customs, traditions, beliefs and interests of national cultural

communities in the formulation and implementation of state

policies," this Code:

(a) Recognizes the legal system of the Muslims in the Philippines

as part of the law of the land and seeks to make Islamic
institutions more effective;

This decree shall be known as the "Code of Muslim Personal (b) Codifies Muslim personal laws; and
Laws of the Philippines."
(c) Provides for an effective administration and enforcement of
Meaning of Decree. — ordinance or edict promulgated by civil or 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 February 4,
appertains to person. 1977, as PD 1083 pursuant to Sec 2 Art 15 of the 1973
● It is that which follows the person, as distinguished from Constitution
the place where the person may be. ● Sec 22, Art 2 of the 1987 Constitution gives sanction to
● The Code of Muslim Personal Laws of the Philippines is a 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 cultural communities within the framework of
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. participation of the National 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, beliefs and interests in Muslim in particular)
in the building of the New Society, by the formulation
Historical Background of the Code of Muslim Personal and implementation of the state policies
Laws in the Philippines. — 2. To make Islamic law and its principles of equity and
● The present Code of Muslim Personal Laws of the justice, to which the Muslim Filipino communities
Philippines is the result of Islamic influence that was first adhere, provide for the fuller development of said
introduced in Sulu by the early Muslim missionaries. communities in relation to the search for harmonious
● Arabian missionary Sayyid Abu Bakr, believed to have relations of all segments of the Filipino Nation to
descended from the family of the Holy Prophet of Islam enhance national unity;
came to Buansa, Jolo, the seat of government of the 3. To attain a more ordered life among them (Filipino
island's local chieftain Rajah Baginda. Muslim); and
4. To strengthen all the ethno-linguistic communities in
● Prior Muslim Codes in the Philippines the Philippines (particularly the Filipino Muslim) within
1. Diwan (codex) of the Sultan of Sulu - code accepted in the context of their respective ways of life 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 enactment of laws 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) Should the conflict be between any provision of this Code and
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
mixed marriages between Muslim male and non-Muslim
Muslims and nothing herein shall be construed to operate to the
female solemnized in accordance with Muslim customs,
prejudice of a non-Muslim.
rites or practices;
Rules of Construction in Case of Conflict Between Any Provision
of the Muslim Code and Laws of General Application. —
● Briefly stated, the Muslim Code being a special law, shall
Pursuant to Section 11 of Article XV of the Constitution of the prevail over a general law.
Philippines, which provides that "The State shall consider the ● For example, under Art. 340 of the Revised Penal Code
which is a law of general application, contracting a

SHARIAH II REVIEWER | MINDANAO STATE UNIVERSITY COLLEGE OF LAW | PAGE 1

 subsequent marriage while the former marriage subsists - If John Keven is an Arab Muslim and then
is prohibited and punishable as a crime of bigamy. 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
Code is valid, the latter being a special law, prevails over
the former which is a general law.
● It has been held that in case of conflict between a (1) In the construction and interpretation of this Code and other
general law and a special law, the latter must prevail as Muslim laws, the court shall take into consideration the primary
an exception to the former regardless of the dates of sources of Muslim law.
their enactments
(2) Standard treatises and works on Muslim law and
Same; Rule of Construction in Case of Conflict Between the jurisprudence shall be given persuasive weight in the
Muslim Code and Another Special Law or Laws of Preferential interpretation of Muslim law.
Application. —
● In case of conflict between the provision of the Muslim Atty Bibbo Discussion: differentiate construction and
Code and a special law, the special law shall be liberally interpretation
construed in order to carry out the Muslim Code.
● The same concept applies regarding conflict between the ● Construction - determining intent of legislator
provision of the Muslim Code and the provision of a law ● Interpretation - how an ordinary person understands the
of local application. text
.
Same: Construction; Applicable Only to Muslim. Construction of this Code and other Muslim Law. —
● The term Muslim is given a definite meaning in this Code ● The other Muslim law referred to herein must be
as a person who testifies to the oneness of God and the 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 codification of this
● Muslim in the Philippines may 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 to Islam) or ● In construing such other Muslim law, they must be
Balik Islam(one who has returned to Islam); and guided in like manner as when construing any provision
3. those foreigners or aliens who are Muslims of the Code, by the primary sources of Muslim law which
residing in the Philippines. are primarily the Quran, and the Hadith (tradition) of the
● 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
moment of registration of the act of conversion with the ○ 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
from the moment of their marriage, since conversion has
the effect of ratifying their marriage retroactively as Standard Treatises and Works on Muslim Law.
though it was performed in accordance with the Code or ● Standard treatises and works on Muslim law shall have
Muslim law. persuasive weight upon the court and although the court
● As regard alien Muslim, the Muslim law takes exception is not bound to follow them,
to nationality and the territoriality theories (concerning ● Nevertheless, on the strength of their merit as being just,
the applicability of personal laws. sound, or equitable, it may make use of them as aids in
● 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 of the lawmaker in
without making any distinction. enacting it.
● Under the Muslim law theory, Islam has ordained for all
Muslim a common Code of Personal Law applicable to
all Muslims regardless of his domicile and nationality.
● Thus, if John Keven is an Arab Muslim, the Philippine
Muslim law and 'ada not embodied in this Code shall be proven in
Muslim Code applies to him.
evidence as a fact. No 'ada which is contrary to the Constitution
● 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.
- If John Keven is an Arab muslim and he visited
Muslim Law not Embodied in this Code. —
in the Philippines then Arab personal laws apply
● Refers to other Muslim personal laws other than the
to him.
Quran and the Hadith (tradition)

SHARIAH II REVIEWER | MINDANAO STATE UNIVERSITY COLLEGE OF LAW | PAGE 2

 ● 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. — regulations governing Muslims as found principally in the Qur'an
● Ada usually means custom; Technically, it is also used to and the Hadith.
refer to customary law, which is a body of rules of norms
of conduct traditionally and continually recognized, (i) "Muslim Personal Law" includes all laws relating to personal
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 Juridical capacity, which is the fitness to be the subject of legal
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. through death. Capacity to act, which is the power to do acts with
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), that which is in consonance ● Capacity to Act - Power of such person to do
with the Constitution of the Philippines, this Code, public order, acts with legal effects
public policy and public interest shall be given effect.
Juridical Capacity - when acquired and when it ends
(2) The Muslim schools of law shall, for purposes of this Code, 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.
● It must be noted that all the four schools of Muslim law ○ Complete legal capacity of a natural person
are essentially the same in the sense that all rely on the ■ 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
formulating a rule of law based on those original texts, or until death extinguishes it.
not contrary thereto.
● The school of law that has become predominant among ● Juridical Persons -
Muslim Filipinos is the Shafi'i madhab. ○ from the moment it acquires legal capacity when it
is created by operation of law.
○ remains with it until withdrawn by the authority that
conferred its legal existence.
(a) "Agama Arbitration Council" means a body composed of the Juridical Capacity - Effects
Chairman and a representative of each of the parties to constitute Person becomes susceptible of being the subject of legal relation
a council to take all necessary steps for resolving conflicts for the acquisition and enjoyment of the rights or, of being bound
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 the General Register of marriages, natural or juridical for the performance of civil acts
divorces, revocation of divorces, conversion and such other depending on the state of condition as defined or fixed
deeds or instruments kept by the Registrar under this Code. by—law.
● This condition, begins
(d) "Ihram" signifies the state of ritual consecration of a person ○ in the case of natural person, upon attaining
while on pilgrimage to Mecca. maturity of age to intelligently contemplate on
the volition of his act
(e) "Madhhab" (plural, Madhahib) means any of the four orthodox ○ in the case of a juridical person, upon meeting
(Sunni) schools of Muslim law. all, the conditions of the law that would enable it
through its officers to legally exercise the rights
(f) "Month" means a period of thirty days. appertaining to an artificial being.
(g) "Muslim" is a person who testifies to the oneness of God and
the Prophethood of Muhammad and professes Islam.

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 ● 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.
The following circumstances, among others, modify or limit
capacity to act: Insanity -
age, insanity, imbecility, the state of being deaf-mute, the ● Insanity is such deprivation of reason that the subject is
condition of death-illness (marad-ul-maut), penalty, prodigality, no longer capable of understanding and acting with
absence, family relations, alienage, insolvency, and trusteeship. discretion in the ordinary affairs of life.
The consequences of these circumstances are governed by this ● Exception where acts of insane are binding is during lucid
Code and other Islamic laws and, in a suppletory manner, by other interval
laws. Family Relations
Examples:
DADI FIIT PAPA ● Certain persons related by consanguinity or affinity
the state of being Deaf-mute cannot validly marry one another
Age ● Husband and wife during the marriage cannot give
the condition of Death-illness donations to each other, neither could they enter into a
Insanity contract between themselves

Family relations Imbecility

Imbecility ● He is one who, while advanced in age, has a mental
Insolvency development comparable to that of children between two
Trusteeship and seven years of age.
● Versus Infant, an Imbecile is at the age of Majority
Penalty ● Versus Insane, an Imbecile is sane.
Absence
Prodigality Insolvency
Alienage ● Insolvency is the state of a person, whether natural or
juridical, whose total liabilities has already exceeded his
Circumstances affecting capacity to Act under the Code are not entire assets.
Exclusive to the enumerated list. ● If a person is declared insolvent by the court, it would
have the effect to forbid the payment of any debts due
Deaf Mute him, or the delivery of any property belonging to him, and
● Do not have capacity to act if unable to read and write 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
are entirely beneficial to him such as acceptance of a gift ● A trust is an obligation imposed expressly or by
and the like, even though his guardian does not accord implication of law whereby the obligor known as the
permission and whatever is injurious to his interest will trustee is to deal with property over which he has control
be disallowed. of the benefit of another person called the beneficiary
● But an infant/minor with or without permission of his ● When a trusteeship has been established by the court to
guardian cannot do any act which is absolutely injurious carry into effect, say the provisions of a written
to his interest. instrument, the beneficiaries to the trust cannot deal
● Minor/infant has obligations too such as when he causes directly concerning any matter subject of the trust except
loss to others by his tortious acts. through the trustee appointed by the court.
● He also has obligations of a benevolent nature, towards
his kindred and wife Penalty
● A Muslim Filipino is deemed to have reached the age of ● Civil Interdiction
majority and have full legal capacity for all civil acts at ● The penalty of civil interdiction shall deprive the offender
eighteen years of age except as provided by law eg. during the time of his sentence of the rights of parental
Muslim code for purposes of contracting marriage at age authority, or guardianship, either as to the person or
of puberty presumably at fifteen years of age. property of any ward, of marital authority, of the right to
manage his property and of the right to such property by
Death Illness any act or any conveyance.
● Death illness is illness dangerous to life, that is which
mostly ends in death provided the patient actually dies of 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
increase from day to day that death may be apprehended from his domicile, his whereabouts being unknown.
from it or does not ultimately end in death, it will not be ● A person may be declared absent if he has been absent
regarded as death illness. for two (2) years without any news about him, or since
the receipt of the last news if he has not left an agent to

SHARIAH II REVIEWER | MINDANAO STATE UNIVERSITY COLLEGE OF LAW | PAGE 4

 administer his property and five (5) years if he has left an (1) Civil personality is extinguished by death. The effect of death
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.
property left behind by the absentee, is that he cannot be
deemed to be in a position to administer them, hence, a (2) After an absence of seven years, it being unknown whether or
guardian will have to be appointed by the court for that 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 ● As regards his rights they continue to inhere in him in so
juridical capacity to act. far as may be necessary for his last requirements, such
as payment of the expenses of his coffin and burial; and
Prodigality his debts and
● a prodigal is a person who, though of full age, is ● As regards his obligations relating to this world; a person
incapable of managing his affairs, and of the obligations on his death is necessarily released from all obligations
which attends them in consequence of his bad conduct 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 or debauchery of ● But his liability with respect to any property recoverable
any kind, shall so spend, waste, or lessen his state as to from him in specie remains unaffected, for example,
expose himself or his family to want or suffering, or to anything which he was holding in trust at the time of the
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.
restrict the Capacity Of a person for any judicial act that ● When a deceased person's obligation does not assume
will bind himself and subject his property, but the fact of the form of liability to restore a thing in specie but is in
his being placed by order of the Court under guardianship the nature of a debt, the creditor can have recourse to his
by reason of prodigality that renders him incompetent to estate.
act, except through his guardian appointed by the court.
Exception Article 11 (2)
Alienage ● Where there is danger of death under the circumstances
● is the state of being an alien or foreigner in a particular set forth in the provisions of Article 391 of the Civil Code,
country by a person who is a citizen Of another country. an absence of only two years shall be sufficient.
● Aliens are disqualified from voting, from being elected or Example: Person is a soldier and MIA during a battle
appointed, purchasing land in the Philippines operation.

Birth determines personality; but the conceived child shall be If, as between two or more persons who are called to succeed
considered born for all purposes that are favorable to it, 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 whoever alleges the death of one prior to the other shall prove the
delivered from the mother's womb. same; in the absence of such proof, it is presumed that they died
at the same time and there shall be no transmission of rights
● Child in the womb capable of acquiring rights such as from one to the other. However, the successional rights of their
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 ● Applies only in case of the simultaneous deaths of two or
● 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.
● Author is of the opinion that it doesn’t matter if the child
was not in the womb for 9 months, so long as it must
have a human form and is born alive however briefly after
it is completely delivered from the mother’s womb.

(1) The provisions of this Title shall apply to marriage and divorce
wherein both parties are Muslims, or wherein only the male party

SHARIAH II REVIEWER | MINDANAO STATE UNIVERSITY COLLEGE OF LAW | PAGE 5

is a Muslim and the marriage is solemnized in accordance with
Muslim law or this Code in any part of the Philippines. Nikah - the Arabic word for marriage which literally means “union
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 not in accordance with Muslim law or this Code, the
Civil Code of the Philippines shall apply. Civil Contract vs. Marriage Contract
1. A civil contract is governed by the law of contract, while a
(3) Subject to the provisions of the preceding paragraphs, the Muslim marriage contract is governed by the Islamic
essential requisites and legal impediments to marriage, 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, regardless of
betrothal, breach of contract to marry, solemnization and their number, while a marriage contract can only be made
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 contract can be terminated by mutual agreement
Code and other applicable Muslim laws. of both parties or by either one of them subject to certain
liability for damages in case of breach thereof, while a
The Marriage is Solemnized in Accordance with Muslim Law or marriage contract can only be terminated if the
this Code in Any Part of the Philippines; And, the Rule of the conditions of the law intended to safeguard the sanctity
Civil Code on Lex Loci Celebrationis. of a marriage contract are complied and any breach by
● It is the author's OPINION that the provision of this Code either spouse of their marital obligations renders the
on marriage and divorce which are generally based from 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 that divorce obtained abroad presence of witness is an essential requirement for its
by Muslim Filipinos in accordance with the Muslim law or validity
the Muslim Code has the same effect as a divorce done
in the Philippines in accordance with the Muslim law or
the Muslim Code.
Legal Consequences or Incidents of a Muslim Marriage
This article has six imports: 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. Legitimizes children born of the marriage and establishes
3. It does not apply even if male is Muslim but married under the 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 a certain extent the parties’ capacity to act,
i.e., restrictions to contract marriage with affinal relatives
In addition to the above is article 178, once a non-Muslim couple within the prohibited degree; the wife’s right to receive
was converted to Islam, the marriage was rectified as if they were 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 her wali, gets entitled
to contract subsequent marriage, after the dissolution of
Example: A non- Muslim couple was converted to Islam, their civil the first marriage, without a wali, or a guardian in
marriage was automatically transformed into an Islamic marriage marriage
if there is no legal impediment to their marriage under Muslim law. 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, subsequent marriage, after the dissolution of her former
marriage
9. The wife becomes entitled to her dower
10. Marriage settlement becomes effective, and nuptial gift
becomes due

Marriage Settlement
The future spouse may agree and fix to a certain extent the
Marriage is not only a civil contract but a social institution. Its
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 rendered void except stipulations that do not
marriage settlements may to a certain extent fix the property
necessarily depend thereon.
relations of the spouses.

SHARIAH II REVIEWER | MINDANAO STATE UNIVERSITY COLLEGE OF LAW | PAGE 6

 mispronounced, and they are used with the object of contracting
marriage, such marriage is valid

No marriage shall be perfected unless the following essential Kinds of Forms of Consent.
requisites are complied with: The parties consent to the marriage contract may either be
express or implied.
(a) Legal capacity of the contracting parties 1. Express consent - when the party expressly state in an
(b) Mutual consent of the parties freely given unequivocal words or acts that he or she is agreeing to
(c) Offer (ijab) and acceptance (qabul) duly witnessed by at the marriage contract, by the utterance of the words "I do"
least two competent persons after the proper guardian or "yes," or by the nodding of the head, or in the case of a
in her marriage (wali) has given consent; and deaf and dumb, by a sign language clearly and intelligibly
(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. Implied consent - when upon being asked of her consent,
I. Legal Capacity of the Contracting Parties. — she merely maintains her silence, simply smiles, or
● The first essential requisites (arkan) of marriage under weeps silently. If the laughter is contemptuous or mere
the Muslim Code is legal capacity which means that the buffoonery, as usual among people, it shall not be
parties must be adult (bulugh), sane and not otherwise construed as her implied consent.
suffering from any inhibition from contracting marriage ★ Implied consent is applicable only in the case of
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.
Muslim female of the age of puberty or upwards and not ★ If the virgin is a minor, her implied consent must
suffering from any impediment under the provisions of be solicited by her proper guardian in marriage,
the Muslim Code may contract marriage. i.e., father, grandfather.
● A female is presumed to have attained puberty upon ★ Implied consent does not apply in the case of a
reaching the age of fifteen. divorcee or a widow.

