PJJ Vol. 2, Issue 5 July-September 2000

JULY - SEPTEMBER 2000 VOL. 2, ISSUE NO. 5

TheTheTheTheThe

Statement of Facts on G.R. No. 119064

Neng “Kagui Kadiguia” Malang, Petitionerv.

Hon. Corocoy Moson, Presiding Judgeof 5th Shari’a District Court, Cotabato CityHadji Mohammad Ulyssis Malang, et al.,

Respondents.

DecisionJustice Minerva P. Gonzaga-Reyes

Compliance by Amicus CuriaeJustice Ricardo C. Puno, Sr.

Compliance by Amicus CuriaeAtty. Michael O. Mastura

JJJJJAAAAAPHILPHILPHILPHILPHILUDICIALUDICIALUDICIALUDICIALUDICIALOURNALOURNALOURNALOURNALOURNAL

THE PHILJA JUDICIAL JOURNALTHE PHILJA JUDICIAL JOURNALTHE PHILJA JUDICIAL JOURNALTHE PHILJA JUDICIAL JOURNALTHE PHILJA JUDICIAL JOURNAL

Statement of Facts on G.R. No. 119064:Statement of Facts on G.R. No. 119064:Statement of Facts on G.R. No. 119064:Statement of Facts on G.R. No. 119064:Statement of Facts on G.R. No. 119064:Neng “Kagui Kadiguia” Malang, Petitioner,Neng “Kagui Kadiguia” Malang, Petitioner,Neng “Kagui Kadiguia” Malang, Petitioner,Neng “Kagui Kadiguia” Malang, Petitioner,Neng “Kagui Kadiguia” Malang, Petitioner,

v.v.v.v.v.Hon. Corocoy Moson, Presiding JudgeHon. Corocoy Moson, Presiding JudgeHon. Corocoy Moson, Presiding JudgeHon. Corocoy Moson, Presiding JudgeHon. Corocoy Moson, Presiding Judge

of 5th Shari’a District Court, Cotabato Cityof 5th Shari’a District Court, Cotabato Cityof 5th Shari’a District Court, Cotabato Cityof 5th Shari’a District Court, Cotabato Cityof 5th Shari’a District Court, Cotabato CityHadji Mohammad Ulyssis Malang, et. al.,Hadji Mohammad Ulyssis Malang, et. al.,Hadji Mohammad Ulyssis Malang, et. al.,Hadji Mohammad Ulyssis Malang, et. al.,Hadji Mohammad Ulyssis Malang, et. al.,

RespondentsRespondentsRespondentsRespondentsRespondents

DecisionDecisionDecisionDecisionDecisionJustice Minerva P. Gonzaga-ReyesJustice Minerva P. Gonzaga-ReyesJustice Minerva P. Gonzaga-ReyesJustice Minerva P. Gonzaga-ReyesJustice Minerva P. Gonzaga-Reyes

Compliance by Amicus CuriaeCompliance by Amicus CuriaeCompliance by Amicus CuriaeCompliance by Amicus CuriaeCompliance by Amicus CuriaeJustice Ricardo C. Puno, Sr.Justice Ricardo C. Puno, Sr.Justice Ricardo C. Puno, Sr.Justice Ricardo C. Puno, Sr.Justice Ricardo C. Puno, Sr.

Compliance by Amicus CuriaeCompliance by Amicus CuriaeCompliance by Amicus CuriaeCompliance by Amicus CuriaeCompliance by Amicus CuriaeAtty. Michael O. MasturaAtty. Michael O. MasturaAtty. Michael O. MasturaAtty. Michael O. MasturaAtty. Michael O. Mastura

JULY - SEPTEMBER 2000JULY - SEPTEMBER 2000JULY - SEPTEMBER 2000JULY - SEPTEMBER 2000JULY - SEPTEMBER 2000VOL. 2, ISSUE No. 5VOL. 2, ISSUE No. 5VOL. 2, ISSUE No. 5VOL. 2, ISSUE No. 5VOL. 2, ISSUE No. 5

SUPREME COURT OF THE PHILIPPINES

CHIEF JUSTICE

Hon. HILARIO G. DAVIDE, Jr.

ASSOCIATE JUSTICES

Hon. JOSUE N. BELLOSILLOHon. JOSE A.R. MELO

Hon. REYNATO S. PUNOHon. JOSE C. VITUG

Hon. SANTIAGO M. KAPUNANHon. VICENTE V. MENDOZA

Hon. ARTEMIO V. PANGANIBANHon. LEONARDO A. QUISUMBING

Hon. FIDEL P. PURISIMAHon. BERNARDO P. PARDO

Hon. ARTURO B. BUENAHon. MINERVA P. GONZAGA-REYES

Hon. CONSUELO M. YÑARES-SANTIAGOHon. SABINO R. DE LEON, Jr.

