Authority of Notary and the Power of Law Postnuptial Agreement Deed Post-Decision of Constitutional Court Number: 69/Statutory Regulations-Xiii/2015

Jurnal Notariil, Vol. 4, No. 1, Mei 2019, 27-37 P ISSN 2540 - 797X Available Online at https://ejournal.warmadewa.ac.id/index.php/notariil E ISSN 2615 - 1545 http://dx.doi.org/10.22225/jn.4.1.749.27-37 AUTHORITY OF NOTARY AND THE POWER OF LAW POSTNUPTIAL AGREEMENT DEED POST-DECISION OF CONSTITUTIONAL COURT NUMBER: 69/STATUTORY REGULATIONS-XIII/2015

Made Widyadi Magister of Notary, Postgraduate Program Universitas Warmadewa, Denpasar, Bali-Indonesia [email protected] Abstract This research aims is to increase knowledge and insight about Notary Authority and Legal Strength of Postnuptial Agreement Deed Post Constitutional Court Decision Number: 69/Statutory Regulations -XIII/2015. Normative research method, reviewing the legislation and library materials with approaches of legislation and concepts, the source of legal materials using primary, secondary and tertiary legal materials, after the legal material collected through literature study then further analyzed by qualitative descriptive to get a conclusion. The result of the research obtained is the Notary Authority in the aggregation of the Postnuptial Agreement Deed after the Constitutional Court Decision Number: 69/Statutory Regulations-XIII/2015 is a Notary authorized to make Postnuptial Agreement Deed whose contents are retroactive. Post-Decision of the Constitutional Court The Postnuptial Agreement made by a new notary has the legal power after being registered with the Civil Registry Agency based on Regulation of the Minister of Home Affairs Number 472.2/5876/Department Of Population And Civil Registration. Keywords: Authority notary; Decision of the Constitutional Court Number: 69/Statutory Regulations -XIII/2015; Postnuptial Agreement Deed was after the marriage was held 1. INTRODUCTION (Postnuptial Agreement), simply, a The marriage agreement stipulated in Prenuptial Agreement and Postnuptial article 147 of the Criminal Code was made Agreement (Yuvens, 2017), was made before the marriage took place before an with a Notary deed and the time of the authorized Notary in the form of authentic marriage agreement when the marriage deed and Article 29 of Law Number 1 of takes place, unless otherwise specified in 1974 concerning marriage made before the marriage agreement. and at the time of marriage and the The problem is if the parties do not agreement period together when the determine when the marriage agreement marriage took place the provisions of the will take effect then the marriage marriage agreement do not recognize the agreement will take effect from the time marriage agreement made after the the marriage takes place (retroactive). The marriage is held or the Postnuptial deed. problems that arise if the marriage The decision of the Constitutional Court agreement begins to take effect since the Number: 69/Statutory Regulation- marriage is held whether the marriage XIII/2015 stated that the marriage agreement for the sake of the law changes agreement was made before marriage and the existing legal status before the when the marriage was held (Prenuptial marriage agreement is made, whether the Agreement) and the most phenomenal property which was originally a joint asset

(these properties) husband and wife, with Notary Authority in Making the marriage agreement being made into Postnuptial Agreement Deed of personal property of the husband or wife Authority Notary Based on Act of who obtained the property. If this is the Notary Position case, then problems will arise. Whether The position of a Notary as a public the husband and wife can do the official who is authorized to make distribution and separation of property in authentic deeds has been confirmed in the marriage without first asking for the provisions stated in Article 1 Number 1 of determination of the court, whether the the Law of Notary Position Amendment. change in the status of the property does Notary in the Law of Notary Position not harm the third party. qualifies as public officials (Adjie, 2008). Where it is unclear what rules govern The position of a Notary as a function in the procedure for making Postnuptial the community is considered to be an Agreement Deed and the legal strength of official in which a person can obtain advice the Postnuptial Agreement Deed after the that can be relied upon and produce Constitutional Court Decision Number: 69/ strong documents in a legal process. So Statutory Regulations-XIII / 2015 made by that the community needs a person Notary if in the future lawsuits from the (figure) whose conditions are reliable, parties that make or third parties feel trustworthy, whose signature and disadvantaged by the creation of this norm everything (stamp) provide strong