Code of Muslim Personal Laws in PH
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sumCode of Muslim Personal Laws in PH
Uploaded by
sum ustoms, traditions, beliefs and interests of national cultural
c
communities in the formulation and implementation of state
policies," this Code:
( a)RecognizesthelegalsystemoftheMuslimsinthePhilippines
as part of the law of the land and seeks to make Islamic
institutions more effective;
his decree shall be known as the "Code of Muslim Personal
T (b) Codifies Muslim personal laws; and
Laws of the Philippines."
( c) Provides for an effective administration andenforcementof
eaning ofDecree.—ordinanceoredictpromulgatedbycivilor
M Muslim personal laws among Muslims.
other authority.
Constitutional Basis of the Code
Code of Muslim Personal Laws of the Philippines- ● The Muslim Personal Law of the Philippines was
● In the legal sense, personal laws are those which prepared, signed and approved into law on February4,
appertains to person. 1977,asPD1083pursuanttoSec2Art15ofthe1973
● Itisthatwhichfollowstheperson,asdistinguishedfrom Constitution
the place where the person may be. ● Sec22,Art2ofthe1987Constitutiongivessanctionto
● TheCodeofMuslimPersonalLawsofthePhilippinesisa the present Muslim Code:
body of laws that treats of the personal laws of the "The State recognizes and promotes the rights of
Muslim in the Philippines, and provides for the indigenous culturalcommunitieswithintheframeworkof
administrative machinery for its implementation. national unity and development."
● It applies only to Muslims in matters relating to their
personal status, matrimonial and family relations, Objectives of the State in Providing P.D. 1083:
succession and inheritance, and property relations 1. To promote the advancement and effective
between spouses. participationoftheNational Cultural Communities (in
● Non-Muslims are not embraced in the law, except in general, and the Filipino considering their customs,
those cases provided by the Code. traditions, beliefsand interestsinMuslim in particular)
in the buildingof the New Society,bythe formulation
istorical Background of the Code of Muslim Personal
H and implementation of the state policies
Laws in the Philippines. — 2. To make Islamic law and itsprinciplesof equityand
● The present Code of Muslim Personal Laws of the justice, to which the Muslim Filipino communities
PhilippinesistheresultofIslamicinfluencethatwasfirst adhere, provide for the fuller development of said
introduced in Suluby the early Muslim missionaries. communities in relation to thesearch for harmonious
● Arabian missionary Sayyid Abu Bakr, believed to have relations of all segments of the Filipino Nation to
descended fromthefamilyoftheHolyProphetofIslam enhance national unity;
came to Buansa, Jolo, the seat of government of the 3. To attain a moreordered lifeamong them(Filipino
island's local chieftainRajah Baginda. Muslim); and
4. To strengthenall the ethno-linguisticcommunities in
● Prior Muslim Codes in the Philippines the Philippines(particularlythe FilipinoMuslim)within
1. Diwan (codex) of the Sultan of Sulu -codeacceptedin the contextoftheir respective ways oflife in order to
1878 AD. bring about a cumulative result satisfying the
2. Luwaran - has 85 articles, used as guide by qadis in requirements of national solidarity and social justice.
Maguindanao or Cotabato Area
● Laws passed for Muslims prior to PD 1083
1. Act No. 1283 - providing for the enactmentoflaws to
suit local conditions among Moros (Muslims), and to
( 1) In case of conflict between any provision of this Code and
cause such laws to conform whenever practicable to
laws of general application, the former shall prevail.
their local customs and usages;
(2)ShouldtheconflictbebetweenanyprovisionofthisCodeand
2. R.A. 394, recognizing divorce among Muslims in
special laws or laws of local application, the latter shall be
accordance with their customs and practices.
liberally construed in order to carry out the former.
3. R.A. 386, recognizing marriages among Muslims or
(3) The provisions of this Code shall be applicable only to
mixedmarriagesbetweenMuslimmaleandnon-Muslim
Muslimsandnothinghereinshallbeconstruedtooperatetothe
femalesolemnizedinaccordancewithMuslimcustoms,
prejudice of a non-Muslim.
rites or practices;
ulesofConstructioninCaseofConflictBetweenAnyProvision
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of the Muslim Code and Laws of General Application.—
● Brieflystated,theMuslimCodebeingaspeciallaw,shall
ursuant to Section 11 of Article XV of the Constitution ofthe
P prevail over a general law.
Philippines, which provides that "The State shall consider the ● For example, underArt.340oftheRevisedPenal Code
which is a law of general application, contracting a
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE1
ubsequentmarriagewhiletheformermarriagesubsists
s - If John Keven is an Arab Muslim and then
isprohibitedandpunishableasacrimeofbigamy.Under marries Cherry Guinar, a Muslim Filipino then
Article 27 of the Muslim which is a special law, a the Philippine Muslim Code applies to him.
subsequent marriage so long as it complies with the
requirements provided for its validity under the Muslim
Codeisvalid,thelatterbeingaspeciallaw,prevailsover
the former which is a general law.
● It has been held that in case of conflict between a ( 1) In theconstructionandinterpretationofthisCodeandother
general law and aspeciallaw,thelattermustprevailas Muslim laws, the courtshalltakeintoconsiderationtheprimary
an exception to the former regardless of the dates of sources of Muslim law.
their enactments
( 2) Standard treatises and works on Muslim law a nd
ame; Rule of Construction in Case of Conflict Between the
S jurisprudence shall be given persuasive weight in t he
Muslim Code and Another Special Law orLawsofPreferential interpretation of Muslim law.
Application.—
● In case of conflict between theprovisionoftheMuslim tty Bibbo Discussion:
A differentiate construction and
Code and aspeciallaw,thespeciallawshallbeliberally interpretation
construed in order to carry out the Muslim Code.
● Thesameconceptappliesregardingconflictbetweenthe
● Construction- determining intent of legislator
provisionoftheMuslimCodeandtheprovisionofalaw ● I nterpretation-howanordinarypersonunderstandsthe
of local application. text
.
Same: Construction; Applicable Only to Muslim. Construction of this Code and other Muslim Law. —
● ThetermMuslimisgivenadefinitemeaninginthisCode ● The other Muslim law referred to herein must be
asapersonwhotestifiestotheonenessofGodandthe understood as those relating to Muslim personal law
Prophethood Of Muhammad (P.B.U.H.) and professes which may be found applicable in the light of the
Islam. governing principles observed in the codificationofthis
● Muslim in the Philippinesmay be into: Code.
1. those born of Muslim Filipino parents; ● Such Muslim law not embodied in this Code must be
2. those who were converted to Islam who are proven in evidence as a fact (Art. 5, PD 1083).
now called "Convertslam" (convert toIslam)or ● In construing such other Muslim law, they must be
Balik Islam(one who has returned to Islam); and guided in likemanneraswhenconstruinganyprovision
3. those foreigners or aliens who are Muslims oftheCode,bytheprimarysourcesofMuslimlawwhich
residing in the Philippines. areprimarilytheQuran,andtheHadith(tradition)ofthe
● In the case of Balik Islam Muslim converts, male or Prophet of Islam.
female, the Muslim Code shall apply to them from the ● 4 Sources of Islamic Law
momentofregistrationoftheactofconversionwiththe ○ Quran
Muslim District or Circuit Civil Registrar. ○ Hadith
● Non-Muslim Spouses, female, the Muslim Code shall ○ Ijma
apply to them not from the moment of conversion but ○ Qiyas
fromthemomentoftheirmarriage,sinceconversionhas
the effect of ratifying their marriage retroactively as Standard Treatises and Works on Muslim Law.
thoughitwasperformedinaccordancewiththeCodeor ● Standard treatises and works onMuslimlawshallhave
Muslim law. persuasiveweightuponthecourtandalthoughthecourt
● As regard alienMuslim,theMuslimlawtakesexception is not bound to follow them,
to nationality and the territoriality theories (concerning ● Nevertheless,onthestrengthoftheirmeritasbeingjust,
the applicability of personal laws. sound, or equitable,itmaymakeuseofthemasaidsin
● This rule is evident from paragraph 3, of the treated the interpretation or construction of the Code or other
Article 3 of the Code when it is provided therein: "This Muslim law in order to ascertain the meaning of the
Code shall be applicable only to Muslim," in general terminology of the law or the intent ofthelawmakerin
without making any distinction. enacting it.
● Under the Muslim law theory,Islamhasordainedforall
Muslim a common Code of Personal Lawapplicableto
all Muslims regardless of his domicile and nationality.
● Thus, if John Keven is an Arab Muslim, the Philippine
uslimlawand'adanotembodiedinthisCodeshallbeprovenin
M
Muslim Code applies to him.
evidence asafact.No'adawhichiscontrarytotheConstitution
● But Atty. Bibbo discussed
of the Philippines, this Code, Muslim law, public order, public
Article 15 civil code, the personal laws of your country
policy or public interest shall be given any legal effect.
follows you.
- IfJohnKevenisanArabmuslimandhevisited
Muslim Law not Embodied in this Code.—
inthePhilippinesthenArabpersonallawsapply
● Refers to other Muslim personal laws other than the
to him.
Quran and the Hadith (tradition)
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE2
● Are to be proven in evidence as a fact
( h) "Muslim Law" (Shari'a) refers to all the ordinances and
Proof Of Muslim Customary (Ada) Law and Muslim Law.— regulationsgoverningMuslimsasfoundprincipallyintheQur'an
● Adausuallymeanscustom;Technically,itisalsousedto and the Hadith.
refertocustomarylaw,whichisabodyofrulesofnorms
of conduct traditionally and continually recognized, ( i) "Muslim Personal Law" includes all laws relatingtopersonal
accepted and observed as a binding rule of law by a status, marriage and divorce, matrimonial and family relations,
community of people for a long period of time. succession and inheritance, and property relations between
spouses as provided for in this Code.
Requisites of Ada to Be Admissible as a Binding
1. It must have the force of law upon the community,
2. It must be generally acceptable to the community,
3. It must not be contrary to the constitution of the
Philippines, the Muslim Code, other Muslim law, public uridical capacity, whichisthefitnesstobethesubjectoflegal
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order, public policy or public interest relations, is inherent in every natural person and is lost only
4. It must be proven in evidence as a fact. throughdeath.Capacitytoact,whichisthepowertodoactswith
legal effect, is acquired and may be lost.
Muslim Law Jurisprudence on Legal Capacity.
● Legal Capacity is divided into two parts
● Juridical Capacity - Fitness of a person to be
( 1) Should there be any conflict among the orthodox (Sunni) the subject of legal relations
Muslim schools of law (Madhahib),thatwhichisinconsonance ● Capacity to Act - Power of such persontodo
with the Constitution of the Philippines, thisCode,publicorder, acts with legal effects
public policy and public interest shall be given effect.
Juridical Capacity - when acquired and when it ends
( 2)TheMuslimschoolsoflawshall,forpurposesofthisCode,be ● Natural Persons-
the Hanfi, the Hanbali, the Maliki and the Shafi'i. ○ from the moment it develops a human form even
while still in the mother’s womb although at this
Conflict Among the Islamic Schools of Law. — stage its capacity is only limited.
● ItmustbenotedthatallthefourschoolsofMuslimlaw ○ Complete legal capacity of a natural person
are essentiallythesameinthesensethatallrelyonthe ■ conditioned upon its delivery and independent
Quran and the Hadith. existence of the umbilical cord
● The differences lie in their respective approach in ○ Juridical Capacity remains with the natural person
formulatingaruleoflawbasedonthoseoriginaltexts,or until death extinguishes it.
not contrary thereto.
● Theschooloflawthathasbecomepredominantamong ● uridical Persons-
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Muslim Filipinos is theShafi'i madhab. ○ from the moment itacquireslegalcapacitywhenit
is created by operation of law.
○ remainswithituntilwithdrawnbytheauthoritythat
conferred its legal existence.
( a) "Agama Arbitration Council" means a bodycomposedofthe Juridical Capacity - Effects
Chairmanandarepresentativeofeachofthepartiestoconstitute ersonbecomessusceptibleofbeingthesubjectoflegalrelation
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a council to take all necessary steps for resolving conflicts fortheacquisitionandenjoymentoftherightsor,ofbeingbound
between them. to legal obligation.
(b) "Ada" means customary law. Capacity to Act
● ability, power, qualification, or competency of a person,
( c) "General Register" means theGeneralRegisterofmarriages, natural or juridical for the performance of civil acts
divorces, revocation of divorces, conversion and such other depending on the state of condition asdefinedorfixed
deeds or instruments kept by the Registrar under this Code. by—law.
● This condition, begins
( d) "Ihram" signifies the state of ritualconsecrationofaperson ○ in the case of natural person, upon attaining
while on pilgrimage to Mecca. maturity of age to intelligently contemplateon
the volition of his act
( e)"Madhhab"(plural,Madhahib)meansanyofthefourorthodox ○ inthecaseofajuridicalperson,uponmeeting
(Sunni) schools of Muslim law. all,theconditionsofthelawthatwouldenableit
throughitsofficerstolegallyexercisetherights
(f) "Month" means a period of thirty days. appertaining to an artificial being.
( g)"Muslim"isapersonwhotestifiestotheonenessofGodand
the Prophethood of Muhammad and professes Islam.
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE3
● It will, however, be reckoned as death illness from the
date when the patient becomes bedridden thereby,
provided he dies within a year of it.
he following circumstances, among others, modify or limit
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capacity to act: Insanity -
age, insanity, imbecility, the state of being deaf-mute, the ● Insanityissuchdeprivationofreasonthatthesubjectis
condition of death-illness (marad-ul-maut), penalty, prodigality, no longer capable of understanding and acting with
absence, family relations, alienage, insolvency, andtrusteeship. discretion in the ordinary affairs of life.
The consequences of thesecircumstancesaregovernedbythis ● Exceptionwhereactsofinsanearebindingisduringlucid
CodeandotherIslamiclawsand,inasuppletorymanner,byother interval
laws. Family Relations
Examples:
ADI FIIT PAPA
D ● Certain persons related by consanguinity or affinity
the state of beingDeaf-mute cannot validly marry one another
Ag e ● Husband and wife during the marriage cannot give
the condition ofDeath-illness donations to each other, neither could they enterintoa
Insanity contract between themselves
amily relations
F Imbecility
Imbecility ● He is one who, while advanced in age, has a mental
Insolvency developmentcomparabletothatofchildrenbetweentwo
Trusteeship and seven years of age.
● Versus Infant, an Imbecile is at the age of Majority
e
P nalty ● Versus Insane, an Imbecile is sane.
Ab sence
Pr odigality Insolvency
Alienage ● Insolvency is the state of a person, whether natural or
juridical, whose total liabilitieshasalreadyexceededhis
ircumstances affecting capacity to Act under the Codearenot
C entire assets.
Exclusive to the enumerated list. ● If a person is declared insolvent by the court, it would
have the effect to forbid the paymentofanydebtsdue
Deaf Mute him,orthedeliveryofanypropertybelongingtohim,and
● Do not have capacity to act if unable to readandwrite the tribute of any property by him.
Age (Minors)- Trusteeship
● Generally speaking, he is entitled to do any acts which ● Is the result of a creation of trust relation
areentirelybeneficialtohimsuchasacceptanceofagift ● A trust is an obligation imposed expressly or by
and the like, even though his guardiandoesnotaccord implication of law whereby the obligor known as the
permission and whatever is injurious to hisinterestwill trusteeistodealwithpropertyoverwhichhehascontrol
be disallowed. of the benefit of another person called the beneficiary
● But an infant/minor with or without permission of his ● Whenatrusteeshiphasbeenestablishedbythecourtto
guardiancannotdoanyactwhichisabsolutelyinjurious carry into effect, say the provisions of a written
to his interest. instrument, the beneficiaries to the trust cannot deal
● Minor/infanthasobligationstoosuchaswhenhecauses directlyconcerninganymattersubjectofthetrustexcept
loss to others by his tortious acts. through the trustee appointed by the court.
● He also hasobligationsofabenevolentnature,towards
his kindred and wife Penalty
● A MuslimFilipinoisdeemedtohavereachedtheageof ● C ivil Interdiction
majority and have full legal capacity for all civil actsat ● Thepenaltyofcivilinterdictionshalldeprivetheoffender
eighteen years of age except as provided by law eg. during the timeofhissentenceoftherightsofparental
Muslimcodeforpurposesofcontractingmarriageatage authority, or guardianship, either as to the person or
of puberty presumably at fifteen years of age. property ofanyward,ofmaritalauthority,oftherightto
managehispropertyandoftherighttosuchpropertyby
Death Illness any act or any conveyance.
● Death illness is illness dangerous to life, that is which
mostlyendsindeathprovidedthepatientactuallydiesof Absence
it. ● Different from presumptive death
● But if the disease is of long standing and does not so ● Under the law, a person is absent when he disappears
increasefromdaytodaythatdeathmaybeapprehended from his domicile, his whereabouts being unknown.
from itordoesnotultimatelyendindeath,itwillnotbe ● Apersonmaybedeclaredabsentifhehasbeenabsent
regarded as death illness. for two (2) years without any newsabouthim,orsince
thereceiptofthelastnewsifhehasnotleftanagentto
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE4
dministerhispropertyandfive(5)yearsifhehasleftan
a ( 1)Civilpersonalityisextinguishedbydeath.Theeffectofdeath
agent. (Art 384 Civil Code) upon the rights and obligations of a deceased person is
● The effects therefore of absence with regard to the determined by this Code, by contract, and by will.
propertyleftbehindbytheabsentee,isthathecannotbe
deemedtobeinapositiontoadministerthem,hence,a ( 2)Afteranabsenceofsevenyears,itbeingunknownwhetheror
guardian will have to be appointedbythecourtforthat not the absentee still lives, he shall be presumed dead.
purpose.
● But the absentee, if living elsewhere and not suffering Effect of Death on Legal Personality Under Muslim Law. —
from other causes of incapacity, has of course the ● Asregardshisrightstheycontinuetoinhereinhiminso
juridical capacity to act. far as maybenecessaryforhislastrequirements,such
aspaymentoftheexpensesofhiscoffinandburial;and
Prodigality his debts and
● a prodigal is a person who, though of full age, is ● Asregardshisobligationsrelatingtothisworld;aperson
incapableofmanaginghisaffairs,andoftheobligations on his death isnecessarilyreleasedfromallobligations
which attends theminconsequenceofhisbadconduct which are to be discharged personally, for example,
or extravagant habit; a spend-thrift person who by obligation to perform a work which he alone can do.
excessive drinking, gambling, idleness ordebaucheryof ● But his liability with respecttoanypropertyrecoverable
anykind,shallsospend,waste,orlessenhisstateasto from him in specie remains unaffected, for example,
expose himself or his family to want or suffering,orto anythingwhichhewasholdingintrustatthetimeofthe
deprive the compulsory heirs of the legitime and for death will be restored to the owner of the succeeding
whom a guardian appointed by the court is therefore trustee.
necessary. ● Similarly, any property of which he was in wrongful
● However, the mere fact of prodigality alone does not possession may be recovered by the rightful owner.
restricttheCapacityOfapersonforanyjudicialactthat ● When a deceased person's obligation doesnotassume
willbindhimselfandsubjecthisproperty,butthefactof the form of liability to restoreathinginspeciebutisin
hisbeingplacedbyorderoftheCourtunderguardianship thenatureofadebt,thecreditorcanhaverecoursetohis
byreasonofprodigalitythatrendershimincompetentto estate.
act, except through his guardian appointed by the court.