COURT ADMINISTRATOR

Hon. ALFREDO L. BENIPAYO

DEPUTY COURT ADMINISTRATORS

Hon. REYNALDO L. SUAREZHon. ZENAIDA N. ELEPAÑO

Hon. BERNARDO T. PONFERRADA

CLERK OF COURT

Attorney LUZVIMINDA D. PUNO

ASST. COURT ADMINISTRATORS

Attorney ANTONIO H. DUJUAAttorney JOSE P. PEREZ

Attorney ISMAEL G. KHAN, Jr.(Chief, Public Information Office)

ASST. CLERK OF COURT

Attorney MA. LUISA D. VILLARAMA

DIVISION CLERKS OF COURT

Attorney VIRGINIA A. SORIANOAttorney TOMASITA M. DRIS

Attorney JULIETA Y. CARREON

PHILIPPINE JUDICIAL ACADEMY

Board of Trustees

Hon. HILARIO G. DAVIDE Jr.Chief Justice

Chairman

Hon. JOSUE N. BELLOSILLOSenior Associate Justice, Supreme Court

Vice-Chairman

Members

Executive Officials

Hon. AMEURFINA A. MELENCIO HERRERAChancellor

Hon. ANTONIO M. MARTINEZVice-Chancellor

Hon. PRISCILA S. AGANAExecutive Secretary

Attorney EDWIN R. SANDOVAL

Deputy Executive Secretary

Department Heads

Hon. ALFREDO L. BENIPAYOCourt Administrator

Hon. FRANCIS E. GARCHITORENAPresiding Justice, Sandiganbayan

Hon. HERNANDO B. PEREZPresident, Philippine Association of Law Schools

Hon. AMEURFINA A. MELENCIO HERRERAChancellor

Hon. SALOME A. MONTOYAPresiding Justice, Court of Appeals

Hon. DANILO B. PINEPresident, Philippine Judges Association

Dean PACIFICO A. AGABINConstitutional Law

Hon. OSCAR M. HERRERA, Sr.Remedial Law

Hon. ALFREDO L. BENIPAYOCourt Management

Professor ROMAN F. MABANTA, Jr.Commercial Law

Fr. RANHILIO C. AQUINOJurisprudence and Legal Philosophy

ACA ANTONIO H. DUJUASpecial Areas of Concern

Hon. RICARDO C. PUNOCivil Law

Hon. ROMEO J. CALLEJO, Sr.Criminal Law

Hon. HILARION L. AQUINOEthics and Judicial Conduct

Dr. PURIFICACION V. QUISUMBINGInternational Law and Human Rights

Professor MYRNA S. FELICIANOLegal Method and Research

Atty. IVAN JOHN E. UYCourt Technology

Justice Ameurfina A. Melencio HerreraChancellor

Dr. Purificacion Valera QuisumbingEditor - in - Chief

Editorial Staff

Adviser:Commissioner Linda M. Hornilla

Copy Editing:Melanie H. Perez

Editorial Assistance:Queency M. Sara

Blythe M. Lumague

Layout and Design:Michael S. Santos

Circulation:Armida M. Salazar

Printing Services:Emmanuel C. Ignacio

TABLE OF CONTENTS

Officials of the Supreme Court of the Philippines ..............................v

Officers of the Philippine JudicialAcademy of the Philippines ....................................................................vi

ForewordJustice Ameurfina A. Melencio Herrera ....................................xi

Statement of Facts on G.R. No. 119064:Neng “Kagui Kadiguia” Malang, Petitioner

v.Hon. Corocoy Moson, Presiding Judgeof 5th Shari’a District Court, Cotabato City .............................1

DecisionJustice Minerva P. Gonzaga-Reyes .......................................6

Compliance by Amicus CuriaeJustice Ricardo C. Puno, Sr. .......................................................42

Compliance by Amicus CuriaeAttorney Michael O. Mastura ..................................................71

ix

ForewordForewordForewordForewordForeword

Our issue centers on “Family Law.” Oneinteresting feature of the Philippine legal landscape isthe fact that in it are found strands of the great legaltraditions. Our Civil Code, our Penal Code, the vitalprovisions of the Code of Commerce and some aspectsof procedure are of Spanish vintage, and are thereforeof the “civil law” tradition. The rule of stare decisis,doctrines found even in contract law, the entire conceptof trust, corporation law and other fields of commerciallaw as well as our hospitality to equity, are traces of“common law” influence. And to make our legal mosaiceven more interesting, P.D. 1083 establishes the regimeof Shari’a law in Muslim Philippines.

Obviously, three legal traditions observed in onejurisdiction make not only for a very interesting legalregime, but one also fraught with problems ofharmonization and reconciliation. Decidedly, our legalsystem is as mestizo as our people are. This is certainlynothing to be ashamed of. It bespeaks of our capacityto accommodate and to adopt. We may not alwayshave ready answers to the vexatious problems thataccompany pluralism, but we manage.

The case of Malang vs. Moson that takes up thisentire issue is intriguing, not only because it poses anacademic puzzle, but because it makes us examine whatour priorities, values, and principles are, as these areembodied in law and espoused by the judicial system.What underlies the whole case is the issue of how alegal system can remain cohesive and can, in the verysame measure, accommodate divergent ways of life,ideologies and cultures.