obscurity Postnuptial Agreement deed the guarantees and evidence, an impartial author's attention so interesting to expert and advisor who has no defects explore. (onkreukbaar or unimpeachable), which is Departing from the description above, closed mouth and make an agreement this research is limited to the Authority of that can protect it in the future (Kie, Notary in the making of Postnuptial Deed 2000). of Agreement After the Constitutional A notary is a public official who obtains Court Decision Number: 69/Statutory authority in attribution because the Regulation-XIII/2015 and the Legal authority was created and given by the Strength of Postnuptial Deed of Agreement Law of Notary Position (Kie, 2000). The After the Constitutional Court Decision authority is to make authentic deeds and Number: 69/Statutory Regulation- other authorities as referred to in the Act XIII/2015. of Notary Position. The authority contained in Article 15 of the Notary Position Law 2. METHOD shows that the main authority of the This research is normative legal Notary is to make deeds, but the Notary is research using the approach (statue also authorized to provide legal counselling approach) and conceptual approach in connection with the making of deeds. (conceptual approach) (Marzuki, 2011). Authorized Notary insofar as it concerns Sources of legal materials use primary the deed that must be made, based on legal materials, secondary legal material, article 15 paragraph 1, 2 and 3, Law of and tertiary legal materials. The technique Notary Position Amendment to Notary has for collecting legal materials is library the following authorities: writing, card systems. The collected legal Paragraph (1) The notary has the material is carried out in a qualitative authority to make authentic Deed description analysis so that conclusions are regarding all acts, agreements, and obtained which are the answers to the stipulation required by legislation and/or problems studied in accordance with the what is desired by those concerned to be purpose of writing. stated in authentic Deed, guarantee the 3. RESULTS AND DISCUSSION date of Deed, keep Deed, give Grosse,

CC-BY-SA 4.0 License, Copyright 2019, Jurnal Notariil, ISSN 2540-797X, E-ISSSN 2615-1545 Authority of Notary and The Power of Law Postnuptial Agreement Deed Post-Decision of Constitutional Court Number: 69/Statutory Regulations-XIII/2015, Jurnal Notariil, 4 (1) 2019, 29 copies and quotations of the Deed, all of deeds in general, with limitation as long which throughout the making of the Deed as: are not also assigned or excluded to other Not excluded from other officials officials or other people as determined by determined by law. law. Regarding the deed that must be made Paragraph (2) In addition to the or authorized to make authentic deeds authority as referred to in paragraph (1), regarding all actions, agreements, and the Notary is also authorized: provisions required by the legal rules or Ratify signatures and determine the desired by the concerned certainty of the date of the letter under Regarding the legal subject (person or the hand by registering in a special book; legal entity) for the interests of whom the Book letters under the hand by deed is made or desired by those registering in a special book; concerned. Make copies of the original letter under Authorization regarding the place, the hand in the form of a copy containing where the deed is made, this is in the description as written and illustrated in accordance with the position and area of the letter concerned; the office of the Notary. Validate the photocopying match with Regarding the time of making a deed, the original letter; in this case, the Notary must guarantee Provide legal counselling in connection the certainty of the time facing the viewers with the making of Deed; listed in the deed (Adjie, 2008b). Make Deed relating to land; or The juridical character of Notary deed, namely: Make Deed of auction minutes. Notary deed must be made in the form Paragraph (3) In addition to the specified by the law (Notary Position Law) authority as referred to in paragraph (1) and paragraph (2), the Notary has other Notary deeds are made because there authorities stipulated in the laws and are requests from the parties and not the regulations. wishes of the Notary; The legislation has determined that Even though the Notary deed is stated there are several legal actions or in the name of the Notary, in this case, the agreements that must be made by or in Notary is not a party together with the the presence of certain officials (Notary) parties or the addressee whose name is who formally must follow certain forms stated in the deed. and the agreement (deed) has perfect Having perfect proof of power. Anyone evidentiary power. If this is not done, the is bound by a Notary deed and cannot be