Couples face uncertainty over property ownership

National
Dicky Christanto, The Jakarta Post, Jakarta | Mon, 05/10/2010 1:00 PM | National
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Dozens of transnational married couples have said they are facing confusion and uncertainty in dealing with property ownership, mostly because of overlapping regulations.

William Waller, a British national who has been married to an Indonesian woman, Betty, for 14 years, said he was concerned about what would happen to his assets if he died.

"If I died, then of course I would want the house to be given to my wife. Thus if this is also prohibited by the existing law just because I am a foreigner then I must say that I couldn't find the logic behind these regulations," Waller told a seminar on transnational couples on Saturday.

The seminar was organized by Srikandi, a non-profit organization comprising Indonesian women who are married to foreigners. The organization is dedicated to finding solutions for problems facing transnational married couples.

Martin, an Indonesian woman whose French husband recently passed away, said she was confused about what would happen to her husband's several properties in Jakarta.

"I have been told to immediately sell my properties here to avoid any penalties from the administration," she told The Jakarta Post.

There are several laws with overlapping articles concerning transnational marriages and property ownership, including the Basic Agrarian Law, the 1974 Marriage Law, Law No. 7/1984 on the ratification of Convention of Elimination of All Forms of Discrimination against Women (Cedaw), the Citizenship Law and the 1996 Government Regulation on property rights.

Maharani, head of the legal division at the National Land Agency (BPN), said the Basic Agrarian Law clearly stipulated that the right to land ownership was given only to Indonesian citizens.

Foreigners only have the right to only use land or property for the duration of their stay in Indonesia.

"These expatriates are only allowed to hold a leasehold title or hak pakai for 25 years with the possibility to extend for another 25 years," she said.

She added that if a foreigner decided to leave the country for good or passed away before their leasehold title had expired, their benefactors would be obliged to sell the property within a year.

"If they fail to sell the property within a year then the land and the property will be auctioned by the state. The money from the auction will be split between the state and the foreigner's family."

Aking Saputra, a law expert who spoke at the seminar, said that selling a property with a leasehold title was not easy and that the title holder would be unlikely to get market value.

Aking said there was another serious legal problem facing transnational couples.

The 1996 Government Regulation on foreign ownership stipulates that only Indonesian citizens can own property. However, that changes if an Indonesian marries an expatriate.

"The Indonesians would lose their right to possess land because according to the Marriage Law and Law No. 7/1984 on Cedaw ratification every possession that is purchased by a mixed couple after they are married is considered a collective possession," he said.

The danger therefore, Aking went on, was that the couple would lose the right to own land because one of the parties was an expatriate.

He said the couple could avoid the problem by making a prenuptial agreement.

"If they managed to have a prenuptial agreement before they got married, then the house that had been bought in the name of the Indonesian wife would not be a problem because the house will be considered the wife's possession and not that of the foreign husband," he said.

Aking said the overlapping regulations had to be ironed out.

Maharani, from the BPN, said the government was preparing two new bills that were expected to synchronize overlapping regulations, including one on transnational couples.

The property bills are now being deliberated by the House of Representatives, she said.