Exception Article 11 (2)
Alienage ● Wherethereisdangerofdeathunderthecircumstances
● is the state of beinganalienorforeignerinaparticular setforthintheprovisionsofArticle391oftheCivilCode,
country by a person who is a citizen Of another country. an absence of onlytwo yearsshall be sufficient.
● Aliensaredisqualifiedfromvoting,frombeingelectedor Example: Person is a soldier and MIA during a battle
appointed, purchasing land in the Philippines operation.
irth determines personality; but the conceived child shall be
B I f, as between two or more persons who are called to succeed
consideredbornforallpurposesthatarefavorabletoit,provided each other, there is a doubt as to which of them died first,
it be born alive, however, briefly, at the time it is completely whoeverallegesthedeathofonepriortotheothershallprovethe
delivered from the mother's womb. same;intheabsenceofsuchproof,itispresumedthattheydied
at the same time and there shall be no transmission of rights
● hild in the womb capable of acquiring rights such as
C from one to the other. However,thesuccessionalrightsoftheir
inheritance, a legacy, and the like respective heirs shall not be affected.
● Child in the womb cannot be fastened with liabilities.
Application of Art. 12
Born Alive ● Appliesonlyincaseofthesimultaneousdeathsoftwoor
● It be born alive, however briefly, at the time it is more persons and
completely delivered from the mother’s womb i.e. the ● An issue arises as to which of them died first for
cutting of the umbilical cord. purposes of succession
Premature Child
● Muslim Code is silent about premature birth.
● Authorisoftheopinionthatitdoesn’tmatterifthechild
was not in the womb for 9 months, so longasitmust
haveahumanformandisbornalivehoweverbrieflyafter
it is completely delivered from the mother’s womb.
( 1)TheprovisionsofthisTitleshallapplytomarriageanddivorce
whereinbothpartiesareMuslims,orwhereinonlythemaleparty
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE5
is a Muslim and the marriage issolemnizedinaccordancewith
Muslim law or this Code in any part of the Philippines. ikah-theArabicwordformarriagewhichliterallymeans“union
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of sexes”; a contract for the legalization of intercourse and the
( 2) In case of marriage between a Muslim and a non-Muslim, procreation of children
solemnized notinaccordancewithMuslimlaworthisCode,the
Civil Code of the Philippines shall apply. Civil Contract vs. Marriage Contract
1. Acivilcontractisgovernedbythelawofcontract,whilea
( 3) Subject to the provisions of the preceding paragraphs, the Muslim marriage contract is governed by the Islamic
essential requisites andlegalimpedimentstomarriage,divorce, Shari’a
paternity and filiation, guardianship and custody of minors, 2. The parties to a civil contract can be either natural
support and maintenance, claims for customary dower (mahr), persons of either sex or juridical persons,regardlessof
betrothal, breach of contract to marry, solemnization and theirnumber,whileamarriagecontractcanonlybemade
registration of marriage and divorce, rights and obligations by man and a woman who are not under legal
between husband and wife parental authority, and the properly impediment to marry each other
relations between husband and wife shall be governed by this 3. A civil contractcanbeterminatedbymutualagreement
Code and other applicable Muslim laws. ofbothpartiesorbyeitheroneofthemsubjecttocertain
liability for damages in case of breach thereof, while a
heMarriageisSolemnizedinAccordancewithMuslimLawor
T marriage contract can only be terminated if the
this Code in Any Part of the Philippines; And, the Rule of the conditions ofthelawintendedtosafeguardthesanctity
Civil Code on Lex Loci Celebrationis. of a marriage contract are compliedandanybreachby
● Itistheauthor'sOPINIONthattheprovisionofthisCode either spouse of their marital obligations renders the
onmarriageanddivorcewhicharegenerallybasedfrom offending spouse to certain liability under the law
Muslim law Shall apply to Muslims married in 4. In a civil contract, the presence of witnesses is not
accordance with the Muslim law or this Code abroad. essential for validity, while in marriage contract, the
● It is the author's OPINION thatdivorceobtainedabroad presence of witness is an essential requirement for its
byMuslimFilipinosinaccordancewiththeMuslimlawor validity
theMuslimCodehasthesameeffectasadivorcedone
in the Philippines in accordancewiththeMuslimlawor
the Muslim Code.
Legal Consequences or Incidents of a Muslim Marriage
his article has six imports:
T 1. It makes lawful the sexual relationship between a man
1. It automatically applies if both are Muslims; and a woman
2. It applies if male is Muslim and married under Muslim law; 2. Legitimizeschildrenbornofthemarriageandestablishes
3.ItdoesnotapplyevenifmaleisMuslimbutmarriedunderthe their paternity and filiation
Civil Code; 3. It gives rise to the husband’s obligation to support the
4. In combine marriage, the first marriage is validating and the wife and his family
second is merely ceremonial; 4. It establishes the mutual rights to inheritance between
5. The marriage of male Muslim and polytheist female is void; the spouses
6. The marriage of Muslim female and non-Muslim male is void. 5. It affects to acertainextenttheparties’capacitytoact,
i.e.,restrictionstocontractmarriagewithaffinalrelatives
In additiontotheaboveisarticle178,onceanon-Muslimcouple within the prohibited degree; the wife’s right toreceive
wasconvertedtoIslam,themarriagewasrectifiedasiftheywere donation from stranger; to give donation to one another
solemnized in accordance with the provision of this code or 6. Certain mutual rights and obligations ensues between
Muslim law, for as long as there is no legal impediment to the spouses, and their children
marriage under Muslim law. 7. The woman is emancipated from herwali,getsentitled
tocontractsubsequentmarriage,afterthedissolutionof
xample:Anon-MuslimcouplewasconvertedtoIslam,theircivil
E the first marriage, without a wali, or a guardian in
marriagewasautomaticallytransformedintoanIslamicmarriage marriage
ifthereisnolegalimpedimenttotheirmarriageunderMuslimlaw. 8. The condition of idda (waiting period) becomes
If they related by fosterage, an impediment recognized under incumbent upon the wife before contracting a
Muslim law, their marriage is still void, subsequentmarriage,afterthedissolutionofherformer
marriage
9. The wife becomes entitled to her dower
10. Marriage settlement becomes effective, and nuptialgift
becomes due
Marriage Settlement
he future spouse may agree and fix to a certain extent the
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arriage is not only a civil contract but a social institution.Its
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system of property relations that will govern them during their
nature, consequences and incidents are governed by this Code
marriage. However, should the marriage not take place, such
and the Shari’a and not subject to stipulation, except that the
agreement shall be renderedvoidexceptstipulationsthatdonot
marriage settlements may to a certain extent fix the property
necessarily depend thereon.
relations of the spouses.
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE6
ispronounced, and theyareusedwiththeobjectofcontracting
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marriage, such marriage is valid
o marriage shall be perfected unless the following essential
N Kinds of Forms of Consent.
requisites are complied with: he parties consent to the marriage contract may either be
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express or implied.
( a) L egal capacity of the contracting parties 1. Express consent - when the party expressly stateinan
(b) Mutual consent of the parties freely given unequivocal words or acts thatheorsheisagreeingto
(c) Offer(ijab)andacceptance(qabul)dulywitnessedbyat themarriagecontract,bytheutteranceofthewords"Ido"
least two competent persons aftertheproperguardian or"yes,"orbythenoddingofthe head,orinthecaseofa
in her marriage (wali) has given consent; and deafanddumb,byasignlanguageclearlyandintelligibly
(d) Stipulation of customary dower (mahr) duly witnessed manifesting conformity to the marriage contract, or in
by two competent persons. writing, if able to do so.
2. Impliedconsent-whenuponbeingaskedofherconsent,
I. egal Capacity of the Contracting Parties. —
L she merely maintains her silence, simply smiles, or
● The first essential requisites (arkan) of marriage under weeps silently. If the laughter iscontemptuousormere
theMuslimCodeislegalcapacitywhichmeansthatthe buffoonery, as usual among people, it shall not be
parties must be adult (bulugh), sane andnototherwise construed as her implied consent.
suffering from any inhibition from contracting marriage ★ Impliedconsentisapplicableonlyinthecaseof
to one another under the law. a virgin, a woman who has had no coverture
● Any Muslim male at least fifteen years of age and any experience.
Muslimfemaleoftheageofpubertyorupwardsandnot ★ Ifthevirginisaminor,herimpliedconsentmust
suffering from any impediment under the provisions of besolicitedbyherproperguardianinmarriage,
the Muslim Code may contract marriage. i.e., father, grandfather.
● A female is presumed to have attained puberty upon ★ Impliedconsentdoesnotapplyinthecaseofa
reaching the age of fifteen. divorcee or a widow.
II. utual Consent of the Parties Freely Given
M egalEffectsofMarriageinwhichtheConsentoftheWomanis
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● The law requires that the consent of the contracting Thrust Upon Her by the Wali.
partiesmustbefreelyorvoluntarilyandknowinglygiven
by them in person If a man gives his daughter in marriage in spite of her
● ExceptinthecaseofbetrothalmarriageunderArticle16 disagreement, such marriage is invalid.
of the Muslim Code.
○ Inthecaseofminorgirl,thefathermaygiveher III. ffer (ijab) and acceptance(qabul)dulywitnessedbyat
O
in marriage with or without her consent, leasttwocompetentpersonsaftertheproperguardianin
provided she is her marriage (wali) has given consent
■ under age, ● the marriage is null and void ifitissolemnizedwithout
■ a virgin or thepresenceofpersonstotestifythattheeventhasduly
■ without any marriage experience, and taken place.
■ that it is in her best interest. ● Twowitnesses,bothofthemshouldbefree,sane,adult
● Thegivingofconsentmustbedoneinoneandthesame Muslim men or one male and two female Muslim
occasion personally by the bride and the groom. witnesses.
● Hence, marriage by proxy is not allowed under the the ● If all the witnesses are women, the contract is not valid.
Muslim Codes
● Wheretheconsentofeitherofthecontractingpartiesis Who Can Be a Guardian (wali) in Marriage
obtainedbymeansofviolence,intimidation,fraud,deceit ● Father, paternal grandfather, brother and other paternal
ormisrepresentation,thevalidityofthemarriagecontract relatives,paternalgrandfather’sexecutornominee,orthe
is affected and is classified as irregular (fasid) by law. court, in that order.
● Non-Muslim cannot be a guardian (wali) in Muslim
resence of Parties at the Time of Giving Consent
P marriage
Marriage by proxy that is where the consent of one of the ● However, where the woman is a non-Muslim, her
contracting parties to the marriage who is absent during the non-Muslim father, paternal grandfather, etc., it is
marriageceremony,isgivenbythatparty’sagentorrepresentative submitted is her proper guardian in marriage
in his or her behalf, is not allowed. It is necessary for the
contracting parties to appear personally of not less than two Stipulation of Mahr (Dowry)
witnesses oflegalagethattheytakeeachotherashusbandand ● It is not a condition which affects the validity of the
wife, and, marriage contracted without one of the contracting contract nor is an essential requisite. Therefore, if the
parties to give his or her consent is invalid. mahrisnotmentionedinthecontract,thecontractisstill
valid. The Court shall, in those cases, fix the proper
anner of Giving of Consent in Marriage
M dower for the woman.
Anyexpressionwhichconveystheintentionofthepartiesinclear ● Customary dower; a token of man’s love, affection and
words is sufficient. And, even if the Arabic words are esteem of theintegrity andhonourofthewomanheis
marrying
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE7
● otaconsiderationproceedingfromthehusbandforthe
N hari’a district court upon petition of the proper wali, mayorder
S
contract of marriage, but an obligation imposed bylaw the solemnization of marriage
on the husband as a mark of respectforthewifeasis
evidentfromthefactthatthenon-specificationofdower If not authorized by the court: guardian will be liable for illegal
at the time of marriageDOESNOTaffectthevalidityof solemnization
marriage.
arriage contract is annullable, but not invalid. Authorization of
M
ahr, Dower, Dowry Distinguished.
M court is not an essential requirement
In their strict sense,
● Mahr-anythingofvalueandlawfulwhichthemangives girlover12butbelow15whohasnotattainedpubertyCANNOT
A
to the woman as token of man’s love, affection and be contracted by her guardian into marriage. Marriage is
esteem of the integrity and honor of the womanheis considered irregular.
marrying. It becomes the exclusive property of the
woman egal effect of marriage wickedly contracted by minors Wali
L
● Dower-moneyorpropertywhichthemanwillgivetothe Valid for the Minor
woman’sfamilyforthepurposeprimarilyoftheexpenses When father or grandfather wickedly contracts a minor in
of the marriage celebration marriage, contract can be set aside by the minor.
● Dowry-giftgivenbytheparentstotheirdaughteratthe
time of marriage. Doctrine Option of Puberty
● However, inthisCode,thetermmahr,dower,anddowry ightofaminorboyorgirlwhowascontractedintomarriageby
R
are used interchangeably to mean mahr. their guardian other than their father or grandfather during their
minority, of repudiating their marriage upon attaining puberty or
bjects that are Lawful or Unlawful for Dower.
O the age of 15 provided that in the interim no cohabitation has
Any lawful object in accordance with the Muslim law, that is of taken place.
valueoranythingthatiswithinthecommerceofman,orthatmay
be legally sold and not forbidden (haram) under Islamic law urpose:toprotectaminorfromanunscrupulousorundesirable
P
(Shari'a) may be used as dower. exercise of authority by guardian
Option of Puberty Requisites
1. She was given in marriage while she was aMinor
2. The person who gave her in Marriage was some
( 1)AnyMuslimmaleatleastfifteenyearsofageandanyMuslim Guardian other than her father or paternal grandfather
female of the ageofpubertyorupwardsandnotsufferingfrom 3. Sheexpressedherchoiceassoonasthesignofpuberty
any impediment under the provisionsofthisCodemaycontract appear
marriage. A female is presumed to have attained puberty upon 4. She has not acquiesced to the marriage on attaining
reaching the age of fifteen. puberty byvoluntarily cohabitingwith him
( 2) However, the Shari’a District Court may, upon petition of a Waiver of the Option of Puberty
proper wali,orderthesolemnizationofthemarriageofafemale ption is lost by the affirmative act of consummation - without
O
who though less thanfifteenbutnotbelowtwelveyearsofage, duressand after acquisition of puberty.
has attained puberty.
Who can contract the minor girl in marriage
( 3)Marriagethroughawalibyaminorbelowtheprescribedages ohabitationduringtheperiodofminoritywithorwithoutthegirl’s
C
shall be regarded as betrothal and may be annulled upon the consentdoesnotdestroyherrightbecauseaminorisnotcabale
petitionofeitherpartywithinfouryearsafterattainingtheageof of giving her consent as long as she is a minor
puberty, provided novoluntarycohabitationhastakenplaceand
thewaliwhocontractedthemarriagewasotherthanthefatheror Ignorance of Fact or Law
paternal grandfather. inor returns the optionofrepudiatinguntilshebecomesaware
M
of the fact. Minor must exercise the right within a reasonable time
Capacity to Contract Marriage
● Boy attains maturity at the first appearance of ihtilam Exercise of the option of puberty
(ejaculation of semen) etrothal marriage would notbeeffectedbythemerestatement
B
● Girl attains puberty at the appearance of menstrual blood ofthespouse.Heorshecanexercisetheoptionofpubertyevenif
● Ifthesedonotappear,he/sheshallbepresumedtohave there is separation in fact.
attained majority at 15yo
● As a GR, a Muslim upon reaching 15 is considered an
adult and sui juris (independent)
etrothal Marriage
B oparticularformofmarriageceremonyisrequiredbuttheijab
N
One contracted of a girl over12butbelow15yearsoldbutwho and the gabul in marriage shall be declared publicly in the
hasalreadyattainedpuberty,byherguardianuponauthorityofthe presence of the person solemnizing the marriage and two
Shari’a District Court competent witnesses. This declaration shall be set forth in an
instrument in triplicate, signed or marked by the contracting
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE8
arties and said witnesses, and attested by the person
p erson who is competent under Muslim law to solemnize the
p
solemnizing the marriage. One copy shall be given to the marriage, i.e. imam, sultan, wadi or an adil
contracting parties and another sent to the Circuit Registrarby
the solemnizing officer who shall keep the third. hould the proper wali refuse to solemnize or cause the
S
solemnization of marriage by apersoncompetentunderMuslim
Marriage Ceremony law,thejudgeoftheShari’aDistrictCourtorShari’aCircuitCourt,
● “Twowitnessesoutofyourmenandiftherearenomen upon applications of the parties may solemnize the marriageor
then a man and two women” designate a competent person to do so.
● Publicity - condition for the validity of marriage
● Marriage must not be heldinsecrecyandthepresence Article 7 of the Family Code
of the required numbers of witnesses during the ursuant to Art. 7 of the Family Code, marriage may be
P
marriage ceremony been held sufficient to fulfill this solemnized by:
condition
● Generalprinciple:muslimmarriagerequiresnoparticular ( 1) Any incumbent member of the judiciary within the court’s
or formal rites to constitute it valid in law; and a jurisdiction;
marriage is legal and binding ifcelebratedperverbade
praesenti ( 2) Any priest, rabbi,imam,orministerofanychurchorreligious
● Marriage iscontracted-bymeansofadeclarationand sectdulyauthorizedbyhischurchorreligioussectandregistered
consent; does not depend on the use of any express with the civil registrar general, acting within the limits of the
terms as long as the purpose is distinctly understood written authority granted by his church or religious sect and
● The absence of a written contract will not affect the providedthatatleastoneofthecontractingpartiesbelongstothe
validity of the marriage. solemnizing officer’s church or religious sect.
