PAPER

MARRIAGE AGREEMENT IN A POSITION AS A BARRIER FOR

DEBTORS TO CARRY OUT BANKRUPTCY OBLIGATIONS

Lecturer

Imanudin Affandi, S.H., M.H.

Arranged by

Bimo Grimaldi Rahmat (2110631010071)

Camelia Daupas Vhalent (2110631010074)

SINGAPERBANGSA UNIVERSITY KARAWANG

FACULTY OF LAW

DEPARTMENT OF LEGAL SCIENCE

2022
 TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................. i

CHAPTER I PRELIMINARY....................................................................... 1

i
 CHAPTER I

PRELIMINARY

1.1 BACKGROUND

Bankruptcy is a condition where the debtor is unable to make payments on

the debts of the creditors. Unable to pay.

Bankruptcy is a condition in which the debtor is unable to make payments

on the debts of his creditors. The condition of being unable to pay is usually
caused by the financial distress of the debtor's business which has experienced a
setback. Meanwhile, bankruptcy is a court decision that results in general
confiscation of all assets of the bankrupt debtor, both existing and future.
Bankruptcy management and settlement are carried out by the curator under the
supervision of the supervisory judge with the main objective of using the proceeds
from the sale of such assets to pay all the debts of the bankrupt debtor in a
proportionate manner (prorate parte) and in accordance with the creditor structure.

Marriage is an inner and outer bond between a man and a woman as

husband and wife with the aim of forming a happy and eternal family (household)
based on the Almighty God. Indonesia has regulations that regulate bankruptcy
which is tied to marriage.

The obligation to carry out bankruptcy must be fulfilled, but what if the
obligation is hindered by a marriage agreement? Who needs to carry out the
bankruptcy obligations? Therefore, this article will discuss the marriage
agreement in the position of being a barrier for debtors to carry out their
bankruptcy obligations.

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1.2 IDENTIFICATION OF PROBLEMS

Based on the written background, i provide the following information about the
problem that will be used as research material:

1. What is bankruptcy?
2. What is marriage?
3. What if the obligation to fulfill the bankruptcy obligation is hindered by the
marriage agreement?

1.3 PURPOSES
1. Knowing the meaning of the bankruptcy
2. Knowing the marriage
3. Knowing the completion of the obligation to fulfill the bankruptcy if it is
hindered by the marriage agreement

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 CHAPTER II
DISCUSSION

2.1 Bankruptcy
A. Definition of Bankruptcy

The definition of bankruptcy according to Article 1 point 1 of the

Bankruptcy Law states that bankruptcy is:

Bankruptcy is a general confiscation of all the assets of a Bankrupt Debtor

whose management and settlement are carried out by the Curator under the
supervision of the Supervisory Judge as regulated in this Law.1

In the literature, Algra defines bankruptcy as Faillissementis een

gerechtelijk beslag op het gehele vermogen van een schuldenaar ten behoeve van
zijn gezamenlijke schuldeiser”. (bankruptcy is a general confiscation of all assets
of a debtor (the debtor) to pay off his debts to the creditor (the creditor)). Henry
Campbell Black in his Black's Law Dictionary states "Bankrupt is the state or
condition of one who is unable to pay his debts as they are, or become, due".
Somewhat more comprehensively, Jerry Hoff describes bankruptcy as:

Bankruptcy is a general statutory attachment encapsulating all the assets

of the debtor. The bankruptcy only covers the assets. The personal status
of an individual will not be affected by the bankruptcy; he is not placed
under guardianship. A company also continues to exist after he declared
bankruptcy. During the bankruptcy proceedings, the act with regard to the
bankruptcy estate can only be performed by the receiver, but other acts
remain part of the domain of the debtor's corporate organs.2

Bankruptcy terminology is often misunderstood by the general public.

Some of them consider bankruptcy as a verdict that smells of a criminal act and is
a legal flaw on a legal subject, therefore bankruptcy must be avoided and avoided
1
Hukumonline.com, 2 Syarat Kepailitan dan Penjelasannya
https://www.hukumonline.com/klinik/a/syarat-kepailitan-cl1266 diakses pada tanggal 14
November 2021.
2
Jerry Hoff (1999), Indonesian Bankruptcy Law, Tatanusa, Jakarta, h. 11.