We are happy to publish in the same issue thesubmissions of the Amici Curiae, former Justice RicardoC. Puno, Sr., one of the great living institutions in civillaw in this jurisdiction, and Atty. Michael O. Mastura,an acknowledged authority on Islamic law. It issignificant that on occasion, the Supreme Court invitesthe comment and enlightenment of Amici Curiae. Their

xi

presence almost always signals ferment and blazes newtrails in judicial and legal thinking.

The issue gives us just one more occasion toappeal for that alertness for novelty that can make thelaw and its application dynamic. Stability andinnovation are not antithetical. In fact, the only way tostay relevant is to work with both!

AMEURFINA A. MELENCIO HERRERAChancellor

xii

1G.R. No. 119064G.R. No. 119064G.R. No. 119064G.R. No. 119064G.R. No. 119064

NENG “KAGUI KADIGUIA” MALANG,NENG “KAGUI KADIGUIA” MALANG,NENG “KAGUI KADIGUIA” MALANG,NENG “KAGUI KADIGUIA” MALANG,NENG “KAGUI KADIGUIA” MALANG,Petitioner,Petitioner,Petitioner,Petitioner,Petitioner,

v.v.v.v.v.HON. COROCOY MOSON, Presiding Judge ofHON. COROCOY MOSON, Presiding Judge ofHON. COROCOY MOSON, Presiding Judge ofHON. COROCOY MOSON, Presiding Judge ofHON. COROCOY MOSON, Presiding Judge of

55555ththththth Shari’a District Court, Cotabato City, Shari’a District Court, Cotabato City, Shari’a District Court, Cotabato City, Shari’a District Court, Cotabato City, Shari’a District Court, Cotabato City,HADJI MOHAMMAD ULYSSIS MALANG, et al.,HADJI MOHAMMAD ULYSSIS MALANG, et al.,HADJI MOHAMMAD ULYSSIS MALANG, et al.,HADJI MOHAMMAD ULYSSIS MALANG, et al.,HADJI MOHAMMAD ULYSSIS MALANG, et al.,

Respondents.Respondents.Respondents.Respondents.Respondents.

STATEMENT OF FACTSSTATEMENT OF FACTSSTATEMENT OF FACTSSTATEMENT OF FACTSSTATEMENT OF FACTS

For the Court’s resolution is a petition forreview on certiorari of the decision of the 5th Shari’aDistrict Court, Cotabato City, declaring that theproperties acquired during the marriage ofpetitioner to the deceased Hadji Abdula Malang forwhich petitioner sought the issuance of letterstestamentary, are not conjugal because Hadji Abdulahad three other wives at the time of his marriage topetitioner; and that the property regime of themarriage between petitioner and Hadji Abdula iscomplete separation of property, per Article 38 ofthe Code of Muslim Personal Laws.

Petitioner Neng “Kagui Kadiguia” Malangis the eighth wife of the deceased Hadji AbdulaMalang. The marriage to her was subsisting, andthe spouses were living together, when Hadji Abduladied on December 18, 1993.

Private respondents are Hadji Abdula’s otherwives, namely Jubaida Kado Malang, Nayo OmalMalang, and Mabay Ganap Malang; and the chil-

2dren by these wives, namely Hadji MohammadUlyssis Malang, Hadji Ismael Malindatu Malang,Fatima Malang, Datulna Malang, and LawanbaiMalang.

After Hadji Abdula died, petitioner filed apetition for letters of administration before the 5th

Shari’a District, praying that letters of administrationbe issued to her niece Tarhata Lauban, whompetitioner had asked to administer the estate of herdeceased husband. In her petition, petitioneridentified three surviving heirs of her husband, hischildren by his late first wife. She also enumeratedthe real and personal properties left by her husband.

Hadji Abdula’s son Hadji MohammadMalang, who was among the children identified inthe petition, opposed the petition, on the groundthat the person for whom letters of administrationwere sought was incompetent and did not have anyinterest in the estate of the decedent. He identifiedother heirs of the decedent, including three otherwives aside from the petitioner.

Mohammad prayed that letters of adminis-tration be issued instead in his and his brotherIsmael’s favor, since the two of them were the onesassisting their late father in his business transactionsduring his lifetime.

The Shari’a Court appointed petitioner andIsmael administrators of the properties found inCotabato City, while Mohammad was appointedadministrator of the properties located inMaguindanao.

3

Petitioner claimed that several propertiesbelonging to the decedent were conjugal properties,having been acquired during their marriage. Shepresented in evidence several certificates of title toland in which the decedent was identified as“married to Neng Malang,” and deeds of sale thatalso identified decedent as “married to NengMalang.”

Petitioner argued that, even if it were truethat the decedent married the three other wivesidentified by Mohammad, the marriage to her is theonly one valid because it was celebrated after thedeath of the decedent’s first wife. Petitioner allegedthat the other three marriages were celebrated whilethe first wife was living, and therefore polygamousand void.

On the other hand, private respondent, asoppositors, presented in evidence other certificatesof title in which decedent is identified as beingmarried to Jubaida Kado Malang, to Nayo OmarMalang, and to Mabai Malang.

