You are on page 1of 12

MARRIAGE AMONG MUSLIMS AND BETWEEN MUSLIMS AND NONMUSLIMS UNDER PHILIPPINE LAWS

A Term Paper in Persons and Family Relations


(Law 115)

Submitted to the Legal Education Board in Compliance with the Order Dated
February 16, 2012

Mohamadzali G. Bandao
2014
MARRIAGE AMONG MUSLIMS AND BETWEEN MUSLIMS AND NONMUSLIMS UNDER PHILIPPINE LAWS

Mohamadzali G. Bandao

Introduction
A new law ought to affect the future, not what is past. Hence, in the case of
subsequent marriage laws, no vested rights shall be impaired that pertain to the
protection of the legitimate union of a married couple.1
President Ferdinand E. Marcos, in response to the Filipino Muslims
aspirations to be governed in accordance with the Islamic religion, customs and
traditions, promulgated Presidential Decree No. 1083, otherwise known as the
Code of Muslim Personal Laws of the Philippines, hereinafter referred to as the
Muslim Code, which took effect February 4, 1977 thereby recognizing 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. 2 It then institutionalized the existence
of divorce in the Philippines although applicable , per se, to Muslims alone. The
Muslim Code is given high regard that in case of conflict between any of its
provisions and laws of general application, the former shall prevail. 3 Should the
conflict be with special laws or laws of local application, the latter shall be
liberally construed to carry out its provisions. 4 Nevertheless, construction shall
not operate to the prejudice of a non-Muslim.5

1 Juliano-Llave vs. Republic of the Philippines, G.R. No. 169766, March 30,
2011
2 Jorge R. Coquia, Jurisdiction on Marriage, Annulment, Declaration of Nullity
and Divorce Among Muslims in the Philippines, 291 SCRA 591(1998)
3 Article 3(1), Presidential Decree No. 1083, Code of Muslim Personal Laws of
the Philippines
4 Ibid., Article 3(2)
5 Ibid., Article 3(3)
1

On other hand, in the exercise of her legislative powers under the Freedom
Constitution, President Corazon C. Aquino promulgated Executive Order No.
209, otherwise known as The Family Code of the Philippines which took effect
August 4, 1988.6 It repealed the provisions of the Civil Code on Marriage and
Family Relations and some provisions of Presidential Decree No. 603, the Child
and Youth Welfare Code. Nonetheless, the Family Code reiterated the
recognition of Muslim customs, rites or practices on marriage. Marriages among
Muslims and among members of the ethnic cultural communities may be
performed validly without the necessity of a marriage license, provided that they
are solemnized in accordance with their customs, rites or practices. 7
The repealed provisions of the Civil Code on marriage and divorce among
Muslims was temporary. It was intended only to assimilate to Muslim population
by the full application of the general law twenty years after the approval of the
Code. This necessitated the promulgation of the Muslim Code to prevent the
assimilation.8 The repeal by the Family Code of those provisions of the Civil Code
further paved the way for the permanent recognition of marriages and divorce
among Muslims in accordance with their customs, rites or practices.
However, there arise a question of which law applies in case of divorce, property
relations, and succession in mix marriages; that is, marriage between Muslims
and non-Muslims given the express provisions of the Muslim Code. It seemed a
public knowledge, though, that there are few, to say the least, non-Muslims who
are in effect make use of this law to circumvent the provisions of the Civil Code

6 The Family Code took effect on August 4, 1988. All news papers published
the entire Family Code on August 4, 1987. But the Supreme Court said that
August 3, 1988 is the date of affectivity of the Family Code.
7 Article 33, Executive Order No. 209 (The Family Code of the Philippines)
8 Jorge R. Coquia, Jurisdiction on Marriage, Annulment, Declaration of Nullity and
Divorce Among Muslims in the Philippines, 291 SCRA 591(1998)

or other laws in order to escape criminal liability, as in case of bigamy under the
Revised Penal Code. Some of them are celebrities, some are politicians. Some
succeeded, some failed.
This term paper is aimed to provide an overview on the legal effect of the
application of the Muslim Code in parallel with the Civil Code, the Family Code,
and other laws.

Objectives
1. To determine the legal effect of marriage, solemnized in accordance with
the Muslim Code, wherein one party is a non-Muslim or mix marriages;
2. To determine the legal effect of combined Muslim-Civil marriage rites ; and
3. To determine the legal effect of conversion to Islam on marriage.