II. Mutual Consent of the Parties Freely Given Legal Effects of Marriage in which the Consent of the Woman is
● The law requires that the consent of the contracting Thrust Upon Her by the Wali.
parties must be freely or voluntarily and knowingly given
by them in person If a man gives his daughter in marriage in spite of her
● Except in the case of betrothal marriage under Article 16 disagreement, such marriage is invalid.
of the Muslim Code.
○ In the case of minor girl, the father may give her III. Offer (ijab) and acceptance (qabul) duly witnessed by at
in marriage with or without her consent, least two competent persons after the proper guardian in
provided she is her marriage (wali) has given consent
■ under age, ● the marriage is null and void if it is solemnized without
■ a virgin or the presence of persons to testify that the event has duly
■ without any marriage experience, and taken place.
■ that it is in her best interest. ● Two witnesses, both of them should be free, sane, adult
● The giving of consent must be done in one and the same 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
● Where the consent of either of the contracting parties is Who Can Be a Guardian (wali) in Marriage
obtained by means of violence, intimidation, fraud, deceit ● Father, paternal grandfather, brother and other paternal
or misrepresentation, the validity of the marriage contract relatives, paternal grandfather’s executor nominee, or the
is affected and is classified as irregular (fasid) by law. court, in that order.
● Non-Muslim cannot be a guardian (wali) in Muslim
Presence of Parties at the Time of Giving Consent 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
marriage ceremony, is given by that party’s agent or representative 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 of legal age that they take each other as husband and ● 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. mahr is not mentioned in the contract, the contract is still
valid. The Court shall, in those cases, fix the proper
Manner of Giving of Consent in Marriage dower for the woman.
Any expression which conveys the intention of the parties in clear ● Customary dower; a token of man’s love, affection and
words is sufficient. And, even if the Arabic words are esteem of the integrity and honour of the woman he is
marrying

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 ● Not a consideration proceeding from the husband for the Shari’a district court upon petition of the proper wali, may order
contract of marriage, but an obligation imposed by law the solemnization of marriage
on the husband as a mark of respect for the wife as is
evident from the fact that the non-specification of dower If not authorized by the court: guardian will be liable for illegal
at the time of marriage DOES NOT affect the validity of solemnization
marriage.
Marriage contract is annullable, but not invalid. Authorization of
Mahr, Dower, Dowry Distinguished. court is not an essential requirement
In their strict sense,
● Mahr - anything of value and lawful which the man gives A girl over 12 but below 15 who has not attained puberty CANNOT
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 woman he is considered irregular.
marrying. It becomes the exclusive property of the
woman Legal effect of marriage wickedly contracted by minors Wali
● Dower - money or property which the man will give to the Valid for the Minor
woman’s family for the purpose primarily of the expenses When father or grandfather wickedly contracts a minor in
of the marriage celebration marriage, contract can be set aside by the minor.
● Dowry - gift given by the parents to their daughter at the
time of marriage. Doctrine Option of Puberty
● However, in this Code, the term mahr, dower, and dowry Right of a minor boy or girl who was contracted into marriage by
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
Objects that are Lawful or Unlawful for Dower. 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.
value or anything that is within the commerce of man, or that may
be legally sold and not forbidden (haram) under Islamic law Purpose: to protect a minor from an unscrupulous or undesirable
(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 a Minor
2. The person who gave her in Marriage was some
(1) Any Muslim male at least fifteen years of age and any Muslim Guardian other than her father or paternal grandfather
female of the age of puberty or upwards and not suffering from 3. She expressed her choice as soon as the sign of puberty
any impediment under the provisions of this Code may contract 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 by voluntarily cohabiting with him

(2) However, the Shari’a District Court may, upon petition of a Waiver of the Option of Puberty
proper wali, order the solemnization of the marriage of a female Option is lost by the affirmative act of consummation - without
who though less than fifteen but not below twelve years of age, duress and after acquisition of puberty.
has attained puberty.
Who can contract the minor girl in marriage
(3) Marriage through a wali by a minor below the prescribed ages Cohabitation during the period of minority with or without the girl’s
shall be regarded as betrothal and may be annulled upon the consent does not destroy her right because a minor is not cabale
petition of either party within four years after attaining the age of of giving her consent as long as she is a minor
puberty, provided no voluntary cohabitation has taken place and
the wali who contracted the marriage was other than the father or Ignorance of Fact or Law
paternal grandfather. Minor returns the option of repudiating until she becomes aware
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) Betrothal marriage would not be effected by the mere statement
● Girl attains puberty at the appearance of menstrual blood of the spouse. He or she can exercise the option of puberty even if
● If these do not appear, he/she shall be presumed to have 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)

Betrothal Marriage No particular form of marriage ceremony is required but the ijab
One contracted of a girl over 12 but below 15 years old but who and the gabul in marriage shall be declared publicly in the
has already attained puberty, by her guardian upon authority of the 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

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parties and said witnesses, and attested by the person person who is competent under Muslim law to solemnize the
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 Registrar by
the solemnizing officer who shall keep the third. Should the proper wali refuse to solemnize or cause the
solemnization of marriage by a person competent under Muslim
Marriage Ceremony law, the judge of the Shari’a District Court or Shari’a Circuit Court,
● “Two witnesses out of your men and if there are no men upon applications of the parties may solemnize the marriage or
then a man and two women” designate a competent person to do so.
● Publicity - condition for the validity of marriage
● Marriage must not be held in secrecy and the presence Article 7 of the Family Code
of the required numbers of witnesses during the Pursuant to Art. 7 of the Family Code, marriage may be
marriage ceremony been held sufficient to fulfill this solemnized by:
condition
● General principle: muslim marriage requires no particular (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 if celebrated per verba de
praesenti (2) Any priest, rabbi, imam, or minister of any church or religious
● Marriage is contracted - by means of a declaration and sect duly authorized by his church or religious sect and registered
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 provided that at least one of the contracting parties belongs to the
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 - authorized within the area of the diocese or place
marriage. However, there must be a ceremony before a allowed by the Bishop
duly authorized officer. ● Appellate Court Justice or Justice of this Court - has
● Parties need not recite the precise words of law, 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

Requirements for Religious Personality i.e., Imam to Be Able to

Solemnize Marriage

Marriage may be solemnized: 1. That 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 by the judge, should the proper
wali refuse without justifiable reason, to authorize the
solemnization.
Marriage shall be solemnized publicly in any mosque, office of
Persons Who Can Solemnize Marriage the Shari'a judge, office of the District or Circuit Registrar,
Article 79 of the Code gives persons in the order of their priority residence of the bride or her wali, or at any other suitable place
who are authorized to act as wali in marriage for the woman: agreed upon by the parties.

ARTICLE 79. Guardian for marriage (wali). – The following persons Place of Solemnization of Marriage.
shall have authority to act as guardian for marriage (wali) in the The solemnization of the marriage should be performed publicly,
order of precedence: and not in secrecy, and preferably in a mosque, where apart from
the blessedness of the place, no special invitation is needed for
(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 like manner, therefore, where the marriage is to be solemnized
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 must be in open court, instead of in their office or in chamber and
authorized to solemnize marriage or who can deputize another similarly, even in those other places mentioned in the code, it must

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be open to public view in order to fulfill the condition of the law If divorce is pronounced or the marriage contract is dissolved,
concerning publicity and witnesses. after valid retirement, the entire dower shall at once become due,
whether it be prompt or deferred. The basis of the principle is
that the marriage contract, because of divorce or dissolution,
comes to an end. Hence, it becomes obligatory that the dower be
paid at once.
The amount or value of dower may be fixed by the contracting
parties (marh-musamma) before, during, or after the celebration Meaning of Valid Retirement
of the marriage. If the amount or the value thereof has not been The spouses had gotten together in seclusion or privacy without
so fixed, a proper dower (mahr-mithl) shall, upon petition of the any kind of impediment to having sexual relation if they so desire.
wife, be determined by the court according to the social standing The married couples retiring by themselves to a secluded place
of the parties. where they are safe from observation by other people and where
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 the husband or the wife is
suffering from such diseases that it may prove an
I. Fixed Dower (Mahr Musamma). impediment in having sexual intercourse or on account
The dower may be agreed and fixed by the contracting parties in of which there may be risk of injury
marriage, in which case it is referred to as specified dower or mahr (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
either spouse is in the state of ihram; when the husband
Kinds of fixed dower goes to the wife but does not recognize her or the wife
● Prompt dower - payable promptly on demand, or at the goes to the husband and stays there for sometime but
time of the marriage contract; the husband does not know her
● Deferred dower - that which is payable on dissolution of (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 of hajj by the
husband or the wife or by both of them when sexual
Where the marriage contract do not specify whether the dower is intercourse is forbidden; fasting during the month of
prompt or deferred, in these circumstances, the presumption, in Ramadan when intimacy is prohibited during the time of
the absence of any usage of the particular community, is that the 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 is not mentioned in the contract of marriage or that Effects of Valid Retirement
the dower stipulated consist of articles forbidden (haram) under (1) It establishes paternity of the issues
the Islamic Law, or an excessive dower is promised but proved to (2) It makes the payment of the dower by the husband
be only for show, it being a legal requisite of marriage, a proper 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 Effects of Divorce After Actual Consummation vs Valid
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
been consummated there has a valid retirement, then he
cannot take her back.
(b) If the wife was a virgin at the time of the marriage and
the marriage is dissolved before actual consummation
Subject to the stipulation of the parties, the dower may be fully or but after valid retirement, she would still be regarded a
partially paid before, during or after the marriage. The property or virgin. But not if the marriage is dissolved after actual
estate of the husband shall be liable for the unpaid dower or any consummation.
part thereof. (c) On actual consummation of marriage the wife’s daughter
by a former husband becomes unlawful to the present
Dower Without Fixed Period When Payable. husband, but such is not the result of a valid retirement
According to the Shiah, if no time is fixed in the marriage contract (d) If a husband divorces his wife after consummation of
(Nikahrama) for the payment of dower, the whole of it shall be marriage then dies during the period of idda, the wife
taken as prompt. shall inherit from him but she shall not inherit from him
after mere valid retirement.
When Payment of Entire Prompt Dower Becomes Pre-emptory
Due and Irrevocable.

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 ancestor, but not from each other. Begin at either of the
persons in question, and count up to the common
ancestor, and then downward to the other person, calling
Any person who has entered into a contract to marry but it a degree for each person both ascending and
subsequently refuses without reasonable ground to marry the descending, and the degrees they stand from each other
other party who is willing to perform the same shall pay the latter is the degree in which they stand related. Thus, from a
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 to the uncle, three; to the uncle’s
child is fourth.
A mere promise to marry does not create any right enforceable in
law; hence, a mere breach of promise to marry is not an actionable (2) Affinity - the connection existing in consequence of
wrong. What is actionable therefore, as wrong is the breach of the marriage, between each of the married persons and the
contract to marry intentionally done in BAD FAITH, that is without kindred of the other
any just or valid cause or reason when the other party who is (3) Fosterage - the relationship created between a man and
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
breach committed by the other party. The erring party in that case
shall be liable to the former the actual, moral and other forms of
damages recoverable under the law as the court may grant.
No marriage may be contracted by parties within the prohibited
Classification of Marriages Under the Muslim Law degrees:
(1) Valid (sahi) marriages - those which conform to all the (a) Of consanguinity;
essential requisites of a valid marriage (b) Of affinity; and
(2) Irregular (fasid) marriages - those which are neither sahi (c) Of fosterage.
(valid), nor void (batil), but are so defective for failing to
comply to certain condition prescribed under the Muslim Kinds of Prohibition in Marriage
law, compliance of the condition would render such (1) Absolute or Perpetual Prohibition - when the marriage is
marriage valid absolutely or perpetually prohibited between a man and a
(3) Void (batil) marriages - those which are prohibited my woman under the Muslim law, i.e., between those
Muslim law as incest, immoral, or contrary to Shari’a and 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 upon the cessation of the cause giving rise
Distinctions Between Irregular and Void Marriages 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 Muslim law; i.e., marrying women who are closely related
woman’s dower, specified or proper whichever is less, shall such as marriage with his wife’s sister, or aunt, or niece
become due. In the event of divorce or death of the man, the which is forbidden but once the marriage with his wife
observance of the term of probation by the woman shall become who is the cause of the impediment is dissolved by death
incumbent. The issues that are born to them shall be legitimate. or divorce, the prohibition in marriage with the deceased
wife’s sister, aunt or niece as the case may be is thereby
Void (batil) marriage - the unlawfulness is absolute whereby its removed, and the other woman becomes lawful in
nature is null and void ab initio, as though it never got contracted. marriage to the man; or idolatress until they believe
No dower shall become due against the man, no observance of
the term of probation shall become necessary for the woman and
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) Ascendants and descendants of any degree
(b) Brothers and sisters, whether germane, consanguine or
(i) Lineal consanguinity - exists among persons where uterine; and
one is descended from the other, as between the son and (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. Every generation in the direct course of ● Uterine - same mother
relationship between the two parties makes a degree.
The prohibition in marriage due to relationship by consanguinity
(ii) Collateral consanguinity - the relation subsisting
applies regardless whether it arises from legitimate or illegitimate
between persons who descend from the same common

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relationship. (1) Father-in-law (and the husband’s paternal or maternal
grandfather);
The prohibition in marriage by reason of consanguineous (nasab) (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: In order that the prohibition in marriage by reason of affinity will
(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) The marriage between the parties to whom it would be
made operative must be consummated by their
cohabitation.

In the direct line, a woman cannot marry her:

(1) Father (includes ascendants h.h.s) If no consummation has taken place, and the marriage is
(2) Son (includes descendants h.l.s.) dissolved, the prohibition would not attach,except as
regard to marriage with the ascendants of either spouses
in their case. It is not the fact of consummation that gives
In the collateral line, a woman cannot marry her: cause to the prohibition but the fact that the marriage has
(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) There’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 Prohibition in Marriage by Reason of Affinity Only in Valid
relatives in the ascending line and in the collateral line Marriage
within the third degree;
The prohibition by affinity is established by a valid marriage but
not one that is invalid. So that if a man should marry a woman by
(b) Stepfather and stepdaughter when the marriage
an invalid contract, her mother does not become prohibited to him
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 affinity is not
induced by zina (illicit sexual intercourse) alone.
(c) Stepmother and stepson when the marriage between
the former and the father of the latter has been Prohibition in Marriage by Reason of Adulterous
consummated; and Relation

(d) Stepson or stepdaughter and the widow, widower or An adulterous connection does not give rise to the prohibition by
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 The schools agree that marriage with the wife's daughter is not
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) To marry her daughter on the authority of the verse of the
Also, on the same ground, a woman cannot marry her: Quran

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 woman or her relations with the prohibited degrees by
The schools concur that the daughter is forbidden when a person consanguinity is rendered illegal.
marries her mother and establishes sexual contact with her. But
the schools differ as regards the daughter being forbidden when (2) Where a woman nurses two children, male and female
the marriage has been concluded and sexual contact has not been 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, the suckling of both if strangers to the woman,
must have taken place within the same period of “milk” of
Prohibition in Marriage Caused By Mistaken Sexual Intercourse fosterage, which is taken to cover not more than two
years.
There is a consensus among the schools that the establishment
of sexual contact due to mistake or false impressions is like Elements of fosterage to constitute as an impediment in
marriage itself in establishing affinity and creating its related marriage, the following must concur:
prohibition.
(1) The age of the child at the time of sucking milk of the
The meaning of sexual contact due to mistake is the occurrence foster mother is not more than two years.
of sexual contact between a man and a woman under the false
impression that they are lawfully wedded followed by the (2) The child must have sucked the milk of the foster mother
discovery that they are strangers and the contact was a result of a at least five times, whether the sucking is direct from the
mistake of fact. breast or obtained from the breast and served orally.

Woman with Whom a Man is Prohibited to Marry by Reason of ● Sucking for five times means, the nursed baby starts
Affinal Relationship sucking milk at breast then stops breathing or sucking
another breast or for another reason. If he returns to the
A man is prohibited on the ground of affinity from marrying with: same breast afresh after that pause, it is considered two
sucks even if this occurs at one time.
1. The wife of his father, father's father, etc., h.h.s. (though ● The fact of breastfeeding is confirmed by a testimony of
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,
But as regards to number 3, the second marriage is only prohibited 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
wife shall not be entitled to any claim, otherwise, the wife
shall be entitled to a proper dower, if no dower has been
fixed, she is entitled to get the proper dower, which is
(1) No person may validly contract marriage with any woman who 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) The prohibition on marriage by reason of consanguinity shall
likewise apply to persons related by fosterage within the same The Sunnis permit the marriage in spite of fosterage in following
degrees, subject to exceptions recognized by Muslim law. cases:
(i) The marriage of the father of the child, with the mother
Fosterage - status created by fiction of law when a woman of his child's foster mother;
breastfeeds a strange child for at least five times within two years (ii) with her daughter;
from the birth of the child, thereby creating a relation between the (iii) the marriage of the foster mother with the brother of
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 foster mother of an uncle or
foster child and foster mother and the latter’s relation with the aunt.
degrees of prohibition in marriage by reason of consanguinity.
Also according to the Durr-ul-Mukhtar there are twenty-one
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) When a woman takes a strange child to nurse, by which 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; paternal or maternal uncle;

SHARIAH II REVIEWER | MINDANAO STATE UNIVERSITY COLLEGE OF LAW | PAGE 13

foster mother, son's paternal aunt by fosterage, etc. The husband
of the foster mother may marry the maternal mother or sister of Only in exceptional cases - must be based upon a meritorious,
his wife foster child.'" reasonable, and valid ground, or that is necessary and just:

1. Sterility
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
Notwithstanding the rule of Islamic law permitting a Muslim to
A man who divorces one of his 4 wives may marry after
have more than one wife but not more than four at a time, no
expiration of Idda
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 the idda.
enjoined by Islamic law and only in exceptional cases.
● If he marries a fifth, when he has already 4, the marriage
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. No widow shall contract a subsequent marriage unless she has
● Polygamy was allowed during the time of the prophet for observed an ‘idda of four months and ten days counted from the
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. In such case, she shall produce the corresponding death
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. He is seeking it “only in exceptional cases” or exceptional
grounds Purpose of Idda - to ascertain the filiation of an unborn child if the
3. Order of the proper Shari’a Circuit Court authorizing him 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. If the former wife refuses to give her consent to 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 and may not ● Must be within a reasonable time after delivery
be waived.