agreement is cancelled (Budiono, 2007). interpreted differently, other than those The agreements that must be made by or stated in the deed. before a certain official (Notary), including: Cancellation of the binding power of a Various Marriage Agreements and their Notary deed can only be made at the amendments (Article 147,148). agreement of the parties whose names are Distribution of marital property after the listed in the deed. If there is a court decision regarding the separation of disagreement, the party that does not property (article 191) and other deeds agree must submit an application to the regulated by law (Adjie, 2008b). general court so that the deed in question is no longer binding for certain proven The terms of Notary Deed as authentic reasons (Adjie, 2008b). deeds based on article 15 paragraph (1) Law of Notary Position confirms that one Before the Decision of the of the notary authorities, namely making Constitutional Court Number: 69/Statutory

Regulations-XIII/2015, the marriage therefore the deeds are null and void and agreement was regulated in the Article has no power in the eyes of the law. 139 of the Civil Code states that "By Based on the description of the analysis entering into a marriage agreement, the above, before the Constitutional Court two prospective husband and wife are Decision, the Notary was not authorized to entitled to prepare some deviations from make a Postnuptial Agreement Deed the rules of the Law around the union of where the Deed was not valid and did not assets, provided that the agreement does have perfect legal force because neither in not violate the good moral code or the the Civil Code nor the Marriage Law general order and as long as all the regulated Postnuptial Agreement. provisions below". In the rules of article 147 of the Civil Code, it is stated that the So if there is a Notary who made a marriage agreement must be made before Postnuptial Agreement before the the marriage takes place and the marriage Constitutional Court Decision, then the agreement must be made before the Postnuptial Agreement is legally not an Notary. If the marriage agreement is not authentic and null and void law. made before a Notary then the agreement Authority of Notary in the Making of is null and void from the law and in the Postnuptial Agreement Deed of the Marriage Law regulated in Article 29, Decision of the Constitutional Court namely: Number: 69/STATUTORY At the time or before the marriage REGULATIONS-XIII/2015 takes place, both parties or joint The main pillar of the rule of law, agreements may enter a written namely the principle of legality, then based agreement legalized by the marriage on that principle means that the authority registrar employee, after which the of the government comes from legislation, contents also apply to third parties as long which means the source of authority for as the third party is involved. the Government is the legislation. The agreement cannot be ratified if it Theoretically, the authority derived from violates the boundaries of law, religion and the legislation is obtained in three ways, morality. namely: attribution, delegation, and The agreement prevails from the time mandate. Indroharto in the State the marriage takes place. Administration Law by Ridwan HR said that the attribution of the new government During the marriage, the agreement authority was granted by a provision in the cannot be changed unless from both legislation. At attribution is born or created parties there is an agreement to change a new authority (Ridwan, 2008). and the change does not harm the third party. Notary as a public official obtains authority through attribution because the Based on the above description it is authority is created and given by the Law known that the marriage agreement of Notary Position itself. Notary as a before the Constitutional Court Decision position and any position in this country must be made before the marriage is have its own authority. Every authority carried out and must be registered at the must have a legal basis. Authority must be Civil Registry Office. based on existing legal provisions so that Before the Constitutional Court the authority is a legitimate authority. Decision, if there were deeds regarding Therefore the authority of any office must marriage agreements made after the date be clear and explicit in the laws and of the marriage, the deeds were in regulations governing the official or office violation of the provisions of the Law, The relevance of the issue of Notary namely, violating Article 147 of the Civil authority in making a Post Nuptial Code and Article 29 of the Marriage Law,