Discussion
Mix Marriages
The provisions of the Code of Muslim Personal Laws of the Philippines on
marriage and divorce applies when both parties are Muslims, or wherein only the
male party is a Muslim and the marriage is solemnized in accordance with
Muslim law or its provisions in any part of the Philippines; otherwise, the Family
Code shall apply.9 "Muslim" is a person who testifies to the oneness of God and
the Prophethood of Muhammad and professes Islam. 10 The word Muslim is
descriptive of those who are believers of Islam, a religion divided into varying
sects, such as the Sunnites, the Shiites, the Kharijites, the Sufis and others
based upon political and theological distinctions. It is a name which describes
only a general segment of the Philippine population, comprising a heterogeneous
9 Article 13, Presidential Decree No. 1083, Code of Muslim Personal Laws of
the Philippines
10 Ibid., Article 7(g)
3

body whose construction is not so well defined as to render it impossible for any
representative identification.11
It can be inferred from the foregoing that the Muslim Code applies whenever the
male party is a Muslim provided the female party is a Muslim or scriptural female
like Christian, Jew or (probably Zoroastrian or Magian) woman and the marriage
is solemnized in accordance thereof. A female is non-scriptural if she is an
atheist, polytheist, non-Jew. If both parties are Muslims, there is a presumption
that the Muslim Code or Muslim law is complied with. However, said presumption
may be overcome by the admission of the petitioner in the stipulation of facts that
provisions of the Civil Code, will apply and the regular civil court has the
exclusive jurisdiction.12
It is clear from the letter of the Muslim Code that a marriage of a non-Muslim
male in accordance with its provisions is void regardless of the religion of the
female party, even a Muslim female. The reason for the prohibition of the
marriage of a Muslim female to a non-Muslim male considering the well-known
religious tolerance of Islam are two-fold. First, it is political. Knowing the
dominance of male in a household or family management, Islamic political
system may be in the hands of non-Muslim. Second, Islam is proverbially an allembracing ideology that claims to include all divine revelations of Adam, Noah,
Moses, Jesus and Muhammad. Consequently, if the man is a Muslim, he would
be very understanding over other religions that may be professed by the
scriptural female or of Judaism, Christianity or Zoroastrianism. 13

11 MVRS Publications, Inc. vs. Islamic Dawah Council of the Philippines, Inc.,
396 SCRA 210(2003)
12 Jorge R. Coquia, Jurisdiction on Marriage, Annulment, Declaration of Nullity
and Divorce Among Muslims in the Philippines, 291 SCRA 591(1998)
13 Rasul and Ghazali, Commentaries and Jurisprudence on the Muslim Code
of the Philippines
4

Nonetheless, marriage of a male Muslim convert under the Muslim Code is valid
because it is not provided therein that the male party must be a natural-born
Muslim. The only requirement is that he testifies to the oneness of God and the
Prophethood of Muhammad and professes Islam as his religion for him to be
regarded as Muslim.

Combined Marriages
A so-called combined Muslim-Civil marriage, is a marriage under the
Muslim Code which is likewise solemnized, together with it or in addition to it, in
accordance with the Civil Code of the Philippines or vise-versa. The rites
whichever comes first is the validating rite and the second rite is merely
ceremonial one. The first marriage is to be considered valid and effective as
between the parties while the second marriage is merely ceremonial, being a
surplusage and unnecessary.14
The rule on combined marriage applies only in mix marriages wherein only the
male party is a Muslim. This is because when both parties are Muslims, it is
presumed that the Muslim Code has been complied with and the same shall
govern the nature, consequences, and incidents of the marriage. It is so because
of the prohibition under Muslim belief, customs and traditions for a man and a
woman to cohabit without the benefit of marriage under Muslim law. Marriage of
both Muslims under the Civil Code necessitates validation by marriage under
Muslim law. What is given high regard by Muslims is the religious rites for the
couple to live together as husband and wife with the acceptance and recognition
of the general public, not the registration. This can be attributed to the low
statistical data of registered Muslim marriages at the National Statistics Office.
The presumption is gleaned from following provision of the Muslim Code:
14 Rasul and Ghazali, Commentaries and Jurisprudence on the Muslim Code
of the Philippines.
5

Article 13. Application.


(1) The provisions of this Title shall apply to marriage and
divorce wherein both parties are Muslims, or wherein only the male
party is a Muslim and the marriage is solemnized in accordance
with Muslim law or this Code in any part of the Philippines.

Muslim,
the

(2) In case of marriage between a Muslim and a nonsolemnized not in accordance with Muslim law or this Code,
Civil Code of the Philippines shall apply.

(3) Subject to the provisions of the preceding paragraphs,


the essential requisites and legal impediments to marriage,
divorce, maintenance, claims for customary dower (mahr),
betrothal, breach of contract to marry, solemnization and
registration of marriage and divorce, rights and obligations
between husband and wife parental authority, and the properly
relations between husband and wife shall be governed by this
Code and other applicable Muslim laws.

