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Suami Istri Mendirikan Perseroan Terbatas

Suami istri yang terikat melalui perkawinan yang sah menurut UU No 1 Tahun 1974 bukan saja terikat secara lahirian tetapi juga secara bathin , dan dipersyaratkan memiliki tujuan membentuk keluarga (rumah tangga) yang bahagia dan kekal berdasarkan Ketuhanan Yang Maha Esa. Kemudian – masih berdasarkan UU Perkawinan diatur pula bahwa mengenai harta benda atau kekayaan yang dimiliki suami istri tersebut terbagi dalam 2 bentuk yakni Harta Bersama dan Harta Bawaan (Vide Pasal 35).

Mengenai harta bersama dalam Pasal 119 KUHPerdata dan Kompilasi Hukum Islam Pasal 1 dan Pasal 87 Ayat (1) dimaknai sebagai seluruh harta yang diperoleh saat dan sejak dilangsungkannya perkawinan yang dimaknai dengan pencampuran harta akan tetapi terdapat ketentuan tentang suatu perjanjian perkawinan yang semula dimaknai haruslah dibuat sebelum terjadinya perkawinan namun sejak terbitnya Putusan MK No 69/PUU-XII/2015 perjanjian perkawinan dapat diadakan selama perkawinan sebab Pasal 28 E ayat (2) UUD 1945 kepentingan tersebut sebagai hak konstitusional setiap pribadi baik sebagai suami maupun istri untuk menyatakan pikiran dan sikap, sesuai dengan hati nuraninya.”

Dengan norma undang-undang dan Hukum Kompilasi Islam tersebut timbul pertanyaan apakah suami istri dapat mendirikan perseroan terbatas sebagaimana menurut UU No 40 Tahun 2007 tentang Perseroan Terbatas memiliki 4 unsur sebagai persyaratan materiil UU yakni

  1. Berbentuk badan hukum
  2. Merupakan persekutuan modal,
  3. didirikan berdasarkan perjanjian,
  4. Melakukan kegiatan usaha dengan modal dasar yang seluruhnya terbagi dalam saham

dan memenuhi persyaratan formil yang ditetapkan dalam Undang-Undang serta peraturan pelaksanaannya.

Oleh karena Badan Hukum PT mengandung unsur adanya persekutuan modal dan didirikan berdasarkan perizinan maka terdapat beberapa norma peraturan perundangan yang perlu menjadi dasar pertimbangan hukum bagi suami istri yang berkeinginan mendirikan Perseroan terbatas :

PERSEKUTUAN MODAL DALAM PERSEROAN TERBATAS SUAMI ISTRI

Didalam Pasal 105 KUHPerdata di sebutkan bahwa suami menjadi kepala keluarga, ia harus mengurus harta kekayaan pribadi istrinya kecuali dipersayaratkan sebaliknya, harta kekayaan rumah tangga bahkan bertanggungjawb atas segala kelalaian dalam pengurusannya. Dengan frasa kecuali dipersyaratkan sebaliknya memberikan pengertian harta pribadi istri bisa saja diluar penguasaan pengurusan suaminya.

Setiap suami adalah menjadi kepala persatuan perkawinan. Sebagai kepala, ia wajib memberi bantuan kepada isterinya atau tampil untuknya di muka Hakim, dengan mengingat pengecualian-pengecualian yang diatur di bawah ini. Dia harus mengurus harta kekayaan pribadi si isteri, kecuali bila disyaratkan yang sebaliknya. Dia harus mengurus harta kekayaan itu sebagai seorang kepala keluarga yang baik, dan karenanya bertanggung jawab atas segala kelalaian dalam pengurusan itu. Dia tidak diperkenankan memindahtangankan atau membebankan harta kekayaan tak bergerak isterinya tanpa persetujuan si isteri.

Maka persyaratan yang harus dilakukan antara suami dan istri yang ingin mendirikan Perseroan terbatas haruslah diawali dengan persetujuan diantara mereka berdua untuk mengadakan perjanjian perkawinan mengenai pemisahan harta diantara mereka, sehingga sempurna kedudukan modal yang akan ditempatkan oleh istri adalah harta yang berasal dari pribadinya begitupun dengan modal yang akan ditempatkan oleh suami sebagai persyaratan persekutuan modal dalam UU Perseroan terbatas.

PERBUATAN HUKUM PERJANJIAN DALAM PERSEROAN TERBATAS SUAMI ISTRI

Jika mengacu Pasal 1313 KUHPerdata suatu persetujuan dimaknai sebagai suatu perbuatan hukum antar satu orang atau lebih dengan satu orang lain atau lebih melalui suatu perikatan. Oleh karena didalam UU Perkawinan mengandung makna suami dan istri adalah penyatuan secara lahiriah dan batiniah, maka jika masing-masing menyatakan diri sebagai satu pihak untuk menghadap di notaris mengesahkan akta pendirian dan anggaran dasar Perusahaan terbatas, maka terjadi pertentangan hukum antara UU Perkawinan dengan UU Perseroan Terbatas.

Pertentangan tersebut terlihat pada awal bunyi akta pendirian PT yang dibuat dihadapan notaris ‘’bahwa para penghadap (suami dan istri) bertindak untuk diri sendiri’’, artinya secara sendiri-sendiri suami atau istri seakan-akan dapat memiliki kepentingan yang berbeda atau hak dan kedudukan yang tidak seimbang untuk menjalankan tujuan membangun keluarga yang bahagia dan kekal sebab bagaimanapun dalam pergaulan masyarakat suami tetap saja kepala keluarga dan istri adalah ibu rumah tangga sebagaimana diatur dalam UU Perkawinan.

Akan tetapi dengan mendasari Pasal 31 (2) UU Perkawinan yang menyatakan bahwa suami atau istri berhak untuk melakukan perbuatan hukum diikuti pertimbangan Hakim Mahkamah Konstitusi pada Putusan MK No 69/PUU-XII/2015 bahwa setiap orang memiliki kebebasan meyakini kepercayaan, menyatakan pikiran dan sikap, sesuai dengan hati nuraninya, maka sepanjang persetujuan pendirian perseroan terbatas oleh suami dan istri tersebut memang untuk mencapai kemakmuran rumah tangga mereka seperti yang dimaksud UU Perkawinan maka terpenuhi syarat sah perjanjian tersebut karena suatu hal yang tidak bertentangan dengan UU.

Dengan demikian, sepanjang suami dan istri mampu mendudukan perjanjian perkawinan pemisahan harta bersama mereka dan telah didaftarkan dicatatkan pada akta nikah, maka seharusnya tidak ada kendala untuk melakukan pendaftaran (syarat Formil) Perseroan Terbatas yang mereka dirikan ke Kementerian hukum dan HAM RI.

John Ganesha Siahaan

Kelahiran Belinyu tertarik pada isue demokrasi, pembaharuan hukum dan pengawasan kebijakan publik. Aktif sebagai pekerja bantuan hukum dan Penggiat Ekonomi Kreatif pada Pengembangan Industti 4.O

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