Perlindungan Hukum Bagi Kreditur Bank pada Perjanjian Kawin dalam Perkawinan Campuran

Abstract

The problem faced by the couple of a mixed marriage in Indonesia is that there are provisions in Indonesian law regarding the incorporating of assets immediately into joint property after the marriage. But on the other hand, there are laws regulating that foreigners may not own property rights in Indonesia, so joint property involving a number of properties in the form of movable or immovable property will be impossible for foreigners to own. This study examines two issues: the legal protection for third party, the bank creditors relating to the status/property status of a married couple in mixed marriages in a marriage agreement and the legal consequences of non-performing loans related to the couple’s property if they commit defaults. To uncover these two matters, the study was conducted using the normative legal research method. The results show that creditors are protected in a preventive and repressive manner. Legal consequences for husband or wife property for bank creditors if the debtor is bound in the mixed marriage defaults depend on the form of the marriage agreement made. A husband or wife who is an Indonesian citizen as a debtor is permitted to guarantee the material security of his assets freely and can be taken as collateral for repayment by the bank’s creditors if the debtor is in default.

Bankruptcy according to the bankruptcy law and postponement of payment perspective of creditor legal protection

“…Meanwhile, Article 1132 the Criminal Codedt formulated: "The object becomes a joint guarantee for all the people who owe it, the income from the sale of the said object is distributed to the creditors according to the balance, namely based on the size of the respective receivables, unless there are legitimate reasons among the debtors to take precedence". [4] The principle of responsibility contained in Article 1131 of the Pdt. Criminal Code.…”

“…2018). Decisions taken take their interests into account.Without these conditions, Debtors may be able to avoid responsibility towards Creditors and avoid paying Creditor claims [4]. Thus, the minimum requirements for Creditors as bankruptcy or PKPU applicants are certainly important to ensure that bankruptcy or PKPU process runs fairly and effectively for all parties involved.…”

Legal Consequences of Marriage Agreement that is Made After The Marriage Exists for Husband and Wife Who Have Debts

“…Based on Article 1, it can be concluded that the definition of marriage is a bond arising from a man and woman who establish a relationship as husband and wife to live together in order to create a prosperous family. From this article, it can also be seen that the purpose of marriage is to form a happy and eternal family based on God Almighty (Hilman Hadikusuma, 2007: 21) [1] .Marriages that occur in Indonesia are on average held to build a family. Considering that Indonesia is a culturally diverse country, there is also diversity in marriage.…”

“…A marriage agreement has the meaning of an agreement between the two parties, namely husband and wife, which is made in a form of writing, which is legalized by the marriage registrar and its contents also apply to third parties as long as the third party is involved. Article 29 of the Marriage Law regulates marriage agreements, which are: (1) At the time or before the marriage takes place, the two parties by mutual consent can make a written agreement legalized by a marriage registrar, after which the contents shall also apply to third parties as far as third parties are concerned. (2) The agreement cannot be legalized if it violates the boundaries of law, religion and decency.…”