The first paragraph speaks of two situations. First, when both parties to
the marriage are Muslims. Second, when only the male party is Muslim and the
female party is a scriptural female.
In the first situation, the Muslim Code applies whether the marriage is
solemnized in accordance with its provisions , or the Civil Code; except when the
parties enter into a marriage settlement and provide therein that any dispute
between them shall be brought before the ordinary Civil Courts under the
Judiciary Law.15 In the absence of any stipulation to the contrary in the marriage
settlements or any other contract, the property relations between the spouses
shall be governed by the regime of complete separation of property in
accordance with the Muslim Code and, in a suppletory manner, by the general
principles of Islamic law and the Civil Code.16

15 Ibid.
16 Article 38, Presidential Decree No. 1083, Code of Muslim Personal Laws of
the Philippines
6

Furthermore, the Civil Code of the Philippines, the Rules of Court and other
existing laws, insofar as they are not inconsistent with the provisions of the
Muslim Code, shall be applied suppletorily.17 The Muslim Code is the law of first
resort whenever and wherever a marriage dispute involves a Muslim party
subject to the vested rights of the female party acquired under the Civil Code
when the marriage is solemnized in accordance thereof.
In the second situation, the Muslim Code applies only when the male party is a
Muslim, the female party is scriptural female, and the marriage is solemnized in
accordance therewith; otherwise, the Civil Code applies. This is in accordance
with the provision of the Muslim Code that it shall not be given effect to the
prejudice of a non-Muslim. Furthermore, application of the Muslim Code in case
of marriage between a male Muslim and a non-Muslim female solemnized not in
accordance therewith inevitably prejudices or impairs vested or acquired rights of
either party under the Civil Code.

Conversion to Islam
There may arise a situation wherein a non-Muslim male married under the
Civil Code converts to Islam and thereafter subsequently remarries under the
Muslim Code invoking the provision thereof on subsequent marriages. This is a
peculiar situation, so to speak, of a mix marriage. In one case, Baez, a Christian
male married to a Filipina went to Indonesia as a contract worker. He met an
Indonesian Muslim woman and wanted to marry her. He converted to Islam and
they married thereafter. Living with the Muslim woman as his wife, he begot two
children with her. He returned to the Philippines with his Indonesian wife and two
children who were given permanent resident status due to the marriage with him.
The Filipina wife soon discovered that he was married to the Indonesian woman
so she filed a case of concubinage. At the same time she sought the deportation
17 Ibid., Article 187
7

of the Indonesian woman. The Supreme Court declined to pass on the validity of
his marriage with the Indonesian woman and ruled instead only on the
deportation case.18 It would be interesting had the Supreme Court ruled on the
validity of the second marriage and the legal effect of his conversion to Islam on
his first marriage.
The change of religion by a Muslim do not have the effect of extinguishing any
obligation or liability whatsoever incurred prior to said change. 19 In the same vein,
the conversion to Islam of a Christian do not have the effect of extinguishing any
obligation or liability whatsoever under the Civil Code incurred prior to said
conversion. Nevertheless, the conversion of non-Muslim spouses to Islam shall
have the legal effect of ratifying their marriage as if the same had been
performed in accordance with the provisions of the Muslim Code, provided that
there is no legal impediment to the marriage under Muslim law. 20 Baez was
already married to the Filipina prior to his conversion to Islam which did not
extinguish his obligation or liability he incurred by virtue of such marriage.
Furthermore, the Muslim Code cannot be construed to operate to the prejudice of
a non-Muslim.
Prescinding from the foregoing, Baez would be liable for concubinage had the
second marriage been declared void, not for his lack of capacity due to his prior
marriage; and for bigamy had it been declared valid under the Muslim Code.
However, had Baez and his Filipina wife converted to Islam prior to his marriage
to the Indonesian woman, the ruling would be otherwise. The conversion to Islam
of the non-Muslim female spouse must have the same effect as the conversion of
both non-Muslim spouses. It must have the legal effect of ratifying the marriage
18 Djumantan vs. Domingo, G.R. No. 99358, January 30, 1995
19 Article 179, Presidential Decree No. 1083, Code of Muslim Personal Laws of
the Philippines
20 Ibid., Article 178
8

