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While transferring of legal title to real property (including but not limited to mortgage, etc.) is the duties of a PPAT (land conveyancer) in Indonesia, lawyers also play a role in property conveyancing since there are a lot of legal and administrative work to do before we can exchange contracts and complete, namely to make sure that the legal transaction runs smoothly by conducting legal due diligence.
When it comes to property transactions, the utmost care is required on the part of the buyer so as not to fall victim to risk or fraud. It is advisable that buyers carry out pre-purchase legal due diligence on any potential property transaction. This process takes a great deal of time and money to complete, but thorough due diligence minimizes risk that may be related to the property for both the buyer and the seller, and saves them from trouble in the future.
Legal due diligence will provide answers to most of the questions that may arise regarding important issues, primarily in connection with the legitimate owner of the property, building permits, plans concerning the location of the property (the availability of and options for key utilities and infrastructure at the building lot, including but not limited to electricity, water, sewer, communication lines, road access, etc.).
Any individual can have an agreement made between him/her and another party regarding any matter. Though verbal agreements are recognized by the law, they are weak in that it can be difficult to prove their existence. Therefore, a written agreement or contract is advisable so as to be able to evidence what has been agreed and avoid misunderstandings as the terms and conditions are clearly outlined.
Risk allocation is substantial in a contract since the parties usually do as much as they can to limit and distribute their risk, duties, responsibilities, and liabilities, which is then reflected in their unreasonable provisions. By observing carefully during the contract reviewing/drafting and negotiating, the risk can be allocated and then all parties can be satisfied and no one is deprived of anything -money or rights- that he/she deserves.
When starting a business, there are a number of legal choices that you need to take into consideration. One of the most important decisions to make is what type of legal structure your company will have. Making the right choice on this matter is important as a company’s structure will have an impact on how much you pay in taxes. A company’s structure will also affect the amount of paperwork your business is required to do, and the personal liability you will face.
A corporation is created to conduct business. As a legal entity, a corporation is separate from the person(s) who found it and handle the responsibilities of the organization. Since it is a separate entity, a corporation can be taxed and can be held legally liable for its actions, just like a person. The advantage of creating a corporation is that its separate entity status allows the avoidance of personal liability, while the primary disadvantage is the amount of the cost it takes to form a corporation. Therefore, when setting up a company, you need to carefully consider the specific needs of your business and its owners.
Once a corporation is set up, it should issue stocks, hold an annual general meeting (General Meeting of Shareholders/GMS) to present its financial reports and report the company’s activities. Between the annual shareholders’ meetings, it may also hold an extraordinary general meeting (Extraordinary General Meeting of Shareholders/EGMS) to deal with urgent matters that may come up, such as resolving an immediate legal matter or removing a manager. Ensuring that all the procedures of these meetings are conducted properly is important to prevent any problem in the future.
Both the employees and the employer have specific legal and moral rights which should be followed and respected. Making sure the employment starts and/or ends in a proper way will prevent any dispute ahead.
As an employer, armed with legal support, you can be sure of never going wrong when you employ someone, thus preventing yourself from incurring any form of loss, be it of money, provisions or rights in a contract, or, even worse, getting sued by your employee. Make sure your employment fulfills its legal compliance and maximize the efficiency of your business for you.
On the other hand, having legal support by their side, your employees will understand better their rights and obligations before, during, and after the employment, including how to pursue their rights once they are violated by the employer.
A divorce is the legal dissolution of a marriage. In Indonesia, divorce is regulated by Law No. 1 of 1974 on Marriage and can only be executed before the court. Getting divorced requires review and approval by judges. After the divorce petition is filed with the court, the judge will examine it before granting your petition, and then determine how property will be divided between you and your ex-spouse, and also how parenting will be shared if you have children born to the marriage. Only when a final court decision has been rendered will your marriage be officially dissolved and can you remarry.