Agreement related to the contents of the The Power of Postnuptial Law Post-Act of the Constitutional Court Agreement After the Decision of the Decision on the authority of attribution is Constitutional Court Number: 69/ regarding the authority and legal force of Statutory Regulations-XIII / 2015 the Postnuptial Agreement Deed is with The power of proof of Authentic Deed is officials or bodies as stated in the basic stipulated in Article 1870 of the Civil Code regulations. which states that; an authentic deed Notary as a public official obtains provides between the parties and the heirs authority through attribution because the of their heirs or those who have the rights authority is created and given by the Law of them, perfect proof of what is contained of Notary Position itself. Notary as a therein. The strength inherent in authentic position and any position in this country deeds is; perfect (volledigbewijskracht) have its own authority. Every authority and binding (bindende bewijskracht), must have a legal basis. Authority must be which means that if the proof of Authentic based on existing legal provisions so that Deed is submitted to fulfil formal and the authority is a legitimate authority. material requirements and the evidence of Therefore the authority of any office must the opponent stated by the defendant be clear and explicit in the laws and does not reduce its existence, at the same regulations governing the official or office. time it attaches perfect and binding Based on the description above, then evidence (volledig enbindende one characteristic and at the same time bewijskracht), thus the truth of the constitutes the purpose of the law is to contents and statements contained therein provide protection to the public including are perfect and binding on the parties Notary. Post Court Decision the notary is regarding what is stated in the deed. authorized to make a postnuptial Perfect and binding to the judge so that Agreement Deed which applies the judge must make it a perfect basis of retroactively wherein the phrase states facts and enough to make decisions on that the Agreement is valid from the resolving disputed cases (Harahap, 2008). marriage unless specified otherwise, in the In making an authentic notary, it should phrase unless otherwise specified that be considered 3 (three) aspects, Notary gives Authority to the Notary to make a deeds as authentic deeds have the Marriage Agreement which applies strength of evidence value namely : retroactively as long as the deed does not Outwardly (uitwendige bewijskracht) harm the interests of third parties related to Postnuptial Agreement, thus in making The outward ability of the Notary deed marriage agreements, the husband/wife is the ability of the deed itself to prove its agrees that their marriage agreement validity, as an authentic deed (acta Publica make it effective from the time the probant seseipsa). The parameter for marriage agreement is made or only determining the Notary deed as an applies to the assets they have obtained authentic deed, namely by the presence of after the marriage agreement is made, so a signature from the relevant Notary, both that it does not change the legal status of in the Minuta and the copy and the the existing assets. Therefore, legal beginning of the deed from the title to the protection for the community including the end of the deed (Adjie, 2009). Notary must be realized in the form of Formal (formele bewijskracht) legal certainty with legal certainty. The Notary Deed must provide certainty Furthermore, the law can protect the that an event and fact in the deed is rights and obligations of every individual in actually carried out by a notary or the community including a notary. explained by the parties facing when stated in the deed in accordance with the procedures specified in the making of the

CC-BY-SA 4.0 License, Copyright 2019, Jurnal Notariil, ISSN 2540-797X, E-ISSSN 2615-1545 Authority of Notary and The Power of Law Postnuptial Agreement Deed Post-Decision of Constitutional Court Number: 69/Statutory Regulations-XIII/2015, Jurnal Notariil, 4 (1) 2019, 32 deed. Formally to prove the truth and (domestic violence), attitudes towards certainty about the day, date, month, polygamy, and so forth. Basically, these year, hour (time) facing, and the parties points are flexible according to the facing, initial and signature of the parties agreement of both parties without any or viewers, witnesses and Notaries, and pressure or coercion from any party and prove what is seen, witnessed, heard by are made in a state of awareness and Notary, (on official deed/minutes), and responsibility as long as they do not record information or statements of parties conflict with the limits of legal, religious or viewers (on party deeds) and moral norms. Material (meteriele bewijskracht), It is The form of the marriage agreement as certainly about the material of a deed specified in Article 29 paragraph (1) states because what is stated in the deed is a that the