If a married couple in Indonesia gets divorced without a prenuptial agreement (perjanjian pra nikah) or separation of property agreement, all assets acquired during the marriage are considered marital property (harta gono-gini). These assets must be divided equally between the husband and wife.
Definition of Marital Property (Harta Gono-Gini)
According to Law No. 1 of 1974 on Marriage, marital property refers to any asset acquired by either spouse during the marriage. It doesn’t matter who paid for or registered the asset; if it was acquired during the marriage, it is legally considered joint property.
Examples include:
- House or apartment purchased during marriage
- Land, cars, or motorcycles registered under either spouse
Difference Between Separate and Marital Property
| Criteria | Separate Property | Marital Property |
|---|---|---|
| Time Acquired | Before marriage | During marriage |
| Source | Inheritance or gift | Income or joint purchase |
| Ownership | Personal | Joint |
Assets received as inheritance or gifts during the marriage (with proof) are not considered marital property.
Legal Basis for Marital Property Division
- Article 35(1), Law No. 1/1974: Assets acquired during marriage are joint property.
- Article 128, Indonesian Civil Code: After divorce, joint property is divided equally.
- Article 97, Compilation of Islamic Law (KHI): Each spouse is entitled to half of the joint property.
- Supreme Court Jurisprudence No. 1448 K/Sip/1974: Confirms equal division of assets after divorce.
Types of Marital Assets Subject to Division
1. Immovable Property
- Houses, apartments, land, shops, warehouses, farms
2. Movable Property
- Vehicles, shares, savings, deposits, investments, insurance, valuable securities
3. Debt
- Loans incurred during the marriage may also be treated as part of marital obligations if courts interpret “assets” broadly.
Is All Marital Property Always Divided?
In theory, all joint assets should be split equally. However, if there is a dispute or disagreement, the court must determine whether:
- The property qualifies as joint property
- Adequate proof of ownership exists
The burden of proof lies with the plaintiff, as marital property division falls under civil claims.
Methods of Dividing Marital Property
1. By Mutual Agreement (Private Settlement)
Couples can sign a written agreement to divide assets amicably. Key elements should include:
- Inventory of all assets and debts
- Ownership percentages
- Sale and distribution procedures
- Payment of any marital debt
Written agreements are binding under Article 1338 of the Civil Code.
2. Through Court Proceedings
If no agreement can be reached, a lawsuit may be filed:
- Religious Court: for Muslim couples
- District Court: for non-Muslim couples
Courts typically divide assets 50/50 unless there is a valid agreement stating otherwise.
Special Considerations in Court
1. Non-Marital Assets
Assets acquired before marriage, gifts, or inheritance are not included in the division (Article 35(2) Law No. 1/1974).
2. Assets Under Loan or Credit
Assets under bank loans or mortgages (e.g., KPR) cannot be divided until fully paid off. This is reinforced by SEMA No. 3/2018.
3. Proof of Ownership Is Mandatory
Lawsuits will be dismissed (NO) if the plaintiff lacks proof of ownership, such as land titles or vehicle registration.
4. Existence of a Prenuptial Agreement
If a valid prenuptial agreement exists, the court will reject claims unless it is proven that the agreement is invalid.
5. Court Type Matters
- Religious Court (Islamic divorce): Property division can be combined with the divorce case (Article 86(1) of the Religious Courts Law).
- District Court (non-Islamic divorce): Property division must be filed separately (MA Decision No. 913/Sip/1982).
Legal Keluarga: Marital Property Division Lawyer Services
Legal Keluarga offers legal assistance for:
- Drafting marital asset agreements
- Filing property division lawsuits
- Representation in Religious or District Courts
Contact Legal Keluarga
📞 Phone / WhatsApp: 0813-8968-6009
📧 Email: klien@legalkeluarga.id
🌐 Website: legalkeluarga.id