3
as much as possible. Bankruptcy is a priori considered a failure caused by the fault
of the debtor in carrying out his business, causing the debt to be unable to be paid.
Therefore, bankruptcy is often identified as debt default or embezzlement of rights
that should be paid to creditors. Kartono stated that bankruptcy does not demean
his dignity as a human being, but when he tries to obtain credit, it is there that he
feels what it means to have been declared bankrupt. In other words, bankruptcy
affects his "creditwaardigheid" in the sense that it is detrimental to him, he will
not easily get credit.3

Bankruptcy is a commercial solution to get out of debt problems that

squeeze a debtor, where the debtor no longer has the ability to pay these debts to
his creditors. Thus, if the debtor is aware of the inability to pay the obligations
that have matured, then the step to apply for a voluntary petition for bankruptcy
status becomes a possible step, or the court determines the bankruptcy status
against the debtor if then found evidence that the debtor was indeed no longer able
to pay his debts that had matured and could be collected (involuntary petition for
bankruptcy).4

This bankruptcy institution is expected to function as an alternative institution for

the settlement of debtor's obligations to creditors in a more effective, efficient and
proportionate manner. Harold F. Lusk describes the functions of bankruptcy as
follows:

The purpose of the bankruptcy act is (1) to protect creditors from one
another, (2) to protect creditors from their debtor, and (3) to protect the
honest debtor from his creditors. To accomplish these objectives, the
debtor is required to make full disclosure of all his property and to
surrender it to the trustee. Provisions are made for examination of the
debtor and for punishment of the debtor who refuses to make an honest
disclosure and surrender of his property. The trustee of the bankcrupt’s
estate administers, liquidates, and distributes the proceeds of the estate to
3
Kartono (1982), Kepailitan dan Pengunduran Pembayaran, Pradnya Paramita, Jakarta, h. 42.
4
Ricardo Simanjuntak (2005), "Esensi Pembuktian Sederhana dalam Kepailit-
an", Dalam: Emmy Yuhassarie (ed.), Undang-Undang Kepailitan dan Perkembang-
annya, Pusat Pengkajian Hukum, Jakarta, (selanjutnya disebut sebagai Ricardo
Simanjuntak 1), h. 55-56.

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 creditors. Provisions are made for determination of creditors rights, the
recovery of preferential payments, and the disallowance of preferential
liens and encumbrances. If the bankcrupt has been honest in his business
transactions and in his bankcruptcy proceedings, he is granted a
discharge.5

Bankruptcy is a further implementation of the creditorium parity principle

and the pari passu prorate parte principle in the property law regime
(vermogensrechts). The principle of creditorium parity means that all assets of the
debtor, whether in the form of movable or immovable goods or assets that are
now owned by the debtor and the goods in the future will be owned by the debtor,
are bound to settle the debtor's obligations.' While the principle of pari passu
prorata parte means that the assets are joint guarantees for the creditors and the
proceeds must be distributed proportionally between them, except if there are
creditors who according to law must take precedence in receiving the payment of
the bill.6

The word bankruptcy comes from the French "failite" which means
payment jam. In Dutch the term "failliet" is used. While in Anglo American law,
the law is known as the Bankcruptcy Act.

In our understanding, referring to the old rules, namely Article 1 paragraph

(1) of the Bankruptcy Regulations or Faillisement Verordening S. 1905-217 jo
1906-348 states:

"Every debtor (debtor) who is in a state of stopping paying, either on his own
report or at the request of someone or more owed (creditor), with a judge's
decision declared in a state of bankruptcy".

This is somewhat different in meaning from the new provisions, namely in

the attachment of Law No. 4 Th. 1998 article 1 paragraph (1), which states:

5
Harold F. Lusk (1986), Business Law: Principles and Cases, Richard D. Irwin
Inc., Homewood Illinois, h. 1076-1077.
6
Kartini Mulyadi (2001), "Kepailitan dan Penyelesaian Utang Piutang",
Dalam: Rudhy A. Lontoh (ed.), Penyelesaian Utang Piutang Melalui Pailit atau
Penundaan Kewajiban Pembayaran Utang, Alumni, Bandung, (selanjutnya disebut
sebagai Kartini Mulyadi 1), h. 168.

