The Legal Standing of the Creditor Who Made a Marital Separation Agreement as a Petitioner for Bankruptcy

Abstract

Provisions regarding a marital agreement which can be made during the time the husband and wife are in a marriage bond can be used as an excuse by a husband and wife to separate a receivable which initially constitutes one receivable and is then to be made into two receivables to create two creditors so that they fulfil the requisites of a petition for bankruptcy and PKPU. Such a condition has occurred in the bankruptcy and PKPU petition submitted by Stefanus Maria Sudjanto. S and his wife to Goenawan Rahardja. Motivated by the phenomenon, this research is aimed at examining the legal consequences of marital separation agreements for a joint receivable in a bankruptcy and PKPU petition and determining the position of creditors in the bankruptcy and PKPU petition for a receivable that had been made before the marriage separation agreement made. To achieve these objectives, we use the normative legal research method with three approaches–statute approach, conceptual approach, and case approach. We use primary legal materials, secondary legal materials and tertiary legal materials. These legal materials were collected through a literature study. These materials were analyzed using a qualitative analysis technique. The results show the marital separation agreement made by Stefanus Maria Sudjanto. S and his wife are null and void, because it violates the legal requirements of an agreement, namely Article 1320, subsection (4) of the Civil Code. In addition, a marital agreement shall also be made in good faith in compliance with the provisions of Article 1338. The marital separation agreement, made by Stefanus Maria Sudjanto. S and his wife was made not in good faith; it is null and void. Thus, the joint receivable of Stefanus Maria Sudjanto. S and his wife having been made before the marriage agreement remains as a joint receivable. Therefore, based on the definition of debt and the principle of balance, a husband and wife who have harmed the debtor and then enter into a marital separation agreement while in the marriage bond is only a creditor and does not have legal standing as two creditors in the submission of a bankruptcy statement.