The Shari’a Court found that the decedentmarried eight women during his lifetime. Four ofthese marriages are still subsisting, including thatto petitioner, who is the eighth wife. The court ruledthat the rules on conjugal partnership are inappli-cable in the present case, where the husband hadseveral wives. That the phrase “married to NengMalang” appears in the titles to the properties ofthe decedent was not indicative of the properties’conjugal nature, but was merely descriptive of the

4decedent’s civil status. Moreover, the Shari’a Courtpointed out that petitioner did not present any proofthat she contributed funds for the acquisition of thesubject properties. She also did not appear to haveparticipated in the businesses of the decedent.

The Shari’a Court decreed the manner bywhich the decedent’s estate should be divided, withpetitioner getting 2/64 of the properties.

Hence, this petition.

Petitioner insists that the provisions of theCivil Code must govern the property relations be-tween him and the decedent, since their marriagewas celebrated in 1972, prior to the enactment of theMuslim Code (1977). According to petitioner, theMuslim Code could not be retroactively appliedbecause doing so would impair vested rights.

Petitioner points out that under the CivilCode, the property relations between spouses aregoverned by the rules on conjugal partnership ofgains, absent any stipulation. Properties acquiredby the spouses during the marriage are presumedconjugal.

Petitioner argues that the three other mar-riages could only be void, having been celebratedwhile the decedent’s marriage to his first wife wasstill subsisting. She assails the testimonies of thethree other wives as regards their marriage to thedecedent as self-serving and inadmissible. Peti-tioner contends that the marriage to her is the onlyvalid marriage.

5

At the same time that petitioner invokes theprovisions of the Civil Code as applicable to gov-ern the property relations between her and dece-dent, she also invokes the Muslim Code as regardsthe distribution of the estate of the decedent.

For their part, private respondents assert thatthe law that must govern the case is the Code ofMuslim Personal Laws, the parties being Muslims.

6EN BANC

G.R. No. 119064G.R. No. 119064G.R. No. 119064G.R. No. 119064G.R. No. 119064

NENG “KAGUI KADIGUIA” MALANGNENG “KAGUI KADIGUIA” MALANGNENG “KAGUI KADIGUIA” MALANGNENG “KAGUI KADIGUIA” MALANGNENG “KAGUI KADIGUIA” MALANGPetitioner,Petitioner,Petitioner,Petitioner,Petitioner,

-versus--versus--versus--versus--versus-

HON. COROCOY MOSON, Presiding Judge of 5HON. COROCOY MOSON, Presiding Judge of 5HON. COROCOY MOSON, Presiding Judge of 5HON. COROCOY MOSON, Presiding Judge of 5HON. COROCOY MOSON, Presiding Judge of 5ththththth

Shari’a District Court, Cotabato City, HADJIShari’a District Court, Cotabato City, HADJIShari’a District Court, Cotabato City, HADJIShari’a District Court, Cotabato City, HADJIShari’a District Court, Cotabato City, HADJIMOHAMMAD ULYSSIS MALANG, HADJIMOHAMMAD ULYSSIS MALANG, HADJIMOHAMMAD ULYSSIS MALANG, HADJIMOHAMMAD ULYSSIS MALANG, HADJIMOHAMMAD ULYSSIS MALANG, HADJIISMAEL MALINDATU MALANG, FATIMAISMAEL MALINDATU MALANG, FATIMAISMAEL MALINDATU MALANG, FATIMAISMAEL MALINDATU MALANG, FATIMAISMAEL MALINDATU MALANG, FATIMAMALANG, DATULNA MALANG, LAWANBAIMALANG, DATULNA MALANG, LAWANBAIMALANG, DATULNA MALANG, LAWANBAIMALANG, DATULNA MALANG, LAWANBAIMALANG, DATULNA MALANG, LAWANBAIMALANG, JUBAIDA KADO MALANG, NAYOMALANG, JUBAIDA KADO MALANG, NAYOMALANG, JUBAIDA KADO MALANG, NAYOMALANG, JUBAIDA KADO MALANG, NAYOMALANG, JUBAIDA KADO MALANG, NAYOOMAL MALANG and MABAY GANAPOMAL MALANG and MABAY GANAPOMAL MALANG and MABAY GANAPOMAL MALANG and MABAY GANAPOMAL MALANG and MABAY GANAPMALANG,MALANG,MALANG,MALANG,MALANG,


Present:Present:Present:Present:Present:Davide, Jr., Davide, Jr., Davide, Jr., Davide, Jr., Davide, Jr., C.JC.JC.JC.JC.J., Bellosillo, Melo,., Bellosillo, Melo,., Bellosillo, Melo,., Bellosillo, Melo,., Bellosillo, Melo, Puno,Puno,Puno,Puno,Puno,Vitug,Vitug,Vitug,Vitug,Vitug, Kapunan, Mendoza, Panganiban,Kapunan, Mendoza, Panganiban,Kapunan, Mendoza, Panganiban,Kapunan, Mendoza, Panganiban,Kapunan, Mendoza, Panganiban,Quisumbing, Purisima, Pardo, Buena,Quisumbing, Purisima, Pardo, Buena,Quisumbing, Purisima, Pardo, Buena,Quisumbing, Purisima, Pardo, Buena,Quisumbing, Purisima, Pardo, Buena,Gonzaga-Reyes, Ynares-Santiago, andGonzaga-Reyes, Ynares-Santiago, andGonzaga-Reyes, Ynares-Santiago, andGonzaga-Reyes, Ynares-Santiago, andGonzaga-Reyes, Ynares-Santiago, andDe Leon, Jr., De Leon, Jr., De Leon, Jr., De Leon, Jr., De Leon, Jr., JJJJJJJJJJ