Divorce process can be challenging and overwhelming in many ways, as you will have many decisions to make, like whether to hire an attorney to guide you through your divorce or try to represent yourself instead of hiring an attorney, when and where to file your divorce petition and whether to use mediation to resolve your divorce. You will also need to decide where to get assistance.
For you to move through the process with more ease, first you will need to determine your priorities and needs after the divorce.
While a divorce ends your marriage, it does not terminate your relationship with your ex-spouse if you have kids born to the marriage as you will have to settle the child custody issues.
As in other family legal matters such as divorce and inheritance, in Indonesia custody and maintenance of children is determined according to the religious affiliation of the parents. This is a given since religion has significant influence in the family setting.
In the case of Moslem couples, when a divorce occurs, the Islamic law favors custody of the children to the mother. In the case of non-Moslem couples, child custody and maintenance apply for children who have not turned 18 years of age or who are unmarried. Parents still have the obligation to provide child support and education for the children until they marry or are able to support themselves.
In an ideal situation, divorcing couples can agree on the appropriate shared parenting between them. When child custody is disputed, the court may enter a decision based on what is considered as the best interests of the children.
It is best to have an agreement concerning the ownership of your and your spouse’s respective assets before getting married. However, the subject of prenuptial agreement might be a sensitive topic of discussion to some, as not everyone is readily open to the idea. Many couples avoid discussing this uncomfortable subject, but a prenuptial agreement can prove very valuable in the future.
If you are an Indonesian planning on getting married to a foreigner, or a foreigner planning on getting married to an Indonesian, you should definitely consider it and think about making one. This is especially true if either you or your spouse plan to purchase real property in Indonesia during your marriage, have your own business or are in partnership, or have children from a previous marriage. This is because a marriage has legal consequences concerning these things.
Let us take an example an Indonesian married to a foreigner. Without a prenuptial agreement, the Indonesian spouse is precluded from owning freehold property. With one, on the contrary, separation of property is created, so that the Indonesian spouse can legally hold Hak Milik (Freehold Title) on the property he or she purchases. In such a case, the foreign spouse’s entitlement to 50% of the property based on the joint marital property clauses in the Indonesian law is negated. (?!)
This is just one example of how important a prenuptial agreement is, and when a mixed couple purchase land or property in Indonesia it is a requirement to create one. So, is there any good reason to make a prenuptial agreement before getting married in Indonesia? The answer is definitely yes. It’s an important step toward protecting your premarital assets and your finances later on in your marriage life. It helps you prepare for the unexpected as you enter your marriage relationship.
If no prenuptial agreement exists in a mixed-marriage, the Indonesian spouse will be considered to have joint property with his or her foreign spouse. If you for some reason do not have one in place, it is still possible for you to regulate the separation of your and your spouse’s future assets by drawing up a postnuptial agreement.
Many couples regret their decision to not make a prenuptial agreement before they tied the knot, especially in situations where they can potentially lose their assets. Particularly for the Indonesian spouse in a mix-marriage couple, he or she would regret not having one as they realize that they can no longer buy property in Indonesia.
This is where a postnuptial agreement comes in as a handy option. In 2016, a decree from the Constitution Court made it possible to create an agreement for separation of assets during a marriage. Simply stated, a postnuptial agreement is a legal contract signed by a married couple after the marriage takes place. It has been recognized even long before 2017 as a means to settle the couple’s affairs and assets in the event of a separation or divorce, especially under specific circumstances, such as the husband being incapable of managing the joint marital assets, which circumstances are hard to prove.
The postnup creates separation of property in your marriage from the time it is signed, upon which joint property will no longer exist. Any property in existence prior to the postnup will need to be identified and determined as to the property holder as it also has to be separated.
With that said, please bear in mind that a postnup is not only a matter of drawing up and signing an agreement during the course of your marriage. Your lawyer especially will need to work on the legal issues and take measures to ensure the legality of the postnup before you and your spouse sign it.