Perjanjian Kawin Pasca Judicial Review Mahkamah Konstitusi: Antara Kebebasan Berkehendak dan Kepastian Hukum

Abstrak

This research aims to understand and to analyse (1) free will as a form of freedom of contract in marital agreement; (2) the reasoning of unmet legal certainty in marital agreement after yudisial review in the Constitutional Court; and (3) risk mitigation of marital agreement dispute after the yudisial review. This normative legal research was supported by data from source person. This descriptive-analytical research used secondary data from primary, secondary, and tertiary legal materials. All data were analysed qualitatively, with inductive conclusion drawing method. The research found that after the yudisial review, parties’ free will in marital agreement is very visible, as husband-and-wife are allowed to create; to revoke; or to amend the marital agreement during their marriage as long as it is agreed by parties and brings no damage to the third party. This huge freedom decreases legal certainty for the third party, i.e., debtors or creditors of the married couple. Risk mitigation of the tug-of-war between freedom of contract and legal certainty principles requires more concrete implementation guideline, e.g., (1) determining the reasons and limitations on whether the married couples are permitted of prohibited from making, changing, or revoking their prenuptial agreements; (2) determining when a prenuptial agreement may apply retroactively or not; as well as (3) requiring a document of absolute responsibility from the marital agreement makers to protect the public officials (i.e., notary, as the authentic deed maker).