Promulgated: August 22, 2000Promulgated: August 22, 2000Promulgated: August 22, 2000Promulgated: August 22, 2000Promulgated: August 22, 2000

DECISION

Gonzaga-Reyes, Gonzaga-Reyes, Gonzaga-Reyes, Gonzaga-Reyes, Gonzaga-Reyes, JJJJJ.:.:.:.:.:

Presented for resolution in this special civilaction of certiorari is the issue of whether or not theregime of conjugal partnership of gains governed

7the property relationship of two Muslims whocontracted marriage prior to the effectivity of theCode of Muslim Personal Laws of the Philippines(hereafter, “P.D. 1083” or “Muslim Code”). Thequestion is raised in connection with the settlementof the estate of the deceased husband.

Hadji Abdula Malang, a Muslim, contractedmarriage with Aida (Kenanday) Limba. They begotthree sons named Hadji Mohammad Ulyssis, HadjiIsmael Malindatu and Datulna, and a daughternamed Lawanbai. Hadji Abdula Malang wasengaged in farming, tilling the land that was Aida’sdowry (mahr or majar). Thereafter, he bought a parcelof land in Sousa, Cotabato. Hadji Abdula and Aidaalready had two children when he married for thesecond time another Muslim named Jubaida Kadoin Kalumamis, Talayan, Maguindanao. No childwas born out of Hadji Abdula’s second marriage.When Aida, the first wife, was pregnant with theirfourth child, Hadji Abdula divorced her.

In 1965, Hadji Abdula married anotherMuslim, Nayo H. Omar but they were childless.Thereafter, Hadji Abdula contracted marriage withHadji Mabai (Mabay) H. Adziz in Kalumamis,Talayan, Maguindanao and soon they had adaughter named Fatima (Kueng). Hadji Abdula andHadji Mabai stayed in that place to farm while HadjiAbdula engaged in the business of buying andselling of rice, corn and other agricultural products.Not long after, Hadji Abdula married three otherMuslim women named Saaga, Mayumbai and Sabai,but he eventually divorced them.

8Hadji Abdula then migrated to Tambunan

where, in 1972, he married petitioner Neng “KaguiKadiguia” Malang, his fourth wife, excluding thewives he had divorced. They established residencein Cotabato City, but they were childless. For aliving, they relied on farming and on the businessof buying and selling of agricultural products. HadjiAbdula acquired vast tracts of land in Sousa andTalumanis, Cotabato City, some of which werecultivated by tenants. He deposited money in suchbanks as United Coconut Planters Bank, Metrobankand Philippine Commercial and Industrial Bank.

On December 18, 1993, while he was livingwith petitioner in Cotabato City, Hadji Abdula diedwithout leaving a will. On January 21, 1994,petitioner filed with the Shari’a District Court inCotabato City a petition for the settlement of hisestate with a prayer that letters of administration beissued in the name of her niece, Tarhata Lauban.

Petitioner claimed in that petition that shewas the wife of Hadji Abdula; that his other legalheirs are his three children named Teng Abdula,Keto Abdula and Kueng Malang, and that he leftseven (7) parcels of land, five (5) of which are titledin Hadji Abdula’s named “married to Neng P.Malang,” and a pick-up jeepney.

On February 7, 1994, the Shari’a District Courtordered the publication of the petition.1 After suchpublication2 or on March 16, 1994, HadjiMohammad Ulyssis Malang (“Hadji Mohammad”for brevity), the eldest son of Hadji Abdula, filedhis opposition to the petition. He alleged among

9other matters that his father’s surviving heirs are asfollows: (a) Jubaida Malang, surviving spouse; (b)Nayo Malang, surviving spouse; (c) Mabay Malang,surviving spouse; (d) petitioner Neng Malang, sur-viving spouse; (e) oppositor Hadji MohammadUlyssis Malang who is also known as “TengAbdula,” son; (f) Hadji Ismael Malindatu Malang,also known as “Keto Abdula,” son; (g) FatimaMalang; also known as “Kueng Malang,” daughter;(h) Datulna Malang, son, and (i) Lawanbai Malang,daughter. Oppositor Hadji Mohammad UlyssisMalang alleged that since he and his brother, HadjiIsmael Malindatu Malang, had helped their fatherin his business, then they were more competent tobe administrators of his estate.3

On March 30, 1994, Jubaida Malang , IsmaelMalindatu Malang, Nayo Malang, Fatima Malang,Mabay Malang, Datulna Malang and LawanbaiMalang filed an opposition to the petition, adoptingas their own the written opposition of HadjiMohammad.4