No particular form Area of overage of the Authority of Solemnizing Official
● There is no prescribed form for the solemnization of ● Priest-authorizedwithintheareaofthedioceseorplace
marriage. However, there must be aceremonybeforea allowed by the Bishop
duly authorized officer. ● Appellate Court Justice or Justice of this Court - has
● Parties need not recite the precise wordsoflaw,words jurisdiction over the entire Philippines to solemnize
convincing their mutual consent is sufficient (they take marriages, regardless of the venues, as long as the
each other as husband and wife) requisites of the law are complied with
● Certificate is just and evidence of the marriage – best ● Judges with specific jurisdictions - only within the said
evidence to prove marriage areas and not beyond
equirementsforReligiousPersonalityi.e.,ImamtoBeAbleto
R
Solemnize Marriage
Marriage may be solemnized: 1. T hat he is duly authorized in writing by his church or
religious sect;
(a) By the proper wali of the woman to be wedded; 2. That he is registered with the Office of the Civil
Registrar General as a Solemnizing Officer;and
( b) Upon authority of the proper wali, by any person who is 3. That he must act within the limits of the written
competent under Muslim law to solemnize marriage; or authority granted him by the church or religious sect.
( c) By the judge of the Shari’a District Court of Shari’a Circuit
Court or any person designated bythejudge,shouldtheproper
wali refuse without justifiable reason, to authorize the
solemnization.
arriage shall be solemnized publicly in any mosque, office of
M
ersons Who Can Solemnize Marriage
P the Shari'a judge, office of the District or Circuit Registrar,
Article 79 of the Code givespersonsintheorderoftheirpriority residence of the brideorherwali,oratanyothersuitableplace
who are authorized to act as wali in marriage for the woman: agreed upon by the parties.
RTICLE79.Guardianformarriage(wali).–Thefollowingpersons
A Place of Solemnization of Marriage.
shall have authority to act as guardian for marriage (wali) in the he solemnization of themarriageshouldbeperformedpublicly,
T
order of precedence: andnotinsecrecy,andpreferablyinamosque,whereapartfrom
the blessedness of the place, no special invitation isneededfor
( a) Father the occasion, and the condition concerning publicity and
(b) Paternal grandfather; witnesses is easily fulfilled.
(c) Brother and other paternal relatives;
(d) Paternal grandfather’s executor or nominee; or In likemanner,therefore,wherethemarriageistobesolemnized
in the office of the Shari’a District or Circuit judge, preferably it
In the same order, these are also the proper wali who are mustbeinopencourt,insteadofintheirofficeorinchamberand
authorized to solemnize marriage or who can deputize another similarly,eveninthoseotherplacesmentionedinthecode,itmust
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE9
e open to public view in order to fulfill theconditionofthelaw
b If divorce is pronounced or the marriage contract is dissolved,
concerning publicity and witnesses. aftervalidretirement,theentiredowershallatoncebecomedue,
whether it be prompt or deferred. The basis of the principle is
that the marriage contract, because of divorce or dissolution,
comestoanend.Hence,itbecomesobligatorythatthedowerbe
paid at once.
he amount or value of dower may be fixed by thecontracting
T
parties(marh-musamma)before,during,orafterthecelebration Meaning of Valid Retirement
ofthemarriage.Iftheamountorthevaluethereofhasnotbeen he spouses had gotten togetherinseclusionorprivacywithout
T
so fixed, a properdower(mahr-mithl)shall,uponpetitionofthe anykindofimpedimenttohavingsexualrelationiftheysodesire.
wife,bedeterminedbythecourtaccordingtothesocialstanding The married couples retiring by themselves to a secluded place
of the parties. where they aresafefromobservationbyotherpeopleandwhere
matrimonial intercourse in privacy is possible.
Classification of Dower
I. Fixed Dower (Mahr Musamma) Impediment to Valid Retirement
II. Proper Dower (Mahr Mithl) (1) Corporal Impediment - when thehusbandorthewifeis
suffering from such diseases that it may prove an
I. Fixed Dower (Mahr Musamma). impediment in having sexual intercourse or onaccount
he dowermaybeagreedandfixedbythecontractingpartiesin
T of which there may be risk of injury
marriage,inwhichcaseitisreferredtoasspecifieddowerormahr (2) Legal Impediment - the husband or wife is observing
musamma. Specified dower is an incident of a valid marriage. fasting or be engaged in compulsory prayers for when
eitherspouseisinthestateofihram;whenthehusband
Kinds of fixed dower goes to the wife but doesnotrecognizeherorthewife
● Prompt dower - payable promptly ondemand,oratthe goes to the husband and stays there forsometimebut
time of the marriage contract; the husband does not know her
● Deferred dower-thatwhichispayableondissolutionof (3) Natural Impediments - the woman is in her menses or
the marriage by death or divorce, or, at such specified nifas (bleeding after child birth)
time during the marriage (4) Religious Impediments - the performance ofhajjbythe
husband or the wife or by both of them when sexual
herethemarriagecontractdonotspecifywhetherthedoweris
W intercourse is forbidden; fasting during the month of
prompt or deferred, in these circumstances, the presumption, in Ramadanwhenintimacyisprohibitedduringthetimeof
theabsenceofanyusageoftheparticularcommunity,isthatthe fasting
dower is prompt. (5) Moral Impediments - the presence of a third person or
the exposure of the place to outsiders
II. Proper Dower (Mahr Mithl).
If the dower isnotmentionedinthecontractofmarriageorthat Effects of Valid Retirement
the dower stipulated consist of articles forbidden(haram)under (1) It establishes paternity of the issues
theIslamicLaw,oranexcessivedowerispromisedbutprovedto (2) It makes the payment of the dower by the husband
be onlyforshow, itbeingalegal requisiteofmarriage,aproper incumbent
dower shall become incumbent upon the man, and the Shari'a (3) It renders the observance of the idda incumbent
Court, shall upon petition of the wife, fix the amount or value
thereof, having regards to the means, personal attributes or ffects of Divorce After Actual Consummation vs Valid
E
qualification of the woman, the means of the husband and the Retirement
social standing of the parties. (a) If a husband divorces his wife after consummation, he
can take her back during the period of idda by ruju; if,
however, he divorces her when the marriage has not
beenconsummatedtherehasavalidretirement,thenhe
cannot take her back.
(b) If the wife was a virgin atthetimeofthemarriageand
the marriage is dissolved before actual consummation
ubjecttothestipulationoftheparties,thedowermaybefullyor
S but after valid retirement, she would still be regardeda
partiallypaidbefore,duringorafterthemarriage.Thepropertyor virgin. But not if the marriage is dissolved after actual
estateofthehusbandshallbeliablefortheunpaiddowerorany consummation.
part thereof. (c) Onactualconsummationofmarriagethewife’sdaughter
by a former husband becomes unlawful to the present
ower Without Fixed Period When Payable.
D husband, but such is not the result of a valid retirement
AccordingtotheShiah,ifnotimeisfixedinthemarriagecontract (d) If a husband divorces his wife after consummation of
(Nikahrama) for the payment of dower, the whole of itshallbe marriage then dies during the period of idda, the wife
taken as prompt. shall inherit from himbutsheshallnotinheritfromhim
after mere valid retirement.
hen Payment of Entire Prompt Dower Becomes Pre-emptory
W
Due and Irrevocable.
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE10
ncestor, but notfromeachother.Beginateitherofthe
a
persons in question, and count up to the common
ancestor,andthendownwardtotheotherperson,calling
ny person who has entered into a contract to marry but
A it a degree for each person both ascending and
subsequently refuses without reasonable ground to marry the descending,andthedegreestheystandfromeachother
otherpartywhoiswillingtoperformthesameshallpaythelatter is the degree in which they stand related. Thus,froma
the expenses incurred for the preparation of the marriage and nephew to his father is one degree; to the grandfather,
such damages as may be granted by the court. two degrees; and then totheuncle,three;totheuncle’s
child is fourth.
merepromisetomarrydoesnotcreateanyrightenforceablein
A
law;hence,amerebreachofpromisetomarryisnotanactionable (2) A ffinity - the connection existing in consequence of
wrong.Whatisactionabletherefore,aswrongisthebreachofthe marriage, between eachofthemarriedpersonsandthe
contracttomarryintentionallydoneinBADFAITH,thatiswithout kindred of the other
any just or valid cause or reason when the other party who is (3) Fosterage-therelationshipcreatedbetweenamanand
willing to proceed with the contract to marry has already made a woman from whom he has sucked during his infancy
some expenses in preparation for the wedding and who as a
consequence suffered shame and humiliation because of the
breachcommittedbytheotherparty.Theerringpartyinthatcase
shall be liable totheformertheactual,moralandotherformsof
damagesrecoverable under the law as the court maygrant.
o marriage may be contracted bypartieswithintheprohibited
N
Classification of Marriages Under the Muslim Law degrees:
(1) Valid (sahi) marriages - those which conform to allthe (a) Of consanguinity;
essential requisites of a valid marriage (b) Of affinity; and
(2) Irregular(fasid)marriages-thosewhichareneithersahi (c) Of fosterage.
(valid), nor void (batil), butaresodefectiveforfailingto
complytocertainconditionprescribedundertheMuslim Kinds of Prohibition in Marriage
law, compliance of the condition would render such (1) AbsoluteorPerpetualProhibition-whenthemarriageis
marriage valid absolutelyorperpetuallyprohibitedbetweenamananda
(3) Void (batil) marriages - those which are prohibited my woman under the Muslim law, i.e., between those
Muslimlawasincest,immoral,orcontrarytoShari’aand prohibited by reason of relationship by consanguinity
has no legal effect whatsover as though they never (2) Relative or Temporary Prohibition - when due to some
existed cause a man and a woman is forbidden to marry one
another, but uponthecessationofthecausegivingrise
istinctions Between Irregular and Void Marriages
D to the prohibition in marriage between them they are
Irregular (fasid) marriage - the unlawfulness is relative when it thereafter lawful in marriage to one another under the
merely lack some conditions of a valid marriage contract. The Muslimlaw;i.e.,marryingwomenwhoarecloselyrelated
woman’s dower, specified or proper whichever is less, shall such as marriage with his wife’s sister, or aunt, orniece
become due. In the event of divorce or death of the man, the which is forbidden but once the marriage with his wife
observanceofthetermofprobationbythewomanshallbecome whoisthecauseoftheimpedimentisdissolvedbydeath
incumbent. The issues that are born to them shall be legitimate. or divorce, the prohibition inmarriagewiththedeceased
wife’s sister, aunt ornieceasthecasemaybeisthereby
oid (batil) marriage - the unlawfulness is absolute whereby its
V removed, and the other woman becomes lawful in
natureisnullandvoidabinitio,asthoughitnevergotcontracted. marriage to the man; or idolatress until they believe
No dower shall become due against the man, noobservanceof
thetermofprobationshallbecomenecessaryforthewomanand
the issues born to them shall not be considered legitimate.
Bases of Prohibition in Muslim Marriages
(1) Consanguinity - the relation subsisting between some No marriage shall be contracted between:
persons having the same or common ancestor, which
either be ( a) A scendants and descendants of any degree
(b) Brothers andsisters,whethergermane,consanguineor
( i) Lineal consanguinity - exists among persons where uterine; and
oneisdescendedfromtheother,asbetweenthesonand (c) Brothers or sisters and their descendants within the
the father, or the grandfather, and so on upward in a third civil degree.
direct ascending line; and between the father and the ● Germane - from the same father and mother
son, or the grandson, and so on downward in a direct ● Consanguine - same father
descending line.Everygenerationinthedirectcourseof ● Uterine - same mother
relationship between the two parties makes a degree.
he prohibition in marriage due to relationship byconsanguinity
T
( ii) Collateral consanguinity - the relation subsisting
appliesregardlesswhetheritarisesfromlegitimateorillegitimate
betweenpersonswhodescendfromthesamecommon
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE11
relationship. (1) F ather-in-law (and the husband’s paternal or maternal
grandfather);
heprohibitioninmarriagebyreasonofconsanguineous(nasab)
T (2) Son-in-law (and his descendant how low so-ever);
relationship may either be in the direct line or in the collateral line. (3) Step-father (and the husband of paternal or maternal
grandmother);
(4) Step-son (and his descendants how low so-ever);
In the direct line, a man cannot marry his: (5) Sister’s husband (while the marriage subsists); and
(1) Mother (includes all female ancestors h.h.s.) (6) Husband of a son’s daughter or daughter’s how low
(2) Daughter (includes all female descendants h.l.s) so-ever
In the collateral line, a man cannot marry his: I norderthattheprohibitioninmarriagebyreasonofaffinitywill
(1) Sister, whether consanguine, germane, or uterine get established:
(includes sister’s daughter and her descendants h.l.s)
(2) Brother’s daughter (includes brother’s daughter
descendants h.l.s) (1) T
he marriage between the parties towhomitwouldbe
made operative must be consummated by their
cohabitation.
In the direct line, a woman cannot marry her:
(1) Father (includes ascendants h.h.s) Ifnoconsummationhastakenplace,andthemarriageis
(2) Son (includes descendants h.l.s.) dissolved, the prohibition would not attach,except as
regardtomarriagewiththeascendantsofeitherspouses
intheircase.Itisnotthefactofconsummationthatgives
In the collateral line, a woman cannot marry her: causetotheprohibitionbutthefactthatthemarriagehas
(1) Brother whether, consanguine, germane, or uterine taken place.
(2) Paternal uncles (includes uncle of father)
(3) Brother’s son and the latter’s descendants (h.l.s)
(4) Sister’s son and the latters descendants (h.l.s.) (2) T
here’s valid retirement i.e., the man and the woman
(5) Maternal uncle and father alone together presenting no physical, legal, or
conventional obstacle to intercourse, is equivalent to
actual intercourse.
( 2) The prohibition under this article applies even after the
(1) No marriage shall be contracted between: dissolution of the marriage creating the affinal relationship.
( a) Any of the spouses and their respective affinal rohibition in Marriage by Reason of Affinity Only in Valid
P
relatives in the ascending lineandinthecollateralline Marriage
within the third degree;
he prohibition by affinity is established by a valid marriagebut
T
notonethatisinvalid.Sothatifamanshouldmarryawomanby
( b) Stepfather and stepdaughter when the marriage
aninvalidcontract,hermotherdoesnotbecomeprohibitedtohim
between the former and the mother of the latter has
by mere contract but by his having sexual connection or
been consummated;
intercourse with the former, that the prohibition of affinityisnot
induced by zina (illicit sexual intercourse) alone.
( c)Stepmotherandstepsonwhenthemarriagebetween
the former and the father of the latter has been rohibition in Marriage by Reason of Adulterous
P
consummated; and Relation
( d) Stepsonorstepdaughterandthewidow,widoweror n adulterous connectiondoesnotgiverisetotheprohibitionby
A
divorcee of their respective ascendants. affinity. In this, they differ from the Hanafis. According to the
Hanafis, any act of impudicity between two adolescent youths
creates a "perpetual prohibitions" against either of them
By reason of affinal relationship, a man cannot marry: inter-marrying with the female relations of the other.
(1) Mother-in-law (and the wife’s paternal or maternal
grandmother how high so ever); When Marriage with One's Step-daughter is Prohibited.
(2) Daughter-in-law (and her descendants how low so ever);
(3) Step-mother (and the wife of paternal or maternal he schools agree that marriage with the wife's daughter isnot
T
grandfather); forbidden merely on the conclusion of the contract.
(4) Step-daughter (and her descendant how low so-ever) A man may marry the wife’s daughter:
(5) Wife’s sister (while the marriage subsists); and (1) If he divorce that wife before sexual intercourse or;
(6) Wife of a son’s or of a daughter’s son how low so-ever (2) Before looking at her or touching her with a sexual intent,
(3) Tomarryherdaughterontheauthorityoftheverseofthe
Also, on the same ground, a woman cannot marry her: Quran
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE12
oman or her relations with the prohibited degrees by
w
heschoolsconcurthatthedaughterisforbiddenwhenaperson
T consanguinity is rendered illegal.
marries her mother and establishes sexualcontactwithher.But
the schools differ as regardsthedaughterbeingforbiddenwhen (2) W
here a woman nurses two children, male and female
themarriagehasbeenconcludedandsexualcontacthasnotbeen upon the same milk, the relationship by fosterage and
established, but when he looked at her with sexual intent. consequent prohibition in marriage between the two
persons,thesucklingofbothifstrangerstothewoman,
musthavetakenplacewithinthesameperiodof“milk”of
Prohibition in Marriage Caused By Mistaken Sexual Intercourse fosterage, which is taken to cover not more than two
years.
here is a consensusamongtheschoolsthattheestablishment
T
of sexual contact due to mistake or false impressions is like lements of fosterage to constitute as an impediment in
E
marriage itself in establishing affinity and creating its related marriage, the following must concur:
prohibition.
(1) T
he age of the child at the time of sucking milkofthe
he meaning ofsexualcontactduetomistakeistheoccurrence
T foster mother is not more than two years.
of sexual contact between a man and a womanunderthefalse
impression that they are lawfully wedded followed by the (2) T
hechildmusthavesuckedthemilkofthefostermother
discoverythattheyarestrangersandthecontactwasaresultofa atleastfivetimes,whetherthesuckingisdirectfromthe
mistake of fact. breast or obtained from the breast and served orally.
oman with Whom a ManisProhibitedtoMarrybyReasonof
W ● ucking for five times means, the nursed baby starts
S
Affinal Relationship sucking milk at breast then stops breathing or sucking
another breast or foranotherreason.Ifhereturnstothe
A man is prohibited on the ground of affinity from marrying with: same breast afreshafterthatpause,itisconsideredtwo
sucks even if this occurs at one time.
1. T he wife of his father, father's father, etc., h.h.s. (though ● Thefactofbreastfeedingisconfirmedbyatestimonyof
she be not his own mother, grandmother, etc.) an upright woman.
2. His own wife's mother or grandmother h.h.s.;
3. His own wife's daughter or granddaughter h.l.s., lastly Effect of Prohibition Due to Fosterage
with;
4. The wife of his son, or son's or daughter's h.l.s. If a man and a woman unknowingly contract themselves into
marriage and the marriage is prohibited due to fosterage,
utasregardstonumber3,thesecondmarriageisonlyprohibited
B separation is incumbent upon them, otherwise the proper
if the first had been actually consummated. Shari’a Court orders its dissolution.
"Wife," in this rule includes widow, and also a divorced wife.
● If the separation is effected before consummation, the
wifeshallnotbeentitledtoanyclaim,otherwise,thewife
shallbeentitledtoaproperdower,ifnodowerhasbeen
fixed, she is entitled to get the proper dower, which is
( 1
)Nopersonmayvalidlycontractmarriagewithanywomanwho even lesser.
breastfed him for at least five times within two years after his ● The wife will have to observe the idda of a divorce.
birth.