marriage agreement is made in valid proof of the parties who make the written form. Although a written deed or those who get the rights and agreement can be interpreted in an apply to the public unless there is evidence authentic and subordinate form but in otherwise. Information or statement that is practice, a marriage agreement is made in stated or contained in official deed or the form of an authentic deed made official report, or statement of the parties before a Notary. given or delivered before the Notary deed The article 29 paragraph (3) of the of the party and the parties must be Marriage Law after the Constitutional judged to be true and then stated or Court Decision: "the agreement starts from contained in the deed as true or every the date the marriage takes place unless person who comes facing the Notary and otherwise specified in the marriage then the statement is stated or contained agreement". The phrase "unless otherwise in the deed must be judged to have said specified in the marriage agreement" can the truth. be interpreted that if the husband and wife do not set a specific time about when the The Strength of Binding the marriage agreement enters into force, the Postnuptial Deed of Agreement After marriage agreement takes effect from the the Decision of the Constitutional time the marriage takes place. For Court Number: 69/STATUTOY example, the A & B married couple REGULATIONS-XIII/2015 married in 2013 and did not make a The marriage agreement is also known marriage agreement, then in 2017 the as the Prenuptial Agreement means that husband and wife learned of the the agreement was made before (pre) the Constitutional Court Decision that allowed marriage took place or it could also be the married couple to make a marriage made at the time the marriage took place agreement even though not before the (during the marriage contract) while the wedding. Then the husband and wife face marriage agreement made by the Notary the Notary to make a marriage agreement called the Postnuptial Agreement. but they do not specify that the marriage marriage agreement made by a married agreement will take effect when making couple when the marriage bond takes the marriage agreement, therefore their place (walking). The contents of the marriage agreement is retroactive and Prenuptial Agreement and the Postnuptial begins at the time of the marriage. Agreement are the same, which can The marriage agreement deed contain all things that are deemed (Postnuptial Agreement Deed) must be necessary to safeguard the rights and made in writing in accordance with the interests of all parties, including property, prevailing laws and regulations and made accounts payable, company ownership, before an authorized official, namely a care and education for household roles, Notary to guarantee legal certainty. For violence avoidance in the household third parties who want to enter into an

CC-BY-SA 4.0 License, Copyright 2019, Jurnal Notariil, ISSN 2540-797X, E-ISSSN 2615-1545 Authority of Notary and The Power of Law Postnuptial Agreement Deed Post-Decision of Constitutional Court Number: 69/Statutory Regulations-XIII/2015, Jurnal Notariil, 4 (1) 2019, 33 agreement with the husband and wife. The marriage agreement made based Legal certainty to be achieved is the on the Constitutional Court Decision is the certainty of the legal subject that makes same as the marriage agreement before the agreement and the object of the the Constitutional Court Decision begins to agreement. bind the third party when the marriage agreement is recorded by the employee The legal subject in question is there is registering the marriage on the marriage certain whether the husband and wife certificate (Department of Population and make an agreement together or Civil Registration). So the third party individually. cannot deny the marriage agreement if it The object of the agreement in is clearly stated in the quotation of the question is clear who is the legal subject of married couple's marriage certificate. the owner of the object, so if later legal Making a marriage agreement made problems occur, the third parties that based on the Constitutional Court Decision make the agreement with the husband requires caution to avoid the possibility of and wife are not wrong in suing. And unwillingness from both husband and wife. husband and wife who are not related to This is especially intended for Notaries, third parties do not join the defendant. even though in the marriage Law Jo. Court Article 1339 of the Civil Code sets out Decision Number 69/Statutory Regulations the principle of good faith which is a -XIII/2015 does not assert that the matter of implementing contracts. Parties marriage agreement must be in the form in making and implementing contracts of a Notary deed but only describes that must pay attention to the