
Law The Marriage Law of 1974 is based on the Constitutional Court ruling above
a conditional unconstitutional, so that such a ruling creates a new legal
condition/norm (declarative constitutive) which in this case the MK as referred
to by Hans Kelsen as a negative-legislator, so that the Constitutional Court Ruling
is the same as the order constitution. The legal force of the Constitutional Court's
Decision consists of binding legal force, legal force of proof, and executive
legal force. The legal force binding on the Constitutional Court's Decision is
not only binding on litigants (interpartes), but also binding and/or intended
for all citizens, state institutions/officials and legal entities within the
territory of the Republic of Indonesia (erga
omnes). Therefore, based on the explanation, the
Constitutional Court's Decision also binds the Notary as the authority
(official) in the drafting of the marriage agreement and the Office of
Population and Civil Registration or the Office of Religious Affairs (KUA) as
the official who has the authority to register the marriage agreement
certificate. The phenomenon that occurs in the community which
is one of the considerations of the Constitutional Court to declare such
articles as conditional unconstitutional as the Constitutional Court's legal
considerations described above, this is only done by the Constitutional Court
to provide legal certainty and justice guaranteed by the 1945 Constitution for
the public for their constitutional rights in making an agreement (the
principle of freedom of contract) in this case a marriage agreement, therefore
the Constitutional Court through one of its authorities regulated in Article 24
C paragraph (1) of the 1945 Constitution is to examine the Law against The 1945
Constitution issued a progressive ruling to accommodate the legal needs of the
community. However, related to the recording of marriage
agreements made throughout the marriage, it must also be noted that in practice
there are still technical obstacles in recording the marriage agreement, this
is because there are evidently civil registry officials who only hold technical
instructions related to marriage registration, by ignoring the provisions of
the applicable laws and regulations regarding the registration of marriage and
the recording of the marriage agreement. This obstacle occurs because in the
Form (Form F2.12) used to register the marriage there is no column regarding
the marriage agreement.[20] The drafting of a marriage agreement generally
results in legal consequences for the status of the property as well as for any
third party concerned. Regarding the status of the assets, that the marriage
agreement results in the separation of assets which were previously shared
assets into the property of each party and other assets which later arise after
the date of the stipulation remain separated from one another, so that there is
no status anymore shared property. The validity of the marriage agreement has
consequences for third parties, as stipulated in Article 152 of the Civil Code
which reads: "The provisions contained in the marriage agreement, which
contain deviations from unity according to the Law in whole or in part, will
not pass to the party third, before the day the provisions are made in a
general register, which must be held for that matter at the Registrar's Office
of the District Court, which in the jurisdiction of the marriage has taken
place, or, if the marriage takes place abroad, in the Registrar's Office where
the marriage certificate is recorded ". From the above provisions it can
be seen that a marriage agreement can also apply to third parties, after the
marriage agreement is registered at the Registrar's Office of the District
Court. So, based on the
provisions of Article 147 Juncto Article 152 of the Civil law it can be concluded that since the marriage took place the marriage
agreement only applies to the parties who made it, namely husband and wife,
whereas the marriage agreement only applies to third parties since it is
registered at the Registrar's District Court. 4.
CONCLUSION
Based on the decision of the
Constitutional Court the marriage agreement comes into force since the marriage
took place, unless otherwise specified in the marriage agreement. This means
that if the parties do not specify when the marriage agreement will come into
effect, then by law the marriage agreement will take effect from the time the
marriage is concluded. Thus, the legal consequences of the status of joint
property made a marriage agreement after marriage which began since the
marriage took place followed by the status of shared property becomes separate
if desired by both parties in the agreement, as well as the assets to be
obtained in the future remain the property of each - each party, without having
to obtain a court decision related to the separation of assets. Then the legal
consequences of making a marriage agreement based on the Constitutional Court's
Decision apply and bind a third party. The making of such a marriage agreement
must not be detrimental to a third party, because the making of a marriage
agreement as long as the marriage takes place brings legal consequences to
changes in the legal status of property contained or obtained in the marriage. SOURCES OF FUNDING
This
research received no specific grant from any funding agency in the public, commercial,
or not-for-profit sectors. CONFLICT OF INTEREST
The
author have declared that no competing interests exist. ACKNOWLEDGMENT
None. REFERENCES
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Argumentation (argument) has two meanings: (1) "argument" means a
series of reasoning (trains of reasoning); (2) "argument" refers to
human interaction relating to the argumentation forum (eg court, scientific
meeting, congress, etc.). Next on page h. 9. Three theories of legal
argumentation are presented, namely: (1) logical argumentation theory based on
the formal logic approach; (2) rhetorical argument theory, with a focus on the
effectiveness of argumentation with language in combination; (3) dialogical
argumentation theory, patterning legal argumentation as part of a discussion.
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Pustaka Publisher, 2006, p. 242. [15] See Article 2 paragraph 1 of the Marriage Law [16] See article 6 paragraph (1) of the Citizenship Law [17] This provision differs from the
provisions in Article 11 of the GHR and the previous citizenship law, namely
Law Number 62 of 1958, in which the child's citizenship status follows the
father's citizenship status. [18] See article 25 of the Citizenship Law [19] Indonesia, Article 47 of Act Number 24 of 2003 concerning the Constitutional
Court as amended by Act Number 8 of 2011 concerning Amendment to Law Number 24
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diakses 11 November 2018
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