ARTICLE 162. Subsequent marriages. – Any Muslim husband

desiring to contract a subsequent marriage shall, before so doing,
file a written notice thereof with the Clerk of Court of the Shari’a (1) No woman shall contract a subsequent marriage unless she
Circuit Court of the place where his family resides. Upon receipt of has observed an ‘idda of three monthly courses counted from the
said notice, the Clerk shall serve a copy thereof to the wife or wives. date of divorce. However, if she is pregnant at the time of the
Should any of them object, an Agama Arbitration Council shall be divorce, she may remarry only after delivery.
constituted in accordance with the provisions of paragraph (2) of
the preceding article. If the Agama Arbitration Council fails to obtain (2) Should a repudiated woman and her husband reconcile during
the wife’s consent to the proposed marriage, the Court shall, 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.

Equal companionship - man must be capable of giving equal (3) Where it is indubitable that the marriage has not been
treatment to his wives not only as regard, the requirement of the consummated when the divorce was affected, no ‘idda shall be
flesh but more so as regard the happiness of the heart and the required.
contentment of the mind
Conditions for Contracting a Subsequent Marriage by a Divorce
Just treatment - he must be able to provide equally to his wives ● After observing an idda of 3 monthly courses reckoned
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 COLLEGE OF LAW | PAGE 14

 ○ NOT from the time the order of the court a. If there is collusion (second marriage is done
decreeing the divorce is passed only for the purpose of making the divorced
● IDDA NOT REQUIRED: wife lawful in marriage again to the first
○ If pregnant - she may remarry after delivery husband) - second marriage is considered
○ If it is indubitable that marriage has not been abominable marriage
consummated
Legal Effects of Marriage with a Thrice Divorced Wife
Divorced Woman Whose Marriage is Indubitably Not Contracted Contracted to the Prescribed Conditions
Consummated ● Marriage contracted contrary to the conditions is
● Before consummation and no valid seclusion - idda not considered a Irregular Marriage
required
● Before consummation BUT seclusion has occurred - idda
required

Divorced Adult Woman Who has Not Yet Menstruated, or a

Minor, or Menopause
● Minor divorcee who is below 9 years old:
The following marriages shall be void (batil) from the beginning:
○ Hanafi - iddah is required
○ Maliki and Shafi - iddah not required for minor
(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 of the prohibition against
○ Hanbali - iddah required
unlawful conjunction; and
Revocable Divorce (​​Talaq Raj-i)
(c) Those contracted by parties one or both of whom have been
Talaq Raj’i is a revocable form of Talaq. It is revocable because if
found guilty of having killed the spouse of either of them.
after pronouncement the couple wish to reconcile, they can do so
as long as reconciliation occurs before the expiration of what is
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 a woman whose sister,
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
each other either by consanguinity or fosterage,
marriage (purpose: protection of women, hindi
that if one of them were a man and the other a
basta-bastahin ang emotions ng babae,
woman marriage between them would be
protection from the idea of unlimited 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) Where a wife has been thrice repudiated (talaq bain kubra) on Rules on Marriage Against “Unlawful Conjunction”
three different occasions by her husband, he cannot remarry her
unless she shall have married another person who divorces her 1. Marries two sisters by one contract (or simultaneously),
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 is fasid (irregular)
(2) No solemnizing officer shall perform the subsequent marriage
mentioned in the preceding paragraph unless he has ascertained NOTE: Prohibition is not permanent. A man is debarred from
that there was no collusion among the parties. marrying his wife’s sister only so long as the other sister continues
to be his wife. If that relationship is terminated by death or divorce,
Conditions Before the Husband of a Thrice Divorced Wife can 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
The following marriages shall be irregular (fasid) from their
3. Such second marriage is dissolved either by divorce or
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

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(c) Those wherein the consent of either party is vitiated by ● Intimidation - one of the contracting parties is compelled
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-disclosure of the previous conviction of the
(f) Mixed marriages not allowed under Islamic law. other party of a crime involving moral turpitude,
and the penalty imposed was imprisonment for
Other Kinds of Void Marriages two years or more
1. Polytheism - marriage between a Muslim female and 3. Concealment by the wife of the fact that at the
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 (believing women) in marriage to idolaters until they ● Bride hiding a defect - contract will not be withdrawn
believe” (considered as irregular marriage, can be
validated through conversion to a faith that would make Marriage Contracted in a State of Ihram
the marriage valid - conversion of non-people of the book ● 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 capacity to act
3. Fifth marriage contracted by a Muslim male during the (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 but NOT unlawful
existent or in contemplation of law, it is as if no marriage ● 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 ● Can it be validated? YES, Art. 33 (e) Those referred to in
● 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 society as ordained by God observance of idda
● Fasid marriage - marriage that is disruptive or disturtive ● Marriage consummated - fixed/proper dower, 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 by affinity - woman is entitled to
observing idda is fasid (irregular) support
● Parties should be separated so as to let the woman ● Irregular marriage - dissolution by reason of their mutual
complete her idda, thereafter, parties can remarry again separation is mutual relinquishment, not divorce
● May a husband who divorces one of his four wives, 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 be made regular by a new marriage
separate with kindness contract in the following cases:
● If a husband thrice divorces his wife, he cannot after that
remarry her until she has married another man who has (a) Those referred to in Article 32(a), after the impediment
divorced her or died after actual consummation of has been removed;
marriage
(b) Those referred to in Article 32(b), upon compliance with
Marriage Contract Under Violence, Intimidation, Fraud, Deceit or the requirement of Article 30;
Misrepresentation
● Free consent - sine qua non, without which contracts do (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;

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 (e) Those referred to in Article 32(e), when the party is no
longer in a state of ihram; and Husband’s Predominance Over the Wife
● Man does not occupy a higher position over a woman
(f) Those referred to in Article 32(f), after conversion to a ● Islam recognized the position of woman the same as
faith that could have made the marriage valid. that of the man
● Marriage gives to the man greater responsibility over that
(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 title except from her relatives who are within the
● Fasid or irregular marriage may be validated by a new prohibited degrees in marriage
marriage contract after the impediment to the marriage 3. Wife’s exercise of profession, occupation or
is removed, or the conditions of the law are complied. calling
● Retroactivity of the new marriage - effect of the new 4. Matters involving the exercise of paternal
marriage shall retroact to the date of the celebration of 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
The husband shall fix the residence of the family. The court may
exempt the wife from living with her husband on any of the
following grounds:

(a) Her dower is not satisfied in accordance with the stipulations;

or

(b) The conjugal dwelling is not in keeping with her social

standing or is, for any reason, not safe for the members of the
(1) The husband and the wife are obliged to live together, observe family or her property.
mutual respect and fidelity, and render mutual help and support in
accordance with this Code. Rights of the Husband
1. Fix the Residence - right to fix the residence of the family
(2) When one of the spouses neglects his or her duties to the according to his means taking into consideration the
conjugal union or brings danger, dishonor or material injury upon social standing of the family.
the other, the injured party may petition the court for relief. The 2. Consortium - right to consortium or to live together in
court may counsel the offender to comply with his or her duties, order to discharge the obligations arising from the
and take such measures as may be proper. marital union.
3. Fidelity of wife - Right to require the fidelity of the wife
(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 to divorce in gratuitous title from a stranger
accordance with this Code. ○ Object the exercise of any profession, 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 - his decision shall
○ Should regard her husband over and above prevail in matter of administration of their
everyone else and remain faithful to him communal property
○ Leave nothing to be desired by way of devotion 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, of his love, and hold her 7. Inheritance - Right to inheritance from the wife
in his esteem 8. Divorce - Right to divorce his wife in accordance with this
○ If the wife made a mistake, the husband should code
overlook it and correct her with tact and
patience Obligations of the Husband
● Personal care and unselfish attention, in sickness and in
health

SHARIAH II REVIEWER | MINDANAO STATE UNIVERSITY COLLEGE OF LAW | PAGE 17

 1. Just and equitable treatment - Treat his wife or wives ● She is the queen of the household
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 equitably as enjoined by
○ 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
○ Neglect of support for at least six months - wife means of the husband
is entitled for divorce by fask ○ During the existence of marriage
○ Includes providing wife with suitable dwelling - ○ After divorce during the period of her idda
keeping with her social standing and the means ○ If she is pregnant at the time of the divorce, until
of the husband she delivers
3. Payment of Dower - Pay the prompt dower of the wife in 3. Right to retain ownership to possess, administer, enjoy
accordance with their stipulation otherwise the wife has and dispose of her own exclusive estate, even without
the right to refuse living with him the consent of her husband
4. Marital obligation - perform his marital obligation to his 4. Right to household property, which customarily pertain
wife to, or is used by her
○ Marital obligation - must be understood to 5. Right to sue and be sued in certain cases independently
mean, marital companionship, consortium, or of the husband
cohabitation 6. To divorce under the circumstances provided in the code
5. Duties to the conjugal union - attend to his duties to the 7. Right to exercise parental authority, jointly with her
conjugal union to protect and secure it and not to bring husband over their unemancipated children
danger, dishonor or material injury upon his wife ○ In the event of divorce to the care and custody
○ 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 to inherit from her husband
10. Right to petition the court for relief in the event husband
(1) The wife shall dutifully manage the affairs of the household. neglect his duties to the conjugal union or bring danger,
She may purchase things necessary for the maintenance of the dishonor or material injury upon her
family, and the husband shall be bound to reimburse the 11. Right to have her prompt or demandable dower satisfied
expenses, if he has not delivered the proper sum. and to petition to the court to be exempted from living
with her husband husband, if her dower is not paid; and
(2) The wife cannot, without the husband’s consent, acquire any the payment of the whole of her deferred Dower upon the
property by gratuitous title, except from her relatives who are dissolution of a consummated marriage, of half thereof if
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 to manage the affairs of the household
profession or occupation or engage in lawful business which is in ○ To purchase things necessary for the
keeping with Islamic modesty and virtue. However, if the husband 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 has not advanced from
opposition is based on serious and valid grounds, the matter shall her exclusive property the necessary amount
be referred to the Agama Arbitration Council. 13. Right to have the custody of their children below seven
years of age
(4) The wife shall have the right to demand the satisfaction of her 14. Right to engage in an occupation or calling
mahr. 15. Right to ask the court to exempt her from living with the
husband if the conjugal home is not suitable or safe for
(5) Unless otherwise stipulated in the marriage settlements, 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) The wife shall be entitled to an equal and just treatment by the him consortium to her unless she is exempted by the
husband. court
2. To respect and obey her husband, especially in matters
Ideal of Wifehood in Islam involving the exercise by him of his parental authority
● Love and affection, and not subordination and servitude over their unemancipated children, and serve her
● Regarded as the safeguard for husband against sin and husband wholehearted leave within the limits ordained by
not the road to iniquity Allah
● Virtuous wife is the best treasure which a man can justly 3. To observe utmost fidelity to her husband, which means
be proud of to be faithful to him and guard her honor for him in

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 accordance with Islamic chastity and virtue, and not to i. the 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
when the husband cannot provide the needed support for ○ Some of their properties shall remain as their
some valid reasons, she has the necessary means to exclusive properties and some shall be conjugal
extend him financial help or advance the needed support, partnership properties
she is obliged to provide the needed amount and once 4. The regime of absolute community of property
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 community of properties - shall be owned
5. To fully manage the affairs of the household 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
properly and fulfill her responsibilities and duties towards shall be divided between them in accordance
them with their antenuptial contract, the law or their
custom
○ In case of death - the law of succession

Civil code and family code applies suppletorily

The property relations between husband and wife shall be The property relations between the spouses, in the absence of
governed in the following order: any stipulation to the contrary in the marriage settlements or any
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 of Islamic law and
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 ● When system of property relation during the marriage is
● The parties to a marriage contract may fix before or at fixed by marriage settlement :
the time of the marriage the system of property relation ○ It shall be recognized by law and observed as
that shall govern them during the marriage through a the system of their property relation
marriage settlement or ante-nuptial agreement ○ Must not be contrary to law, public order, public
● Marriage settlement or ante-nuptial agreement - 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
● In the absence of any marriage settlement, the provision parties the property regime
of this code shall govern
○ in which case the system of property relation
that will be followed shall be that of the regime
of complete separation of property
○ as to what has not been stipulated in the
marriage settlement or provided by the Muslim Every stipulation in the marriage settlements or contract referred
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. The regime 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 ● If marriage does not take place - ante-nuptial agreement
○ Any debt or liability shall have to be his or her cannot be given legal effect
own account alone ○ Stipulations not dependent on marriage: shall
2. The regime of conjugal partnership of gains remain binding (e.g. acknowledgement of child
○ 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 COLLEGE OF LAW | PAGE 19

 ● Future spouses may stipulate in their marriage
settlement anything not contrary to law, public order, Income Derived from Employment
good custom, and public policy. ● Exclusive property or assets of the spouse who earned
● Example: them:
○ Wife can stipulate that the husband shall make ○ Income from employment, occupation or trade:
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
The wife shall not lose ownership and administration of all Money or Property Acquired by Either Spouse through Lucrative
properties brought by her to the marriage in the absence of any 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 by gratuitous title
husband. ● One arising from pure 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
● Paraphernal Property - refers to all properties which she recipient
brings to the marriage as her own separate and exclusive ● Wife cannot acquire property by gratuitous title without
properties the husband’s consent, EXCEPT from relatives within the
● Wife retains the right to own, possess, administer, enjoy, prohibited degrees in marriage to her
dispose of the same without the consent of the husband
● She may be sued or be sued independently concerning Dower (Mahr) and Nuptial Gifts
her exclusive property ● Dower belongs absolutely to the wife
● The court may grant husband the administration of such ● Before or after consummation of the marriage
property ● Nuptial gifts - given to the spouses on the occasion of
● Any unauthorized act cannot be given any force and the marriage ceremony
effect ● Presents given to the wife - “jaluz”
● during the marriage - wife is not allowed to receive gifts
without husband’s consent

Properties Acquired by Onerous Title

The following shall be the exclusive property of either spouse: ● Property acquired by onerous title through the exercise of
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 spouse using his own exclusive
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 was made
before or during the marriage
(c) Any money or property acquired by either spouse during
marriage by lucrative title; Fruits of the Exclusive Properties
● All the fruits of the exclusive properties of either spouses
(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
○ Industrial fruits - produced by lands of any kind
(f) All fruits of properties in the foregoing paragraphs. through cultivation or labor
○ Civil fruits - rents of buildings, price of leases of
Modes of Acquiring Properties lands
1. Iktisab (earning)
2. Waritha (inheritance)
3. Hiba (gift)
Each spouse shall own, possess, administer, enjoy and dispose of
Properties Brought to the Marriage his or her own exclusive estate even without the consent of the
● 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 marriage and completed during the marriage 1. Brought to the marriage
(i.e. contract to sell) 2. Earned by onerous title

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 3. Acquired by gratuitous title during the marriage (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 be presumed the owner.
● Personal property - that which customarily pertains to or (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
Household property which customarily pertains to or is used by
(g) Judicial decree (faskh).
either spouse shall be prima facie presumed to be the property of
said spouse.
Definition of Divorce.
The Code defines “divorce” as “the formal dissolution of thc
Household property
marriage bond in accordance with this Code to be granted after
Articles of household which are not consumed in their enjoyment
the exhaustion of all possibIe means of reconciliation.
but which are ordinarily intended to be used by either spouse for
their personal convenience or purpose or that of the household in
In the Holy Qur'an, the disagreement to live together as husband
common
and wife is called "shaq," meaning breaking into two).
● Kitchen utensils - ordinarily used by the wife belongs to
her
Under the Muslim law, divorce is called “talaq” which literally
● Tools used in his trade by the husband belongs to him
means "freeing or undoing of knot," “to snap off” or “to separate.

As a legal term, "divorce" (talaq), means terminating with explicit

or implied words the bond created by marriage by one or both
The wife may, independently of the husband, sue or be sued in the parties, or at the instant of either spouse, by decree (fask) of the
following cases: judge (qadi) of the Shari'a Court with law, after all efforts for
reconciliation between the spouse has been exhausted."
(a) When the litigation is between husband and wife;
Meaning of Exhaustion of All Possible Means of Reconciliation
(b) If the suit concerns her exclusive property; According to the spirit of the law it is only when disagreement
continues and efforts to bring about a reconciliation proves
(c) If the litigation is incidental to her profession, occupation or unavailing that the parties may dissolve the marriage.
business;
A Muslim husband, therefore, cannot justly divorce his wife in the
(d) If the litigation concerns the exclusive property of the absence of reasonable grounds and without having recourse to
husband, the administration of which has been transferred to her; an attempt at reconciliation.
or
Reason for Allowing Divorce
(e) Such other appropriate cases as may be followed by the Divorce is corollary to the contract of marriage, which Muslim law
general principles of Islamic law and other laws. allows to be availed by either or both of the spouses as a means
of dissolving their contract of marriage in abnormal
Independent Suit By or Against Either Spouse circumstances, that is when divorce becomes a necessity
● Exception: conjugal properties because of irreconcilability of the spouses, or due to a just cause
it becomes inevitable that divorce must necessarily be effected
as the only possible just recourse and appropriate remedy.