Exceptions to the inhibition in marriage due to fosterage:
( 2)Theprohibitiononmarriagebyreasonofconsanguinityshall
likewise apply to persons related by fosterage within the same he Sunnis permitthemarriageinspiteoffosterageinfollowing
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degrees, subject to exceptions recognized by Muslim law. cases:
(i)Themarriageofthefatherofthechild,withthemother
osterage - status created by fiction of law when a woman
F of his child's foster mother;
breastfeedsastrangechildforatleastfivetimeswithintwoyears (ii) with her daughter;
fromthebirthofthechild,therebycreatingarelationbetweenthe (iii)themarriageofthefostermotherwiththebrotherof
child and woman as if the former is the natural child of the the child whom she has fostered;
woman, hence, creating a prohibition in marriage between the (iv) the marriage with the fostermotherofanuncleor
foster child and foster mother and the latter’s relation with the aunt.
degrees of prohibition in marriage by reason of consanguinity.
lso according to the Durr-ul-Mukhtar there are twenty-one
A
Kinds of Fosterage: exceptions to the rule on fosterage. For example, the foster
mother of a child and her mother are lawful to the child's
(1) W
henawomantakesastrangechildtonurse,bywhich grandfather. Similarly, a man may marry his brother's or sister's
all matrimonial relations between the child and the foster mother; his son's foster sister; paternalormaternaluncle;
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE13
f ostermother,son'spaternalauntbyfosterage,etc.Thehusband
of the foster mothermaymarrythematernalmotherorsisterof nly in exceptional cases - must be based upon ameritorious,
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his wife foster child.'" reasonable, and valid ground, or that is necessary and just:
. S
1 terility
2. Physical unfitness for conjugal relation
3. Willful avoidance of a decree of restitution of conjugal
rights
4. Insanity on the part of the present wife
otwithstanding the rule of Islamic law permitting a Muslim to
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man who divorces one of his 4 wives may marry after
A
have more than one wife but not more than four at a time, no
expiration ofIdda
Muslim male can have more than one wife unless he can deal
● A man who has four wives and divorces one of them,
with them with equal companionship and just treatment as
may marry again after the expiration of theidda.
enjoined by Islamic law and only in exceptional cases.
● Ifhemarriesafifth,whenhehasalready4,themarriage
is NOT VOID, but merely IRREGULAR.
Rule on Polygamous Marriages
● The option of having more than one wife is merely a
permission and NOT a rule
● Monogamy is the general rule, polygamy is only an
exception. o widow shall contract a subsequent marriageunlessshehas
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● Polygamywasallowedduringthetimeoftheprophetfor observedan‘iddaoffourmonthsandtendayscountedfromthe
two reasons: date of the death of her husband. If at that time the widow is
1. To limit the practice among the Arabs of pregnant, she may remarry within a reasonable time after
unlimited polygamy delivery.Insuchcase,sheshallproducethecorrespondingdeath
2. To take care of the orphans of war certificate.
Conditions for Contracting Polygamy Two kinds of death
1. He can deal with them with equal companionship and ● Actual Death- death contemplated in this article
just treatment ● Presumptive Death - disappearance of seven years
2. Heisseekingit“onlyinexceptionalcases”orexceptional
grounds urposeofIdda-toascertainthefiliationofanunbornchildifthe
P
3. Order oftheproperShari’aCircuitCourtauthorizinghim widowed woman is pregnant
to contract a subsequent marriage
a. Upon the written consent of the former wife - Conditions for Contracting Subsequent Marriage by a Widow
consent cannot be waived 1. Observance of idda of 4 months and 10 days counted
b. Iftheformerwiferefusestogiveherconsentto from the death of her husband
the proposed marriage, UPON the court’s order 2. Death certificate
★ (a) and (b) are condition sine qua non for a
subsequent marriage Widow is Pregnant Upon Death of Husband
★ The wife's knowledge of the impending ● Is idda required? NO, may remarry after delivery
subsequent marriage is essential andmaynot ● Must be within a reasonable time after delivery
be waived.
RTICLE 162. Subsequent marriages. – Any Muslim husband
A
desiring to contract asubsequentmarriageshall,beforesodoing,
file a written notice thereof with the Clerk of Court of theShari’a ( 1) No woman shall contract asubsequentmarriageunlessshe
CircuitCourtoftheplacewherehisfamilyresides.Uponreceiptof hasobservedan‘iddaofthreemonthlycoursescountedfromthe
saidnotice,theClerkshallserveacopythereoftothewifeorwives. date of divorce. However, if she is pregnant at the time of the
Should any of them object, anAgamaArbitrationCouncilshallbe divorce, she may remarry only after delivery.
constituted in accordance with the provisions of paragraph(2)of
theprecedingarticle.IftheAgamaArbitrationCouncilfailstoobtain ( 2)Shouldarepudiatedwomanandherhusbandreconcileduring
thewife’sconsenttotheproposedmarriage,theCourtshall,subject her ‘idda, he shall have a better right to take her back without
to Article 27, decide whether or not to sustain her objection. need of a new marriage contract.
qual companionship - man must be capable of giving equal
E ( 3) Where it is indubitable that the marriage has not been
treatment to hiswivesnotonlyasregard,therequirementofthe consummated when the divorce was affected, no ‘idda shallbe
flesh but more so as regard the happiness of the heartandthe required.
contentment of the mind
Conditions for Contracting a Subsequent Marriage by a Divorce
ust treatment - he mustbeabletoprovideequallytohiswives
J ● After observing an idda of 3 monthlycoursesreckoned
the necessities of life according to the social standing of the from the time divorce is pronounced or separation
family effected
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE14
○ NOT from the time the order of the court a. If there is collusion (second marriage is done
ecreeing the divorce is passed
d only for the purpose of making the divorced
● IDDA NOT REQUIRED: wife lawful in marriage again to the first
○ If pregnant - she mayremarry after delivery husband) - second marriage is considered
○ If it is indubitable that marriage has not been abominable marriage
consummated
egal Effects of Marriage with a Thrice Divorced Wife
L
ivorced Woman Whose Marriage is Indubitably Not
D Contracted Contracted to the Prescribed Conditions
Consummated ● Marriage contracted contrary to the conditions is
● Before consummation and no validseclusion-iddanot considered aIrregular Marriage
required
● BeforeconsummationBUTseclusionhasoccurred-idda
required
ivorced Adult Woman Who has Not Yet Menstruated, or a
D
Minor, or Menopause
● Minor divorcee who is below 9 years old:
The following marriages shall bevoid (batil)fromthe beginning:
○ Hanafi - iddah is required
○ Maliki and Shafi - iddah notrequiredforminor
(a) Those contracted contrary to Articles 23, 24, 25 and 26;
incapable of intercourse. Required for minor
capable of intercourse.
( b) Those contracted in contravention oftheprohibitionagainst
○ Hanbali - iddah required
unlawful conjunction; and
evocable Divorce (Talaq Raj-i)
R
( c) Those contractedbypartiesoneorbothofwhomhavebeen
TalaqRaj’iisarevocableformofTalaq. Itisrevocablebecauseif
found guilty of having killed the spouse of either of them.
afterpronouncementthecouplewishtoreconcile,theycandoso
as long as reconciliation occurs before the expiration ofwhatis
Marriage Against “Unlawful Conjunction”
known as the Iddah period or waiting/cooling-off period.
● Unlawful Conjunction - marital situation established
when
Irrevocable Divorce (Bain Sughra)
○ a Muslim man marries awomanwhosesister,
1. Major Irrevocable Divorce (Talaq Bain Kubra) see
niece or aunt is already married to him; or,
Article 30
○ marrying women, who are closely related to
a. Cannot be remarried without an intervening
eachothereitherbyconsanguinityorfosterage,
marriage (purpose: protection of women, hindi
thatifoneofthemwereamanandtheothera
basta-bastahin ang emotions ng babae,
woman marriage between them would be
protection from the idea ofunlimited divorce)
unlawful
2. Minor Irrevocable Divorce
○ Marriage with two sisters, whether
simultaneously, or successively, while the first
marriage subsist;
○ Marriage with wife’s aunt or niece
( 1)Whereawifehasbeenthricerepudiated(talaqbainkubra)on Rules on Marriage Against “Unlawful Conjunction”
threedifferentoccasionsbyherhusband,hecannotremarryher
unless she shall have married another personwhodivorcesher 1. M arries two sistersbyonecontract(orsimultaneously),
after consummation of the intervening marriage and the separation must be effected
expiration of the ‘idda. 2. Marries them by two separate contracts, the second
marriage isfasid(irregular)
( 2)Nosolemnizingofficershallperformthesubsequentmarriage
mentionedintheprecedingparagraphunlesshehasascertained OTE: Prohibition is not permanent. A man is debarred from
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that there was no collusion among the parties. marryinghiswife’ssisteronlysolongastheothersistercontinues
tobehiswife.Ifthatrelationshipisterminatedbydeathordivorce,
onditions Before the Husband of a Thrice Divorced Wife can
C there is no inhibition to his marrying a sister of his former wife.
Remarry Her
1. After the third divorce, and upon the expiration of the
idda, she must have married another man
2. Second marriage has been consummated
he following marriages shall be irregular (fasid) from their
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3. Such second marriage is dissolved either by divorceor
performance:
death of the husband
4. Wife has observed idda after the dissolution of the
(a) Those contracted with a female observing ‘idda;
second marriage
5. Solemnizing officer to the remarriage has ascertained
(b) Those contracted contrary to Article 30;
that there is no collusion among the parties
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE15
( c) Those wherein the consent of either party is vitiated by ● Intimidation-oneofthecontractingpartiesiscompelled
violence, intimidation, fraud, deceit or misrepresentation; by reasonable and well grounded fear of an imminent
and grave evil to give his consent
( d) Those contracted by a party in a condition of death-illness ● Fraud - through insidious words or machinations, the
(marad-ul-mault) without the same being consummated; other is induced to enter into a contract
● Circumstances constituting fraud:
(e) Those contracted by a party in a state of ihram; and 1. Misrepresentation of identity
2. Non-disclosureofthepreviousconvictionofthe
(f) Mixed marriages not allowed under Islamic law. otherpartyofacrimeinvolvingmoralturpitude,
andthepenaltyimposedwasimprisonmentfor
Other Kinds of Void Marriages two years or more
1. Polytheism - marriage between a Muslim female and 3. Concealmentbythewifeofthefactthatatthe
shirk or a polytheist, unbeliever, and/or an idolater, time of the marriage, she was pregnant by a
because of the Quranic injunction which says: “Do not man other than her husband
give(believingwomen)inmarriagetoidolatersuntilthey ● Bride hiding a defect - contract will not be withdrawn
believe” (considered as irregular marriage, can be
validated throughconversiontoafaiththatwouldmake Marriage Contracted in a State of Ihram
themarriagevalid-conversionofnon-peopleofthebook ● Ihram - state entered into by a Muslim while taking a
to Christianity/Jewish) pilgrimage
2. Marriage with a woman who is the wife of another ○ Circumstance that restricts the capacitytoact
3. Fifth marriage contracted by a Muslim male duringthe (hunting, marrying, killing an animal, uprooting
subsistence of his four marriages trees/plants in Mecca)
○ Considered an impediment to the validity of
Legal Effects of Void Marriages marriage
● Batil (void) marriage - existence of which is like its not ● Fasid butNOT unlawful
existentorincontemplationoflaw,itisasifnomarriage ● Cohabitation during the state of Ihram is prohibited
have ever been performed ○ In case of violation: liable to perform expiation
● No legal rights and creates no obligation ● Canitbevalidated?YES,Art.33(e)Thosereferredtoin
● No dower shall become due against the man Article 32(e), when the party is no longer in a state of
● No observance of the term of probation (idda) ihram
Meaning of the word “Fasid” Legal Effects of Irregular (fasid) Marriages
● Derived from “Fasid” - disruption or disturbance of an ● No cohabitation - no dower is due, neither the
orderly societyas ordained by God observance of idda
● Fasid marriage -marriagethatisdisruptiveordisturtive ● Marriage consummated -fixed/properdower,whichever
of the orderly society as ordained by God is less, becomes due
○ Dower not specified - women is entitled to
Marriage During Idda proper dower
● A marriage contracted by or with a woman while ● Prohibition in marriage byaffinity-womanisentitledto
observing idda is fasid (irregular) support
● Parties should be separated so as to let the woman ● Irregularmarriage-dissolutionbyreasonoftheirmutual
complete her idda,thereafter, parties can remarryagain separation ismutual relinquishment, not divorce
● Mayahusbandwhodivorcesoneofhisfourwives,marry
another during the period of the idda of his divorced
wife? NO.
Marriage Contracted Contrary to Talaq Bain Kubra
● Divorce is only permissible thrice; after that, parties
should either hold together on equitable terms or ( 1) Irregular marriages may bemaderegularbyanewmarriage
separate with kindness contract in the following cases:
● Ifahusbandthricedivorceshiswife,hecannotafterthat
remarryheruntilshehasmarriedanothermanwhohas ( a) Those referred to in Article 32(a),aftertheimpediment
divorced her or died after actual consummation of has been removed;
marriage
( b) ThosereferredtoinArticle32(b),uponcompliancewith
arriageContractUnderViolence,Intimidation,Fraud,Deceitor
M the requirement of Article 30;
Misrepresentation
● Freeconsent-sinequanon,withoutwhichcontractsdo ( c) Those referred to in Article 32(c), after the causes
not conclude vitiating consent have ceased;
● Coercion vitiates the intention and negates consent
● Violence- serious or irresistible force is employed ( d) Those referred to in Article 32(d), in case the party
recovers;
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE16
(e) Those referred to in Article 32(e), when the partyisno
longer in a state of ihram; and Husband’s Predominance Over the Wife
● Mandoes not occupy a higher positionover a woman
(f) Those referred to in Article 32(f), after conversion to a ● Islam recognized the position of woman the same as
f aith that could have made the marriage valid. that of the man
● Marriagegivestothemangreaterresponsibilityoverthat
( 2) The effects of the new marriage under the first paragraph of the woman
shall retroact to the date of the celebration of the irregular ● Husband exercises power over the wife:
marriage. 1. Fixing of the family residence
2. Acquisitions by her of property by gratuitous
Validation of Irregular Marriage titleexceptfromherrelativeswhoarewithinthe
● Fasid or irregular marriage may be validated by a new prohibited degrees in marriage
marriage contract after theimpedimenttothemarriage 3. Wife’s exercise of profession, occupation or
isremoved, or the conditions of the law arecomplied. calling
● Retroactivity of the new marriage - effect of the new 4. Matters involving the exercise of paternal
marriage shall retroact to the dateofthecelebrationof authority over their children
the irregular marriage
○ In prohibited mixed marriages - the validating
act is not a subsequent marriage; ratifies the
irregular marriage as if the same had been
performed in accordance with Muslim law
hehusbandshallfixtheresidenceofthefamily.Thecourtmay
T
exempt the wife from living with her husband on any of the
following grounds:
( a)Herdowerisnotsatisfiedinaccordancewiththestipulations;
or
( b) The conjugal dwelling is not in keeping with her social
standing or is, for any reason, not safe forthemembersofthe
( 1)Thehusbandandthewifeareobligedtolivetogether,observe family or her property.
mutualrespectandfidelity,andrendermutualhelpandsupportin
accordance with this Code. Rights of the Husband
1. FixtheResidence-righttofixtheresidenceofthefamily
( 2) When one of the spouses neglects his or her duties to the according to his means taking into consideration the
conjugalunionorbringsdanger,dishonorormaterialinjuryupon social standing of the family.
the other, the injuredpartymaypetitionthecourtforrelief.The 2. Consortium - right to consortium or to live together in
courtmaycounseltheoffendertocomplywithhisorherduties, order to discharge the obligations arising from the
and take such measures as may be proper. marital union.
3. Fidelity of wife - Righttorequirethefidelityofthewife
( 3) The husband and the wife shall inherit from each other in that is to the loyalty and devotion of his wife. He may:
accordance with this Code. ○ Control the act of his wife to a certain extent
○ Object to his wife acquiring any property by
( 4) The husband and the wife shall have the right todivorcein gratuitous title from a stranger
accordance with this Code. ○ Object the exerciseofanyprofession,vocation
or calling which is not in keeping with Islamic
Meaning of Mutual Rights and Obligations modesty and virtue
● Husband and wife become obliged to live together - 4. Decision -Right to be respected in his decision
conjugal union or cohabitation is legalized ○ Parental authority over their children
● Wife: ○ System of property relation -hisdecisionshall
○ Should regard her husband over and above prevail in matter of administration of their
everyone else and remain faithful to him communal property
○ Leavenothingtobedesiredbywayofdevotion 5. Property administration - Right to administer the
and earnestness property of their children under their parental authority
● Husband: 6. Guardian in marriage - Right to act as a guardian in
○ Consider his wife a blessing from God marriage of their daughters without marriage experience
○ Give her ungrudgingly,ofhislove,andholdher 7. Inheritance -Right to inheritance from the wife
in his esteem 8. Divorce-Righttodivorcehiswifeinaccordancewiththis
○ Ifthewifemadeamistake,thehusbandshould code
overlook it and correct her with tact and
patience Obligations of the Husband
● Personalcareandunselfishattention,insicknessandin
health
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE17
1. J ust and equitable treatment - Treat his wife orwives
● he is the queen of the household
S
justly and equitably, otherwise the wife may ask for ● A partner in life for consolation in peace
divorce on ground of unusual cruelty.
