Reconstruction of the Concept of Premarital Agreements from the Perspective of Substantive Justice & Gender Equality

Abstract

Prenuptial agreements in Indonesia still face issues of gender inequality and are often dominated by formalistic legal approaches that do not fully reflect substantive justice. This study aims to reconstruct the concept of prenuptial agreements from the perspective of substantive justice and gender equality in order to formulate a more balanced model of legal protection for both spouses. This research employs a normative legal method using statutory, conceptual, and philosophical approaches, supported by literature studies and semi-structured interviews with notaries, which are analyzed qualitatively. The findings indicate that existing legal frameworks, particularly the Civil Code and Marriage Law, continue to emphasize formal legality rather than substantive justice. Although Constitutional Court Decision No. 69/PUU-XIII/2015 has expanded the flexibility of prenuptial agreements, unequal bargaining positions remain due to economic disparities and patriarchal cultural influences. Furthermore, the role of notaries remains largely administrative and has not yet optimally ensured equality between parties. This study introduces a reconstruction model of prenuptial agreements that integrates transparency, protection of vulnerable parties, standardization of contractual clauses, and substantive review mechanisms beyond mere formal legality. In conclusion, prenuptial agreements in Indonesia need to be reoriented from purely formal legal instruments into gender-responsive instruments that promote substantive justice and provide fair and proportional legal protection for both parties.