Requisites of Divorce
Generally, in order that divorce would be effective, the following
essential requisites must be complied:
1. That talaq (divorce) is pronounced during the
non-menstrual period of the Wife, and must specify the
wife to whom it is addressed.
2. That the necessary petition and notice of divorce are
filed by the proper party who is of legal capacity and of
Divorce is the formal dissolution of the marriage bond in
sound mind, before the proper Shari'a Circuit Court
accordance with this Code to be granted only after the exhaustion
which shall see to it that the formalities required by law
of all possible means of reconciliation between the spouses. It
are complied; the wife who is of the age of puberty,
may be effected by:
received the notice;
3. That it was done knowingly and voluntarily, and not
(a) Repudiation of the wife by the husband (talaq);
under the influence of threat, or while otherwise
deprived of reason;

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 4. It must be shown that all efforts to reconcile the parties, inasmuch as any number of repudiation made during one
having been exhausted, failed. non-menstrual period (tuhr) of the wife is considered only one
5. That two male witnesses can testify attesting to the repudiation.
manner that the divorce was pronounced; and
6. That there being no bar to connubial intercourse no If the husband wants to make an irrevocable divorce, he has to
reconciliation (ruju) intervenes or takes place between pronounce a renunciation of marriage or talaq every other month
the spouses by their voluntary cohabitation during the whenever his wife is not having her monthly menstrual cycle or
period of the idda (probation). period (tuhr).

Modes of Pronouncing Divorce Reason Why Talaq Should Be Pronounced During the
Divorce may be pronounced or effected orally or in writing (talaq Non-Menstrual Period of the Wife (tuhr).
namah) or in the case of a deaf-mute, by sign language, or in
writing if he is able to do so. ● Firstly, during menstruation women become irritable and
tense due to physical changes. Hence, it is forbidden to
Saheeh - if clearly expressed divorce a wife in consequence of marital rift during the
Kinayat - if manifestly implied. A divorce is not effected by period of menstruation.
“kinayat” (expression) unless the intention to pronounce divorce
can be gathered from the surrounding circumstances. ● Secondly, during the period of menstruation the couple
are cut-off from physical intimacy which is the main
Talaq With an Option or Condition. source of their marital attraction and adhesion.
Among the Sunnis "a repudiation cannot be qualified by option:" When the difficult period is over, it is possible that with
Thus, if a person were to say to his wife, "I have divorce, but I the assumption of sexual relation tender emotion will
reserve to myself an option for three days”, the repudiation would prevail and the resentment which inclined the husband
be valid, but the option will be invalid. to divorce will melt away.

If a repudiation be pronounced conditionally, or be made EXCEPTION:

dependent on the occurrence of a contingency not impossible in The condition that the pronouncement of divorce be only during
its nature, the condition is valid, the talaq taking effect only when the period of purity does not apply to divorce by tafwid, khiyal al
the condition is fulfilled." bulugh (option of puberty) or by faskh (divorce by decree of
court), or when the wife is incapable of sexual intercourse on
account of tender or old age.

However, in case of marriage that has not been consummated,

(1) A divorce by talaq may be effected by the husband in a single the divorce may be pronounced at any time either during the
repudiation of his wife during her non-menstrual period (tuhr) wife's period or during her menstrual period and it will amount to
within which he has totally abstained from carnal relation with talaq al-hasan.
her. Any number of repudiations made during one tuhr shall
constitute only one repudiation and shall become irrevocable Revocation of Divorce.
after the expiration of the prescribed ‘idda. In fiqh, the term "ruju" is used in connection with the revocation of
divorce. In its primitive sense "ruju" means restitution. As a legal
(2) A husband who repudiates his wife, either for the first or terminology, ruju means the resumption by the husband of the
second time, shall have the right to take her back (ruju) within the marital relation with his wife after the pronouncement of divorce
prescribed ‘idda by resumption of cohabitation without need of a but before the expiration of the period of probation (idda), without
new contract of marriage. Should he fail to do so, the repudiation need of a new marriage. It is also the restoration of the divorcee
shall become irrevocable (Talaq bain sugra). of her marital status by her husband, returning to, or receiving
back his wife after divorce.
Divorce by Talaq (Talaq-ahsan — Most Approved Form of
Divorce) The right of revocation of divorce can only be exercised during
The form of divorce treated by the present article is actually a the period of the idda, but not thereafter, or when no idda is
talaq-i-ahsan (most approved form of divorce) or that in which required such as when it is indubitable that the marriage has not
the husband, who consummated the marriage, pronounces to his been consummated when the divorce was effected.
wife one single revocable divorce during her non-menstrual
period (tuhr) followed by abstinence from sexual intercourse Kinds of Ruju
during the period of the idda. Ruju is of two kinds, the Sunni form of ruju, that is in accordance
with the Sunna (tradition), or bida'a (irregular or innovated).
It is the form of divorce which is sanctioned by the tradition of
the Prophet and is therefore, regarded as the proper and regular Ruju in accordance with the Sunna - When a man intimates his
form of divorce. intention of revocation to the wife and calls on witnesses to
attest to the fact.
Number of Repudiation Bida’a Ruju - If he fails to give her intimation of his intention the
Under the present article, the determinative factor is the ruju is said to be bida'a, but it is valid just the same.
non-menstrual period (tuhr) of the wife and not the number of
renunciation of the marriage pronounced by the husband

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Any act tending to show that he has changed his mind would be The vow must be for four months or for a longer period or for an
tantamount to revocation; but the man is recommended to ask indefinite time." If it relates to a period less than four months then
some person to attest to the ruju. the vow does not constitute ila. This is so even if the
accumulated period of two or more consecutive ila vows may
Manner of Effecting Ruju amount to four months or a longer period.
A husband who repudiates his wife, either for the first or second
time, shall have the right to take her back (ruju) within the The Vow is not to have Carnal Relation of the Wife.
prescribed idda by resumption of cohabitation without need of a A husband shall not be held to have pronounced ila except when
new contract of marriage. Should he fail to do so, the repudiation he takes an oath against having sexual intercourse with his wife.
shall become irrevocable (talaq bain sugra) If the husband's oath refers to something else then he shall not
be held to have made a vow of ila. Thus, if a man says to his wife,
Witnesses in Ruju "by God, my skin shall not touch your skin," he shall not be
Not required. deemed to have an ila because the vow refers to breach Of
something other than sexual intercourse and touching of skin is
Ruju of Irrevocable Divorce possible without there having intimacy between them.
The restoration of an irrevocable divorce during Idda is possible
only in the case of a divorce which has been granted khul in It is also a necessary condition of ila that it should not be
return for a consideration, provided the marriage has been possible for the husband to violate the vow, that is, to have sexual
consummated and the divorce is not which completes three intercourse with his wife, without being guilty of the breach of his
divorces (talaq bain kubra). vow.

Registration of Revocation of Divorce. Thus, if the husband being in Karachi, and his wife being in Delhi
Within seven (7) days after the revocation of divorce by ruju, the swears that he will not go to Delhi then ila is not established
husband shall, with the wife's written consent, file a statement because there is no reference to intimacy which he can still be
thereof with the Circuit Registrar in whose records that divorce intimate with his wife without incurring penalty as by sending for
was previously entered. her at Karachi and being intimate with her there husband will not
bring the divorce into effect, and the husband has the option to
take the wife back during the idda which should begin from the
expiration of the four month period from the pronunciation of the
ila.
Where a husband makes a vow to abstain from any carnal
relations (ila) with his wife and keeps such ila for a period of not Ila will cease if cohabitation takes place, but penalty still attaches
less than four months, she may be granted a decree of divorce by for breaking the oath.
the court after due notice and hearing.
But if before the expiration of 4 months, he breaks his oath and
Divorce by Ila; Meaning of. did sexual intercourse, then there will be no divorce but he shall
Literally, the word "ila" means to vow or swear, i.e., not to have give recompense for breach of oath.
sexual intercourse with one's wife. The person making the vow is
called "Muli."

As a term in law, ila is an act of divorce executed by the husband

upon his wife whereby he makes a vow and swears that he will Where the husband has injuriously assimilated (zihar) his wife to
not have sexual intercourse with her for a period of four months any of his relatives within the prohibited degrees of marriage,
or more. they shall mutually refrain from having carnal relation until he
shall have performed the prescribed expiation. The wife may ask
After the Expiration of Four Months Necessity of Recourse to the court to require her husband to perform the expiation or to
Court. pronounce a regular talaq should he fail or refuse to do so,
Under the Code where the husband makes a vow to abstain from without prejudice to her right of seeking other appropriate
carnal relation (ila) with his wife for a period of not less than four remedies.
months she may be granted a decree by the court after due
notice and hearing. Divorce By Zihar; Meaning Of.
The word zihar is derived from the word "zhar" meaning back.
Prescribed Act of Expiation of Ila. Technically, it is a statement pronounced by the husband
Should the husband break his vow of continence and had sexual (muzahir) leading to divorce which is done by uttering to the wife
intercourse with his wife during the four-month period, it in the presence of two competent witnesses the following word
becomes obligatory on his part to expiate his vow by performing or words of similar import like:
any of the following: (1) Feeding ten poor Muslims, or clothe
them; (2) or if he is unable to do any of the first two, by fasting for "You are time like the back ofmy mother (anti-alaiya-kah- zanni
three days." This expiation is based on the authority of the Quran, ummi) or any of his female relations who are prohibited
Sura V, verse 8." permanently in marriage to him, followed by his abstinence from
The Vow Must Be to Abstain from Carnal Relation for a Period of having carnal relation with his wife.
Four Months. Constituent of Zihar.
● The constituent of Zihas is the “comparison”.

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● If there is no comparison, there shall be no zihar, for hearing and after the parties shall have performed the prescribed
instance, if someone says to his wife, "You are my mother" acts of imprecation (li’an).
this is outside the definition of zihar. It will constitute zihar if
he says “You are like my mother”. Divorce by Lian; Meaning of.
● Furthermore, the comparison should be to a woman The word li'an is derived from "la'na" meaning curse. Technically,
permanently prohibited to him. however, the word indicates that particular form of bringing about
● If the wife is compared to a woman, only temporarily separation between the husband and the wife, in which the
prohibited, there is no zihar. husband accused the wife of adultery but has no evidence to
Thus, a comparison to one's sister-in-law does not amount to support the accusation while the wife denies it.
zihar, as marriage to her is possible on the dissolution of the
present marriage by divorce or the wife's death." The ultimate purpose of the husband of availing of li’an is to
● There is no fixed formula for zihar and any expression can be disclaim the paternity of the child of which his wife may be
used for the purpose. pregnant when he has reason to believe that the child is begotten
● But the language should be clear, unambiguous and certain. by the wife from an adulterous relation by taking an oath that the
● There should be no uncertainty attached to zihar and an child is not his.
uncertain expression of zihar is invalid.
Procedure and Method of Divorce by Li'an.
Effect Of Zihar On The Marriage Bond. When a husband accuses his lawfully wedded wife of adultery
Zihar does not dissolve the marriage but the husband is but cannot produce four witnesses, the wife has the right to
forbidden to have sexual intercourse or engage in kissing or demand her husband to either substantiate his accusation by
endearment with his wife, and she can refuse to submit herself to taking the prescribed oath or to admit the falsity of his charge
his amorous advances till he performs the required act Of against her.
expiation.
For this purpose, she can seek the help of the Qadi (court), and
The wife may petition the proper Shari'a Court to require her the Court shall decree a perpetual divorce.
husband to perform the expiation or to pronounce a regular talaq
should he fail to do so, without prejudice to seeking appropriate In the case of divorce by li'an whereby the husband charges the
remedies." wife of adultery but has no testimony to establish it, it is a
condition that the wife should demand it, that is, that her husband
Expiation (Tifarat) for Zihar divorce her by taking the prescribed oath.
● If the man has capacity and strength he should keep fast for
sixty days continuously without any gap and should not have If the husband refuses to take the oath or retracts he becomes
sexual intercourse with his wife before the end of the sixty liable for slander.
days fast. If he commits sexual intercourse during the fast,
he shall have to keep the sixty days fast afresh whether the If the wife refuses to take the oath, the Qadi (judge) can issue a
intercourse was done during the day or night, intentionally or decree of divorce dissolving the marriage.
otherwise.
● If he started to keep fast from the first day of the month, When both parties take the oath in the prescribed form the Qadi
then he should complete two months, some lunar months (judge) shall order the husband to pronounce a divorce between
are short of thirty days, even then the recompensation would them.
be met, that is the month may either be 29 or 30 days each.
● If one is not strong enough to keep sixty days fast Conditions or Requisites by Lia
continuously, then, he should feed sixty poor people in the 1. Accusation. — There must be an accusation by the
morning and evening with full meals or give food grain husband charging his wife of adultery and the
instead in the same quantity. If before completing the accusation must be definite, certain and unambiguous;
feeding of sixty poor people for two months, he committed 2. Marriage. — There must be a subsisting valid marriage
sexual intercourse then it should be a sin but between the parties at the time of imprecation.
recompensation will be accomplished and should not give 3. Capacity. — For Husband, he must be a Muslim, adult
again. and sane; likewise the wife must be Muslimah, of chaste
character (Muhsina).
Effect of Non-Performance of Expiation. 4. Absence of four witnesses. — It is absolutely necessary
If the husband does not perform the required act of expiation, the for li'an that the husband is unable to produce four
court upon petition of the wife shall ask him to do so but, if he witnesses. If he is able to produce four witnesses li'an
persists with his pronouncement and does not make an shall have no application.
atonement or expiation the court shall issue an order of 5. Demand by the wife. — It is an essential condition for
irrevocable divorce. li'an that the wife should demand that her husband
divorce her by taking the prescribed oath. If she should
not demand it when accused of adultery by her husband
even though both of them are competent for li'an, the
marriage shall continue and she will remain his wife as
Where the husband accuses his wife in court of adultery, a decree before
of perpetual divorce may be granted by the court after due 6. Denial by the wife. — A denial by the wife of the truth of
the husband's accusation is an essential condition for

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 li'an. If she admits the charge or does not deny its truth Tafwid - “to delegate;” the delegation by the husband to the wife
then there can be no li'an. of his right to pronounce for herself a divorce from him.
7. Mutual Oath. — The prescribed acts of imprecation must
be complied with The effect of the delegation of the power of divorce by the
husband to his wife is that she becomes authorized to exercise
Decree of Court that power as a representative of her husband.
An accusation of adultery does not ipso facto dissolve the
marriage. A decree of court is necessary. Under the provision of this Code, the authority to effect divorce by
tafwid may be delegated by the husband at the time of marriage
Effect of Finality of Divorce By Lian on the Right of Party to or thereafter which means after the celebration of the marriage,
Remarry. during its existence.
The parties are perpetually prohibited in marriage to one another.
Conditions for Delegation of Tafwid
Effect on the Child Subject of the Divorce by Liam
The child who was the subject of the divorce by lian would be Delegation of the power to divorce by the husband to the wife
regarded as not of the husband of the mother of the said child may be absolute or its exercise may be subject to certain
who had accused the child's mother of adultery, the effect of conditions. The following conditions were held to be valid and
divorce by lian is the disowning of the child by the man who had reasonable:
accused the mother of the child of adultery and disowned the
child as his. Should the husband retract his accusation Of (1) That the husband should not beat, ill-treat or oppress his
adultery against his wife before the court's decree ordering wife wrongfully;
divorce by lian becomes final their marriage shall remain (2) If the husband does not lead a respectable life or does
subsisting and the child shall be considered their child."' not earn his livelihood;
(3) If the husband keeps a concubine;
(4) If the husband marries a second wife during the
subsistence of the instant marriage;
(5) If the husband would bring any of his other wives to stay
The wife may, after having offered to return or renounce her with him without the consent of the wife;
dower or to pay any other lawful consideration for her release (6) If the husband does not pay maintenance to the wife
(khul’) from the marriage bond, petition the court for divorce. The even if she does not reside in the house with him and
court shall, in meritorious cases and after fixing the his second wife;
consideration, issue the corresponding decree. (7) If the husband does not pay to the wife prompt dower
on demand.
Khul refers to the wife’s right to divorce by returning her dower to
her husband on the ground that the husband is incapable of
fulfilling the object of marriage or performing the duties arising
out of the conjugal relationship.
The court may, upon petition of the wife, decree a divorce by
Essential Conditions: faskh on any of the following grounds :

(1) Mutual consent of the husband and wife (a) Neglect or failure of the husband to provide support for the
(2) Some “iwad” (return, consideration) passing from the family for at least six consecutive months;
wife to the husband
(b) Conviction of the husband by final judgment sentencing him
Mubara’at Distnguished from Khul to imprisonment for at least one year;

If the desire to separate emanates from the wife, it is called khul, (c) Failure of the husband to perform for six months without
but if the divorce is effected by mutual aversion (and consent) it reasonable cause his marital obligation in accordance with this
is known as mubara’at. In the case of khul, the wife begs to be code;
released and the husband agrees for certain consideration, which
is usually a part or the whole of the mahr (dower); while in (d) Impotency of the husband;
mubara’at apparently both are happy at the prospect of being rid
of each other. (e) Insanity or affliction of the husband with an incurable disease
which would make the continuance of the marriage relationship
injurious to the family;

(f) Unusual cruelty of the husband as defined under the next

If the husband has delegated (tafwid) to the wife the right to succeeding article; or
effect a talaq at the time of the celebration of the marriage or
thereafter, she may repudiate the marriage and the repudiation (g) Any other cause recognized under Muslim law for the
would have the same effect as if it were pronounced by the dissolution of marriage by faskh either at the instance of the wife
husband himself. or the proper wali.