principle of good the marriage agreement is made in a faith, which is carrying out the contract "written form" so that it can be interpreted must heed the norms of compliance and as a marriage agreement made by the decency. Regarding the implementation of parties in written form but should the good principles that are closely related to marriage agreement was indeed made propriety also explained in Article 1339 of with a Notary deed considering the the Civil Code which states that a contract following matters (Herman, 2018): is not only binding on matters expressly The marriage agreement is an stated in a contract, but also binding for agreement that binds the husband and everything that according to the nature of wife as long as they are married (it can the contract is required by propriety, end if the marriage agreement is revoked customs and laws (Muhammad, 2000). (Tata cara pencabutan diatur dalam Surat Subekti explained that good faith Dirjen No. 472.2/5876/DUKCAPIL) thus it according to Article 1338 paragraph (3) of can be interpreted that the marriage the Civil Code is one of the most important agreement applies for a relatively long joints of contract law that gives the judge period of time, considering marriage is the power to oversee the implementation eternal. of a contract so as not to violate propriety There must be a guarantee that the and justice. This means that the judge is contents of the marriage agreement are authorized to deviate from the contract if not easily changed by the parties. If the the implementation of the contract violates marriage agreement is made with a Notary the feeling of justice (Recht Gevoel) one deed, then by signing the deed before the and between two parties. The principle of Notary, the Notary can guarantee the good faith according to the existence of contents of the marriage agreement in propriety and justice, in the sense that the accordance with what is stated in the demand for legal certainty in the form of Minuta deed and the parties are given a implementing contracts must not violate copy of the deed which is the same as the the norms of decency and values of justice Minuta deed and applies as evidence that (Syaifuddin, 2012). has perfect proof power. Thus there is a

CC-BY-SA 4.0 License, Copyright 2019, Jurnal Notariil, ISSN 2540-797X, E-ISSSN 2615-1545 Authority of Notary and The Power of Law Postnuptial Agreement Deed Post-Decision of Constitutional Court Number: 69/Statutory Regulations-XIII/2015, Jurnal Notariil, 4 (1) 2019, 34 guarantee of legal certainty regarding the interests of related parties in legal action. contents of the agreement to third parties. In the Law of Notary Position, the legal The marriage agreement made in the requirements for an agreement are form of a Notary deed, clearly stipulated in manifested in a notary deed. Subjective Article 147 of the Civil Code: which states conditions are included at the beginning of that upon the threat of cancellation, each the deed and the objective requirements marriage agreement must be made with a are included in the deed body as the Notary deed before the marriage takes contents of the deed. The contents of the place since the marriage takes place; other deed are an embodiment of article 1338 of times for that should not be determined. the Civil Code concerning freedom of Therefore the marriage agreement made contract and provide legal certainty and other than in the form of a Notary deed, it protection to the parties regarding the is considered null and void based on agreement made. Thus, if at the beginning Article 147 of the Civil Code. This is of the deed, especially the requirements of contrary to Article 29 of the Marriage Law the parties facing the Notary do not fulfil Jo. The Constitutional Court ruling the Subjective requirements, then at the outlining that the marriage agreement request of a certain person the deed can made in writing cannot be ratified/listed in be abrogated (Adjie, 2009). If the contents the Department of Population and Civil of the deed do not meet the objective Registration since one of the requirements requirements, then the deed is null and of a marriage agreement can be ratified/ void. Because Article 38 paragraph (3) stated based on the Director-General of letter of the law of notary position has The Department of Population and Civil determined that the Subjective and Registration Number: 472.2/5876/ Objective terms are part of the deed body Department of Population and Civil (Adjie, 2009). Registration regarding "Reporting Marriage Therefore the marriage agreement Agreement" namely "photocopy of Notary made by the Notary deed is an effort so deed of marriage agreement that has been that the marriage agreement made during legalized by showing the original "so that the marriage takes place is not detrimental marriage