On April 7, 1994, the Shari’a District Courtissued an Order appointing Hadji Mohammadadministrator of his father’s properties outsideCotabato City. The same order named petitionerand Hadji Ismael Malindatu Malang as jointadministrators of the estate in Cotabato City. Eachadministrator was required to post a bond in theamount of P100,000.00.5 On April 13, 1994, lettersof administration were issued to Hadji Mohammadafter he had posted the required bond. He took hisoath on the same day.6 The following day, HadjiIsamel and petitioner likewise filed their respective

10bonds and hence, they were allowed to take theiroath as administrators.7

On April 25, 1994 and May 3, 1994, petitionerfiled two motions informing the court that HadjiAbdula had outstanding deposits with nine (9)major banks.8 Petitioner prayed that the managersof each of those banks be ordered to submit a bankstatement of the outstanding deposit of HadjiAbdula.9 The Shari’a District Court having grantedthe motions,10 Assistant Vice President RockmanO. Sampuha of United Coconut Planters Bankinformed the court that as of April 24, 1994, theoutstanding deposit of Hadji Abdula amounted toone million five hundred twenty thousand fourhundred pesos and forty eight centavos(P1,520,400.48).11 The Senior Manager of theCotabato branch of Metrobank also certified that asof December 18, 1993, “Hadji Abdula Malang orMalindatu Malang” had on savings deposit thebalance of three hundred seventy-eight thousandfour hundred ninety-three pesos and 32/100centavos (P378,493.32).12 PCIB likewise issued acertification that Hadji Abdula had a balance of eighthundred fifty pesos (P850.00) in his current accountas of August 11, 1994.13

During the pendency of the case, petitionersuffered a congestive heart failure that requiredimmediate medical treatment. On May 5, 1994, shefiled a motion praying that on account of herailment, she be allowed to withdraw from UCPB theamount of three hundred thousand pesos(P300,000.00) that shall constitute her advance sharein the estate of Hadji Abdula.14 After due hearing,

11the Shari’a District Court allowed petitioner towithdraw the sum of two hundred fifty thousandpesos (P250,000.00).15

On May 12, 1994, the Shari’a District Courtrequired petitioner and Hadji Ismael, as jointadministrators, to submit an inventory and appraisalof all properties of Hadji Abdula.16 In compliancetherewith, Hadji Ismael submitted an inventoryshowing that in Cotabato City, Hadji Abdula hadseven (7) residential lots with assessed value rangingfrom P5,020.00 to P25,800.00, an agricultural landwith assessed value of P860.00, three (3) one-storeyresidential buildings, and one (1) two-storeyresidential building.17 All these properties weredeclared for taxation purposes in Hadji Abdula’sname.

For her part, petitioner submitted an inven-tory showing that Hadji Abdula “married to NengMalang” had seven (7) residential lots with a totalassessed value of P243, 840.00 in Cotabato City, anIsuzu pick-up jeepney valued at P30,000.00, andbank deposits.18

In the Memorandum that she filed with theShari’a District Court, petitioner asserted that all theproperties located in Cotabato City, including thevehicle and bank deposits, were conjugal propertiesin accordance with Article 160 of the Civil Code andArticle 116 of the Family Code while propertieslocated outside of Cotabato City were exclusiveproperties of the decedent.19

12On the other hand, the oppositors contended

in their own Memorandum that all the propertiesleft by Hadji Abdula were his exclusive propertiesfor various reasons. First, Hadji Abdula had noconjugal partnership with petitioner because hishaving contracted eight (8) marriages with differentMuslim women was in violation of the Civil Codethat provided for a monogamous marriage; aconjugal partnership presupposes a valid civilmarriage, not a bigamous marriage or a common-law relationship. Second, the decedent adopted a“comple separation of property regime” in hismarital relations; while his wives Jubaida Kado,Nayo Hadji Omal and Mabay Ganap Hadji Adzizcontributed to the decedent’s properties, there is noevidence that petitioner had contributed funds forthe acquisition of such properties. Third, thepresumption that properties acquired during themarriage are conjugal properties is inapplicablebecause at the time he acquired the properties, thedecedent was married to four (4) women. Fourth,the properties are not conjugal in naturenotwithstanding that some of these properties weretitled in the name of the decedent “married to NengMalang” because such description is not conclusiveof the conjugal nature of the property. Furthermore,because petitioner admitted in her verified petitionthat the properties belonged “to the estate ofdecedent,” she was estopped from claiming, afterformal offer of evidence, that the properties wereconjugal in nature just because some of theproperties were titled in Hadji Abdula’s name“married to Neng Malang.” Fifth, if it is true thatthe properties were conjugal properties, then theseshould have been registered in the names of both

13petitioner and the decedent.20

In its Order of September 26, 1994, the Shari’aDistrict Court presided by Judge Corocoy D. Mosonheld that there was no conjugal partnership of gainsbetween petitioner and the decedent primarilybecause the latter married eight times. The CivilCode provision on conjugal partnership cannot beapplied if there is more than one wife because“conjugal partnership presupposes a valid civilmarriage, not a plural marriage or a common-lawrelationship.” The court further found that thedecedent was “the chief, if not the sole, breadwinnerof his families” and that petitioner did not contributeto the properties unlike the other wives namedJubaida, Nayo and Mabay. The description“married to Neng Malang” in the titles to the realproperties is no more than that – the description ofthe relationship between petitioner and thedecedent. Such description is insufficient to provethat the properties belong to the conjugalpartnership of gains. The court stated:

“In the instant case, decedent hadfour (4) wives at the time he acquired theproperties in question. To sustain thecontention of the petitioner that theproperties are her conjugal property withthe decedent is doing violence to theprovisions of the Civil Code. Be it notedthat at the time of the marriage of thepetitioner with the decedent, there werealready three (3) existing marriages.Assuming for the moment that petitionerand the decedent had agreed that the

14property regime between them will begoverned by the regime of conjugalpartnership property, that agreement is nulland void for it is against the law, publicpolicy, public order, good moral(s) andcustoms.

Under Islamic law, the regime ofproperty relationship is complete separationof property, in the absence of anystipulation to the contrary in the marriagesettlements or any other contract (Article38, P.D. 1083). There being no evidenceof such contrary stipulation or contract,this Court concludes as it had begun, thatthe properties in question, both real andpersonal, are not conjugal, but rather,exclusive property of the decedent.”21

Thus, the Shari’a District Court held that theIslamic law should be applied in the distribution ofthe estate of Hadji Abdula and accordingly disposedof the case as follows:

“WHEREFORE, premises considered, theCourt orders the following:

1. That the estate shall pay thecorresponding estate tax, reimburse thefuneral expenses in the amount ofP50,000.00, and the judicial expensesin the amount of P2,040.80;

2. That the net estate, consisting of realand personal properties located in

15Talayan, Maguindanao and inCotabato City, is hereby ordered to bedistributed and adjudicated as follows:

a) Jubaida Kado Malang -2/64 of the estate;

b) Nayo Omar Malang -2/64 of the estate;

c) Mabai Aziz Malang -2/64 of the estate;

d) Neng “Kagui Kadiguia”Malang -

2/64 of the estate;e) Mohammad Ulysis Malang -

14/64 of the estate;f) Ismael Malindatu Malang -

14/64 of the estate;g) Datulna Malang -

14/64 of the estate;h) Lawanbai Malang -

7/64 of the estate ;i) Fatima (Kueng) Malang -

7/64 of the estate;

Total: 64/64

3. That the amount of P250,000.00 givento Neng “Kagui Kadiguia” Malang byway of advance be charged against hershare and if her share is not sufficient,to return the excess; and

4. That the heirs are hereby ordered tosubmit to this court their Project ofPartition for approval, not later than

16three (3) months from receipt of thisorder.

SO ORDERED.”

On October 4, 1994, petitioner filed a motionfor the reconsideration of that Order. The oppositorsobjected to that motion. On January 10, 1995, theShari’a District Court denied petitioner’s motion forreconsideration.22 Unsatisfied, petitioner filed anotice of appeal.23 However, on January 19, 1995,she filed a manifestation withdrawing the notice ofappeal on the strength of the following provisionsof P.D. No. 1083:

“Art. 145. Finality of Decisions –The decisions of the Shari’a District Courtswhether on appeal from the Shari’a CircuitCourt or not shall be final. Nothing hereincontained shall affect the original andappellate jurisdiction of the Supreme Courtas provided in the Constitution.”

Petitioner accordingly informed the courtthat she would be filing “an original action of cer-tiorari with the Supreme Court.”24

On March 1, 1995, petitioner filed the instantpetition for certiorari with preliminary injunctionand/or restraining order. She contends that theShari’a District Court gravely erred in: (a) ruling thatwhen she married Hadji Abdula Malang, the latterhad three existing marriages with Jubaida KadoMalang, Nayo Omar Malang and Mabay GanapMalang and therefore the properties acquired

17during her marriage could not be consideredconjugal, and (b) holding that said properties arenot conjugal because under Islamic Law, the regimeof relationship is complete separation of property,in the absence of stipulation to the contrary in themarriage settlement or any other contract.25

As petitioner sees it, “the law applicable onissues of marriage and property regime is the NewCivil Code,” under which all property of themarriage is presumed to belong to the conjugalpartnership. The Shari’a Court, meanwhile, viewedthe Civil Code provisions on conjugal partnershipas incompatible with plural marriage, which ispermitted under Muslim law, and held theapplicable property regime to be completeseparation of property under P.D. 1083.

Owing to the complexity of the issuepresented, and the fact that the case is one of firstimpression – this is a singular situation where theissue on what law governs the property regimeof a Muslim marriage celebrated prior to thepassage of the Muslim Code has been elevatedfrom a Shari’a Court for the Court’s resolution –the Court decided to solicit the opinions of twoAmici Curiae, Justice Ricardo C. Puno26 and formerCongressman Michael O. Mastura.27 The Courtextends its warmest thanks to the Amici Curiae fortheir valuable inputs in their written memoranda28

and in the hearing of June 27, 2000.