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"A debtor who has two or more creditors and does not pay at least one debt that
has matured and is collectible, is declared bankrupt by a decision of the competent
Court as referred to in Article 2, either at his own request or at the request of one
or more creditors.

The definition of Bankruptcy according to the Bankruptcy Law No. 37 of

2004 is: general confiscation of all assets of the Bankrupt Debtor whose
management and settlement is carried out by the Curator under the supervision of
the Supervisory Judge as regulated in this Law (article 1 paragraph (1)).

The definition of bankruptcy as stated in the contents of paragraph (1) of

UUK No. 4 of 1998 in this 2004 Bankruptcy Law is included in part one which
regulates the conditions for being subject to bankruptcy as regulated in article 2
paragraph (1) which reads as follows:

"A debtor who has two or more creditors and does not pay off at least one debt
that has matured and can be collected is declared bankrupt by a court decision,
either at his own request or at the request of one or more creditors".

The declaration of bankruptcy must go through an examination process in

court after fulfilling the requirements in the filing of the application.

Limited knowledge of legal science, especially bankruptcy law originating

from foreign law, also the term bankruptcy which is rarely known by the lower
class and rural communities who are more familiar with customary law, the term
bankrupt is better known. The village community did not think to apply to the
court to be declared bankrupt. Small traders if he can no longer trade, because his
capital is exhausted and he can no longer pay his debts, then he says that he is
bankrupt. Not so for entrepreneurs/big traders, they already know the meaning of
the terms bankruptcy and bankruptcy.

Judging from the several meanings of the word or definition of bankruptcy

mentioned above, the essence of bankruptcy can briefly be said to be a general
confiscation of the debtor's assets both existing at the time of the declaration of
bankruptcy and those obtained during the bankruptcy for the benefit of all
creditors who at the time the creditor was declared bankrupt had debts. , which is

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carried out under the supervision of the authorities. However, excluded from
bankruptcy are:

1. All income from the bankrupt debtor during the bankruptcy is from his
own work, salary for a position/service, pension wages, waiting
fee/benefits, only or to the extent that this is applied by the supervisory
judge.
2. Money given to a bankrupt debtor to fulfill the obligation to provide a
living according to the laws and regulations (articles 213,225, 321 of the
Civil Code).
3. The amount of money determined by the supervisory judge from the
income from the right to enjoy proceeds as referred to in Article 311 of the
Civil Code).
4. Allowances from the income of their children received by the bankrupt
debtor based on article 318 of the Civil Code.

If a debtor (who is in debt) is in financial difficulty, of course the creditors

will try to take a way to save their receivables by filing a civil lawsuit against the
debtor to the court accompanied by confiscation of collateral for the debtor's
property or taking another way, namely the creditor submits an application to the
court. for the debtor to be declared bankrupt.

If the creditor takes the first route, namely through a civil lawsuit, then
only the interests of the creditor/plaintiff are satisfied with the debtor's property
which is confiscated and then executed for the fulfillment of the receivables from
the creditor, other creditors who do not file a lawsuit are not protected. It is a
different matter if the creditors request that the court declare the debtor bankrupt,
then with the conditions of bankruptcy, there is a general confiscation of all the
assets of the debtor and since then all confiscations that have been carried out
previously, if any, will be void.

It is said to be a general confiscation, because the confiscation was not for

the benefit of one or several creditors, but for all creditors or in other words to
prevent confiscation from execution requested by individual creditors. Another
thing that needs to be understood is that bankruptcy is only about the debtor's

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property, not his person. So he is still capable of carrying out legal actions outside
the law of wealth, for example rights as a family, rights arising from his position
as parents, mothers for example. So that's actually the essence of bankruptcy.