as if solemnized in accordance with the Muslim Code, notwithstanding the


solemnization under the Civil Code. In this case, there would be no non-Muslim
to speak of who shall be prejudiced thereof and bar the application of the Muslim
Code.
The Supreme Court had a chance to rule on the case 21 of a man who
claims to be a Muslim convert prior to his marriage to Christian woman as
supported by a Certificate of Conversion and testimony of the certifying Muslim
religious leader. However, the marriage was solemnized in accordance with the
Civil Code. Subsequently, the man remarried again another Christian woman
also under the Civil Code, without the first marriage having been legally dissolved
invoking his being a Muslim which allows him to remarry up to four wives under
the Muslim Code.
The first wife filed a case for bigamy and the Court held that the man's religious
affiliation is no longer the question having both marriages solemnized in
accordance with the Civil Code. Thus, the Civil Code applies not the Muslim
Code. Consequently, the Court affirmed the decision of the Court of Appeals
affirming the trial court's decision convicting the accused.

Conclusion
Marriages among Muslims or among members of the ethnic cultural
communities may be performed validly without the necessity of a marriage
license, provided that they are solemnized in accordance with their customs, rites
or practices.22 It is, therefore, submitted that marriages wherein the male party is
a Muslim and solemnized in accordance with Muslim law, customs, rites or
practices are governed by the Muslim Code subject to the requirement of a valid
21 People vs. Nollora, G.R. No. 191425, September 7, 2011
22 Article 33, Executive Order No. 209, The Family Code of the Philippines
9

marriage license under Article 3(2) of the Family Code of the Philippines.
However, when both parties are Muslims, the marriage may be performed validly
without necessity of a marriage license. It is of the fact that the phrase "among
Muslims" presupposes that both parties shall be Muslims for the exemption from
the requirement of a valid marriage license may be availed of.
Mix marriages solemnized in accordance with Muslim law shall have the legal
effect as that marriage of parties who are both Muslims. The nature,
consequences, and incidents of the marriage and the rule on divorce shall,
therefore, be governed by the Muslim Code.
On the other hand, mix combined Muslim-Civil marriage shall be
governed, according to Rasul and Ghazali, by the law under which the same be
first solemnized, being the second rite as mere ceremonial. The same rule
applies whether the parties are both Muslims or only the male party is a Muslim.
Arguably, it shall not apply to marriages where the parties are both Muslims. In
such a case, it shall be subject to the provisions of the Muslim Code regardless
of the law or rite under which it be first solemnized. This is clear from the
wordings of the Muslim Code that its provision shall apply to (1) marriage and
divorce wherein both parties are Muslims, or (2) wherein only the male party is a
Muslim and the marriage is solemnized in accordance with Muslim law or Muslim
Code in any part of the Philippines.23
The requirement that a marriage must have been solemnized in accordance with
Muslim law to be governed by the Muslim Code is applicable only wherein only
the male party is a Muslim. The Civil Code applies only "in case of marriage
between a Muslim and a non-Muslim, solemnized not in accordance with Muslim
law or the Muslim Code.24
23 Article 13(1), Presidential Decree No. 1083, Code of Muslim Personal Laws
of the Philippines
24 Ibid., Article 13(2)
10

As to the conversion to Islam, it shall have the legal effect of ratifying the
marriage, regardless of the law, customs, rites or practices under which it be
actually solemnized, as if solemnized under the Muslim Code and, therefore, be
governed by the same whether the spouses converted are both non-Muslims or
only the female party is non-Muslim and converted in case of mix marriages.
Thus, non-Muslim spouses may effectively use these to circumvent the rule on
marriage and divorce under the Civil Code and other laws in the guise of simply
converting to Islam. The same holds true in the case of spouses in a mix
marriage. It would be more economically and legally viable, as well as less
tedious, than that of an annulment case. The only thing to be hurdled is the
process of conversion in which the certifying Imam or any other Muslim religious
leader may require the parties to report to him on a regular basis and convince
him that they are indeed in good faith embrace and profess Islam as their
genuine religion and will die for the same in defense thereof.
However, there may be a need for judicial declaration to the effect that
said convert spouses are now Muslims and therefore subject to the provisions of
the Muslim Code with the Civil Code only in suppletory manner with respect to
the nature, consequences. and incidents of the marriage. It is up to the scrutiny
of the courts, or the certifying Imam or religious leader to say the least, to insure
that no collusion exists between the spouses and that the conversion is indeed
truthful and genuinely desired for "[r]eligious freedom is a fundamental right
which is entitled to the highest priority and the amplest protection among human
rights for it involves the relationship of man to his Creator.25

25 Chief Justice Enrique M. Fernando's separate opinion in German vs.


Barangan, 135 SCRA 514, 530-531 as cited in Ebralinag vs. The Division
Superintendent of School of Cebu, G.R. No. 95770, March 1, 1993 (219 SCRA
256)
11