agreements made in writing and fair to the parties concerned, this is cannot be ratified/stated and cannot bind because the Notary who is given third parties only to the husband and wife. Attribution authority by Notary Position Thus the marriage agreement deed after Law prioritizes the principle of prudence be the Constitutional Court Decision which is careful. permitted to be registered in the Department of Population and Civil The notary needs to pay attention to Registration is an authentic deed made by the marriage agreement not to harm the the authorized Notary. third party, namely (Adjie, 2017): In addition, a Notary who is given the Request a list of inventory of assets authority to make a marriage agreement acquired during the marriage bond that has declared an oath of office, namely: will be included in the deed. Carrying out a position with a trustworthy, There is a statement that these assets honest, thorough, independent and have never been transacted in any way impartial (Adjie, 2011) "carefully" namely and form, to and to anyone careful and careful in preparing the These things need to be considered, editorial deed so as not to harm the both by the spouse of husband and wife parties in accordance with the notary and by a Notary, thus the marriage position law article 16 paragraph (1) letter agreement made at the time of the a In carrying out his position the Notary is marriage takes place can avoid problems obliged to act honestly, thoroughly, that might arise in the future because of a independently, impartially and protect the claim from a third party that was harmed

CC-BY-SA 4.0 License, Copyright 2019, Jurnal Notariil, ISSN 2540-797X, E-ISSSN 2615-1545 Authority of Notary and The Power of Law Postnuptial Agreement Deed Post-Decision of Constitutional Court Number: 69/Statutory Regulations-XIII/2015, Jurnal Notariil, 4 (1) 2019, 35 due to the agreement the marriage can be realized in the form that has been (Alwesius, 2016). set against a legal act and event. The law In the discussion in this subchapter, that applies in principle must be obeyed based on the existence of the Theory of and must not be deviated or distorted by Justice, this theory complements the legal subjects. It is written that the term theoretical foundations in chapter I related fiat justitia et pereat mundus which is to the problem under study is the power of freely translated becomes "even though the Binding Act of Postnuptial Agreement the world collapses the law must be in the Decision of the Constitutional Court enforced" which is the basis of the Number: 69/Statutory Regulations- principle of certainty adopted by the XIII/2015. positivist school. Judging from the essence of justice in With the existence of legal certainty, the making of the Postnuptial Agreement the parties that make Postnuptial Deeds of Act, several scholars, one of which was Agreement know about what must be Jhon Rowls, put forward an idea of done and obtain clarity on rights and agreement-based justice (Hernoko, 2008). obligations under the law. Legal certainty The thinkers realize that without an after the Constitutional Court Decision can agreement and the rights and obligations be realized through good and clear that arise, the relationship between the regulations in an Act so that legal certainty individual and the community will not can create order. Legal certainty is not work. Therefore, without an agreement, able to truly describe the certainty of people will not be willing to be bound and behaviour towards the law. Normative dependent on the statements of others. legal certainty is when regulations are The agreement provides a way to made and promulgated with certainty guarantee that each individual will fulfil his because they regulate clearly and logically. promise, then the thing that allows It is clear in the sense that there is no transactions to occur between them vagueness of norms or doubts (multiple (Sujana, 2015). Notary in making a interpretations), the void of norms and Postnuptial Agreement that is fair to all logic in the sense of being a norm system parties. with other norms so that they do not clash or cause norm conflicts. Legal certainty can only be answered in a normative way. Legal certainty is Legal certainty theory is used to answer normatively interpreted if a rule can be the legal certainty of the Constitutional made and promulgated with certainty and Court Decision number three (3) where must be made clear so as not to cause a the meaning of "the agreement takes doubt of the vagueness of norms, besides effect since the marriage took place, that rules must be made logically in the unless otherwise specified in the marriage sense that the rules will become a norm agreement, where the arrangement is still system with norms others, so as not to unclear and creates multiple cause a