B. Place of Bankruptcy Law Arrangements

Bankruptcy regulations are included in Commercial Law, although they
are not regulated in the Criminal Code. Bankruptcy regulations are regulated in
separate regulations, namely in the Faillissements Verordening, abbreviated FV
(S. 1905- 217 bsd .1906-348) which contains 279 articles, consisting of 2
chapters, namely:
1. Chapter I, concerning Bankruptcy (Van Faillisement) article 1 to article 211.
2. Chapter II, regarding Suspension of Payment (Surseance van Betaling) article
212 to article 279.
It was only on April 22, 1998, that the Bankruptcy Regulation was then refined
through PERPU No. 1 of 1998 and on September 9, 1998 the PERPU was
upgraded to become Law, namely Law No. 4 of 1998. The new Bankruptcy Law
consists of 289 articles, which are divided into 3 chapters, namely:
1. Chapter I, regarding Bankruptcy starting from article 1 to article 211.
2. Chapter II, regarding Suspension of Obligations for Payment of Debt (PKPU),
articles 212 to 279, and
3. Chapter III, concerning the Commercial Court, articles 280 to 289.
When compared with the old bankruptcy rules, the new bankruptcy rules
have an additional chapter, namely the third chapter which contains 10 articles,
which regulates the Commercial Court. Whereas in chapter 1 first and chapter two
in principle the same as the old rules but with some changes and additions to the
substance and articles in it. More as described in the following chapters. In the
course of time, even this UUK No. 4 of 1998 was deemed unable to accommodate
all the interests of the parties in resolving debt and credit problems. Therefore it
needs to be addressed, perfected both from the formal and material aspects. So on
November 18, 2004, Law no. 37 of 2004 concerning Bankruptcy and
Postponement of Debt Payment Obligations.

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 Law No. 37 of 2004 consists of 308 articles which are divided into 7
chapters namely:
Chapter I : General Provisions (article 1)
Chapter II : Bankruptcy (article 2- Article 221)
Chapter III : Postponement of Debt Payment Obligations (PKPU) (article
222-article 294)
Chapter IV : Request for Judicial Review (article 295-article 298)
Chapter V : Other Provisions (article 299-article 303)
Chapter VI : Transitional Provisions (article 304-article 305)
Chapter VII : Closing Provisions (article 306-article 308)

C. History of Bankruptcy Law

In the history of the entry into force of Bankruptcy Regulations in
Indonesia, according to the author, it can be divided into 3 periods, namely: the
period before the Faillisement Verordening takes effect, the period for which the
Failliement Verordening itself takes effect and the period for which the current
Bankruptcy Law applies.

1. Prior to the Entry into force of the Faillisements Verordening

Before the Faillisements Verordening took effect, the Bankruptcy Law used to be
regulated in two places, namely in:
a. Wet Book Van Koophandel or WVK the third book entitled "Van de
Voorzieningen in geval van Onvormogen van kooplieden" or regulations
regarding the inability of traders. This regulation is a bankruptcy regulation for
traders.
b. Regulation op de Rechtsvoordering (RV). S. 1847-52 bsd 1849-63, The
third book, the seventh chapter with the title "Van den staat Von Kenneljk
Onvermogen or about the state of real inability.

These Rules are the Bankruptcy Rules for non-merchant persons.

However, in practice, these two regulations actually created many difficulties,
including:

9
a. There are so many formalities that it is difficult to implement
b. High cost
c. The influence of creditors is too little on the course of bankruptcy
d. It takes a long time
Because of this, new rules were made, which were simple and didn't need a lot of
money, so the Faillissements Verordening (S.1905-217) was born to replace the 2
(two) Bankruptcy Rules.

2. Validity Period of Faillisements Verordening (S.1905 No.217 jo S.1906

No.348)

Furthermore, regarding bankruptcy, it is regulated in the Faillisements

Verordening (S.1905-271 bsd S.1906-348). This Bankruptcy Regulation actually
only applies to the European group, the Chinese group and the Foreign Eastern
group (S. 1924-556).

For the original Indonesian group (indigenous) they can use this
Faillisements Verordening by submitting themselves. During this period for
bankruptcy, the Faillisementes Verordening 1905-217 applies to everyone,
namely both traders and non-traders, both individuals and legal entities.

The history of bankruptcy regulations in Indonesia is in line with what

happened in the Netherlands through the principle of concordance (article 131 IS),
which began with the enactment of the "Code de Commerce" (1811-1838) then in
1893 it was replaced with Faillisementswet 1893 which entered into force on
September 1, 1896.