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Meaning of Divorce by Faskh (or Decree of Court, Talaq al Qadi). The test of impotence is not the capacity to produce but the
The word faskh comes from a root word which means to annul capacity to copulate.
(to annul a deed).
● Conditions of Divorce on Ground of Husband's
As a legal term and in relation to the Muslim law on marriage, it Impotence (Arkan of Talaq al innin).
refers to the power of the Muslim kasi (qadi) or judge annul a In order to obtain decree of divorce by faskh on ground
marriage on the application of the wife. of impotency, the following circumstances must
concur:
It may be defined as the dissolution or rescission of the contract 1. The husband must be proved to have been
of marriage by judicial decree. impotent at the time of marriage;
2. The wife must have known it at the time of the
Divorce on the Ground of Neglect or Failure to Provide Support. marriage
The husband is to provide everything necessary for her 3. The impotence must have continued until the
maintenance which includes everything that is indispensable for time of the suit; and
sustenance, dwelling, clothing, and medical attendance 4. The impotency is shown to be incurable.
according to the social standing of their family. (Art. 65 , PD.
1083). ● Mutilation (Al-Jabb), and Castration (Al-Khisa) As
Grounds for Divorce by the Wife.
Divorce on the Ground of Husband's Conviction of a Crime
The basis of the wife's right to ask for divorce by faskh due to the Al-Jabb means "the state of mutilation of the male
imprisonment of the husband because once the husband shall organ, a person whose organ is mutilated)," while
serve the sentence then he will be absent from the conjugal
home and cannot therefore perform his marital and Al khisa means castration either by removal of one or
responsibilities to his wife and family. both testicles.

In such a case, she will be deprived of protection, compromising Both Mutilation (Al-Jabb), and Castration (Al-Khisa) if
pleasure of life and financial support and would be put to present before the consummation of marriage, give the
hardship on that account. wife immediate right to annul the contract.

And she cannot enter into a subsequent marriage because her But if these two defects occur after the consummation
marriage to the imprisoned husband still subsists. It is therefore, of marriage, the right to annul the marriage will not
necessary to grant her some relief from the situation. result.

What if husband was granted probation ● When is a Person Deemed Potent under the Muslim
If the husband is granted probation, he would not be made to law.
serve the sentence of imprisonment under the law. Muslim jurists hold a person to be potent if he is able
even to partially penetrate the wife's body and the
It is the AUTHOR’S OPINION that in such a case, the wife cannot penetration of only the tip or glans penis is considered
ask for divorce by faskh. sufficient to constitute consummation of the marriage.

Divorce on the Ground or Husband's Failure to Perform Marital ● Effects, Legal Consequences of Impotency Upon the
Obligation. Marriage.
Under the Muslim law, Which is adopted in Article 27 of the Code, Impotency of the husband will bring about the following
it is the husband’s marital obligations to the wife to: consequences upon marriage, namely:
1. to give just treatment, or the obligation to provide the 1. It is not a bar for remarriage. — Separation on account
basic economic necessities of life and of impotency creates no prohibition of remarriage and
2. obligation to give equal companionship, that is his time the parties can remarry either during or after the period
is spent equally among his wives of iddah without the necessity of of having an
intermediary marriage.
It is incumbent upon every husband with more than one wife to 2. Upon the dower (mahr)
do full justice to them in treatment and in provision of economic
sustenance, but he is helpless as far as natural inclination of his Divorce on the Ground of Husband's Insanity
mind is concerned. It is, therefore, no sin if the husband has Regardless of when insanity happened whether before or during
greater love for one than the other as the heart and its feeling are the marriage.
no one's control.
A marriage is liable to dissolved on the basis of insanity on two
Divorce on the Ground of Impotency of the husband; grounds, namely, the incapacity of a person to give his consent to
"Impotency," as a ground for divorce, refers to "the total inability the marriage, and secondly, the fact that such a person cannot
to perform sexual intercourse," as distinguished from "sterility," afford happy companionship to the other party.
which is merely the lack of fertility in the reproductive elements
and which is not a ground for divorce. Divorce on the Ground of Husband's Incurable Disease.
Any defect in the husband which may be revolting to the other
spouse so that a happy companionship between them is

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impossible or make the discharge of the other’s obligation Faskh on Ground of Disposal of Wife’s Property
impracticable, it is a ground for the dissolution of marriage
The disposal of property is disposal by a husband, without the
Divorce on Grounds of Any Other Causes Recognized Under wife’s consent, of a substantial portion of her property, not for her
Muslim Law. benefit but for his own selfish end and in wasteful manner, with
Muslim laws recognizes other grounds for divorce. Among them the intention of depriving her of her property.
are:
1. Apostasy. Obstruction of Wife’s Religious Practices
2. Khiyal al bulugh (Betrothal marriage);
3. Lack of consent. The wife’s right to observe her religious practices is given that
much significance under the Muslim law, and the fundamental
Apostasy - Under the Muslim law, annulment of marriage may religious duties of every muslim are:
also be sought on the ground of apostasy when a Muslim turns
back fromIslam to another religion. The Five Pillars of Islam

Khiyar-aI•Bulugh (Option Of Poverty) in Bethrotal Marriage. (1) To testify that there is no God but Allah
In a betrothal marriage which is contracted through a guardian (2) To perform prayers (namaz, salat, five times a day in
(wali), a girl 12 years old but below 15 years old but who has accordance with its conditions and fards when the time
already attained puberty, may be annulled upon the petition of for prayers come)
either party within four years after attaining the age of puberty (3) To give zakat (legal alms, alms tax or poor due of one’s
provided no voluntary cohabitation has taken place and the wal property or a tax of man’s wealth and distributed amon
who contracted the marriage was other than the girl's father or the poor)
paternal grandfather. (4) To fast in Rahmadan
(5) To make pilgrimage to the house (the Qa’ba and the
However, anything done by the minor during minority, would not Holy Mosque in Mekkah, once in a lifetime)
destroy the right which could accrue only after puberty, the
cohabitation of a minor girl would not put an end to the "option'” Faskh on Ground of Failure to Treat Wife Justly and Equitably as
to repudiate the marriage after puberty. enjoined by Islamic Law

The assent should come after puberty and not before, for the She may ask for divorce when the husband persistently neglects
simple reason that the minor is incompetent to contract; nor to visit her, when he forces her to labor at work of a kind which is
should the fact that consummation has taken place without the considered degrading to a woman in her position; when he does
consent take away the right to repudiate it. not provide her a habitation; when he treats her habitually in a
cruel manner; when he is in the habit of beating her or
threatening her with bodily injuries; when he forces her to beg;
when he allows her to suffer from starvation or want; when he
has several wives and does not treat them all equitably.
A decree of faskh on the ground of unusual cruelty may be
granted by the court upon petition of the wife if the husband:

(a) Habitually assaults her or makes her life miserable by cruel

conduct even if this does not result in physical injury; A talaq or faskh, as soon as it becomes irrevocable, shall have the
following effects:
(b) Associates with persons of ill-repute or leads an infamous life
or attempts to force the wife to live an immoral life; (a) The marriage bond shall be severed and the spouses may
contract another marriage in accordance with this Code;
(c) Compels her to dispose of her exclusive property or prevents
her from exercising her legal rights over it; (b) The spouses shall lose their mutual rights of inheritance;

(d) Obstructs her in the observance of her religious practices; or (c) The custody of children shall be determined in accordance
with Article 78 of this code;
(e) Does not treat her justly and equitably as enjoined by Islamic
law. (d) The wife shall be entitled to recover from the husband her
whole dower in case the talaq has been affected after the
Faskh on the Ground of Associating with persons of Ill-repute or consummation of the marriage, or one-half thereof if effected
Leading an Infamous Life before its consummation;

The wife has the right to apply for and obtain divorce when the (e) The husband shall not be discharged from his obligation to
husband leads an infamous life, or associate with woman of give support in accordance with Article 67; and
ill-repute, or attempts to force her to lead an immoral life and to
take up her abode with prostitutes, or introduces a concubine to (f) The conjugal partnership, if stipulated in the marriage
the conjugal domicile. settlements, shall be dissolved and liquidated.

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Effects of Divorce on Marriage Bond ○ Food
Once divorce becomes irrevocable by the lapse of the idda without ○ Clothing
any reconciliation, the matrimonial bond is severed, and what was ○ Service (if necessary)
made lawful to them by marriage, becomes unlawful
(cohabitation, copulation), and they are restored to their former Effect of Divorce upon the Conjugal Partnership
status before marriage. Woman may resume the use of her Upon the dissolution of the marriage by divorce or death of the
maiden name without need of a judicial order. husband, conjugal partnership if stipulated in the marriage
settlements, shall be dissolved and liquidated.
Effect of Divorce on Mutual Right to Inheritance
Husband shall have mutual rights of inheritance with her while she Rules on the matter is provided in the Civil Code as amended by
is observing idda. After expiration of idda, no mutual right of EO 227 of 1987, shall be observed in the liquidation of the conjugal
succession between them. partnership:

Husband, while in a condition of death-illness divorces his wife ARTICLE 129. Upon the dissolution of the conjugal partnership
shall not inherit from her, but she shall have the right to succeed regime, the following procedure shall apply:
him even after the expiration of idda. Reasons:
(1) An inventory shall be prepared, listing separately all the
1. Restriction upon the legal capacity of a person who is properties of the conjugal partnership and the exclusive properties
under the condition of death illness. of each spouse.

Once the husband recovers, mutual right of inheritance (2) Amounts advanced by the conjugal partnership in payment of
shall be governed by the preceding rule: if he recovers personal debts and obligations of either spouse shall be credited
during the period of idda, mutual right of inheritance will to the conjugal partnership as an asset thereof.
be resumed.
(3) Each spouse shall be reimbursed for the use of his or her
2. It is considered as talaq al-far or a divorce by a person exclusive funds in the acquisition of property or for the value of his
who wants to escape his due responsibility to his or her exclusive property, the ownership of which has been vested
divorced wife, a circumvention by the husband of God’s by law in the conjugal partnership.
bidding concerning the wife’s right to inheritance.
(4) The debts and obligations of the conjugal partnership shall be
Effect Upon the Right of Custody on the Children paid out of the conjugal assets. In case of insufficiency of said
Minor children ought to remain in the custody of the divorced assets, the spouses shall be solidarily liable for the unpaid balance
mother unless she is otherwise unfit. Divorce as such does not with their separate properties, in accordance with the provisions of
disqualify her or affect her right to custody. paragraph (2) of Article 121.

Father’s responsibilities: (5) Whatever remains of the exclusive properties of the spouses
● Bear the cost and equitably compensate the mother shall thereafter be delivered to each of them.
● Housing, clothing, food
(6) Unless the owner had been indemnified from whatever source,
Effect of Divorce on the Unlaid Dower of the Wife the loss or deterioration of movables used for the benefit of the
● Obligation of the man to pay the whole dower to the wife family, belonging to either spouse, even due to fortuitous event,
does not depend on the solemnization of the marriage shall be paid to said spouse from the conjugal funds, if any.
alone, but on whether the marriage is consummated by
the cohabitation of the spouses (7) The net remainder of the conjugal partnership properties shall
● If the marriage is consummated = whole dower becomes constitute the profits, which shall be divided equally between
due and demandable husband and wife, unless a different proportion or division was
● If divorce is pronounced before cohabitation, ½ thereof agreed upon in the marriage settlements or unless there has been
becomes due from the husband a voluntary waiver or forfeiture of such share as provided in this
● If the dower has not been fixed on the basis of the proper Code.
dower, half thereof in accordance to Art. 20 PD1083
(8) The presumptive legitimes of the common children shall be
If there has been valid retirement, the entire dower becomes delivered upon the partition in accordance with Article 51.
incumbent.
(9) In the partition of the properties, the conjugal dwelling and the
Effect of Divorce Upon the Husband's Obligation to Give Support lot on which it is situated shall, unless otherwise agreed upon by
● Right to support shall be extended up to the expiration of the parties, be adjudicated to the spouse with whom the majority
the idda. of the common children choose to remain. Children below the age
● If the wife is pregnant at the time of the separation, she of seven years are deemed to have chosen the mother, unless the
shall be entitled to support until delivery. court has decided otherwise. In case there is no such majority, the
● Divorced nursing mother who continues to breastfeed court shall decide, taking into consideration the best interests of
her child for 2 years shall be entitled to support until the said children. (181a, 182a, 183a, 184a, 185a)
time of weaning
● Along with this right, man is fully responsible for:

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ARTICLE 130. Upon the termination of the marriage by death, the
conjugal partnership property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased.
(1) Every wife shall be obliged to observe ‘idda as follows:
If no judicial settlement proceeding is instituted, the surviving
spouse shall liquidate the conjugal partnership property either (a) In case of dissolution of marriage by death, four months and
judicially or extra-judicially within six months from the death of the ten days counted from the death of her husband;
deceased spouse. If upon the lapse of the six-month period no
liquidation is made, any disposition or encumbrance involving the (b) In case of termination of marriage by divorce, for three
conjugal partnership property of the terminated marriage shall be monthly courses; or
void.
(c) In case of a pregnant woman, for a period extending until her
Should the surviving spouse contract a subsequent marriage delivery.
without compliance with the foregoing requirements, a mandatory
regime of complete separation of property shall govern the (2) Should the husband die while the wife is observing ‘idda for
property relations of the subsequent marriage. (n) divorce, another ‘idda for death shall be observed in accordance
with paragraph 1(a).
ARTICLE 131. Whenever the liquidation of the conjugal
partnership properties of two or more marriages contracted by the Meaning of ‘idda
same person before the effectivity of this Code is carried out “Idda” - derived from the Arabic word al-adad, meaning the
simultaneously, the respective capital, fruits and income of each number. Literally means counting. In law, it means the time during
partnership shall be determined upon such proof as may be which the wife must wait after the cessation of the marriage
considered according to the rules of evidence. In case of doubt as before she can marry again.
to which partnership the existing properties belong, the same shall
be divided between the different partnerships in proportion to the Also defined as:
capital and duration of each. (189a) ● the term of probation incumbent upon a woman in
consequence of the dissolution of the marriage after
carnal connection, or
● That fixed period which is incumbent upon a divorced or
or widowed wife to pass before contracting another
The provisions of the article immediately preceding shall apply to marriage, provided that the husband had cohabited or
the dissolution, of marriage by ila, zihar, li’an and khul’, subject to had valid retirement with the wife
the effects of compliance with the requirements of the Islamic
law relative to such divorces. Purposes of ‘Idda
● Incumbent on the wife when there has been
Effects of Other Kinds of Divorce consummation or valid retirement because if it is
Divorce by means of: indubitable that the marriage has never been
● Ila (vow of continence) consummated, then no idda is required.
● Zihar (injurious assimilation) ● To provide a period of probation during which the
● Li’an (acts of imprecation) husband has the right to revoke the divorce he has
● Khul (redemption by the wife) pronounced, and reconcile with the wife;
● Or allowing it to lapse without recourse to the wife, in
Once the conditions for effecting such divorces are complied with, which case it is intended to demonstrate the resolve on
and the period of probation have lapsed, the effects of irrevocable the part of the husband to separate from the wife, that it
talaq of faskh shall apply. is not a passing whim, but is the result of a settled
demonstration;
Divorce by Khul - the wife instead of asking, offers to return or ● Ends after the completion of 3 months or 90 days or the
renounce her dower, even in case of marriage being stoppage or cessation of 3 monthly courses or after
consummated, or that there has been a valid retirement; no dower delivery
is due in divorce by khul ● Reconsideration in the interest of the family and children,
if any
● To require the husband to provide maintenance to the
wife during the period of idda, and even thereafter, if the
wife is pregnant until she delivers the child, until after the
period of weaning so as not to prejudice the condition of
the wife as a consequence of the divorce by giving her a
period to adjust herself to her present situation
‘Idda is the period of waiting prescribed for a woman whose
● Ultimate objective of ascertaining the paternity of the
marriage has been dissolved by death or by divorce the
child
completion of which shall enable her to contract a new marriage.
● To provide a period of morning by the wife for her
deceased husband
● Allows one a gradual release from the marital bond

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Man has 4 wives and repudiates one of them: unlawful for him to identity of the child can be secured. This is called in Sharia as
marry other women during the term of the idda as the marriage 'idda al haml.
before the term of the idda expires does not in fact still subsist
(irregular marriage) Idda of a wife of a missing husband
Whereabouts are not known; no news of being alive or dead.
Commencement of the Period of ‘idda
Wife who is divorced after cohabitation or valid retirement in a Instances when Idda is not required
valid or irregular marriage, or upon the husband’s death - 1. Indubitable that the marriage has not been consummated when
commenced from the time the divorce is pronounced, or the divorce was effected (Art 29 par 3)
separation is effected, or the husband dies 2. Marriage is void ab initio
3. Woman is pregnant by zina (fornication)
Woman has no knowledge of her divorce/husband’s death, and 4. Husband’s male organ is mutilated that copulation is physically
period of idda passes away - idda is considered completed impossible

Husband effects divorce but retracts, and wife institutes a suit in

court, and reads evidence, and the courts hold that the husband
has effected the divorce: idda shall be considered to have started
from the time the divorce was effected, NOT from the time of the
order passed.
Legitimacy of filiation is established by evidence of valid
Period of idda passes away during court proceedings: idda
marriage between the father and the mother at the time of the
completed
conception of the child.
Places where wife observes idda
Establishment of Parentage
Husband’s home; not permissible to expel her
Parentage - relationship of the children to their parents because of
their birth
Periods of Idda
1. Three Monthly Courses
Parentage is established on the basis of matrimonial alliance
For a menstruating woman, the 'idda is three monthly courses
between the husband and the wife, though the matrimonial
('Idda al aqra) pursuant to the Quranic injunction: "Divorced
alliance may have been created either by a valid marriage contract
women shall wait concerning themselves for three months." This
or irregular marriage contract.
is referred to as 'idda al-agra, wherein the wife is required to
observe an idda of three monthly courses;
Paternity - status of the father’s relation to the child; established by
a subsisting firash that is legally constituted relation between the
2. Three Months (90 days)
mother and the father of the child, or by the word of the father
For non-menstruating women, i.e., due to her tender age, disease,
acknowledging the child is his
or some other causes, the 'idda is three months idda al-ash-hur
pursuant to the Quranic injunction: "Such of your women as have
Filiation - status of the child’s relation to the father
passed the age of monthly courses for them the prescribed period,
if ye have any doubt, is three months and for those who have no
Maternity - status of the mother’s relation to the child, established
courses (it is the the same). This kind of idda is called idda al
by the fact of the mother giving birth to the child
ash-hur, wherein the woman is required to observe an idda of three
months instead of three menstrual courses because of the
Two Ways of Establishing Parentage:
irregularity of her menses or that she is not at all menstruating; 3
1. By birth during a regular and valid or irregular but not void
months to be counted by days (90 days)
marriage
2. By acknowledgment of the father of the child which confers
3. Four Months and Ten Days
legitimacy upon the latter
For widowed women, the period of her idda is for four months and
ten days counted from the death of her husband; (Tada alarmalah)
the Holy Quran also provides: If any of you die and leave widows
behind, they shall wait concerning themselves for four months and
ten days, should the husband die while the Wife is observing 'idda (1) Children conceived in lawful wedlock shall be presumed to be
for divorce, another idda for death shall be observed in legitimate. Whoever claims illegitimacy of or impugns such
accordance with paragraph (a) of Article 57 of the Code,” which filiation must prove his allegation.
means that the wife will have to observe an idda of a widow
consisting of four months and ten days commencing from the (2) Children born after six months following the consummation of
date of the husband's death; the waiting period owing to the death marriage or with two years after the dissolution of the marriage
of the husband is obligated even for woman with whom shall be presumed to be legitimate. Against this presumption no
consummation has not taken place. evidence shall be admitted other than that of the physical
impossibility of access between the parents at or about the time
4. Period extending until delivery or abortion of the child of the conception of the child.
For pregnant women for a period extending until her delivery
(iada al haml); or abortion of the child. So that the legitimacy and

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 during the former marriage or a legitimate child of the
former marriage;
6. A child born after (6) months following the dissolution
Should the marriage be dissolved and the wife contracts another of a prior marriage and during the subsequent marriage
marriage after the expiration of her ‘IDDA, the child born within of the mother shall be presumed to have been conceived
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
Presumption of Legitimacy Shortest period of pregnancy recognized under the Muslim law is
A child conceived in lawful wedlock is presumed legitimate. (6) months. The suckling period for the child is 24 months, and the
rest of 6 months are indicated as the shortest period of
Period of conception - first 120 days of 300 days preceding the pregnancy.
birth of the child.

