Jumat, 17 Juni 2022

Pre-nuptial Agreement Limits

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By:
Mahmud Kusuma, S.H., M.H.
(Certified Attorneys at Law)

Previously, the www.hukumindo.com platform has talk about "Various Legal Basis of Defamation According to Indonesia Law", "Contoh Perjanjian Nikah", "Lahirnya Perjanjian" you may read also "Ruang Lingkup Hukum Perjanjian" and on this occasion we will discuss about 'Pre-nuptial Agreement Limits'.

Like Famous Artist

These artists made unusual pre-nuptial agreements. Starting from J-Lo who discussed sex to Lesti Kejora regarding ATM PINs. J-Lo and Ben Affleck reportedly made a unique pre-nuptial agreement, J-Lo asked to get a lot of intimate time with Ben Affleck. In mutual agreement, J-Lo asked for sex four times a week with Ben Affleck. Another unique pre-nuptial agreement came from the couple Lesti Kejora and Rizky Billar, reportedly this couple made a pre-nuptial agreement that contained knowing each other's ATM PINs and social media account passwords.[1]

The behavior of famous artists just exists. Generally looks strange to the general public. Including in terms of marriage, in general, ordinary people do not enter into pre-nuptial agreements with their respective partners. It's different with the artist, besides getting married and making a pre-nuptial agreement, the clause also looks unusual. The question is: how are the limitation on pre-nuptial agreements according to Indonesian law?

Legal Term

In terms of marriage law, there are the terms Prenuptial Agreement, Separation of Assets Agreement and Marriage Agreement or in English it is called a "pre-nuptial agreement". What is the difference between the three? All three have the same meaning, namely an agreement made in a marriage bond (can be before or during marriage).[2]

What exactly does the Prenuptial Agreement legally mean? A "marriage agreement/pre-nuptial agreement" is a form of agreement made between one party and another before holding a marriage ceremony to ratify the two as husband and wife.[3] a pre-nuptial agreement is thus basically an agreement. Agreement in the context of marriage between husband and wife.

Pre-nuptial Agreement Limits

As mentioned above, pre-nuptial agreements generally regulate: Separation of Assets Agreement and Marriage Agreement. However, is it possible to arrange other things like the examples of the artists above, the main question then arises, what is the actual legal limit?

As befits an agreement, then the conditions for the validity of the agreement must be returned to Article 1320 of the Civil Code:[4]
  1. Agree on those who bind themselves;
  2. The ability to make an engagement;
  3. A certain thing;
  4. A lawful reason.
The first and second conditions are called subjective conditions, because they relate to the subjects who make the agreement. While the third and fourth conditions are called objective conditions because they relate to the object in the agreement.  The first condition "agrees those who bind themselves" means, the parties who make the agreement must agree or agree on the main things or material agreed upon, where the agreement must be reached without any coercion, fraud or oversight. For example, agreeing to buy and sell land, its price, method of payment, dispute resolution, etc. The second condition, "the ability to make an engagement" Article 1330 of the Civil Code already regulates which parties may or are deemed capable of entering into an agreement. The third condition "a certain thing" means that in making an agreement, what is agreed (the object of the engagement) must be clear. At least the type of goods must exist (see Article 1333 paragraph 1 of the Civil Code). The fourth condition "a lawful cause" means that you are not allowed to make a promise to something that is prohibited by law or that is contrary to the law, values ​​of decency or public order (Article 1337 of the Civil Code). For example, make a drug sale and purchase agreement, or a person/human sale and purchase agreement, etc. This kind of agreement is prohibited and invalid.[5]

Thus, if we link-in between the examples of pre-nuptial agreements above with the provisions of Article 1320 of the Civil Code, then no provisions are violated, especially in the 3rd and 4th elements of Article 1320 of the Civil Code. So the answer to the question: what is the actual legal limit of pre-nuptial agreement according to Indonesian law is a condition for the validity of the agreement as regulated in Article 1320 of the Civil Code. Because it does not exceed the limits of the legal terms of the agreement, then the pre-nuptial agreement as the artists above is legal, it's okay. And if you have any legal issue with this topic, contact us then, feel free in 24 hour, we will be happy to assist you. 


*) For further information please contact:
Mahmud Kusuma Advocate
Law Office
Tokopedia Care Tower, 17th Floor, Unit 2&5,
Outer West Ring Road, 101, Rawa Buaya,
Cengkareng Sub District, West Jakarta City,
Jakarta - Indonesia.
E-mail: mahmudkusuma6@gmail.com

________________
References:

1. "8 Artis dengan Perjanjian Pranikah Aneh, JLo Minta Bercinta 4 Kali Seminggu", wolipop.detik.com., Diakses pada tanggal 17 Juni 2022, https://wolipop.detik.com/foto-wedding/d-6054533/8-artis-dengan-perjanjian-pranikah-aneh-jlo-minta-bercinta-4-kali-seminggu
2. "Semua Tentang Perjanjian Pra Nikah Dan Perjanjian Pisah Harta", legalitas.org., diakses pada tanggal 17 Juni 2022, https://legalitas.org/tulisan/semua-tentang-perjanjian-pra-nikah-dan-perjanjian-pisah-harta
3. Ibid.
4. "Memahami Perbedaan Nota Kesepahaman (M.o.U) Dengan Perjanjian", www.hukumindo.com., Diakses pada tanggal 17 Juni 2022, https://www.hukumindo.com/2019/09/memahami-perbedaan-nota-kesepahaman-mou.html
5. Ibid.

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