2. Support -Support his wife or wives during the marriage. Rights of the wife
○ In case of divorce - until expiration of idda 1. Right to be treated justly and equitablyasenjoinedby
○ In case the wife is pregnant at the time of Islamic law
separation - until her delivery 2. Right to support according to social standing and the
○ Neglectofsupportforatleastsixmonths-wife means of the husband
is entitled fordivorce by fask ○ During the existence of marriage
○ Includes providing wife with suitabledwelling- ○ After divorce during the period of her idda
keepingwithhersocialstandingandthemeans ○ Ifsheispregnantatthetimeofthedivorce,until
of the husband she delivers
3. PaymentofDower-Paythepromptdowerofthewifein 3. Right to retain ownership to possess,administer,enjoy
accordance withtheirstipulationotherwisethewifehas and dispose of her own exclusive estate, even without
the right to refuse living with him the consent of her husband
4. Maritalobligation-performhismaritalobligationtohis 4. Right to household property, whichcustomarilypertain
wife to, or is used by her
○ Marital obligation - must be understood to 5. Righttosueandbesuedincertaincasesindependently
mean, marital companionship, consortium, or of the husband
cohabitation 6. Todivorceunder the circumstances provided in thecode
5. Dutiestotheconjugalunion-attendtohisdutiestothe 7. Right to exercise parental authority, jointly with her
conjugal union to protectandsecureitandnottobring husband over their unemancipated children
danger, dishonor or material injury upon his wife ○ In theeventofdivorcetothecareandcustody
○ Otherwise, wife may petition the court for of children below seven years of age
proper relief ○ And to her unemancipated son who has
reached the age of puberty
8. Right to correct, discipline and inflict moderate
punishment upon her unemancipated children
9. Right toinheritfrom her husband
10. Righttopetitionthecourtforreliefintheeventhusband
( 1) The wifeshalldutifullymanagetheaffairsofthehousehold. neglect his dutiestotheconjugalunionorbringdanger,
She may purchase things necessary forthemaintenanceofthe dishonor or material injury upon her
family, and the husband shall be bound to reimburse the 11. Righttohaveherpromptordemandabledowersatisfied
expenses, if he has not delivered the proper sum. and to petition to the court to be exemptedfromliving
with herhusbandhusband,ifherdowerisnotpaid;and
( 2) The wife cannot,withoutthehusband’sconsent,acquireany thepaymentofthewholeofherdeferredDoweruponthe
property by gratuitous title, except from her relatives who are dissolutionofaconsummatedmarriage,ofhalfthereofif
within the prohibited degrees in marriage. unconsummated and the marriage is dissolved by
divorce or death of the husband
( 3) The wife may, with her husband’s consent, exercise any 12. Right tomanage the affairs of the household
professionoroccupationorengageinlawfulbusinesswhichisin ○ To purchase things necessary for the
keepingwithIslamicmodestyandvirtue.However,ifthehusband maintenance of the family
refuses to give his consent on the ground that his income is ○ To require the husband to reimburse the
sufficient for the family according to its social standing or his expenses, made if she hasnotadvancedfrom
oppositionisbasedonseriousandvalidgrounds,themattershall her exclusive property the necessary amount
be referred to the Agama Arbitration Council. 13. Right tohavethecustodyoftheirchildrenbelowseven
years of age
( 4)Thewifeshallhavetherighttodemandthesatisfactionofher 14. Right toengage in an occupationor calling
mahr. 15. Righttoaskthecourttoexemptherfromlivingwiththe
husband if theconjugalhomeisnotsuitableorsafefor
( 5) Unless otherwise stipulatedinthemarriagesettlements,the her
wife retains ownership and administration of her exclusive
property. Obligations of the wife
1. To live together with a husband which mean permits
( 6)Thewifeshallbeentitledtoanequalandjusttreatmentbythe him consortium to her unless she is exempted by the
husband. court
2. Torespectandobeyherhusband,especiallyinmatters
Ideal of Wifehood in Islam involving the exercise by him of his parental authority
● Love and affection, andnotsubordination and servitude over their unemancipated children, and serve her
● Regarded as thesafeguardforhusbandagainstsinand husbandwholeheartedleavewithinthelimitsordainedby
not the road to iniquity Allah
● Virtuouswifeisthebesttreasurewhichamancanjustly 3. Toobserveutmostfidelitytoherhusband,whichmeans
be proud of to be faithful to him and guard her honor for him in
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE18
ccordance with Islamic chastity and virtue, andnotto
a i. t he net gains or benefits, obtained
cause danger, dishonor or material injury to the husband indiscriminately by either spouse
4. To render mutual help and support which means that 3. Mixed
whenthehusbandcannotprovidetheneededsupportfor ○ ome of their properties shall remain as their
S
some valid reasons, she has the necessary means to exclusivepropertiesandsomeshallbeconjugal
extendhimfinancialhelporadvancetheneededsupport, partnership properties
she is obliged to provide the needed amount andonce . Theregime of absolute community of property
4
the husband’s financial condition improves, she can be ○ All present and future properties form part of
reimbursed of the amount advanced by her. their communityofproperties-shallbeowned
. To fullymanage the affairs of the household
5 and enjoyed administered by the spouses jointly
6. To take care of the children, rear and bring them up ○ Upon dissolution of the marriage - properties
properlyandfulfillherresponsibilitiesanddutiestowards shall be divided between them in accordance
them with their antenuptial contract, the lawortheir
custom
○ In case of death - the law of succession
Civil code and family code applies suppletorily
he property relations between husband and wife shall be
T he property relations between the spouses, in the absence of
T
governed in the following order: anystipulationtothecontraryinthemarriagesettlementsorany
other contract, shall be governed by the regime of complete
( a) By contract before or at the time of the celebration of separation of property in accordance with this Code and, in a
marriage; suppletory manner, by the general principles ofIslamiclawand
the Civil Code of the Philippines.
(b) By the provisions of this Code; and
Property Relation of Spouses During Marriage
(c) By custom. ● Regime of property relation may be provided in a
marriage settlement or ante-nuptial agreement
Ante-Nuptial Contract ● Whensystemofpropertyrelationduringthemarriageis
● The parties to a marriage contract may fixbeforeorat fixed by marriage settlement :
the timeofthemarriagethesystemofpropertyrelation ○ It shall be recognized by law and observedas
that shall govern them during the marriage through a the system of their property relation
marriage settlement or ante-nuptial agreement ○ Mustnotbecontrarytolaw,publicorder,public
● Marriagesettlementorante-nuptialagreement-intended policy, good moral and custom
to govern the property relation relation between the ● In the absence of any stipulation
future spouses during their marriage ○ The law under the present article fixes for the
● Intheabsenceofanymarriagesettlement,theprovision parties the property regime
of this code shall govern
○ in which case the system of property relation
thatwillbefollowedshallbethatoftheregime
of complete separation of property
○ as to what has not been stipulated in the
marriage settlementorprovidedbytheMuslim verystipulationinthemarriagesettlementsorcontractreferred
E
code, then the custom are usages in the to in the preceding article shall be void and without effect
community where the contracting parties live whatsoever, should the marriage not take place. However,
shall be observed stipulations that do not depend upon the contract of marriage
shall be valid.
Kinds of property regimes that may be adopted during marriage
1. Theregime of complete separation of property Marriage Settlement Dependent on Marriage Contract
○ Each spouse shall own, possess, administer, ● Marriage contract - reason for the existence of the
enjoy and dispose of his/her own exclusive marriage settlement or ante-nuptial agreement
property, even without a consent of the other ● Ifmarriagedoesnottakeplace-ante-nuptialagreement
○ Any debt or liability shall have to behisorher cannot be given legal effect
own account alone ○ Stipulations not dependent on marriage: shall
2. Theregime of conjugal partnership of gains remain binding (e.g.acknowledgementofchild
○ Place in a common fund, the fruits of their as legitimate)
separate property and the income from their
work or industry Stipulations in the Marriage Settlement
○ Divide equally upon the dissolution of the
marriage or of the partnership:
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE19
● uture spouses may stipulate in their marriage
F
settlement anything not contrary to law, public order, Income Derived from Employment
good custom, and public policy. ● Exclusive property or assets of the spousewhoearned
● Example: them:
○ Wifecanstipulatethatthehusbandshallmake ○ Incomefromemployment,occupationortrade:
her certain allowances (1) Salaries received from employment, (2)
Gratuity granted for services rendered, (3)
Profits earned from business, (4) Income
derived from exercise of a trade
he wife shall not lose ownership and administration of all
T oneyorPropertyAcquiredbyEitherSpousethroughLucrative
M
properties brought by hertothemarriageintheabsenceofany Title
written agreement to the contrary, and she may dispose of the ● Lucrative- gainful or profitable
same by deed or otherwise even without the consent of her ● Property acquired bygratuitous title
husband. ● One arising frompure beneficence
● Acquired as gifts, donations, devise, legacy and the like
Ante-nuptial Property of the Wife ● Primary object of the giver is purely to benefit the
● ParaphernalProperty-referstoallpropertieswhichshe recipient
bringstothemarriageasherownseparateandexclusive ● Wife cannot acquire property by gratuitoustitlewithout
properties thehusband’sconsent,EXCEPTfromrelativeswithinthe
● Wiferetainstherighttoown,possess,administer,enjoy, prohibited degrees in marriage to her
dispose of the samewithoutthe consent of the husband
● She may be sued or be suedindependentlyconcerning Dower (Mahr) and Nuptial Gifts
her exclusive property ● Dower belongs absolutely to the wife
● Thecourtmaygranthusbandtheadministrationofsuch ● Before or after consummation of the marriage
property ● Nuptial gifts - given to the spouses on the occasionof
● Any unauthorized act cannot be given any force and the marriage ceremony
effect ● Presents given to the wife - “jaluz”
● during themarriage-wifeisnotallowedtoreceivegifts
without husband’s consent
Properties Acquired by Onerous Title
The following shall be the exclusive property of either spouse: ● Propertyacquiredbyoneroustitlethroughtheexerciseof
the right of redemption, purchase or exchange under a
(a) Properties brought to the marriage by the husband or the wife; contract made by such spouseusinghisownexclusive
property/money for that purpose shall belong to such
( b) All income derived by either spouse from any employment, spouse
occupation or trade; ○ Regardless of whether the contract wasmade
before or during the marriage
( c) Any money or property acquired by either spouse during
marriage by lucrative title; Fruits of the Exclusive Properties
● Allthefruitsoftheexclusivepropertiesofeitherspouses
(d) The dower (mahr) of the wife and nuptial gifts to each spouse; shall belong to him/her alone
● Owner gets entitled to:
( e) Properties acquired by right of redemption, purchase or ○ Natural fruits - spontaneous products of soil
exchange of the exclusive property of either; and and the young of animal
○ Industrialfruits-producedbylandsofanykind
(f) All fruits of properties in the foregoing paragraphs. through cultivation or labor
○ Civilfruits-rentsofbuildings,priceofleasesof
Modes of Acquiring Properties lands
1. Iktisab (earning)
2. Waritha (inheritance)
3. Hiba (gift)
achspouseshallown,possess,administer,enjoyanddisposeof
E
Properties Brought to the Marriage his or her own exclusiveestateevenwithouttheconsentofthe
● Refers to the entire mass of properties which he/she other. However, the court may, upon petition of either spouse,
already own before the marriage grant to the other the administration of such property.
● Husband - capital
● Wife - paraphernal property Ownership of the Exclusive Properties of the Spouse
● Properties over which the right of either spouse began ● Exclusive properties:
before the marriageandcompletedduringthemarriage 1. Brought to the marriage
(i.e. contract to sell) 2. Earned by onerous title
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE20
. Acquired by gratuitous title during the marriage
3 (b) Vow of continence by the husband (ila);
4. Fruits of the foregoing properties
● Real property - spouse in whose name the property is (c) Injurious assimilation of the wife by the husband (zihar);
registered or was acquired must bepresumed the owner.
● Personalproperty-thatwhichcustomarilypertainstoor (d) Acts of imprecation (li’an);
is used by either spouse shall be presumed to be the
property of said spouse (e) Redemption by the wife (khul’);
( f) Exercise by the wife of the delegated right to repudiate
(tafwid); or
ousehold property which customarily pertains toorisusedby
H
(g) Judicial decree (faskh).
eitherspouseshallbeprimafaciepresumedtobethepropertyof
said spouse.
ousehold property
H
Articlesofhouseholdwhicharenotconsumedintheirenjoyment ( 1)Adivorcebytalaqmaybeeffectedbythehusbandinasingle
but which areordinarilyintendedtobeusedbyeitherspousefor repudiation of his wife during her non-menstrual period (tuhr)
theirpersonalconvenienceorpurposeorthatofthehouseholdin within which he has totally abstained from carnal relation with
common her. Any number of repudiations made during one tuhr shall
● Kitchen utensils - ordinarily usedbythewifebelongsto constitute only one repudiation and shall become irrevocable
her after the expiration of the prescribed ‘idda.
● Tools used in his trade by the husband belongs to him
( 2) A husband who repudiates his wife, either for the first or
secondtime,shallhavetherighttotakeherback(ruju)withinthe
prescribed‘iddabyresumptionofcohabitationwithoutneedofa
hewifemay,independentlyofthehusband,sueorbesuedinthe
T newcontractofmarriage.Shouldhefailtodoso,therepudiation
following cases: shall become irrevocable (Talaq bain sugra).
(a) When the litigation is between husband and wife;
(b) If the suit concerns her exclusive property;
here a husband makes a vow to abstain from any carnal
W
relations(ila)withhiswifeandkeepssuchilaforaperiodofnot
( c) If the litigation isincidentaltoherprofession,occupationor lessthanfourmonths,shemaybegrantedadecreeofdivorceby
business; the court after due notice and hearing.
( d) If the litigation concerns the exclusive property of the
husband,theadministrationofwhichhasbeentransferredtoher;
or
herethehusbandhasinjuriouslyassimilated(zihar)hiswifeto
W
( e) Such other appropriate cases as may be followed by the any of his relatives within the prohibited degrees of marriage,
general principles of Islamic law and other laws. they shall mutually refrain from having carnal relation until he
shallhaveperformedtheprescribedexpiation.Thewifemayask
Independent Suit By or Against Either Spouse the court to require her husband to perform theexpiationorto
● Exception: conjugal properties pronounce a regular talaq should he fail or refuse to do so,
without prejudice to her right of seeking other appropriate
remedies.
herethehusbandaccuseshiswifeincourtofadultery,adecree
W
of perpetual divorce may be granted by the court after due
hearingandafterthepartiesshallhaveperformedtheprescribed
acts of imprecation (li’an).
ivorce is the formal dissolution of the marriage bond in
D
accordancewiththisCodetobegrantedonlyaftertheexhaustion
of all possible means of reconciliation between the spouses.It
may be effected by:
he wife may, after having offered to return or renounce her
T
dower or to pay any other lawful consideration for her release
(a) Repudiation of the wife by the husband (talaq); (khul’)fromthemarriagebond,petitionthecourtfordivorce.The
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE21
ourt shall, in meritorious cases and after fixing the
c
consideration, issue the corresponding decree.
talaqorfaskh,assoonasitbecomesirrevocable,shallhavethe
A
following effects:
I f the husband has delegated (tafwid) to the wife the right to ( a) The marriage bond shall be severed and the spouses may
effect a talaq at the time of the celebration of the marriage or contract another marriage in accordance with this Code;
thereafter, she may repudiate the marriage and the repudiation
would have the same effect as if it were pronounced by the (b) The spouses shall lose their mutual rights of inheritance;
husband himself.
( c) The custody of children shall be determined in accordance
with Article 78 of this code;
( d) The wife shall be entitled to recover from the husband her
he court may, upon petition of the wife, decree a divorce by
T whole dower in case the talaq has been affected after the
faskh on any of the following grounds : consummation of the marriage, or one-half thereof if effected
before its consummation;
( a) Neglect or failure of the husband to providesupportforthe
family for at least six consecutive months; ( e) The husband shall not be discharged from his obligation to
give support in accordance with Article 67; and
( b) Conviction of thehusbandbyfinaljudgmentsentencinghim
to imprisonment for at least one year; ( f) The conjugal partnership, if stipulated in the marriage
settlements, shall be dissolved and liquidated.
( c) Failure of the husband to perform for six months without
reasonable cause his marital obligation in accordance withthis
code;
(d) Impotency of the husband; heprovisionsofthearticleimmediatelyprecedingshallapplyto
T
thedissolution,ofmarriagebyila,zihar,li’anandkhul’,subjectto
( e)Insanityorafflictionofthehusbandwithanincurabledisease the effects of compliance with the requirements of the Islamic
which would make the continuanceofthemarriagerelationship law relative to such divorces.
injurious to the family;
( f) Unusual cruelty of the husband as defined under the next
succeeding article; or
( g) Any other cause recognized under Muslim law for the
dissolutionofmarriagebyfaskheitherattheinstanceofthewife
‘Idda is the period of waiting prescribed for a woman whose
or the proper wali.
marriage has been dissolved by death or by divorce the
completion of which shall enable her to contract a new marriage.
decree of faskh on the ground of unusual cruelty may be
A
granted by the court upon petition of the wife if the husband:
(1) Every wife shall be obliged to observe ‘idda as follows:
( a) Habitually assaults her or makes her lifemiserablebycruel
( a)Incaseofdissolutionofmarriagebydeath,fourmonthsand
conduct even if this does not result in physical injury;
ten days counted from the death of her husband;
( b)Associateswithpersonsofill-reputeorleadsaninfamouslife
( b) In case of termination of marriage by divorce, for three
or attempts to force the wife to live an immoral life;
monthly courses; or
( c)Compelshertodisposeofherexclusivepropertyorprevents
( c)Incaseofapregnantwoman,foraperiodextendinguntilher
her from exercising her legal rights over it;
delivery.
(d) Obstructs her in the observance of her religious practices; or
( 2) Should the husband die whilethewifeisobserving‘iddafor
divorce, another‘iddafordeathshallbeobservedinaccordance
( e)DoesnottreatherjustlyandequitablyasenjoinedbyIslamic
with paragraph 1(a).
law.
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE22
Islamic law leans favorably towards holding children to be of
legitimate parentage.
Irregular marriage contracts and cohabitation in doubt are
considered good grounds for proof of parentage:
egitimacy of filiation is established by evidence of valid
L 1. M anhasmarriedafifthwifeinthepresenceofthefouris
marriage between the father and the mother at the time ofthe treated as fasid (irregular) or batil (void)
conception of the child. 2. The marriageofaMuslimandnon-Muslimwomanwho
is not the lawful wife of another is merely fasid
stablishment of Parentage
E 3. When the marriage of the parents is void but ifparties
Parentage-relationshipofthechildrentotheirparentsbecauseof believeingoodfaiththatthereisnoimpedimenttotheir
their birth marriage.Ifatthelaterstage,itisfoundthatthereisan
impediment, children born of such marriage are
arentage is established on the basis of matrimonial alliance
P legitimate
between the husband and the wife, though the matrimonial
alliancemayhavebeencreatedeitherbyavalidmarriagecontract Periods of Presumption of Legitimacy
or irregular marriage contract. 1. A child born within (6) months of the marriage is
illegitimate; unless the mother’shusbandacknowledges
aternity-statusofthefather’srelationtothechild;establishedby
P the child as his.
a subsistingfirashthatislegallyconstitutedrelationbetweenthe ● If the mother had a previous marriage, and
mother and the father of the child, or by the word of thefather immediately after dissolution, she contracted a
acknowledging the child is his subsequentmarriage,childshallbepresumedofthe
previous marriage.