3. The validity period of the National Law Product Bankruptcy Act

In the end after the entry into force of Fv. S. 1905 No. 217 jo S. 1906 No.
348, the Republic of Indonesia is able to make its own bankruptcy regulations
(although they are still patchy in nature), namely there are already 3 (three) laws
and regulations which are products of national law: starting from the issuance of
Government Regulation in Lieu of Law (PERPU) No. 1 of 1998 concerning
Amendments to the Law on Bankruptcy which was later upgraded to Law no. 4 of

10
1998 and finally on November 18, 2004, it was further refined by Law No. 37 of
2004 concerning Bankruptcy and Suspension of Debt Payment Obligations.

a. The validity period of Perpu No. 1 of 1998 and UUK No. 4 Year 1998

The influence of monetary fluctuations that occurred in several countries

in Asia, including Indonesia, since mid-1997 has caused enormous difficulties for
the national economy, especially the ability of the business world to develop its
business. Moreover, in order to fulfill their payment obligations to creditors. This
situation in turn has given birth to a chain of consequences and if it is not resolved
immediately it will have a wider impact.

Settlement of debt problems must be done quickly and effectively. So far,

the problem of bankruptcy and postponement of payment obligations has been
regulated in Feaillements Verordening S. 1905 No. 217 Jo. S. 1906 No. 348.

In general, the procedures regulated in the Faillisements Verordening are

still good. However, because perhaps so far it has rarely been used, the
mechanisms regulated in it have become increasingly untested, some of the
infrastructure that supports these mechanisms has also become untrained. While
as time goes by, economic life progresses rapidly, it is only natural that it is even
more urgent to provide adequate legal means, namely one that is fast, fair, open
and effective in order to settle debts and receivables of companies that have a
large settlement for the life of the National economy.

Then, improvements were made to the bankruptcy regulations or

Faillisemnets Verordening through PERPU No. 1 of 1998 concerning
Amendments to the Bankruptcy Law on April 22, 1998 and as a further
consequence of this PERPU was upgraded to Law of the Republic of Indonesia
No. 4 of 1998 concerning the Stipulation of a Government Regulation in Lieu of
Bankruptcy Law which was ratified and promulgated in Jakarta on September 9,
1998 as contained in the 1998 State Gazette of the Republic of Indonesia (LNRI).
135.

11
 So from the date the law was enacted, the Bankruptcy Law applies, which
in principle is still just a patchwork of the previous rules, namely the Bankruptcy
Regulations or FV.

b. The validity period of UUK No.37 of 2004

The development of the economy and trade as well as the influence of

globalization that has hit the business world today, and considering that the capital
owned by entrepreneurs in general is mostly loans originating from various
sources, both from banks, investment, bond issuance or other permitted methods,
has cause many problems of debt settlement in society.

Whereas the monetary crisis that hit Asian countries including Indonesia
since mid-1997 has caused great difficulties for the national economy and trade.
The ability of the business world to develop its business is severely disrupted,
even to maintain the continuity of its business activities is also not easy, this
greatly affects the ability to meet its debt payment obligations. This situation
results in the emergence of a series of problems, which if not resolved
immediately will have a wider impact, including the loss of employment
opportunities and other social problems.

In the interest of the business world in resolving debt problems fairly,

quickly, openly, and effectively, it is necessary to have legal instruments that
support it. Therefore, changes are made to the Bankruptcy Law by correcting,
adding, and eliminating provisions that are deemed no longer in accordance with
the needs and developments of the law in society, because if viewed from the
aspect of the material regulated, there are still various shortcomings and
weaknesses.

There are several factors that need regulation regarding bankruptcy and
postponement of debt payment obligations, namely to avoid:

1) Conquest of the Debtor's assets if at the same time there are several
Creditors who collect their receivables from the Debtor.

12
2) Creditors holding material security rights who claim their rights by selling
the Debtor's property without taking into account the interests of the Debtor or
other Creditors.
3) Frauds committed by one of the Creditors or Debtors themselves.
For example, the debtor tries to give an advantage to one or several creditors so
that other creditors are harmed, or there is a fraudulent act on the part of the
debtor to take away all of his assets with the intention of releasing his
responsibilities to creditors.

The new Law on Bankruptcy and Suspension of Obligations for Payment

of Debt has a wider scope both in terms of norms, scope of material, and the
process of settling debts. This wider coverage is necessary, due to the
development and need for law in society while the provisions that have been in
effect so far have not been sufficient as a legal means to resolve debt problems
fairly, quickly, openly, and effectively.

