I don’t own my land – an anomaly of rights of land for Indonesian citizens in mixed nationality/citizenship marriage.

Photo taken by Enggi Holt

Recently I had the opportunity to read articles from Indonesia regarding and relating to discussions on land/property in Indonesia. A questioned popped up in my mind as to why did the Indonesian Government and Law makers emphasize only on the ownership of land/property for foreigners?

The right for foreigners is right to use as explicitly stated under Indonesian Agrarian Law (Undang-undang Pokok Agraria No. 5 Tahun 1960/UUPA) Article 42 (b).

But then again the statement above is reinforced under  Undang- Undang No. 1 Tahun 2011 tentang Perumahan dan Permukiman (loose translation: Housing and Settlement Law No. 1 Year 2011), and further it is under discussion by the Indonesian law makers under the heading of Drafted Apartment Law (Rancangan Undang undang Rumah Susun) . Is that really necessary? 

The chief decision to owning various title of land under the Indonesian Agrarian Law is citizenship. For the sake of this topic I will only choose two titles of land. The law differentiate between Indonesian citizens ownership which is right to own/free hold (hak milik) and foreign citizens ownership which is right to use/lease hold (hak pakai).  

This is where the anomaly kicks in when dealing with Indonesian citizen legally married to foreign citizen without any prenuptial agreement. Let me explain to you why.

What is the real difference between right to own and right to use? 

The common view relates only to the time of ownership and commerciality aspect: lands under right to use have certain number of years to hold, whilst lands under right to own do not have expiry date. Commercially the value of investment is higher for property with right to own compared to those under right to use.

While this is true, I see this separation in a different way.  It is a separation of rights between Indonesian citizenships and foreign citizenships. And it is rightly so, ownership to me is as similar as the right to vote, foreign citizens will never have the right to vote in their host country. Every citizen in their country of origin will have rights that are higher than those holding foreign citizens.

Prohibition of right to own is stipulated under Article 21(3) UUPA, for those who are:

1. Foreign citizens due to inheritance or matrimonial assets; or
2. Indonesian relinquishing their Indonesian citizenship.

What about Indonesian citizen married to foreign citizen?

For those of you who are married (or had been married) to Indonesian citizen without drawing a prenuptial agreement, I suspect you are aware and familiar with the conundrum of buying property in Indonesia.

But for those of you who are not aware, let me try to explain why prenuptial agreement is important for owning land under the title of right to own.

You are of course aware of the implication of holding prenuptial agreement, which is basically a document stating a segregation/separation between his and hers assets during the life time of the marriage.  Without prenuptial agreement there will only be a join matrimony asset.

This is true and sound for matrimony asset management (only!), but the implication for Indonesian citizen legally married to foreign citizen is more than just an agreement between two party on how to manage their material achievements (or loses). It is a piece of paper which will determined whether the Indonesian partner in the marriage may have the ground to fully enjoy her right as an Indonesian citizens in regard to property ownership or not.

This notion I think dated back to when the Indonesian Agrarian Law was enacted and promulgated. Prior to 1960, the law for mixed nationality marriage is stipulated under Regeling op de gemengde Huwelijken S. 1898 No. 158. The chief stipulation is that by law Indonesian (citizen) women will follow her husbands' citizenship, he will be her protector and guarantor. The husband will be the chief legal subject in the marriage in regards to matrimonial assets as well as for any legal matters.

What has change since 1960?

Indonesia reformed principles of marriage under the Marriage Law No. 1 Year 1974, for mixed nationality/citizenship marriage either couple are given full authority to maintain or relinquished their citizenships. Principles of equality and rights to act as legal subjects for individual in the marriage are also adopted in this Act.  And through the enactment of Marriage Law No. 1 Year 1974, S. 1898 No. 158 was null and void.

Furthermore the principle of equality and full autonomy rights as an individual may also be found in the Indonesian Citizenship Law No. 12 Year 2006.

It is concerning (and puzzling indeed!) for me as an Indonesian to witness - though a lot of reformations and achievements have been made to acknowledge and protect the rights of Indonesian citizens – the joining of matrimonial assets in mixed nationality/citizenship marriage continues to be the primary ground to nullify the rights of Indonesian citizens to own land/property under the right to own title.

Why do I call this situation an anomaly?

Let us look at the principle of land:

Universally the principle of land is lex rei sitae, which is the law of the place where the property/land is situated. Hence land in Indonesia follows the rules of Indonesian Agrarian Law, which explicitly states that Indonesian citizens, have the right to own a land/property with the title of right to own.