norm conflict (Arizona, 2008). interpretations, so it needs to be regulated further so that later the notary can act The existence of a law that lives in the cautiously and prevent legal problems with community as a guide in making social the deeds he made. contacts or relationships with one another. Legal certainty itself by Soerjono Soekanto Based on the theory of legal certainty has stated: "The manifestation of legal mentioned above, the ratification by this certainty is the regulations of the central Notary is considered to be less strong and government that are generally applicable in order to have binding power to third in all regions of the country” (Agustina, parties must remain registered with the 2017). marriage registrar or Civil Registry. Legal certainty for the subject of law Regarding this matter, the researcher

CC-BY-SA 4.0 License, Copyright 2019, Jurnal Notariil, ISSN 2540-797X, E-ISSSN 2615-1545 Authority of Notary and The Power of Law Postnuptial Agreement Deed Post-Decision of Constitutional Court Number: 69/Statutory Regulations-XIII/2015, Jurnal Notariil, 4 (1) 2019, 36 argues that the marriage agreement made Regulations-XIII/2015, namely the by a Notary has been valid and binding Authorized Authority makes a Postnuptial according to the dictum of the Agreement which the contents of the Act Constitutional Court Decision, and this are retroactive, as stated in the must be recognized as a positive law that Constitutional Court Decision Number: 69/ applies in Indonesia today. Whereas if the Statutory Regulations-XIII/2015 the third parties wish to be registered, an item (3) in the Decision has a phrase that application for the determination of can be interpreted that the marriage registration can be submitted to the agreement can be made as long as the District Court whose jurisdiction covers the parties are in a marital bond and do not place of residence of the husband and harm the interests of the third party, in wife. which the deed must be mentioned what The determination will include a court assets and debts are separated and time order to the Civil Registry to register the he made an agreement. Second, the legal marriage agreement. Regarding this strength of the Postnuptial Agreement matter, there have been several Deed After the Constitutional Court jurisprudence stipulations on the court Decision Number: 69/Statutory which ordered Civil Registry to register the Regulations-XIII / 2015, namely the marriage agreement made after the Postnuptial Agreement Deed made by a marriage was held. Notary, only has legal force after being registered with the Civil Registry Service Based on the Constitutional Court's based on state government regulation ruling, the Constitutional Court allowed Number: 472.2/5876/Department of Postnuptial Agreement, but after the Population and Civil Registration. decision, there was no implementing regulation governing the procedure for REFERENCE registering the Postnuptial Agreement Adjie, H. (2008a). Hukum Notaris Indonesia Deed at the Department of Population and (Tafsir Tematik Terhadap UU No. 30 Civil Registry Service. Tahun 2004 tentang Jabatan Notaris). On May 19, 2017, the Minister of Home Bandung: Refika Aditama. Affairs Regulation was then issued as Adjie, H. (2008b). Kebatalan dan Pembatalan Akta Notaris. Bandung: Refika Aditama. Permendagri, namely Number. Adjie, H. (2009). Sanksi Perdata & 472.2/5876/Department of Population and Administratif Terhadap Notaris sebagai Civil Registration, which regulates the Pejabat Publik (Cetakan Pertama). following matters: Bandung: Refika Aditama. Marriage Agreement made at the time Adjie, H. (2011). Aspek Pertanggung jawaban or before it takes place marriage; Notaris Dalam Pembuatan Akta, Cetakan Pertama. Bandung: Mandar Maju. 4. CONCLUSION Adjie, H. (2017). Perjanjian Kawin Pasca Putusan MK, Dalam Notaries Edisi Januari- As can be explained above, this Februari. research aims to increase knowledge and Agustina, I. D. (2017). Asas-asas Pembentukan insight about Notary Authority and Legal Peraturan Perundang -unda nga n. Strength of Postnuptial Agreement Deed Ismayadwiagustina.Wordpress.Com. Post Constitutional Court Decision Number: Alwesius. (2016). Pembuatan Perjanjian 69/Statutory Regulations-XIII/2015. Based Perkawinan Pasca Putusan Mahkamah on the discussion above, several important Konstitusi (Revisi). H t t p : / / items that can be drawn as conclusions Alwesius.Blogspot.Com. Retrieved from http://alwesius.blogspot.com/2016/11/ can be presented as follows: First, the pembuatan-perjanjian-perkawinan- Notary Authority in making a Postnuptial pasca.html?m=1 Agreement Deed After the Constitutional Arizona, Y. (2008). Apa itu Kepastian Hukum? Court Decision Number: 69/Statutory Yancearizona.Net. Retrieved from https://

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