Filiation- status of the child’s relation to thefather 2. A child born after (6) months) of the marriage is
presumed legitimate, unless proven otherwise.
aternity-statusofthemother’srelationtothechild,established
M 3. Achildbornwithin(2)yearsfollowingthedissolutionof
by the fact of the mother giving birth to the child themarriageispresumedlegitimate,unlessproventhat
there was impossibility of access between the mother
wo Ways of Establishing Parentage:
T and the alleged father:
1. By birth during a regular and valid or irregular but not void ● at or about the time of the conception of the
marriage childsuchaswhenitisprovedthatthehusband
2. By acknowledgment of the father of the child which confers is impotent
legitimacy upon the latter ● that the spouse were living separately and
access was not possible
● the husbandwassufferingfromseriousillness
thatrenderedsexualintercoursebetweenthem
( 1)Childrenconceivedinlawfulwedlockshallbepresumedtobe impossible
legitimate. Whoever claims illegitimacy of or impugns such 4. Achildbornafter(2)yearsfollowingthedissolutionof
filiation must prove his allegation. the marriage, the paternity does NOT get established
from thewoman’shusbandofthedissolvedmarriagein
( 2)Childrenbornaftersixmonthsfollowingtheconsummationof case the dissolution is occasioned by the husband’s
marriage or with twoyearsafterthedissolutionofthemarriage death; and in the same manner whenitisbyreasonof
shallbepresumedtobelegitimate.Againstthispresumptionno divorce, except in the latter case when the husband
evidence shall be admitted other than that of the physical acknowledges the child as his.
impossibilityofaccessbetweentheparentsatoraboutthetime 5. Achildbornwithin(6)monthsfollowingdissolutionofa
of the conception of the child. prior marriage and during the subsequent marriage of
the mother shall be presumed to have been conceived
during the former marriage or a legitimate child of the
former marriage;
6. A child born after(6)monthsfollowingthedissolution
houldthemarriagebedissolvedandthewifecontractsanother
S ofapriormarriageandduringthesubsequentmarriage
marriage after the expiration of her ‘IDDA,thechildbornwithin ofthemothershallbepresumedtohavebeenconceived
six months from the dissolution of the prior marriage shall be during the latter marriage or a legitimate child of the
presumed to have been conceived during the former marriage, latter marriage.
and if born thereafter, during the latter.
Periods of Pregnancy or Gestation; Shortest Periods
resumption of Legitimacy
P hortestperiodofpregnancyrecognizedundertheMuslimlawis
S
A child conceived in lawful wedlock ispresumed legitimate. (6)months.Thesucklingperiodforthechildis24months,andthe
rest of 6 months are indicated as the shortest period of
eriod of conception - first 120 days of 300 daysprecedingthe
P pregnancy.
birth of the child.
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE23
ongest Period of Pregnancy
L Period of Gestation
Difference of opinion among the Imams on the question as to uslim juristshavegiventheperiodsoftimebothminimumand
M
what is the longest period of pregnancy. maximumduringwhichafullydevelopedchildcanbeborn.Aimis
to save the child from the stigma of illegitimacy.
ame Periods of Gestation; Minimum Period of Gestation
S
Fullydevelopedchildcannotbebornbefore(6)months.Childshall ome Cases on the Period of Gestation in Case of Divorced
S
beconsideredlegitimateifitisbornatorbeyond(6)monthsofa 1. In case of divorce by qadi or decree of court
marriage. It can be rendered legitimate under the doctrine of Theannulmentordissolutionofmarriagebytheqadiamountsto
acknowledgement. anirrevocabledivorce.Achildshallbeconsideredtobelegitimate
issue of the former husband, only ifitisbornwithin(2)yearsof
ommencement of Time
C the order of the qadi,
Theperiodof(6)monthsshallbecountedfromthedateofavalid
marriage.Minimumperiodofgestationhasbeenconsideredtobe ommencement of time - period of (2) or (4) yearsasthecase
C
174 days. may be counted from the time of the marriage
arentage of Child of Artificial Insemination
P 2. In the case of revocable divorce
Muslim legists regard artificial insemination asharam (forbidden). awfulforthehusbandtobeintimatewithhisdivorcedwifeduring
L
the periodoftheidda(3monthlycourses),andsothemaximum
If a person has artificial insemination performed despite its period of gestation (2 years) is increased by that period, on the
impermissibility,thechildbornshallnotbeattributabletotheman ground that the husband mighthavebeenintimatewiththewife
whose sperm was inseminated, because he has not had sexual during idda.
intercourse.Butthechildshallbeattributedtoitsmotherbecause
it is her actual offspring and her legal child. Achildshallnotbe ule is subject to the condition that the wife should not have
R
attributedtothepersonwhosespermitwasconceivedevenifhe stated or admitted that her period of idda has passed.
be the husband.
child born within (2) years ofthedissolutionoftheiddaof(3)
A
ssential Conditions to Determine
E Child’s Legitimacy monthlycoursesshallbedeemedtobelawfulissueofthatperson
StatCon-NP and it shall be presumed that he must have cohabited with her
1. Status of parents of the child during the period of idda.
2. Conduct of the alleged father
3. Nature of Marriage 3. Gestation period in the case of irrevocable divorce
4. Period of Gestation Ifchildisbornwithin(2)yearsofthedissolutionofamarriage,it
shall be presumed to be the legitimate child of the man who
tatus of Parents
S divorced the child’s mother.
If it was at all possible thatitcouldhavebeenconceivedduring
the existence of a valid marriage of the child’s mother with the If child is born beyond (2) years, it shall not be presumed a
person alleged to be its father legitimate child of its mother’s husband.
ssential condition of legitimacy under the Muslim Law:
E ongest period of gestation is (2) years of the dissolution of
L
That the child must have been conceived in wedlockorinother marriage - clearthatitcouldnothavebeenconceivedduringthe
words,thepersonwhoisresponsibleforitsconceptionshouldbe subsistenceofthemarriage(itisnotpossibleforthehusbandto
the lawful husband of the child’s mother. approach his wife after the pronouncement of the irrevocable
divorce)
onduct of the Alleged Father
C
Whether he has admitted expressly or impliedly that thechildis Child born after Divorce:
his. .Within(6)monthsofthedissolutionofmarriage-nodoubtof
1
its legitimacy
ailuretodenyhisparentageofthechildwhenitislegallyopento
F
him to discuss it constitutesanimpliedadmissionthatthechild .Dissolvedbyrevocabledivorce-itisopentoahusbandtobe
2
belongs to him. intimate with the wife within the period of idda, so a child born
within (9) months of the divorce can be presumed to be legitimate
It is opentoapersontodisownachildatthetimeofitsbirthor
within the time a father usually and customarily receive . Child born within (2) years and (3) months of revocable
3
felicitations: (40) days - Abu Yusuf Muhammad, (7) days - Abu divorce-presumedtobethelegitimatechildofthehusband(Abu
Hanifah, (3) days to (1) week - Radd Al-Muhtar Hanifah); subject to the condition that there is no apparent
impediment to the legitimacy of the child
ature of Marriage
N
The child must be a result of a lawful marriage, it must be . Irrevocable divorce - period of idda cannot be taken into
4
conceived in wedlock. consideration, as intimacy is not allowed.Maximumperiodshall
be (2) years
resumptionoflegitimacyofachildborntoamanandawoman
P
lawfully married. . Marriage has notbeenconsummatedandhusbanddivorced
5
his wife who has never attained puberty but can admit carnal
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE24
onnection -childbornofthewifeshallbeconsideredlegitimate
c he firstnameofthefatherorthesurnameofeitherthefather
T
if born within (6) months of the divorce or the mother may be used as the child’s last name subject to
Islamic or Muslim Law or Ada (Customary Laws).
estation Period of Child of Illicit Intercourse
G
If child is born less than 6 months, descent is not established, Customary Practice among Muslims:
unlessheclaimsitanddoesnotsaythatthechildistheresultof ame of the father as surname and from the father to the
N
illicit intercourse. grandfather within the direct paternal line.
If mother says that the child is bornofherillicitintercourse,the hild is allowed to use the surname of the father and of the
C
descent is not established and will not inherit from him. mother.Sincetheuseofsurnameisaperson’sright,eitherofthe
(2)wayscanbeadoptedsincethereisnorestrictiononthisright
If a man marries a woman within the prohibited degree, and a other than the requirement of good faith.
child is born to her, child is considered lawful issue of that person.
Child’s Right to Inheritance
arriageofMuslimwithanon-Muslimwhoisnotthelawfulwife
M hildren born to the spouses are their legal heroes and in the
C
of another - children are legitimate event of the death ofeitherofthem,theirchildrenareentitledto
inherit from the property left by them.
hey are among the compulsory heirs who are never excluded
T
fromtheinheritanceoftheirparentsunlessdisinheritedforcause
I f,afterthedissolutionofmarriage,thewifebelievesthatsheis provided by law.
pregnantbyherformerhusband,sheshall,withinthirtydaysfrom
the time she became aware of herpregnancy,notifytheformer
husband or his heirs of thatfact.Thehusbandorhisheirsmay
ask the court to take measures to prevent a simulation of birth.
cknowledgment (igra) of a child by the father shall establish
A
utyoftheWifeWhoBelievesHerselfPregnantOnceMarriage
D paternityandconferuponeachtherighttoinheritfromtheother
is Dissolved exclusively inaccordancewithArticle94,providedthefollowing
Itisherdutytoinformherformerhusband,orhisheirsaboutthe conditions are complied with:
fact of her pregnancy, to prevent simulation of birth.
( a)Theacknowledgmentismanifestedbythefather’sacceptance
he husband or his heirs may ask the proper Shari’a Court for
T inpublicthatheisthefatherofthechildwhodoesnotimpugnit;
such measures to prevent the possibility of such simulation of and
birth
( b) The relations does not appear impossible by reason of
usband has the right to deny or accept the child as his. If he
H disparity in age.
accepts child, child shall enjoy the rights of a legitimate child.
Meaning of Acknowledgment
onduct of the Alleged Father
C Igrar - to confirm or establish; it is given the meaning of
Failureonthepartoftheallegedfathernottodenyhisparentage, acknowledgment. It is derived from the word of “qarar” which
constitutes implied admission that the child belongs to him means confirmation.
s if the acknowledger established by acknowledgment a right
A
againsthimself.ItisbasedupontheQuranwhichsays“callthem
by their father”
A legitimate child shall have the right: Igrar - as a term in law, is a juridical act whereby a man
acknowledges another of unknown paternity as his child with a
(a) To bear the surnames of the father and of the mother; womanwhoatoraboutthetimeoftheconceptionbythelatterof
the acknowledged one, could have been legally married to the
( b)Toreceivesupportfromthefatheror,inhisdefault,fromhis acknowledger.
heirs in accordance with Articles 65 and 68; and
cknowledgment - process recognized under the Muslim law in
A
( c) To share in the legitimate (furud) and other successional which in those cases where the paternity of a child isunknown
rights which this Code recognizes in his favor. andnotbeingachildofillicitrelation,acknowledgementbyfather
establishes his paternity and child’s legitimacy
hild’s Right to Use of Parents’ Surnames
C
ChildinIslamhasaninalienablerighttolegitimacy.Itadopts“the rocess is necessary when existenceofavalidmarriagecannot
P
principle of legitimacy” - holds that every child has a fatherand be proven.
one father only
Acknowledgment isnot an act of legitimation.
UnderRule 7, A.O. No. 1, series of 2005 of the NSO OCRG:
Legitimacy- status which results from certain facts.
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE25
9. T Heonebeingacknowledgedisofage,giveshisconsent
egitimation - proceeding which creates a status which did not
L expressly or impliedly to the acknowledgment
exist before. There is no legitimation under the Muhammadan law. 10. Acknowledger is possessed of legal capacity
cknowledgment is a declaration of legitimacy, and not
A Unknown Paternity
legitimation. hepaternityofthepersonbeingacknowledgedisnotknown,orif
T
at or about the time of the conception of that person by the
ature of Acknowledgment (Igrar)
N mother,theexistenceofvalidmarriagebetweentheparentsisnot
Doctrineofacknowledgmentisnotaruleofevidence,butisarule proved or disproved.
of substantive Muslim Law. Condition under which it will take
effect must be determined in reference to Muslim law. Acknowledgment is in Consonance with the Parties’ Ages
ersonacknowledgingandtheonebeingacknowledgedmustbe
P
hen Acknowledgment May be Made
W respectively of such ages as would admit the possibility of the
1. When there is no direct proof of alleged marriage between a relation of father and son
person and the mother of the child
ancannotestablishtherelationshipoffatherandsonunlesshe
M
2. When the legitimacy of the child is unknown be at least 12 years and 6 months olderthantheonewhomhe
intends to acknowledge.
3. When the parentage of the child is not definitely known
hen the acknowledger is awoman,shemustbe9yearsanda
W
odes of Acknowledgment
M half older than the person being acknowledged
Expressly or by Implication. It must be a statement or conduct
intended to have a legal effect; a mere casual admission is not Parents Could Have Been Married
enough. cknowledger and motheroftheacknowledgedcouldhavebeen
A
legallymarriedwithoutanylegalimpedimentatoraboutthetime
xpress acknowledgement
E when the acknowledgedwasbeingconceivedbythemother,but
When a man says “This is my child.” there is no direct proof of the fact of marriage.
Implied acknowledgement: Acknowledged person not child of illicit relations
Whenamanremainssilentwhenheisbeingcongratulatedupon hildofzinaillicitintercourse:suchasonebornoutofincentuous
C
the birth of a child. or adulterous relationship or from the fornication of the parents.
It is not necessary that the acknowledgment of paternity be Acknowledged child not child of another
specifically made: ust not be well-known to be the child of another;
M
● If a person habitually and openly treats a child as his acknowledgment can be effective only when the descent of the
legitimate issue his legitimacy may from this fact be child is unknown for an acknowledgment serve as a proof of
presumed. parentage when there is some doubt about it.
● Continuousandconsistentcourseoftreatmentofachild
as a legitimate child amounts to implied Purpose of Acknowledgment is to Confer Legitimacy
acknowledgment. cknowledgment must not merely be of sonship, but must be
A
● Facts that a child was brought up by a person and madeinsuchawaythatitshowsthattheacknowledgmentmeant
treated byhimashisson,aresufficienttogiverisetoa not only to accept the other as his son, but as his legitimate son.
presumption that it is the legitimate child of that person
Acknowledgment must be definite, clear, and reliable.
Requisites of Acknowledgment
1. Paternity of the child is unknown Not impugned by the acknowledged one
2. It must clearly indicate the child acknowledged cknowledged child should not repudiate the acknowledgment
A
3. Partiesmustbeofsuchaswouldadmitofthepossibility provided he is of an age andcanunderstandthesignificanceof
oftheirstandingintherelationoffatherandchildtoeach acknowledgement.
other;adopterandtheadoptedmustrespectivelyofsuch
ages as would admit the possibility oftheirstandingin Consent of the acknowledged person
the relation of parent and child to each other If the person being acknowledged is of age, it is necessary to
4. Legalmarriagemustbepossiblebetweentheparentsof obtain his consent, either by express or implied acceptances.
the acknowledged child;
5. acknowledged child must not be the offspring of zina Effect of Acknowledgment
(illicit intercourse) n acknowledgment raises a presumption ofthelegitimacyofa
A
6. Acknowledgedchildmustnotbeknowntobethechildof child; such acknowledgement establishes parentageofthechild,
another and renders him/her a legitimate child and heir.
7. Act of acknowledgement is purposely intended to
establish parentage so as to confer legitimacy cknowledgment also amounts to prima facie proof that the
A
8. Acknowledgement is not impugned later by the mother of the child is the wife of that man.
acknowledger or by the person being acknowledged
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE26
childorawifebecomesoneoftheacknowledger’sheirstothe
A mount ofsupportthattheobligorisobligedtogiveisbasedon
A
same extent as one of his other heirs. (2) factors:
cknowledgment of a Child by the Mother
A . M
1 eansof the obligor
Amarried,widowed,ordivorcedwomanmaynotbyherselfalone 2. Necessities of the recipient, in every caseaccordingto
acknowledge a child as her legitimate child, and that of her the social standing of the person obliged to give it.
husband WITHOUT the latter’s consent.
mountdependsontheneedsofthepartyentitledaswellason
A
ivorced: except upon proof that the husband has given his
D thecapacityofthepersonboundtogivesupport,sincetherightto
consent live is common to both parties.
eceased husband: proof that husband has given his consent
D bligorshouldnotbemadetocomplywiththeobligationtogive
O
during his lifetime support, to the extent of depriving himself of the same.
oman not known to be married alone by herself: may
W What Support (Nafaqa) includes
acknowledge a child as hers. s a mandate of the Shari’a includes not only those basic
A
necessities for maintenance in life, but also those which are
I rrevocability of Acknowledgment neededtokeepthepersontoliveaccordingtothesocialstanding
Status of sonshipcannotbedestroyedbyanysubsequentactof of the family.
the acknowledger or those who claim through him.
hecourtmayexemptthewifefromlivingwiththehusbandifthe
T
escentwhenonceestablishedcannotbedissolvedorcancelled
D conjugal dwelling is not in keeping with her social standing.
neither can it be transferred from one person to another.
usbandisresponsibleforthemaintenanceofhiswifeevenifshe
H
is capable of self-support.
Islamiclawobligesthehusbandtofulfillallthenecessitiesofhis
oadoptioninanyformshallconferuponanypersonthestatus
N wife as long as she remains his wedded wife.
andrightsofalegitimatechildunderMuslimlaw,exceptthatsaid
person may receive a gift (hiba).
oncept of Adoption
C
An act whereby a person takes the child of another as his own heamountofsupportshallbeinproportiontotheresourcesof
T
creating by operation of law a relationship that exists in a the giver and to the needs of the recipient.
legitimate paternity and filiation.
Determination of Maintenance.
uslimlawdoesnotrecognizeadoption,becauseadoptiondoes
M ● The schools concur that a wife's maintenance is wajib
not change the lineage of the child which remains with the real (obligatory) in all its three forms: Food, clothing, and
parents. housing.
● Theyalsoconcurthatmaintenancewill bedeterminedin
doption can never be the basis of paternity and filiation in like
A accordance with the financial status of the two if both
manner as that existing between persons naturally related. are of equal status.
● The financial status of the wife is meant the financial
o adoption under Muslim law
N status of her family and its standard of living.
Custom among ancient Arabs to regard their adopted sons as ● But whenoneofthemiswell-offandtheotherindigent,
being nearly related to them as their natural sons. This custom the schools differ.
was abolished by the Prophet Muhammad. ● The Maliki and the Hanbali schools state:
○ Ifthecoupledifferinfinancialstatus,amedian
course will be followed.
● The Shafi'i schools observes:
○ Maintenance will be determinedinaccordance
with the civil status of the husband; and the
statusofthewifewillnotbeconsidered;thisis
regarding food and clothing.
upport (nafaqa) includes everything that is indispensable for
S
○ But as regards housing,itshouldbeaccording
sustenance,dwelling,clothingandmedicalattendanceaccording
her status.
to the social standing of the person obliged to give it, and the
● The Hanafi's have two views:
educationofthepersonentitledtothesupportuntilhecompletes
○ According to thefirstthestatusofbothwillbe
his education, training, or vocation even beyond the age of
considered, and
majority.