Islamic law leans favorably towards holding children to be of Longest Period of Pregnancy
legitimate parentage. Difference of opinion among the Imams on the question as to
what is the longest period of pregnancy.
Irregular marriage contracts and cohabitation in doubt are
considered good grounds for proof of parentage: Same Periods of Gestation; Minimum Period of Gestation
Fully developed child cannot be born before (6) months. Child shall
1. Man has married a fifth wife in the presence of the four is be considered legitimate if it is born at or beyond (6) months of a
treated as fasid (irregular) or batil (void) marriage. It can be rendered legitimate under the doctrine of
2. The marriage of a Muslim and non-Muslim woman who acknowledgement.
is not the lawful wife of another is merely fasid
3. When the marriage of the parents is void but if parties Commencement of Time
believe in good faith that there is no impediment to their The period of (6) months shall be counted from the date of a valid
marriage. If at the later stage, it is found that there is an marriage. Minimum period of gestation has been considered to be
impediment, children born of such marriage are 174 days.
legitimate
Parentage of Child of Artificial Insemination
Periods of Presumption of Legitimacy Muslim legists regard artificial insemination as haram (forbidden).
1. A child born within (6) months of the marriage is
illegitimate; unless the mother’s husband acknowledges If a person has artificial insemination performed despite its
the child as his. impermissibility, the child born shall not be attributable to the man
● If the mother had a previous marriage, and whose sperm was inseminated, because he has not had sexual
immediately after dissolution, she contracted a intercourse. But the child shall be attributed to its mother because
subsequent marriage, child shall be presumed of the it is her actual offspring and her legal child. A child shall not be
previous marriage. attributed to the person whose sperm it was conceived even if he
2. A child born after (6) months) of the marriage is be the husband.
presumed legitimate, unless proven otherwise.
3. A child born within (2) years following the dissolution of Essential Conditions to Determine Child’s Legitimacy
the marriage is presumed legitimate, unless proven that StatCon-NP
there was impossibility of access between the mother 1. Status of parents of the child
and the alleged father: 2. Conduct of the alleged father
● at or about the time of the conception of the 3. Nature of Marriage
child such as when it is proved that the husband 4. Period of Gestation
is impotent
● that the spouse were living separately and Status of Parents
access was not possible If it was at all possible that it could have been conceived during
● the husband was suffering from serious illness the existence of a valid marriage of the child’s mother with the
that rendered sexual intercourse between them person alleged to be its father
impossible
4. A child born after (2) years following the dissolution of Essential condition of legitimacy under the Muslim Law:
the marriage, the paternity does NOT get established That the child must have been conceived in wedlock or in other
from the woman’s husband of the dissolved marriage in words, the person who is responsible for its conception should be
case the dissolution is occasioned by the husband’s the lawful husband of the child’s mother.
death; and in the same manner when it is by reason of
divorce, except in the latter case when the husband Conduct of the Alleged Father
acknowledges the child as his. Whether he has admitted expressly or impliedly that the child is
5. A child born within (6) months following dissolution of a his.
prior marriage and during the subsequent marriage of
the mother shall be presumed to have been conceived

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Failure to deny his parentage of the child when it is legally open to 2. Dissolved by revocable divorce - it is open to a husband to be
him to discuss it constitutes an implied admission that the child intimate with the wife within the period of idda, so a child born
belongs to him. within (9) months of the divorce can be presumed to be legitimate

It is open to a person to disown a child at the time of its birth or 3. Child born within (2) years and (3) months of revocable
within the time a father usually and customarily receive divorce - presumed to be the legitimate child of the husband (Abu
felicitations: (40) days - Abu Yusuf Muhammad, (7) days - Abu Hanifah); subject to the condition that there is no apparent
Hanifah, (3) days to (1) week - Radd Al-Muhtar impediment to the legitimacy of the child

Nature of Marriage 4. Irrevocable divorce - period of idda cannot be taken into

The child must be a result of a lawful marriage, it must be consideration, as intimacy is not allowed. Maximum period shall
conceived in wedlock. be (2) years

Presumption of legitimacy of a child born to a man and a woman 5. Marriage has not been consummated and husband divorced
lawfully married. his wife who has never attained puberty but can admit carnal
connection - child born of the wife shall be considered legitimate
Period of Gestation if born within (6) months of the divorce
Muslim jurists have given the periods of time both minimum and
maximum during which a fully developed child can be born. Aim is Gestation Period of Child of Illicit Intercourse
to save the child from the stigma of illegitimacy. If child is born less than 6 months, descent is not established,
unless he claims it and does not say that the child is the result of
Some Cases on the Period of Gestation in Case of Divorced illicit intercourse.
1. In case of divorce by qadi or decree of court
The annulment or dissolution of marriage by the qadi amounts to If mother says that the child is born of her illicit intercourse, the
an irrevocable divorce. A child shall be considered to be legitimate descent is not established and will not inherit from him.
issue of the former husband, only if it is born within (2) years of
the order of the qadi, If a man marries a woman within the prohibited degree, and a
child is born to her, child is considered lawful issue of that person.
Commencement of time - period of (2) or (4) years as the case
may be counted from the time of the marriage Marriage of Muslim with a non-Muslim who is not the lawful wife
of another - children are legitimate
2. In the case of revocable divorce
Lawful for the husband to be intimate with his divorced wife during
the period of the idda (3 monthly courses), and so the maximum
period of gestation (2 years) is increased by that period, on the
If, after the dissolution of marriage, the wife believes that she is
ground that the husband might have been intimate with the wife
pregnant by her former husband, she shall, within thirty days from
during idda.
the time she became aware of her pregnancy, notify the former
husband or his heirs of that fact. The husband or his heirs may
Rule is subject to the condition that the wife should not have
ask the court to take measures to prevent a simulation of birth.
stated or admitted that her period of idda has passed.
Duty of the Wife Who Believes Herself Pregnant Once Marriage
A child born within (2) years of the dissolution of the idda of (3)
is Dissolved
monthly courses shall be deemed to be lawful issue of that person
It is her duty to inform her former husband, or his heirs about the
and it shall be presumed that he must have cohabited with her
fact of her pregnancy, to prevent simulation of birth.
during the period of idda.
The husband or his heirs may ask the proper Shari’a Court for
3. Gestation period in the case of irrevocable divorce
such measures to prevent the possibility of such simulation of
If child is born within (2) years of the dissolution of a marriage, it
birth
shall be presumed to be the legitimate child of the man who
divorced the child’s mother.
Husband has the right to deny or accept the child as his. If he
accepts child, child shall enjoy the rights of a legitimate child.
If child is born beyond (2) years, it shall not be presumed a
legitimate child of its mother’s husband.
Conduct of the Alleged Father
Failure on the part of the alleged father not to deny his parentage,
Longest period of gestation is (2) years of the dissolution of
constitutes implied admission that the child belongs to him
marriage - clear that it could not have been conceived during the
subsistence of the marriage (it is not possible for the husband to
approach his wife after the pronouncement of the irrevocable
divorce)

Child born after Divorce: A legitimate child shall have the right:
1. Within (6) months of the dissolution of marriage - no doubt of
its legitimacy

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(a) To bear the surnames of the father and of the mother; the acknowledged one, could have been legally married to the
acknowledger.
(b) To receive support from the father or, in his default, from his
heirs in accordance with Articles 65 and 68; and Acknowledgment - process recognized under the Muslim law in
which in those cases where the paternity of a child is unknown
(c) To share in the legitimate (furud) and other successional and not being a child of illicit relation, acknowledgement by father
rights which this Code recognizes in his favor. establishes his paternity and child’s legitimacy

Child’s Right to Use of Parents’ Surnames Process is necessary when existence of a valid marriage cannot
Child in Islam has an inalienable right to legitimacy. It adopts “the be proven.
principle of legitimacy” - holds that every child has a father and
one father only Acknowledgment is not an act of legitimation.

Under Rule 7, A.O. No. 1, series of 2005 of the NSO OCRG: Legitimacy - status which results from certain facts.
The first name of the father or the surname of either the father
or the mother may be used as the child’s last name subject to Legitimation - proceeding which creates a status which did not
Islamic or Muslim Law or Ada (Customary Laws). exist before. There is no legitimation under the Muhammadan law.

Customary Practice among Muslims: Acknowledgment is a declaration of legitimacy, and not

Name of the father as surname and from the father to the legitimation.
grandfather within the direct paternal line.
Nature of Acknowledgment (Igrar)
Child is allowed to use the surname of the father and of the Doctrine of acknowledgment is not a rule of evidence, but is a rule
mother. Since the use of surname is a person’s right, either of the of substantive Muslim Law. Condition under which it will take
(2) ways can be adopted since there is no restriction on this right effect must be determined in reference to Muslim law.
other than the requirement of good faith.
When Acknowledgment May be Made
Child’s Right to Inheritance 1. When there is no direct proof of alleged marriage between a
Children born to the spouses are their legal heroes and in the person and the mother of the child
event of the death of either of them, their children are entitled to
inherit from the property left by them. 2. When the legitimacy of the child is unknown

They are among the compulsory heirs who are never excluded 3. When the parentage of the child is not definitely known
from the inheritance of their parents unless disinherited for cause
provided by law. Modes of Acknowledgment
Expressly or by Implication. It must be a statement or conduct
intended to have a legal effect; a mere casual admission is not
enough.

Acknowledgment (igra) of a child by the father shall establish Express acknowledgement

paternity and confer upon each the right to inherit from the other When a man says “This is my child.”
exclusively in accordance with Article 94, provided the following
conditions are complied with: Implied acknowledgement:
When a man remains silent when he is being congratulated upon
(a) The acknowledgment is manifested by the father’s acceptance the birth of a child.
in public that he is the father of the child who does not impugn it;
and It is not necessary that the acknowledgment of paternity be
specifically made:
(b) The relations does not appear impossible by reason of ● If a person habitually and openly treats a child as his
disparity in age. legitimate issue his legitimacy may from this fact be
presumed.
Meaning of Acknowledgment ● Continuous and consistent course of treatment of a child
Igrar - to confirm or establish; it is given the meaning of as a legitimate child amounts to implied
acknowledgment. It is derived from the word of “qarar” which acknowledgment.
means confirmation. ● Facts that a child was brought up by a person and
treated by him as his son, are sufficient to give rise to a
As if the acknowledger established by acknowledgment a right presumption that it is the legitimate child of that person
against himself. It is based upon the Quran which says “call them
by their father” Requisites of Acknowledgment
1. Paternity of the child is unknown
Igrar - as a term in law, is a juridical act whereby a man 2. It must clearly indicate the child acknowledged
acknowledges another of unknown paternity as his child with a 3. Parties must be of such as would admit of the possibility
woman who at or about the time of the conception by the latter of of their standing in the relation of father and child to each

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 other; adopter and the adopted must respectively of such Consent of the acknowledged person
ages as would admit the possibility of their standing in If the person being acknowledged is of age, it is necessary to
the relation of parent and child to each other obtain his consent, either by express or implied acceptances.
4. Legal marriage must be possible between the parents of
the acknowledged child; Effect of Acknowledgment
5. acknowledged child must not be the offspring of zina An acknowledgment raises a presumption of the legitimacy of a
(illicit intercourse) child; such acknowledgement establishes parentage of the child,
6. Acknowledged child must not be known to be the child of and renders him/her a legitimate child and heir.
another
7. Act of acknowledgement is purposely intended to Acknowledgment also amounts to prima facie proof that the
establish parentage so as to confer legitimacy mother of the child is the wife of that man.
8. Acknowledgement is not impugned later by the
acknowledger or by the person being acknowledged A child or a wife becomes one of the acknowledger’s heirs to the
9. THe one being acknowledged is of age, gives his consent same extent as one of his other heirs.
expressly or impliedly to the acknowledgment
10. Acknowledger is possessed of legal capacity Acknowledgment of a Child by the Mother
A married, widowed, or divorced woman may not by herself alone
Unknown Paternity acknowledge a child as her legitimate child, and that of her
The paternity of the person being acknowledged is not known, or if husband WITHOUT the latter’s consent.
at or about the time of the conception of that person by the
mother, the existence of valid marriage between the parents is not Divorced: except upon proof that the husband has given his
proved or disproved. consent

Acknowledgment is in Consonance with the Parties’ Ages Deceased husband: proof that husband has given his consent
Person acknowledging and the one being acknowledged must be during his lifetime
respectively of such ages as would admit the possibility of the
relation of father and son Woman not known to be married alone by herself: may
acknowledge a child as hers.
Man cannot establish the relationship of father and son unless he
be at least 12 years and 6 months older than the one whom he Irrevocability of Acknowledgment
intends to acknowledge. Status of sonship cannot be destroyed by any subsequent act of
the acknowledger or those who claim through him.
When the acknowledger is a woman, she must be 9 years and a
half older than the person being acknowledged Descent when once established cannot be dissolved or cancelled
neither can it be transferred from one person to another.
Parents Could Have Been Married
Acknowledger and mother of the acknowledged could have been
legally married without any legal impediment at or about the time
when the acknowledged was being conceived by the mother, but
there is no direct proof of the fact of marriage. No adoption in any form shall confer upon any person the status
and rights of a legitimate child under Muslim law, except that said
Acknowledged person not child of illicit relations person may receive a gift (hiba).
Child of zina illicit intercourse: such as one born out of incentuous
or adulterous relationship or from the fornication of the parents. Concept of Adoption
An act whereby a person takes the child of another as his own
Acknowledged child not child of another creating by operation of law a relationship that exists in a
Must not be well-known to be the child of another; legitimate paternity and filiation.
acknowledgment can be effective only when the descent of the
child is unknown for an acknowledgment serve as a proof of Muslim law does not recognize adoption, because adoption does
parentage when there is some doubt about it. not change the lineage of the child which remains with the real
parents.
Purpose of Acknowledgment is to Confer Legitimacy
Acknowledgment must not merely be of sonship, but must be Adoption can never be the basis of paternity and filiation in like
made in such a way that it shows that the acknowledgment meant manner as that existing between persons naturally related.
not only to accept the other as his son, but as his legitimate son.
No adoption under Muslim law
Acknowledgment must be definite, clear, and reliable. Custom among ancient Arabs to regard their adopted sons as
being nearly related to them as their natural sons. This custom
Not impugned by the acknowledged one was abolished by the Prophet Muhammad.
Acknowledged child should not repudiate the acknowledgment
provided he is of an age and can understand the significance of
acknowledgement.

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 status of the wife will not be considered; this is
regarding food and clothing.
○ But as regards housing, it should be according
Support (nafaqa) includes everything that is indispensable for her status.
sustenance, dwelling, clothing and medical attendance according ● The Hanafi's have two views:
to the social standing of the person obliged to give it, and the ○ According to the first the status of both will be
education of the person entitled to the support until he completes considered, and
his education, training, or vocation even beyond the age of ○ According to the second, the status of the
majority. husband.
● But whatever the case is, it is that the financial condition
Basis of Amount of Support of the husband be taken into consideration as expressly
Amount of support that the obligor is obliged to give is based on stated in the Quran.
(2) factors:

1. Means of the obligor

2. Necessities of the recipient, in every case according to
the social standing of the person obliged to give it. (1) The wife shall be entitled to support during the marriage. In
cases of divorce, (talaq), her right shall be extended up to the
Amount depends on the needs of the party entitled as well as on expiration of the ‘idda. However, in case the wife is pregnant at
the capacity of the person bound to give support, since the right to the time of the separation, she shall be entitled to support until
live is common to both parties. delivery.

