MARRIAGE AMONG MUSLIMS AND BETWEEN MUSLIMS AND NON-MUSLIMS 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 NON-MUSLIMS 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 Muslim’s

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

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took effect August 4, 1988.6 It repealed the provisions of the Civil Code on

1 Juliano-Llave vs. Republic of the Philippines, G.R. No. 169766, March 30, 20112 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 Philippines4 Ibid., Article 3(2)5 Ibid., Article 3(3)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

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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 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.

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)

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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

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

9 Article 13, Presidential Decree No. 1083, Code of Muslim Personal Laws of the Philippines10 Ibid., Article 7(g)11 MVRS Publications, Inc. vs. Islamic Da’wah Council of the Philippines, Inc., 396 SCRA 210(2003)

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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 all-

embracing 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

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

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

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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:

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.

(2) In case of marriage between a Muslim and a non-Muslim, solemnized not in accordance with Muslim law or this Code, the 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.

14 Rasul and Ghazali, Commentaries and Jurisprudence on the Muslim Code of the Philippines.

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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

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.

15 Ibid.16 Article 38, Presidential Decree No. 1083, Code of Muslim Personal Laws of the Philippines17 Ibid., Article 187

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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, Bañez, 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

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 Bañez was

18 Djumantan vs. Domingo, G.R. No. 99358, January 30, 199519 Article 179, Presidential Decree No. 1083, Code of Muslim Personal Laws of the Philippines20 Ibid., Article 178

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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, Bañez 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 Bañez 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 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 case21 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

21 People vs. Nollora, G.R. No. 191425, September 7, 2011

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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

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 22 Article 33, Executive Order No. 209, The Family Code of the Philippines

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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

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 23 Article 13(1), Presidential Decree No. 1083, Code of Muslim Personal Laws of the Philippines24 Ibid., Article 13(2)

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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)

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