Let us look at the principle of Indonesian Citizenship:

Indonesia follows lex patriae and individual autonomy, which means: 1. Indonesian law will govern their citizens regardless of his/her domicile and 2. Each person shall have the right to maintain, protect or relinquished their citizenship at their own discretion.

Let us look at the principle of Marriage in Indonesia:

A marriage becomes a Perkawinan Campuran (mixed nationality/citizenship marriage) if there are two different citizenships in the marriage: one couple is an Indonesian citizen and the other is a foreign citizen. This means that the State acknowledges in a Perkawinan Campuran: 1. different citizenships; 2. no unification of citizenships by law; and 3. The State also acknowledges that between husband and wife there are principle of equality and they may individually act as legal subject in the eyes of the law.

Under those principles, my logical interpretation will be that Indonesian citizens regardless of their marriage or any agreement (or lack of agreement thereof) will have the right to execute their basic rights as an Indonesian citizens including owning a property under the right to own title. Thus it is highly questionable as to why a joint matrimonial asset is the underlying determination of a person’s freedom to access her rights?

How is it in practice?

Until now, couples of mixed nationality/citizenship marriage without any prenuptial agreement are given several options:

1. To use third party (Indonesian citizen) to purchase land with right to own title  through numerous contractual documents made between the third party and the couple: Nominee Agreement, Power of Attorney of Ownership Agreement, Option Agreement, Power of Attorney to rent or sell of property, Bequest of land document, Waiver of inheritance documents; or
2. To use a fake identity card for the Indonesian women stating as single and in addition to that signing contractual agreement between her and her foreign husband; or
3. To only purchase land with right to use title.

The legal argument for such options is based on the absence of prenuptial agreement in the marriage. It is another way of saying: your right as Indonesian citizens is officially downgraded because you do not hold a prenuptial agreement.

Hang on… a Perkawinan Campuran will not make an Indonesian citizen automatically and by law become a foreign citizen? Prenuptial agreement is an agreement between private parties and within the sphere of asset management? Not between a person and the State? It has nothing to do with individual rights as citizens.

Is this a form of violation for Indonesian Citizenship Rights?

100% yes and more! Under this kind of situation, the rights of Indonesian citizens as guaranteed by the Indonesian Constitution (in relation to this topic) Article 28 (H) right to own and prohibition to discriminate Article 28 (I) were dishonoured by common practice.

What are the damages experienced by the Indonesian citizen in mixed nationality/citizenship marriage?

1. Their basic rights as Indonesian citizens on land ownership is nullified with the absence of prenuptial agreement;
2. Commercially at a high disadvantage because the investment value of land under the right to own is higher than lands under the right to use title.
3. There are no legal certainty and guarantee, often in some cases they do not have a choice but commit a tort. Whilst if disputes arise eventually there are no guarantee that their rights are fully protected by the law.

How is it ought to be?

1. Base on my personal interpretation, the reading of Article 21 (3) of the Indonesian Agrarian Law must be in sync with current development of the law after 1960 which is: if there is a joint matrimonial assets and as long as the Indonesian party maintain their Indonesian citizenship, they must by law be allowed to owned land/property under the right to own. The heart of my argument is the principles found in the land, citizenship and marriage law which I have mentioned earlier. If for instance the Indonesian party passed away, only then that Article 21 (3) will come to play and become the regulation for the foreign party.
2. To put my point above in motion, I strongly advice for the Perkawinan Campuran communities in Indonesia to organize a ‘Judicial Review’ on this matter. It is imperative for that community to have a solid and valid legal support from and by the Supreme Court to safeguard their rights as Indonesian citizens regardless of their background or their marriage situation. And as for the legal professionals they too will have no choice but to give sound advice and assist their client (s) accordingly.

On my closing line, I hope that you will not misinterpret my opinion as against foreign ownership. My point is if the Government, Law makers and property developers are discussing issues on how to boost investments in properties and at the same time guarding the public interest. Their aim must be to secure and guarantee the legal protection and legal certainty for Indonesian citizens (especially for the Indonesian women) to own land/property under the right to own title regardless of their background and in relating to my opinion regardless of whether or not they are married to foreigners and whether or not they have a prenuptial agreement.

After all, the husband may be the bread winner but when it comes to choices of buying house, it is the wife who will have the power to give the final nod. Please do remember that.