Obligor should not be made to comply with the obligation to give (2) Any divorced nursing mother who continues to breastfeed her
support, to the extent of depriving himself of the same. child for two years shall be entitled to support until the time of
weaning.
What Support (Nafaqa) includes
As a mandate of the Shari’a includes not only those basic Duration of Support.
necessities for maintenance in life, but also those which are ● The husband's obligation to support the wife
needed to keep the person to live according to the social standing ○ commences from the moment that the wife
of the family. surrenders herself to her husband as an
incident of a valid marriage contract and
The court may exempt the wife from living with the husband if the ○ continues while the marriage between them
conjugal dwelling is not in keeping with her social standing. subsists, and
○ is extinguished upon the dissolution of the
Husband is responsible for the maintenance of his wife even if she marriage by the death of either of them or by
is capable of self-support. divorce.
● But in case of divorce, he shall continue to support her till
Islamic law obliges the husband to fulfill all the necessities of his after her period of probation is over, and
wife as long as she remains his wedded wife. ● If she is pregnant till after her delivery, and if she
breastfeeds the child, until after the period of weaning
which is fixed at two years.
● A widow has no right to maintenance, whether she be
pregnant or not; because the restraint to which she is
The amount of support shall be in proportion to the resources of liable is for the sake of the law and not for her husband,
the giver and to the needs of the recipient. ● The idda of widowhood being a religious observance, for
which reason it is that it is reckoned by months, and not
Determination of Maintenance. by courses, as it would be if the object were merely to
● The schools concur that a wife's maintenance is wajib ascertain whether she is pregnant or not.
(obligatory) in all its three forms: Food, clothing, and
housing. Support to Divorced Wife Breastfeed Her Child.
● They also concur that maintenance will be determined in ● A divorced woman who is breastfeeding her child less
accordance with the financial status of the two if both than two is entitled to support from her former husband
are of equal status. and the child's father until after the period of weaning
● The financial status of the wife is meant the financial which is fixed by law at two years
status of her family and its standard of living. ● But, once the period of weaning is over, her right to
● But when one of them is well-off and the other indigent, receive support shall likewise cease.
the schools differ. ● The child shall likewise be entitled to receive support,
● The Maliki and the Hanbali schools state: exclusive the support due to the mother.
○ If the couple differ in financial status, a median ● But if she is not breastfeeding their child, the law does
course will be followed. not entitle her to receive support from her husband after
● The Shafi'i schools observes: her iddah is over since a child is not dependent on her for
○ Maintenance will be determined in accordance its sustenance.
with the civil status of the husband; and the

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 ● This support of the mother is exclusive of the support 6. When she is guilty of infidelity i.e., adultery, acts
due to the child, who is entitled to receive support of lewdness;
likewise from the father. 7. If despite her husband's valid objection she
engages herself in some employment and thus
Right of a Divorced Wife to Maintenance. keeps herself out for purposes of earning and
● All the major schools of Muslim law concur that the employment and thus he loses control over her.
divorced wife is entitled to support during the idda of a
revocable divorce. ● But the husband is responsible to pay maintenance to his
● However, a widow is not entitled to support during the wife for the periods for which she lives with her parents
period of the idda following her husband's death whether with the permission of the husband.
she is pregnant or not.
● Except that the Shafi'i and Malaki schools state: If the Support of Children.
husband dies, she is entitled to maintenance only to the Under the mandate of the Shari'a, the father is unconditionally
extent of housing. obliged to provide maintenance to his children
● The Shafi'is have said: If she separates from him while ● in the case of his sons until they attain the age of
she is pregnant and then the husband dies, her majority and,
maintenance shall not cease while she is pregnant till ● in the case of daughters till they get married.
after she shall have delivered."
He cannot exempt himself from the obligation to support his
When Wife Entitled to Separate Maintenance. children on the ground of his children's disobedience or that they
In Muslim law, generally the husband is duty bound to maintain are under the custody of the mother, except when the children
the wife if the wife lives with him in the same conjugal dwelling. have properties of their own for their self-support in which case
However, in some cases the husband, notwithstanding the wife their properties shall answer for their own maintenance.
living separately from him, is still obliged to provide her separate
maintenance in the following instances: Where due to some physical defector illness a child is incapable of
1. When they have agreed during their marriage that she will self-support, or when the continuance of support is needed by the
be entitled to receive alimony in the house of her parents child in order to finish a course training or vocation, the father shall
or elsewhere that she chooses to reside in case the be obliged continue supporting the child even beyond the age of
husband has taken a second wife; majority.
2. When the court exempts her from living with her husband
due to the husband's non-payment of her prompt dower, Concerning illegitimate children, the responsibility of supporting
or them is not incumbent upon him. Under the Hanafi law, the mother
3. When the conjugal dwelling is not in keeping with her is bound to support her natural son or daughter
social standing or is for any reason not safe for the
members of the family or her property
4. When she leaves the husband's house on account of his
cruelty, or he turned her out of the conjugal dwelling, or
that the misunderstanding between them is such that it The ascendants and descendants shall be obliged to support
is irremediable and her return to the husband's house is each other in the order in which they are called to succeed by
likely to give rise to fresh trouble and disputes. intestacy the person who has a right to claim support.

When Husband Not obliged to Give Maintenance to Wife Support Between Ascendant and Descendants.
● The obligation of the husband to provide maintenance to Ancestors and descendants should maintain each other mutually
the Wife during the marriage is not absolute and it hinges without distinction of sex or religion, on the sole condition that the
upon the condition that the wife lives with him in the individual against whom the claim is brought himself possesses
same dwelling place and affords him the right of more than is necessary for the maintenance of himself and his
consortium. household.
● His obligation, therefore, to provide maintenance to his
wife during the marriage may be excused if the wife Unlike the obligation to provide maintenance to the wife or children
without any valid reason or just cause commits any of which a man has to provide regardless of his means, the
the following: obligation to provide maintenance to other relations is subject to
1. When she refuses to live with him in the same the condition that his means is more than what he himself needs
dwelling place; for the maintenance of himself and his immediate household.
2. When she leaves their conjugal dwelling to live
elsewhere The Shafi'i makes it obligatory on the part of the children who have
3. When she denies the husband entry to the the means to provide support to their needy parents and
house to live with her, grandparents.
4. When their marriage which is proved to be
irregular is not consummated except in case of Ascendants and Descendants Are Obliged to Render Mutual
marriage without witnesses; Support.
5. When she turns apostate (a person who The Code under the present article provides that the ascendants
renounces a religious or political belief or and descendants shall be obliged to support each other in the
principle) order in which they are called to succeed by intestacy the person

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who has the right to claim support. For example, in the direct line, The following are necessary for making the maintenance of one's
the parents can claim support first from the children before the relative wajib (obligatory) upon another:
grandchildren. relative
1. The person to be maintained must be in need of
The Order Of Relative On Whom Maintenance is Wajib 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
● If there is only one person responsible for maintenance ascendants and descendants, but not as regards the
he will pay it; spouse and legitimate descendants financial capacity is
● If two or more belonging to the same category and not a condition, the only condition being the presence of
capacity are responsible, such as two sons or two the actual ability to maintain or the presence of the ability
daughters. they will share equally in providing to earn.
maintenance, even if they differ in wealth after their
financial capacity has been proved.
● But, where they are of different categories of relationship
or of varying capacities, there is confusion in the views of
Hanafi legists in providing the order of those responsible (1) The obligation to support shall be demandable from the time
for maintenance. the recipient needs it for maintenance, but it shall not be paid
except from the date it is extrajudicially demanded.
Support of Collateral Relative
The Code is silent concerning support of collateral relatives. Under (2) Payment shall be made daily, weekly or monthly in advance,
the Civil Code brothers and sisters owe their legitimate and natural and when the recipient dies, his heirs shall not be obliged to
brothers, and sisters, although they are only half-blood, the return what he had received in advance.
necessaries for life, when by a physical or mental defect, or any
other causes not imputable to the recipients, the latter cannot (3) If the recipient is the wife, the rule established in the
secure their subsistence. foregoing paragraph shall apply even though the marriage is
dissolved.
This assistance includes, in a proper case, expenses for
elementary education and for professional or vocational training. Payment of Past Maintenance.
The major schools of Muslim law concur that the past
However, the obligation of brothers and sisters to mutually maintenance of relatives will not be payable if the judge had not
support each other is subsidiary, and exists only when there are no determined it. The spirit of the mutual assistance and fulfillment of
descendants or ascendants who can give support." need being the reason behind it, it cannot be made for past time.

Every relative within the prohibited degree is entitled to Support When Payable.
maintenance provided that, The present article provides: The obligation to give support shall
● if a male, he is either a child (minor) and or, if adult, that be demandable from the time the recipient needs it for
he is infirm or blind and poor, and maintenance." In other words, the person obliged to give support
● if a female, that she is poor whether a child or adult. shall be bound to comply with his obligation to give it to one
entitled to receive the same when the latter needs it for his
The liability of a person to maintain relatives is in proportion to his maintenance, and such circumstance arises when demand is
share in their inheritance, not (of course) his actual share, for no made either extrajudicially or judicially, and only from the date of
one can have any share in the inheritance of another till after his such demand will it be payable.
death, but his capacity to inherit.
And, the payment, in every case, must be made in advance, though
Support of Illegitimate Child. — the spouses may stipulate as regard the manner of payment.
Under the Muslim law maintenance and inheritance go together.
Payment shall be made monthly in advance and when the
In fact, under Article 95 illegitimate children shall have mutual recipient dies, his heirs shall not be obliged to return what he has
rights of inheritance only with the mother and her relatives and received in advance.
there is no right of inheritance between the illegitimate child father,
hence, there is no right of support between them.

This is made clear by the provision Of Article 68 Of the Muslim

The obligation to support shall cease:
Code provides: "The ascendant and descendant shall be obliged to
support each other in the order in which they are called to succeed
(a) Upon the death of the recipient;
by intestacy the person who has a right to claim support."
(b) When the resources of the obligor have been so reduced that
And under Muslim law an illegitimate child has no right of
he cannot give the support without neglecting his own need and
inheritance from his father and the father's relative, but only the
those of his family, except that in the case of the spouses, the
mother and the latter’s relatives.
husband, though needy, is obliged to support the wife; or
Conditions for the wajib (obligatory) of maintenance.

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(c) When the recipient commits any act which would give rise to concept of Patria Potesta which is the absolute authority of the
disqualification to inherit or denial of support under Muslim law. father over his children.

Causes for the Extinguishment of Support In Civil law, it is that parental authority, the authority which the law
1. Death of the Recipient; vests in the father over the persons and property of his legitimate
The right to support is a personal right which can be children.
availed of only by the person who has the right to it, such
that in case of the death of such person, the right is Under the Muslim law, Wilayatu'l-ijbar or patria potesta is not a
extinguished and is not transmissible to another. Thus, peculiarity of Islamic law. Nevertheless, similarly, that parental
where a judgment for support was rendered, under which authority is generally vested in the father is recognized even
the defendant was to pay the mother of a child as among the pre-lslamic Arabs.
support for the latter a certain sum, the death of the child
extinguishes the obligation to support, because the The present article, primarily based from the Civil Code, has
support is not for the benefit of the mother but of the considered the modern view of making the exercise of parental
child authority, the joint right and responsibility of both the father and
the mother for the greater interest of their unemancipated
2. Obligor resources insufficient for himself. legitimate or acknowledged children in enhancing their physical,
This general principle is that providing of maintenance is mental and moral development;
not incumbent upon one who himself is needy. Its
incidence on one is by way of a compassionate liability That notwithstanding, the present article is still in keeping with
but a needy one is himself entitled to others compassion. the Muslim law concept of parental authority being vested
Hence, maintenance cannot be due from him. This generally in the father, because although the mother has the joint
general principle, however, is not applicable in the case of authority to exercise that power with the father, however, in case
maintenance of a wife children despite the husband and of disagreement, the father's decision shall be made to prevail.
the father being poor, is incumbent upon them
Concerning children born out of wedlock, the mother has the
3. Commission of an act of disinheritance. parental authority over them.
Under the Code, the following shall be disqualified to
inherit: Foundlings (Al-Lagit) Abandoned, Neglected or Abused Child.
● Those who have intentionally caused directly or It is the consensus of the jurists that whoever finds an
indirectly the death of the decedent; abandoned child must attend to it immediately.
● Those who have committed any other act which It is a duty, as well as a charitable deed to rescue the foundling;
constitutes a ground for disqualification to failing to do so in the possible way is a heinous sin.
inherit under Islamic law, i.e., apostasy;
● Those who are situated that they cannot inherit Parental authority over foundlings, abandoned, neglected or
under Islamic law i.e. difference of religion. abused child.
Under the Civil Code, a foundling shall be under the parental
Under the Muslim Law, maintenance is not due where there is a authority of the person or institution that has reared the same.
difference of religion, except to a wife, both parents, grandfathers,
grandmothers, a child and the child of a son." A foundling is a newborn child abandoned by the parents who are
unknown. Under the Family Code which has superseded pertinent
provisions of the Civil Code, it expressly provides: “In case of
foundlings, abandoned, neglected or abused children and other
children similarly situated, parental authority shall be entrusted
in summary judicial proceedings to heads of children's homes,
orphanages and similar institutions duly accredited by the proper
governmental agency."' The person exercising substitute parental
authority shall have the same authority over the person of the
child of the parents.
(1) The father and the mother shall jointly exercise just and
reasonable parental authority and fulfill their responsibility over Under the Muslim law foundling (al-Lagit), is a child found by a
their legitimate and acknowledged children. In case of person in a state in which it is incapable of fending for itself. The
disagreement, the father’s decision shall prevail unless there is a act of giving to an abandoned child is purely an act of kindness in
judicial order to the contrary. the spirit of performing good and righteous deeds.

(2) The mother shall exercise parental authority over her children Abandoning a Minor Punishable by law.
born out of wedlock, but the court may, when the best interests of Under the Revised Penal Code (Act 3815 as amended), anyone
the children so require, appoint a general guardian. who shall abandon a child under seven (7) years of age, the
custody of which is incumbent upon him shall be liable as
Concept of Parental Authority. follows:
The present article is primarily based from the Civil law concept of ● Art. 276. Abandoning a minor. — The penalty of arresto
parental authority which is in turn based from the Roman law and a fine not exceeding 500 pesos shall be imposed on

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 anyone who shall abandon a child under seven years of example, imbue them with religious and civic attachment to the
age, the custody of which is incumbent upon him. ideal of permanent world peace.
When the death of the minor shall result from such
abandon. ment, the culprit shall be punished by prision Parents Duty to Their Children.
correccional in its dium and maximum periods; but if the The duty of the parents toward their child begins from the
life of the minor shall have in danger only, the penalty moment of its conception by seeing to it that the child is in the
shall prision correccional in its minimum and medium most suitable and conducive condition that the parents can
periods. afford to provide and once the child is from that time on, it
becomes incumbent upon the parents to develop the child
The provisions contained in the two preceding paragraphs shall physically, mentally, and morally in order to prepare them for the
not prevent the imposition of the penalty provided for the act next stage of his life, when he is emancipated from parental
committed, when the same shall constitute a more serious authority.
offense."'
● Art. 277. Abandonment of minor by person entrusted The Duty to Respect the Rights of the Children.
with his custody; indifference of parents. The Code under Article 73 provides that every parent and every
The penalty of arresto mayor and a fine not exceeding person exercising parental authority shall see to it that the rights
500 pesos shall be imposed upon anyone who, having of the children are respected, and their duties with. In other
charge of the rearing or education of a minor, shall words, they have to see to it that their duty to respect the rights
deliver said minor to a public institution or other of the children under their parental authority is complied. Article
persons, without the consent of the one who entrusted 73 of the Code did not make any distinction between legitimate
such child to his care or in the absence of the latter, or illegitimate children, however, it clearly states that this duty is
without the consent of the proper authorities. incumbent upon any person exercising parental authority over a
child which means that in the case of legitimate children, it is the
● RA No. 7610. — Special Protection of Children Against duty of the father and mother jointly, and in case of children born
Child Abuse, Exploitation and Discrimination. out of wedlock, of the mother alone.

Duty to Imbue upon the Child Religious consciousness.

From the moment that a child is born to a Muslim couple, the
duty to imbue upon the child religious consciousness becomes
(1) Children shall respect, revere, and obey their parents always incumbent upon the parents who immediately after the child's
unless the latter cast them into disbelief. birth has to perform the following religious rites as enjoined
under the Muslim law.
(2) Grandparents are likewise entitled to respect and reverence,
and shall be consulted whenever practicable by all members of
the family on all important questions.

Any minor who shall violate this duty to respect and obey his
parents, guardians or persons having charge of him can be held The parent have, with respect to their unemancipated children:
liable for an offense under Act No. 4002 should such persons
institute the complaint against him; and Article 223 of Executive (a) The duty to support them, have them in their company,
Order No. 209, otherwise called the Family Code of the educate and instruct them in keeping with their means and
Philippines, amending Article 318 of the Civil Code also provides: represent them in all actions which shall redound to their
"The parents or in their absence or incapacity, the individual entity benefits; and
or institution exercising parental authority, may petition the
proper court of the place where the child resides for an order (b) The power to correct, discipline, and punish them moderately.
providing for disciplinary measure over the child. The child shall
be entitled to the assistance of counsel, either of his choice or
appointed by the court, and a summary hearing shall be
conducted wherein the petitioner and the child shall be heard."

However, if in the same proceeding the court finds the petitioner

at fault, irrespective of the merits of the petition, or when the (1) The father, or in his absence the mother, shall be the legal
circumstances so warrant, the court may also order the administrator of the property of the child under parental authority.
deprivation or suspension of parental authority or adopt such If the property is worth more than five thousand pesos, the father
measures as it may deem just and proper. or the mother shall give a bond to be approved by the court

(2) The court may appoint a guardian (wasi) in the absence of one
who is natural or testamentary.