○ According to the second, the status of the
husband.
Basis of Amount of Support
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE27
● utwhateverthecaseis,itisthatthefinancialcondition
B ● owever, a widow is not entitled to support during the
H
of thehusbandbetakenintoconsiderationasexpressly periodoftheiddafollowingherhusband'sdeathwhether
stated in the Quran. she is pregnant or not.
● Except that the Shafi'i and Malaki schools state: If the
husband dies,sheisentitledtomaintenanceonlytothe
extent of housing.
● The Shafi'is have said: If she separates from himwhile
( 1) The wife shall be entitledtosupportduringthemarriage.In she is pregnant and then the husband dies, her
cases of divorce, (talaq), her right shall be extended up to the maintenance shall not cease while she is pregnant till
expiration of the ‘idda. However, in casethewifeispregnantat after she shall have delivered."
the time of the separation,sheshallbeentitledtosupportuntil
delivery. When Wife Entitled to Separate Maintenance.
In Muslim law, generally the husband is duty bound tomaintain
( 2)Anydivorcednursingmotherwhocontinuestobreastfeedher the wife if the wife lives withhiminthesameconjugaldwelling.
child for two years shall be entitledtosupportuntilthetimeof However, in some cases the husband, notwithstanding the wife
weaning. living separately from him, is still obliged to provide her separate
maintenance in the following instances:
Duration of Support. 1. Whentheyhaveagreedduringtheirmarriagethatshewill
● The husband's obligation to support the wife beentitledtoreceivealimonyinthehouseofherparents
○ commences from the moment that the wife or elsewhere that she chooses to reside in case the
surrenders herself to her husband as an husband has taken a second wife;
incident of a valid marriage contract and 2. Whenthecourtexemptsherfromlivingwithherhusband
○ continues while the marriage between them duetothehusband'snon-paymentofherpromptdower,
subsists, and or
○ is extinguished upon the dissolution of the 3. When the conjugal dwelling is not in keeping with her
marriage by the death of either of them or by social standing or is for any reason not safe for the
divorce. members of the family or her property
● Butincaseofdivorce,heshallcontinuetosupporthertill 4. Whensheleavesthehusband'shouseonaccountofhis
after her period of probation is over, and cruelty, or he turned heroutoftheconjugaldwelling,or
● If she is pregnant till after her delivery, and if she that the misunderstandingbetweenthemissuchthatit
breastfeeds the child, until after the period of weaning is irremediableandherreturntothehusband'shouseis
which is fixed at two years. likely to give rise to fresh trouble and disputes.
● A widow has no right to maintenance, whether she be
pregnant or not; because the restraint to which she is When Husband Not obliged to Give Maintenance to Wife
liable is for the sake of the law and not for her husband, ● Theobligationofthehusbandtoprovidemaintenanceto
● Theiddaofwidowhoodbeingareligiousobservance,for theWifeduringthemarriageisnotabsoluteandithinges
whichreasonitisthatitisreckonedbymonths,andnot upon the condition that the wife lives with him in the
by courses, as it would be if the object weremerelyto same dwelling place and affords him the right of
ascertain whether she is pregnant or not. consortium.
● His obligation, therefore, to provide maintenance to his
Support to Divorced Wife Breastfeed Her Child. wife during the marriage may be excused if the wife
● A divorced woman who is breastfeeding her child less without any valid reason or just cause commits anyof
thantwo isentitledtosupportfromherformerhusband the following:
and the child's father until after the period of weaning 1. When she refuses tolivewithhiminthesame
which is fixed by law at two years dwelling place;
● But, once the period of weaning is over, her right to 2. When she leaves theirconjugaldwellingtolive
receive support shall likewise cease. elsewhere
● The child shall likewise be entitled to receive support, 3. When she denies the husband entry to the
exclusive the support due to the mother. house to live with her,
● But if she is not breastfeeding their child, thelawdoes 4. When their marriage which is proved to be
notentitlehertoreceivesupportfromherhusbandafter irregularisnotconsummatedexceptincaseof
heriddahisoversinceachildisnotdependentonherfor marriage without witnesses;
its sustenance. 5. When she turns apostate (a person who
● This support of the mother is exclusive of the support renounces a religious or political belief or
due to the child, who is entitled to receive support principle)
likewise from the father. 6. Whensheisguiltyofinfidelityi.e.,adultery,acts
of lewdness;
Right of a Divorced Wife to Maintenance. 7. If despite her husband's valid objection she
● All the major schools of Muslim law concur that the engagesherselfinsomeemploymentandthus
divorcedwifeisentitledtosupportduringtheiddaofa keeps herself out for purposes of earning and
revocable divorce. employment and thus he loses control over her.
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE28
● utthehusbandisresponsibletopaymaintenancetohis
B ● If there is only onepersonresponsibleformaintenance
wife fortheperiodsforwhichsheliveswithherparents he will pay it;
with the permission of the husband. ● If two or more belonging to the same category and
capacity are responsible, such as two sons or two
upport of Children.
S daughters. they will share equally in providing
Under the mandate of the Shari'a, the father is unconditionally maintenance, even if they differ in wealth after their
obliged to provide maintenance to his children financial capacity has been proved.
● in the case of his sons until they attain the age of ● But,wheretheyareofdifferentcategoriesofrelationship
majority and, orofvaryingcapacities,thereisconfusionintheviewsof
● in the case of daughters till they get married. Hanafilegistsinprovidingtheorderofthoseresponsible
for maintenance.
e cannot exempt himself from the obligation to support his
H
children on thegroundofhischildren'sdisobedienceorthatthey Support of Collateral Relative
are under the custody of the mother, except when the children heCodeissilentconcerningsupportofcollateralrelatives.Under
T
have properties of their own for their self-supportinwhichcase theCivilCodebrothersandsistersowetheirlegitimateandnatural
their properties shall answer for their own maintenance. brothers, and sisters, although they are only half-blood, the
necessaries for life, when by a physical ormentaldefect,orany
hereduetosomephysicaldefectorillnessachildisincapableof
W other causes not imputable to the recipients, the latter cannot
self-support,orwhenthecontinuanceofsupportisneededbythe secure their subsistence.
childinordertofinishacoursetrainingorvocation,thefathershall
be obliged continue supporting thechildevenbeyondtheageof his assistance includes, in a proper case, expenses for
T
majority. elementary education and for professional or vocational training.
oncerning illegitimate children, the responsibility of supporting
C owever, the obligation of brothers and sisters to mutually
H
themisnotincumbentuponhim.UndertheHanafilaw,themother supporteachotherissubsidiary,andexistsonlywhenthereareno
is bound to support her natural son or daughter descendants or ascendants who can give support."
very relative within the prohibited degree is entitled to
E
maintenance provided that,
● ifamale,heiseitherachild(minor)andor,ifadult,that
he ascendants and descendants shall be obliged to support
T he is infirm or blind and poor, and
each other in the order in which they are called to succeed by ● if a female, that she is poor whether a child or adult.
intestacy the person who has a right to claim support.
heliabilityofapersontomaintainrelativesisinproportiontohis
T
upport Between Ascendant and Descendants.
S share in their inheritance, not(ofcourse)hisactualshare,forno
Ancestors anddescendantsshouldmaintaineachothermutually one can haveanyshareintheinheritanceofanothertillafterhis
withoutdistinctionofsexorreligion,onthesoleconditionthatthe death, but his capacity to inherit.
individual against whom the claim isbroughthimselfpossesses
more than is necessary for the maintenance of himself and his upport of Illegitimate Child.—
S
household. Under the Muslim law maintenance and inheritance go together.
nliketheobligationtoprovidemaintenancetothewifeorchildren
U In fact, under Article 95 illegitimate children shall have mutual
which a man has to provide regardless of his means, the rights of inheritance only with the mother and her relatives and
obligation to provide maintenancetootherrelationsissubjectto thereisnorightofinheritancebetweentheillegitimatechildfather,
theconditionthathismeansismorethanwhathehimselfneeds hence, there isno right of supportbetween them.
for the maintenance of himself and his immediate household.
his is made clear by the provision Of Article 68 OftheMuslim
T
heShafi'imakesitobligatoryonthepartofthechildrenwhohave
T Codeprovides:"Theascendantanddescendantshallbeobligedto
the means to provide support to their needy parents and supporteachotherintheorderinwhichtheyarecalledtosucceed
grandparents. by intestacy the person who has a right to claim support."
scendants and Descendants Are Obliged to Render Mutual
A nd under Muslim law an illegitimate child has no right of
A
Support. inheritance from his father and the father's relative, butonlythe
The Code under thepresentarticleprovidesthattheascendants motherand the latter’s relatives.
and descendants shall be obliged to support each other in the
orderinwhichtheyarecalledtosucceedbyintestacytheperson Conditions for the wajib (obligatory) of maintenance.
whohastherighttoclaimsupport.Forexample,inthedirectline, hefollowingarenecessaryformakingthemaintenanceofone's
T
the parents can claim support first from the children beforethe relative wajib (obligatory) upon another:
grandchildren. relative
1. The person to be maintained must be in need of
he Order Of Relative On Whom Maintenance is Wajib
T maintenance;
(obligatory). 2. The maintainer be well-off, according to all schools as
According to the four major sunnis. — The Hanafi's observe: regards the maintenance of those who are neither
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE29
scendants and descendants, but not as regards the
a t hat in case of the death of such person, the right is
spouse and legitimatedescendantsfinancialcapacityis extinguished and is not transmissible to another. Thus,
notacondition,theonlyconditionbeingthepresenceof whereajudgmentforsupportwasrendered,underwhich
theactualabilitytomaintainorthepresenceoftheability the defendant was to pay the mother of a child as
to earn. supportforthelatteracertainsum,thedeathofthechild
extinguishes the obligation to support, because the
support is not for the benefit of the mother but of the
child
( 1)Theobligationtosupportshallbedemandablefromthetime 2. O bligor resources insufficient for himself.
the recipient needs it for maintenance, but it shall not be paid Thisgeneralprincipleisthatprovidingofmaintenanceis
except from the date it is extrajudicially demanded. not incumbent upon one who himself is needy. Its
incidence on one is by wayofacompassionateliability
( 2) Payment shall be madedaily,weeklyormonthlyinadvance, butaneedyoneishimselfentitledtootherscompassion.
and when the recipient dies, his heirs shall not be obliged to Hence, maintenance cannot be due from him. This
return what he had received in advance. generalprinciple,however,isnotapplicableinthecaseof
maintenanceofawifechildrendespitethehusbandand
( 3) If the recipient is the wife, the rule established in the the father being poor, is incumbent upon them
foregoing paragraph shall apply even though the marriage is
dissolved. 3. C ommission of an act of disinheritance.
Under the Code, the following shall be disqualified to
ayment of Past Maintenance.
P inherit:
The major schools of Muslim law concur that the past ● Thosewhohaveintentionallycauseddirectlyor
maintenance of relatives will not bepayableifthejudgehadnot indirectly the death of the decedent;
determinedit.Thespiritofthemutualassistanceandfulfillmentof ● Thosewhohavecommittedanyotheractwhich
need being the reason behind it, it cannot be made for past time. constitutes a ground for disqualification to
inherit under Islamic law, i.e., apostasy;
upport When Payable.
S ● Thosewhoaresituatedthattheycannotinherit
The presentarticleprovides:The obligationtogivesupportshall under Islamic law i.e. difference of religion.
be demandable from the time the recipient needs it for
maintenance." In other words,thepersonobligedtogivesupport nder the Muslim Law, maintenance is notduewherethereisa
U
shall be bound to comply with his obligation to give it to one differenceofreligion,excepttoawife,bothparents,grandfathers,
entitled to receive the same when the latter needs it for his grandmothers, a child and the child of a son."
maintenance, and such circumstance arises when demand is
made either extrajudicially orjudicially,andonlyfromthedateof
such demand will it be payable.
nd,thepayment,ineverycase,mustbemadeinadvance,though
A
the spouses may stipulate as regard the manner of payment.
ayment shall be made monthly in advance and when the
P
recipientdies,hisheirsshallnotbeobligedtoreturnwhathehas
received in advance.
( 1) The father and the mother shall jointly exercise just and
reasonable parental authority and fulfill theirresponsibilityover
their legitimate and acknowledged children. In case of
disagreement,thefather’sdecisionshallprevailunlessthereisa
The obligation to support shall cease: judicial order to the contrary.
(a) Upon the death of the recipient; ( 2)Themothershallexerciseparentalauthorityoverherchildren
bornoutofwedlock,butthecourtmay,whenthebestinterestsof
( b)Whentheresourcesoftheobligorhavebeensoreducedthat the children so require, appoint a general guardian.
he cannotgivethesupportwithoutneglectinghisownneedand
those of his family, except that in the case ofthespouses,the Concept of Parental Authority.
husband, though needy, is obliged to support the wife; or hepresentarticleisprimarilybasedfromtheCivillawconceptof
T
parental authority which is in turn based from the Roman law
( c)Whentherecipientcommitsanyactwhichwouldgiveriseto concept of Patria Potesta which is the absolute authority ofthe
disqualification to inherit or denial of support under Muslim law. father over his children.
Causes for the Extinguishment of Support InCivillaw,itisthatparentalauthority,theauthoritywhichthelaw
1. Death of the Recipient; vestsinthefatheroverthepersonsandpropertyofhislegitimate
The right to support is a personal right which can be children.
availedofonlybythepersonwhohastherighttoit,such
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE30
nder the Muslim law, Wilayatu'l-ijbar or patria potesta isnota
U
peculiarity of Islamic law. Nevertheless, similarly, that parental he provisions contained in thetwoprecedingparagraphsshall
T
authority is generally vested in the father is recognized even not prevent the imposition of the penalty provided for the act
among the pre-lslamic Arabs. committed, when the same shall constitute a more serious
offense."'
he present article, primarily based from the Civil Code, has
T ● Art. 277. Abandonment of minor by person entrusted
considered the modern view ofmakingtheexerciseofparental with his custody; indifference of parents.
authority,thejointrightandresponsibilityofboththefatherand The penalty of arresto mayor andafinenotexceeding
the mother for the greater interest of their unemancipated 500 pesos shall be imposed uponanyonewho,having
legitimateoracknowledgedchildren inenhancingtheirphysical, charge of the rearing or education of a minor, shall
mental and moral development; deliver said minor to a public institution or other
persons, without theconsentoftheonewhoentrusted
hat notwithstanding, the present article is still inkeepingwith
T such child to his care or in the absence of the latter,
the Muslim law concept of parental authority being vested without the consent of the proper authorities.
generallyinthefather,becausealthoughthemotherhasthe joint
authoritytoexercisethatpowerwiththefather,however,incase ● A No. 7610. — Special ProtectionofChildrenAgainst
R
of disagreement, the father's decision shall be made to prevail. Child Abuse, Exploitation and Discrimination.
oncerning children born out of wedlock, the mother has the
C
parental authority over them.
oundlings (Al-Lagit) Abandoned, Neglected or Abused Child.
F ( 1) Children shall respect,revere,andobeytheirparentsalways
It is the consensus of the jurists that whoever finds an unless the latter cast them into disbelief.
abandoned child must attend to it immediately.
Itisaduty,aswellasacharitabledeedtorescuethefoundling; ( 2) Grandparents are likewise entitledtorespectandreverence,
failing to do so in the possible way is a heinous sin. and shall be consulted whenever practicable by allmembersof
the family on all important questions.
arental authority over foundlings, abandoned, neglected or
P
abused child. ny minor who shall violate this duty to respect and obey his
A
Under the Civil Code, a foundling shall be under the parental parents, guardiansorpersonshavingchargeofhimcanbeheld
authority of the person or institution that has reared the same. liable for an offense under Act No. 4002 should such persons
institutethecomplaintagainsthim;andArticle223ofExecutive
foundlingisanewbornchildabandonedbytheparentswhoare
A Order No. 209, otherwise called the Family Code of the
unknown.UndertheFamilyCodewhichhassupersededpertinent Philippines,amendingArticle318oftheCivilCodealsoprovides:
provisions of the Civil Code, it expressly provides: “In case of "Theparentsorintheirabsenceorincapacity,theindividualentity
foundlings, abandoned, neglected or abused children andother or institution exercising parental authority, may petition the
children similarly situated, parental authority shall be entrusted proper court of the place where the child resides for an order
in summary judicial proceedings to heads of children's homes, providing fordisciplinarymeasureoverthechild.Thechildshall
orphanagesandsimilarinstitutionsdulyaccreditedbytheproper be entitled to the assistance of counsel, eitherofhischoiceor
governmentalagency."'Thepersonexercisingsubstituteparental appointed by the court, and a summary hearing shall be
authority shall have the same authority over the person of the conducted wherein the petitioner and the child shall be heard."
child of the parents.
owever,ifinthesameproceedingthecourtfindsthepetitioner
H
nder the Muslim law foundling (al-Lagit), isachildfoundbya
U at fault, irrespective of the merits of the petition, or when the
personinastateinwhichitisincapableoffendingforitself.The circumstances so warrant, the court may also order the
actofgivingtoanabandonedchildispurelyanactofkindnessin deprivation or suspension of parental authority or adopt such
the spirit of performing good and righteous deeds. measures as it may deem just and proper.
bandoning a Minor Punishable by law.
A
Under the Revised Penal Code (Act 3815 asamended),anyone
who shall abandon a child under seven (7) years of age, the
veryparentandeverypersonexercisingparentalauthorityshall
E
custody of which is incumbent upon him shall be liable as
see to it that the rights of the childrenarerespected,andtheir
follows:
duties complied with, and shall particularly by precept and
● Art.276.Abandoningaminor.—Thepenaltyofarresto
example, imbue them with religiousandcivicattachmenttothe
andafinenotexceeding500pesosshallbeimposedon
ideal of permanent world peace.
anyonewhoshallabandonachildundersevenyearsof
age, the custody of which is incumbent upon him.
Parents Duty to Their Children.
When the death of the minor shall result from such
he duty of the parents toward their child begins from the
T
abandon. ment, theculpritshallbepunishedbyprision
moment of its conception byseeingtoitthatthechildisinthe
correccionalinitsdiumandmaximumperiods;butifthe
most suitable and conducive condition that the parents can
life of the minor shallhave indangeronly,thepenalty
afford to provide and once the child is from that time on, it
shall prision correccional in its minimum and medium
becomes incumbent upon the parents to develop the child
periods.