Some of the new subject matter in the Law on Bankruptcy and Suspension
of Obligations for Payment of Debt, among others:

1) In order not to cause various interpretations in this Law the definition of

debt is given strict limits. Likewise the notion of falling time.
2) Regarding the terms and procedures for applying for a bankruptcy
statement and requesting a suspension of debt payment obligations, including the
provision of a definite time frame for making a bankruptcy declaration decision
and/or suspension of debt payment obligations.

c. Principles of Bankruptcy Law

Bankruptcy institutions are legal institutions that have an important

function, as the realization of two important articles in the Civil Code, namely
articles 1131 and 1132 regarding debtors' responsibilities for their debts.

According to article 1131: all the debtor's property, both movable and
immovable, both existing and new in the future, become dependents for all
individual engagements.

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 Article 1132: The property becomes a mutual guarantee for all those who
owe it; The income from the sale of the objects is divided according to the
balance, that is, according to the size of the receivables of each, unless there are
valid reasons for the creditors to take precedence.

The two articles above provide a guarantee of certainty to creditors that the
debtor's obligations will still be fulfilled / paid off with guarantees from the
debtor's assets, both existing and those that will still exist in the future. Article
1131 of the Civil Code and 1132 of the Civil Code is a manifestation of the
principle of guarantee of certainty payment for transactions that have been made.

The relationship between the two articles is as follows: that the debtor's
wealth (article 1131 of the Civil Code) is a mutual guarantee for all creditors
(article 1132 of the Civil Code) proportionally, except for creditors with
preemptive rights (preference rights).

So basically, the principles contained in Article 1131 of the Criminal Code

The Civil Code and 1132 of the Civil Code are that the law regulates the
right to collect creditors or creditors for their transactions with debtors.

Starting from the above principle as lex generalis, the bankruptcy

provisions regulate it in a more detailed and operational order.

According to Sri Redjeki Hartono, bankruptcy institutions basically have two

functions at once (1997: 5), namely:

1. Bankruptcy as a guarantee institution to its creditors that the debtor will not
commit fraud, and remains responsible for all his debts to all his creditors.
2. It also provides protection to debtors against the possibility of mass execution
by their creditors.

So the existence of provisions regarding bankruptcy either as an institution

or as a special legal remedy is a series of concepts that adhere to principles in
accordance with the provisions as regulated in articles 1131 and 1132 of the Civil
Code. This principle-compliant regulatory system has the main value in providing
legal certainty.

14
 From that arose the Bankruptcy institution, which seeks to establish a fair
procedure regarding the payment of debts to all creditors in the manner ordered by
article 1132 of the Civil Code. So articles 1131 and 1132 of the Civil Code are the
legal basis for bankruptcy.

In the old laws, namely the Faillisement Verordening (FV) and Law No. 4
of 1998 concerning Bankruptcy, it was not specifically regulated, but in Law No.
37 of 2004, namely the Law concerning Bankruptcy and Suspension of
Obligations for Payment of Debt, in its explanation it states that the existence of
the Law on Bankruptcy and Suspension of Obligations for Payment of Debt This
law is based on a number of bankruptcy principles namely;

3. The Principle of Balance

This law regulates several provisions which are the embodiment of the
principle of balance, i.e. on the one hand, there are provisions that can prevent
abuse of bankruptcy institutions and institutions by dishonest debtors, on the other
hand, there are provisions that can prevent abuse of institutions and institutions.
bankruptcy by creditors who do not have good faith.

4. The Principle of Business Continuity

In this Law, there are provisions that allow prospective Debtor companies to
continue to operate.

5. Principle of Justice

In bankruptcy, the principle of justice implies that the provisions regarding

bankruptcy can fulfill a sense of justice for interested parties. This principle of
justice is to prevent the arbitrariness of collectors who seek payment of their
respective bills against debtors, regardless of other creditors.

6. The Principle of Integration

The principle of integration in this law implies that the formal legal system
and material law are an integral part of the civil law system and national civil
procedural law.

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2.2 Marriage
2.3 Marriage Agreement In A Position As A Barrier For Debtors To Carry
Out Bankruptcy Obligations

16
 CHAPTER III

CLOSING

3.1 CONCLUSION

3.2 ADVICE

17
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