Every parent and every person exercising parental authority shall

see to it that the rights of the children are respected, and their
duties complied with, and shall particularly by precept and

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Parental authority can neither be renounced nor transferred
except as otherwise provided in this Code and the general Kinds of Guardians
principles of Islamic law. There are three kinds of guardians to an infant under the Muslim
law
Parental authority, which is a natural incident of the parent-child (1) The natural guardian
relationship, is a personal right and duty obtained on the parents (2) The testamentary guardian (father wasi)
of the child . (3) And the guardian appointed by the court

The father is the natural guardian of his children. If he dies the

father wasi or testamentary guardian. Otherwise, the court may
appoint one.
(1) Parental authority terminates upon the death of the parents or
the child, or upon emancipation. The mother has a right of custody over her children during the
age of nurture, but she is NOT their guardian. The father is the
Reason: Parental authority is personal in nature, and natural guardian of his minor children. After the father death,
therefore, upon death is not actually transmissible to under Muslim law, guardianship falls on the following persons in
another but vests the right on the person entitled under the following order:
the law to take over the custody of the children.
(1) Father’s executor
(2) Subject to Article 78, the widowed mother who contracts a (2) The paternal grandfather, and
subsequent marriage shall lose parental authority and custody (3) The paternal grandfather’s executor
over all children by the deceased husband, unless the second
husband is related to them within the prohibited degrees of
consanguinity.

Reason: Due to the apprehension that the stepfather (1) The care and custody of children below seven years of age
may not treat his stepchildren justly and reasonably but whose parents are divorced shall belong to the mother or, in her
in a manner prejudicial to the interest and well-being of absence, to the maternal grandmother, the paternal grandmother,
the children. the sister and aunts. In their default, it shall devolve upon the
father and the nearest paternal relatives. The minor above seven
years of age but below the age of puberty may choose the parent
(3) The court may deprive a person of parental authority or with whom he wants to stay.
suspend the exercise thereof if he treats his children with
excessive harshness, gives them corrupting or immoral orders
and counsel, or abandons them. (2) The unmarried daughter who has reached the age of puberty
shall stay with the father; the son, under the same circumstances,
shall stay with the mother.

Hiznat - custody of the child which means upbringing

Custody - the right to have the child under the care of the person
entitled to his custody; involves the rearing or upbringing of the Other relatives entitled to custody of a child below seven years
child. Under Muslim law, the mother has the natural right of old:
custody over her minor children up to a certain age or during the
ages of nature.
In the absence of the mother, under the code, the care and
Guardianship - is the supervision and control of all matters to be custody of the children below seven years of age shall, in the
undertaken concerning the child or his property. Under the order herein provided, be vested in the following:
Muslim law, the right of guardianship is recognized in the father.
1. To the maternal grandmother;
Guardianship may be: 2. The paternal grandmother; and
3. The sister and aunts.
(1) Of the person
(2) Of property In their default, it shall devolve upon the father and the nearest
(3) In Marriage paternal relatives.
Classification of Guardianship
Guardianship may be classified into: According to an authority on Muslim law, the right of custody of
(a) Guardianship over the person of the ward; and the mother over her children below seven years shall also get
(i) Guardianship over his person (jabr) transferred to the other relations under the following
(ii) Guardianship in marriage or wilayat al-ijbar circumstances:
(wali of a woman)
(b) Guardianship over the ward’s property 1. In case the mother is not present’

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 2. When she renounces her right; and 6. She could reside in the place where the chlid may not be
3. When she is legally held disentitled of her son or exposed to any physical or mental risk.
daughter
A minor cannot act as a hizanat except in the case of his own
A mother may be legally disentitled over the custody of minor child; neither can an apostate. If one of them is a non-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. If she returns apostate and will remain disqualified until within the prohibited degrees; so, also immorality, or neglect to
she returns to Islamic faith take proper care of the child. A person is not worthy to be trusted
2. Wickedness such as prostitution who is continually going out and leaving the child hungry." The
3. When she is unworthy as a mother; a woman is ancient doctor would obviously have frowned upon a modern
unworthy as a mother when she continually goes out society mother who goes for bridge (or special service) in the
and leaves the child hungry morning, have lunch with friends and comes home late in the
4. When she marries a stranger evening after a dance at the club.

No male is entitled to the custody of a female minor unless he is

According to Islam (ISlamic Law), the following is the order of related to her by consanguinity within the prohibited degrees; and
preference for guardianship of a minor boy up to seven years of a profligate is disqualified.
age and of a girl up to age of puberty:

1. Mother;
2. Mother's mother, how high so ever;
3. Father's mother h.h.s.; The following persons shall have authority to act as guardian for
4. Full sister; marriage (wali) in the order of precedence:
5. Uterine sister; (a) Father
6. Consanguine sister; (b) Paternal grandfather;
7. Full sister's daughter; (c) Brother and other paternal relatives;
8. Uterine sister's daughter; (d) Paternal grandfather’s executor or nominee; or
9. Consanguine sister's daughter; (e) The court.
10. Maternal aunts;
11. Paternal aunts; Guardianship in Marriage (Wali, Wilayat Al-ljbar).
12. Father; The guardian (wali) in marriage has the power to contract his
13. Father's father, h.h.s.; minor ward in marriage without her consent.
14. Full brother; Qualifications of Guardians in Marriage (Wali). - A
15. Consanguine brother; guardian in marriage (wali) must be:
16. Full brother's son;
17. Consanguine brother's son; 1. A Muslim, one who professes Islam as his religion;
18. Full paternal uncle; 2. Mukallaf, or of legal age, one possessed of legal
19. Consanguine paternal uncle; capacity and not otherwise disqualified;
20. Full paternal uncle's son; or 3. 3. Jukuriya, or a male relative of the bride from the
21. Consanguine paternal uncle's son. paternal side;
4. Adil, a person of integrity, of good moral character, and
Instances when the custody of child may be restored from the honest;
mother’s female relations to the the father: 5. and Of sound mind.

1. The hazina is an old woman with no independent means

to support herself and the minor children except from
the pantry pension of her husband The following persons shall exercise guardianship over the
property of minors in the order of precedence:
Qualifications and Disqualifications of Hizanat (a) Father;
(b) Father’s executor or nominee;
Under the Muslim law, in order that one may be qualified as an (c) Paternal grandfather;
hizanat, the following requisites must be met: (d) Paternal grandfather’s nominee; or
(e) The court.

1. He or she must be a Muslim; Order of Guardianship of Minor's Property.

2. Of major age and sane;
3. Possesses good moral character, honesty, and In Sunnite Law, the following persons are the legal guardians of a
trustworthiness; minors' property in order of preference:
4. Capable of bringing the child properly;
5. Free from any contagious disease; i.e. leprosy, 1. Father;
leucodemia; and

SHARIAH II REVIEWER | MINDANAO STATE UNIVERSITY COLLEGE OF LAW | PAGE 41

 2. Father's executor or nominee; or revocation of divorce and conversion and such other
3. Father's father; or documents presented to him for registration;
4. Father's father's executor or nominee.
(b) Compile said certificates monthly, prepare and send any
In default of the above, a guardian is to be appointed by the court information required of him by the District Registrar;
from the following persons in the order of priority herein:
(c) Register conversions involving Islam;
1. Full brother;
2. Consanguine brother; (d) Issue certified transcripts or copies of any certificate of
3. Full brother's son; document registered upon payment of the required fees;
4. Consanguine brother's son;
5. Full paternal uncle; (e) Send to the District Registrar during the first ten days of
6. Consanguine paternal uncle; or each month a copy of the entries made during the
7. Full paternal uncle’s son previous month;

Termination of Guardianship (f) Administer oaths, free of charge, for civil registry
purposes.
Under the Muslim law, guardianship ceases upon the attainment
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
Any entry in the District or Circuit Register may, upon verified
puberty at the appearance of menstrual bleed or Ihtilam. If these
petition of any interested party, be corrected upon order of the
things do not appear in a boy or a girl, he or she shall be presumed
Shari’a District Court, subject to the provisions of the Rules of
to have attained majority at the completion of the 15th year. It is
Court. Every registrar shall be civilly responsible for any
generally supposed that Ihtilam cannot occur below the age of 12
unauthorized alteration made in the registry to any person
years in the case of a boy and 9 years in the case of a girl.
suffering damage thereby. However, the Registrar may exempt
himself from such liability if he proves that he has taken
reasonable precaution to prevent the unlawful alteration.

Within seven days after the revocation of a divorce by ruju, the

husband shall, with the wife’s written, consent, file a statement
thereof with the Circuit Registrar in whose records that divorce
The Clerk of Court of the Shari’a District Court shall, in addition to was previously entered.
his regular functions, act as District Registrar of Muslim
Marriages, Divorces, Revocations of Divorces, and Conversions Notice of Divorce or Decree of Divorce Constitutes Certificate of
within the territorial jurisdiction of said court. The Clerk of Court Divorce. — The husband who has pronounced a tala shall, without
of the Shari’a Circuit Court shall act as Circuit Registrar of delay, file with Clerk of Court of the Shari’a Circuit Court of the
Muslim Marriages, Divorces, Revocations of Divorces, and place where his family resides or has its domicile, or to the most
Conversions within his jurisdiction. accessible Shari’a Court, a written notice of such fact and
circumstances attendant thereto, after having served a copy
thereof to the wife concerned. The notice file shall be conclusive
evidence that talaq has been pronounced and shall constitute the
Certificate of Divorce. In case divorce is through a court decree,
Every District Registrar shall exercise supervision over Circuit the corresponding decision shall constitute the Certificate of
Registrars in every Shari’a District. He shall, in addition an entry Divorce.
book, keep and bind copies of certificates of marriage, divorce,
revocation of divorce and conversion sent to him by the Circuit
Registrars in separate general registrers. He shall send copies in
accordance with Act No. 3753, as amended, to the office of the
The books making up the registry of marriage, divorce, revocation
Civil Registrar-General.
of divorce, conversion and all other documents and shall be prima
facie evidence of the facts therein contained. However, nothing
herein provided shall effect the intrinsic validity or invalidity of
the acts registered.
Every Circuit Registrar shall:
Legal Effect of Registration of Conversion to Islam on the Person
(a) File every certificate of marriage (which shall specify the Converted. — Registration of a person’s conversion to Islam shall
nature and amount of the dower agreed upon), divorce constitute a prima facie proof that the convert professes the
Islamic faith.

SHARIAH II REVIEWER | MINDANAO STATE UNIVERSITY COLLEGE OF LAW | PAGE 42

 g. Perform such other duties as may be necessary in
In practice, a person who is converted to Islam adopts a Muslim connection with civil registration.
name. Thus, the person practically carries two names, that is the
one written in his or her Certificate of Live Birth and the Muslim
name he or she adopted as a result of his or her conversion. Both
names are written in the Certificate of Conversion to Islam.
All other acts, events or judicial decrees affecting civil status not
The Muslim name entered in the lower portion of the same form is mentioned in Chapter One of this Title shall be recorded in the
not to be considered as the legal name of the convert and, hence, existing civil registry of the city or municipality in accordance
cannot be corrected nor changed by way of RA 9048. with special laws.

Other Acts Subject to Existing Civil Registry:

All other acts, events or judicial decree affecting civil status of

To the extent not inconsistent with the provisions of this Code, Filipino Muslims not subject to the Muslim Civil Registry under
the provisions of other registry laws governing other civil this Code shall be recorded in the existing civil registry as provided
registrars shall be observed by district or circuit registrars. under the Civil Registry Law (Act No. 3753), in relation to the
pertinent provisions of the Civil Code, Articles 407 to 413, under
Registration of judicial decrees and legal instruments concerning Book I, Title XVI on Civil Register. Under the Implementing Rules
status of Muslim Filipinos. — All judicial decrees and legal and Regulations of the Act No. 3753, Administrative Order No. I,
instruments concerning civil status of Muslim Filipinos issued by Series of 1975, as to what are registerable therein, it is provided:
Shari’a Court shall be registered in accordance with AO No. 1, s.
1993 and this Order. “Rule 5. The registerable certificates, documents and judicial
decrees that may be presented before the Local Civil Registrar for
The acknowledgment of a child by the father which has the effect entry in the appropriate civil register are the following:
of establishing paternity and legitimate filiation of the child to the
acknowledging parent in the opinion of this present writer, must be a. Properly accomplished Certificate of Live Birth (Mun.
recorded with the existing Civil Registry since it is not one if the Form No. 102) duly certified by the physician, nurse,
acts that are to be recorded in the Muslim Civil Registry. midwife or “hilot” in attendance at birth, or the hospital or
clinic administrator and signed by the informant; or, in
Registration of Acts or Events Involving Muslim Filipinos default thereof, the certificate containing the declaration
Contracted Abroad made by either parent or any person who has knowledge
of the birth of the child;
In cases where the acts or events occur in a foreign country, the
shall be governed by Rule 10 of AO No. 1, S, 1993, and other b. Properly accomplished Certificate of Founding (ORG
applicable laws taking into consideration the beliefs, customs and Form No. 101);
practices of Muslim thereto. The duty of the C/MCR or the Circuit
Registrar insofar as civil registration is concerned may be c. Properly accomplished Certificate of Death (Mun. Form
performed by the authorized official of the Ph Foreign Service No. 103) duly certified by the physician who last attended
Establishment. the deceased, or the hospital or clinic administrator, or in
their default, by the local health officer;
Civil registration - the continuous, permanent, compulsory
recording of the occurrence and characteristic of vital events as d. Properly accomplished Certificate of Foetal Death (Mun.
these have been defined and as provided through decree or Form No. 103-A) signed by the attending physician or the
regulation, in accordance with the legal requirements in each hospital or clinic administrator or in their default, the local
country. health officer;

The Local Civil Registrars shall: e. Properly accomplished Marriage Contract (Mun. Form
No. 97) presented for entry by the solemnizing officer or
a. Accept all registrable documents including judicial by the interested party, in case the solemnizing officer
decrees affecting the civil status of persons; fails to register the same;
b. Transcribe and enter immediately upon receipt all
registrable documents and judicial decrees affecting the f. Copy of any judicial decree issued by competent courts
civil status of persons in the appropriate civil registar; in cases of annulment of marriage, legal separation,
c. Send to the Office of the Civil Registar-General, within the judgment declaring a marriage void from the beginning,
first ten days of each month, duplicate copies of all Judicial determination of filiation adoption, change of
documents registered during the preceding month; name, naturalization, and civil interdiction;
d. Issue certified transcripts or xerox copies of any
certificates or documents; g. Legal instrument affecting the civil status of persons
e. Index the registered certificates or documents to such as legitimation, acknowledgment of natural
facilitate verification of any documents; children, election of Philippine citizenship, registration,
f. Administer oath free of charge for civil registration and other modes of acquisition of Philippine citizenship
purposes, and; and voluntary emancipation of minors; and

SHARIAH II REVIEWER | MINDANAO STATE UNIVERSITY COLLEGE OF LAW | PAGE 43

 h. Such 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:

a. Births;
b. Marriages;
c. Death;
d. Legal Separations;
e. Annulment of marriages;
f. Judgments declaring marriages void from the beginning;
g. Legitimations;
h. Adoptions;
i. Acknowledgements of natural children;
j. Naturalization;
k. Loss; or
l. Recovery of Citizenship;
m. Civil interdiction;
n. Judicial determination of filiation;
o. Voluntary emancipation of a minor; and
p. Changes of name.”

SHARIAH II REVIEWER | MINDANAO STATE UNIVERSITY COLLEGE OF LAW | PAGE 44

2nd Meeting their practices and would consider them, when practical, in
enacting laws of general application. But when the legislature fails
1. What is marriage? to do so, religions that are threatened and burdened may turn to
● Marriage is not only a civil contract but a social the courts for protection
institution
● Nikah - union of sexes; legalization of intercourse and
procreation of children

2. Difference of civil and marriage contract

● Civil contract is governed by the law of contract
● Muslim marriage contract is governed by the Islamic
Shari'a;

● The parties to a civil contract can be either natural

person of either sex or juridical persons, regardless of
their number,
● while a marriage contract can only be made by man and
a woman who are not under legal impediment to marry
each other;

● A civil contract can be terminated by mutual agreement

of both parties or by either one of them subject to certain
liability for damages in case of breach thereof,
● A marriage contract can only be terminated if the
conditions of the law intended to safeguard the sanctity
of a marriage contract are complied and any breach by
either spouse of their marital obligations renders the
offending spouse to certain liability under the law;

● In a civil contract, the presence of witnesses is not

essential for its validity,
● In a marriage contract; the presence of witness is an
essential requirement for its validity

3. Legal consequences or incidents of a muslim marriage

● It makes lawful the sexual relationship between a man
and a woman;
● Legitimizes children born of the marriage and
establishes their paternity and filiation;
● It gives rise to the husband obligation to support the wife
and his family;

4. Kung ang anti child marriage kay maka affect ba sa provisions

sa pd 1083: kay didtu pwde below 18 e kasal ang anti child
marriage bawal below 18. mao to dli ra ma apektohan kay not fully
implemented pa ang anti child marriage.

BENEVOLENT NEUTRALITY

The benevolent neutrality theory believes that with respect to

these governmental actions, accommodation of religion may be
allowed, not to promote the government's favored form of
religion, but to allow individuals and groups to exercise their
religion without hindrance. The purpose of accommodations is to
remove a burden on, or facilitate the exercise of, a person's or
institution's religion. As Justice Brennan explained, the
"government [may] take religion into account...to exempt, when
possible, from generally applicable governmental regulation
individuals whose religious beliefs and practices would otherwise
thereby be infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may flourish] In
the ideal world, the legislature would recognize the religions and

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