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE31
hysically,mentally,andmorallyinordertopreparethemforthe
p ( 1)Parentalauthorityterminatesuponthedeathoftheparentsor
next stage of his life, when he is emancipated from parental the child, or upon emancipation.
authority.
eason: Parental authority is personal in nature, and
R
he Duty to Respect the Rights of the Children.
T therefore, upon death is not actually transmissible to
The Code under Article 73 providesthateveryparentandevery anotherbutveststherightonthepersonentitledunder
personexercisingparentalauthorityshallseetoitthattherights the law to take over the custody of the children.
of the children are respected, and their duties with. In other
words, theyhavetoseetoitthattheirdutytorespecttherights
ofthechildrenundertheirparentalauthorityiscomplied.Article ( 2) Subject to Article 78, the widowed mother who contracts a
73 of theCodedidnotmakeanydistinctionbetweenlegitimate subsequent marriage shall lose parental authority and custody
or illegitimatechildren,however,itclearlystatesthatthisdutyis over all children by the deceased husband, unless the second
incumbent upon any personexercisingparentalauthorityovera husband is related to them within the prohibited degrees of
childwhichmeansthatinthecaseoflegitimatechildren,itisthe consanguinity.
dutyofthefatherandmotherjointly,andincaseofchildrenborn
out of wedlock, of the mother alone. eason: Due to the apprehension that the stepfather
R
maynottreathisstepchildrenjustlyandreasonablybut
uty to Imbue upon the Child Religious consciousness.
D inamannerprejudicialtotheinterestandwell-beingof
From the moment that a child is born to a Muslim couple, the the children.
duty to imbue upon the childreligiousconsciousnessbecomes
incumbent upon the parents who immediately after the child's
( 3) The court may deprive a person of parental authority or
birth has to perform the following religious rites as enjoined
suspend the exercise thereof if he treats his children with
under the Muslim law.
excessive harshness, gives them corrupting or immoral orders
and counsel, or abandons them.
The parent have, with respect to their unemancipated children:
ustody-therighttohavethechildunderthecareoftheperson
C
( a) The duty to support them, have them in their company, entitled to his custody; involvestherearingorupbringingofthe
educate and instruct them in keeping with their means and child. Under Muslim law, the mother has the natural right of
represent them in all actions which shall redound to their custodyoverherminorchildrenuptoacertainageorduringthe
benefits; and ages of nature.
(b) The power to correct, discipline, and punish them moderately. uardianship-isthesupervisionandcontrolofallmatterstobe
G
undertaken concerning the child or his property. Under the
Muslim law, the right of guardianship is recognized in the father.
Guardianship may be:
( 1) O f the person
( 1) The father, or in his absence the mother, shall be the legal (2) Of property
administratorofthepropertyofthechildunderparentalauthority. (3) In Marriage
Ifthepropertyisworthmorethanfivethousandpesos,thefather
or the mother shall give a bond to be approved by the court lassification of Guardianship
C
Guardianship may be classified into:
( 2)Thecourtmayappointaguardian(wasi)intheabsenceofone (a) Guardianship over the person of the ward; and
who is natural or testamentary. (i) Guardianship over his person (jabr)
(ii) Guardianship in marriage or wilayat al-ijbar
(wali of a woman)
(b) Guardianship over the ward’s property
arental authority can neither be renounced nor transferred
P Kinds of Guardians
except as otherwise provided in this Code and the general herearethreekindsofguardianstoaninfantundertheMuslim
T
principles of Islamic law. law
(1) Thenaturalguardian
arental authority, which is a natural incident of the parent-child
P (2) Thetestamentaryguardian (father wasi)
relationship, is a personal right and duty obtained on the parents (3) And the guardianappointed by the court
of the child .
he father is thenaturalguardianofhischildren.If hediesthe
T
father wasi or testamentary guardian.Otherwise,thecourtmay
appoint one.
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE32
3. W hen she is unworthy as a mother; a woman is
he mother has a right of custody over her childrenduringthe
T unworthy as a mother when she continually goes out
age of nurture, but she is NOT their guardian.Thefatheristhe and leaves the child hungry
natural guardian of his minor children. After the father death, 4. When she marries a stranger
underMuslimlaw,guardianshipfallsonthefollowingpersonsin
the following order: ccording to Islam (ISlamic Law), the following is the order of
A
preferenceforguardianshipofaminorboyuptosevenyearsof
( 1) F ather’s executor age and of a girl up to age of puberty:
(2) The paternal grandfather, and
(3) The paternal grandfather’s executor .
1 other;
M
2. Mother's mother, how high so ever;
3. Father's mother h.h.s.;
4. Full sister;
5. Uterine sister;
( 1) The care and custody of children below seven yearsofage 6. Consanguine sister;
whose parentsaredivorcedshallbelongtothemotheror,inher 7. Full sister's daughter;
absence,tothematernalgrandmother,thepaternalgrandmother, 8. Uterine sister's daughter;
the sister and aunts. In their default, it shall devolve upon the 9. Consanguine sister's daughter;
fatherandthenearestpaternalrelatives.Theminoraboveseven 10. Maternal aunts;
yearsofagebutbelowtheageofpubertymaychoosetheparent 11. Paternal aunts;
with whom he wants to stay. 12. Father;
13. Father's father, h.h.s.;
14. Full brother;
( 2)Theunmarrieddaughterwhohasreachedtheageofpuberty
15. Consanguine brother;
shallstaywiththefather;theson,underthesamecircumstances,
16. Full brother's son;
shall stay with the mother.
17. Consanguine brother's son;
18. Full paternal uncle;
Hiznat - custody of the child which means upbringing 19. Consanguine paternal uncle;
20. Full paternal uncle's son; or
ther relatives entitled to custody of achildbelowsevenyears
O 21. Consanguine paternal uncle's son.
old:
Instances when the custody of child may be restored fromthe
mother’s female relations to the the father:
In the absence of the mother, under the code, the care and
custody of the children below seven years of age shall, in the
order herein provided, be vested in the following: 1. T
hehazinaisanoldwomanwithnoindependentmeans
to support herself and the minor children except from
the pantry pension of her husband
. T
1 o the maternal grandmother;
2. The paternal grandmother; and
3. The sister and aunts. Qualifications and Disqualifications of Hizanat
In their default, it shall devolve uponthefatherandthenearest nder the Muslim law, in order thatonemaybequalifiedasan
U
paternal relatives. hizanat, the following requisites must be met:
ccordingtoanauthorityonMuslimlaw,therightofcustodyof
A . H
1 e or she must be a Muslim;
the mother over her children below seven years shall also get 2. Of major age and sane;
transferred to the other relations under the following 3. Possesses good moral character, honesty, and
circumstances: trustworthiness;
4. Capable of bringing the child properly;
5. Free from any contagious disease; i.e. leprosy,
. In case the mother is not present’
1
leucodemia; and
2. When she renounces her right; and
6. Shecouldresideintheplacewherethechlidmaynotbe
3. When s he is legally held disentitled of her son or
exposed to any physical or mental risk.
daughter
minor cannot act as a hizanat except in thecaseofhisown
A
mother may be legally disentitled over the custody of minor
A
child;neithercananapostate.Ifoneofthemisanon-Muslim,the
children when:
other is entitled to the custody of the child; the mother or a
female hizanat, marriage to a person not related to the child
1. Ifshereturnsapostateandwillremaindisqualifieduntil within the prohibited degrees; so, also immorality, orneglectto
she returns to Islamic faith takepropercareofthechild.Apersonisnotworthytobetrusted
2. Wickedness such as prostitution who is continually going out and leaving the child hungry."The
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE33
ncient doctor would obviously have frowned upon a modern
a . F
5 ull paternal uncle;
society mother who goes for bridge (or special service) in the 6. Consanguine paternal uncle; or
morning, have lunch with friends and comes home late in the 7. Full paternal uncle’s son
evening after a dance at the club.
Termination of Guardianship
omaleisentitledtothecustodyofafemaleminorunlessheis
N
relatedtoherbyconsanguinitywithintheprohibiteddegrees;and ndertheMuslimlaw,guardianshipceasesupon theattainment
U
a profligate is disqualified. of the age of maturity by the ward. According to the general
principles of Islamic law, a boy attains maturity at the first
appearance of Ihtilam (ejaculation of semen), and a girl attains
puberty at theappearanceofmenstrualbleedorIhtilam.Ifthese
thingsdonotappearinaboyoragirl,heorsheshallbepresumed
hefollowingpersonsshallhaveauthoritytoactasguardianfor
T to have attained majorityatthecompletionofthe15thyear.Itis
marriage (wali) in the order of precedence: generallysupposedthatIhtilamcannotoccurbelowtheageof12
(a) Father years in the case of a boy and 9 years in the case of a girl.
(b) Paternal grandfather;
(c) Brother and other paternal relatives;
(d) Paternal grandfather’s executor or nominee; or
(e) The court.
uardianship in Marriage (Wali, Wilayat Al-ljbar).
G
The guardian (wali) in marriage has the power to contract his
minor ward in marriage without her consent.
Qualifications of Guardians in Marriage (Wali). - A
guardian in marriage (wali) must be:
heClerkofCourtoftheShari’aDistrictCourtshall,inadditionto
T
his regular functions, act as District Registrar of Muslim
. A
1 Muslim, one who professes Islam as his religion;
Marriages, Divorces, Revocations of Divorces, and Conversions
2. Mukallaf, or of legal age, one possessed of legal
withintheterritorialjurisdictionofsaidcourt.TheClerkofCourt
capacity and not otherwise disqualified;
of the Shari’a Circuit Court shall act as Circuit Registrar of
3. 3. Jukuriya, or a male relative of the bride from the
Muslim Marriages, Divorces, Revocations of Divorces, and
paternal side;
Conversions within his jurisdiction.
4. Adil, a person of integrity, of good moral character, and
honest;
5. and Of sound mind.
very District Registrar shall exercise supervision over Circuit
E
Registrars ineveryShari’aDistrict.Heshall,inadditionanentry
he following persons shall exercise guardianship over the
T book, keep and bind copies of certificatesofmarriage,divorce,
property of minors in the order of precedence: revocation of divorce and conversion sent to himbytheCircuit
(a) Father; Registrarsinseparategeneralregistrers.Heshallsendcopiesin
(b) Father’s executor or nominee; accordance with Act No. 3753, asamended,totheofficeofthe
(c) Paternal grandfather; Civil Registrar-General.
(d) Paternal grandfather’s nominee; or
(e) The court.
Order of Guardianship of Minor's Property.
Every Circuit Registrar shall:
InSunniteLaw,thefollowingpersonsarethelegalguardiansofa
minors' property in order of preference: (a) F
ileeverycertificateofmarriage(whichshallspecifythe
nature and amount of the doweragreedupon),divorce
or revocationofdivorceandconversionandsuchother
.
1 ather;
F
documents presented to him for registration;
2. Father's executor or nominee;
3. Father's father; or
(b) C
ompilesaidcertificatesmonthly,prepareandsendany
4. Father's father's executor or nominee.
information required of him by the District Registrar;
Indefaultoftheabove,aguardianistobeappointedbythecourt (c) Register conversions involving Islam;
from the following persons in the order of priority herein:
(d) I ssuecertifiedtranscriptsorcopiesofanycertificateof
.
1 ull brother;
F document registered upon payment of the required fees;
2. Consanguine brother;
3. Full brother's son;
4. Consanguine brother's son;
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE34
(e) S
endtotheDistrictRegistrarduringthefirsttendaysof
each month a copy of the entries made during the
previous month;
o the extent not inconsistent with the provisions ofthisCode,
T
(f) A
dminister oaths, free of charge, for civil registry the provisions of other registry laws governing other civil
purposes. registrars shall be observed by district or circuit registrars.
egistration of judicialdecreesandlegalinstrumentsconcerning
R
status of Muslim Filipinos. — All judicial decrees and legal
instruments concerning civilstatusofMuslimFilipinosissuedby
ny entry in the District or Circuit Register may, upon verified
A Shari’a Court shall be registered in accordancewithAONo.1,s.
petition of any interested party, be corrected upon order ofthe 1993 and this Order.
Shari’a District Court, subject to the provisions of the Rules of
Court. Every registrar shall be civilly responsible for any heacknowledgmentofachildbythefatherwhichhastheeffect
T
unauthorized alteration made in the registry to any person ofestablishingpaternityandlegitimatefiliationofthechildtothe
suffering damage thereby. However, the Registrar may exempt acknowledgingparentintheopinionofthispresentwriter,mustbe
himself from such liability if he proves that he has taken recorded with the existing Civil Registry since itisnotoneifthe
reasonable precaution to prevent the unlawful alteration. acts that are to be recorded in the Muslim Civil Registry.
egistration of Acts or Events Involving Muslim Filipinos
R
Contracted Abroad
ithin seven days after the revocation of a divorcebyruju,the
W In cases where theactsoreventsoccurinaforeigncountry,the
husband shall, with the wife’s written, consent, file astatement shall be governed by Rule 10 of AO No. 1, S, 1993, and other
thereof with the Circuit Registrar in whose recordsthatdivorce applicablelawstakingintoconsiderationthebeliefs,customsand
was previously entered. practicesofMuslimthereto.ThedutyoftheC/MCRortheCircuit
Registrar insofar as civil registration is concerned may be
otice of Divorce or Decree of DivorceConstitutesCertificateof
N performed by the authorized official of the Ph Foreign Service
Divorce.—Thehusbandwhohaspronouncedatalashall,without Establishment.
delay, file with Clerk of Court of the Shari’a Circuit Court of the
place wherehisfamilyresidesorhasitsdomicile,ortothemost ivil registration - the continuous, permanent, compulsory
C
accessible Shari’a Court, a written notice of such fact and recording of the occurrence and characteristic ofvitaleventsas
circumstances attendant thereto, after having served a copy these have been defined and as provided through decree or
thereof to the wifeconcerned.Thenoticefileshallbeconclusive regulation, in accordance with the legal requirements in each
evidencethattalaqhasbeenpronouncedandshallconstitutethe country.
Certificate of Divorce. In case divorce is throughacourtdecree,
the corresponding decision shall constitute the Certificate of The Local Civil Registrars shall:
Divorce.
a. A ccept all registrable documents including judicial
decrees affecting the civil status of persons;
b. Transcribe and enter immediately upon receipt all
registrabledocumentsandjudicialdecreesaffectingthe
hebooksmakinguptheregistryofmarriage,divorce,revocation
T
civil status of persons in the appropriate civil registar;
ofdivorce,conversionandallotherdocumentsandshallbeprima
c. SendtotheOfficeoftheCivilRegistar-General,withinthe
facie evidence of the facts therein contained.However,nothing
first ten days of each month, duplicate copies of all
herein provided shall effect the intrinsic validity or invalidity of
documents registered during the preceding month;
the acts registered.
d. Issue certified transcripts or xerox copies of any
certificates or documents;
egalEffectofRegistrationofConversiontoIslamonthePerson
L
e. Index the registered certificates or documents to
Converted. —Registrationofaperson’sconversiontoIslamshall
facilitate verification of any documents;
constitute a prima facie proof that the convert professes the
f. Administer oath free of charge for civil registration
Islamic faith.
purposes, and;
g. Perform such other duties as may be necessary in
In practice, a personwhoisconvertedtoIslamadoptsaMuslim
connection with civil registration.
name. Thus,thepersonpracticallycarriestwonames,thatisthe
one written in his or her Certificate ofLiveBirthandtheMuslim
nameheorsheadoptedasaresultofhisorherconversion.Both
names are written in the Certificate of Conversion to Islam.
llotheracts,eventsorjudicialdecreesaffectingcivilstatusnot
A
heMuslimnameenteredinthelowerportionofthesameformis
T mentioned in Chapter One of this Title shall be recordedinthe
nottobeconsideredasthelegalnameoftheconvertand,hence, existing civil registry of the city or municipality in accordance
cannot be corrected nor changed by way of RA 9048. with special laws.
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE35
Other Acts Subject to Existing Civil Registry: .
d egal Separations;
L
e. Annulment of marriages;
ll other acts, events or judicial decree affecting civil status of
A f. Judgments declaring marriages void from the beginning;
Filipino Muslims not subject to the Muslim Civil Registryunder g. Legitimations;
thisCodeshallberecordedintheexistingcivilregistryasprovided h. Adoptions;
under the Civil Registry Law (Act No. 3753), in relation to the i. Acknowledgements of natural children;
pertinent provisions of the Civil Code, Articles 407to413,under j. Naturalization;
Book I, Title XVI on CivilRegister.UndertheImplementingRules k. Loss; or
and Regulations of the Act No. 3753, AdministrativeOrderNo.I, l. Recovery of Citizenship;
Series of 1975, as to what are registerable therein, it is provided: m. Civil interdiction;
n. Judicial determination of filiation;
“ Rule 5. The registerable certificates, documents and judicial o. Voluntary emancipation of a minor; and
decreesthatmaybepresentedbeforetheLocalCivilRegistrarfor p. Changes of name.”
entry in the appropriate civil register are the following:
a. P
roperly accomplished Certificate of Live Birth (Mun.
Form No. 102) duly certified by the physician, nurse,
midwifeor“hilot”inattendanceatbirth,orthehospitalor
clinic administrator and signed by the informant; or, in
default thereof,thecertificatecontainingthedeclaration
madebyeitherparentoranypersonwhohasknowledge
of the birth of the child;
b. P
roperly accomplished Certificate of Founding (ORG
Form No. 101);
c. roperly accomplished Certificate of Death (Mun.Form
P
No.103)dulycertifiedbythephysicianwholastattended
thedeceased,orthehospitalorclinicadministrator,orin
their default, by the local health officer;
d. P
roperly accomplishedCertificateofFoetalDeath(Mun.
FormNo.103-A)signedbytheattendingphysicianorthe
hospitalorclinicadministratororintheirdefault,thelocal
health officer;
e. roperly accomplished Marriage Contract (Mun. Form
P
No.97)presentedforentrybythesolemnizingofficeror
by the interested party, in case the solemnizing officer
fails to register the same;
f. opy of any judicialdecreeissuedbycompetentcourts
C
in cases of annulment of marriage, legal separation,
judgment declaring a marriagevoidfromthebeginning,
Judicial determination of filiation adoption, change of
name, naturalization, and civil interdiction;
g. L
egal instrument affecting the civil status of persons
such as legitimation, acknowledgment of natural
children, election of Philippine citizenship, registration,
and other modes ofacquisitionofPhilippinecitizenship
and voluntary emancipation of minors; and
h. S
uch other registerable documents or instruments
affecting the civil status of persons.
Art. 408 of the Civil Code also provides:
“The following shall be entered in the civil register:
. B
a irths;
b. Marriages;
c. Death;
SHARIAH II REVIEWER|MINDANAO STATE UNIVERSITY COLLEGEOF LAW| PAGE36
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