Resolution of the instant case is made moredifficult by the fact that very few of the pertinentdates of birth, death, marriage and divorce are

18established by the record. This is because,traditionally, Muslims do not register acts, eventsor judicial decrees affecting civil status.29 It alsoexplains why the evidence in the instant caseconsisted substantially of oral testimonies.

What is not disputed is that: Hadji Abdulacontracted a total of eight marriages, counting thethree which terminated in divorce; all eightmarriages were celebrated during the effectivity ofthe Civil Code and before the enactment of theMuslim Code; Hadji Abdula divorced four wives –namely, Aida, Saaga, Mayumbai and Sabai – alldivorces of which took place before the enactmentof the Muslim Code; and, Hadji Abdula died onDecember 18, 1993, after the Muslim Code andFamily Code took effect, survived by four wives(Jubaida, Nayo, Mabay and Neng) and five children,four of whom he begot with Aida and one withMabay. It is also clear that the following laws werein force, at some point or other, during the marriagesof Hadji Abdula: the Civil Code, which took effecton August 30, 1950; Republic Act No. 394 (“R.A.394”), authorizing Muslim divorces, which waseffective from June 18, 1949 to June 13, 1969; theMuslim Code which took effect February 4, 1977;and the Family Code, effective August 3, 1988.

Proceeding upon the foregoing, the Court hasconcluded that the record of the case is simpleinadequate for purposes of arriving at a fair andcomplete resolution of the petition. To our mind,any attempt at this point to dispense with the basicissue given the scantiness of the evidence before uscould result in grave injustice to the parties in this

19case, as well as cast profound implications onMuslim families similarly or analogously situatedto the parties herein. Justice and accountabilitydictate a remand; trial must reopen in order tosupply the factual gaps or, in CongressmanMastura’s words, “missing links,” that would be thebases for judgement and accordingly, allowrespondent court to resolve the instant case. Inordering thus, however, we take it as an imperativeon our part to set out certain guidelines in theinterpretation and application of pertinent laws tofacilitate the task of respondent court.

It will also be recalled that the main issuepresented by the petition – concerning the propertyregime applicable to two Muslims married prior tothe effectivity of the Muslim Code – was interposedin relation to the settlement of the estate of thedeceased husband. Settlement of estates of Muslimswhose civil acts predate the enactment of the MuslimCode may easily result in the application of the CivilCode and other personal laws, thus convincing theCourt that it is but propitious to go beyond the issuesquarely presented and identify such collateralissues as are required to be resolved in a settlementof estate case. As Amicus Curiae CongressmanMastura puts it, the Court does not often come by acase as the one herein, and jurisprudence will begreatly enriched by a discussion of the “watershedof collateral issues” that this case presents.30

The Court has identified the followingcollateral issues, which we hereby present inquestion form: (1) What law governs the validity ofa Muslim marriage celebrated under Muslim rites

20before the effectivity of the Muslim code? (2) Aremultiple marriages celebrated before the effectivityof the Muslim Code valid? (3) How do the Court’spronouncements in People vs. Subano, 73 Phil. 692(1942), and People vs. Dumpo, 62 Phil. 246 (1935), affectMuslim marriages celebrated before the effectivityof the Muslim Code? (4) What laws govern theproperty relationship of Muslim multiple marriagescelebrated before the Muslim Code? (5) What lawgoverns the succession to the estate of a Muslim whodied after the Muslim Code and the Family Codetook effect? (6) What laws apply to the dissolutionof property regimes in the cases of multiplemarriages entered into before the Muslim Code butdissolved (by the husband’s death) after theeffectivity of the Muslim Code?, and (7) Are Muslimdivorces effected before the enactment of the MuslimCode valid?

The succeeding guidelines, which derivemainly from the Compliance of Amicus Curiae JusticePuno, are hereby laid down by the Court for thereference of respondent court, and for the directionof the bench and bar:

First Collateral Issue: The Law(s) GoverningFirst Collateral Issue: The Law(s) GoverningFirst Collateral Issue: The Law(s) GoverningFirst Collateral Issue: The Law(s) GoverningFirst Collateral Issue: The Law(s) GoverningValidity of Muslim Marriages Celebrated Before theValidity of Muslim Marriages Celebrated Before theValidity of Muslim Marriages Celebrated Before theValidity of Muslim Marriages Celebrated Before theValidity of Muslim Marriages Celebrated Before theMuslim CodeMuslim CodeMuslim CodeMuslim CodeMuslim Code

The time frame in which all eight marriagesof Hadji Abdula were celebrated was during theeffectivity of the Civil Code which, accordingly,governs the marriages. Article 78 of the Civil Code31

recognized the right of Muslims to contract marriagein accordance with their customs and rites, byproviding that –

21

“Marriage between Mohammedansor pagans who live in the non-Christianprovinces may be performed in accordancewith their customs, rites or practices. Nomarriage license or formal requisites shallbe necessary. Nor shall the personssolemnizing these marriages be obliged tocomply with Article 92.

However, thirty years after theapproval of this Code, all marriagesperformed between Muslims or other non-Christians shall be solemnized inaccordance with the provisions of this Code.But the President of the Philippines, uponrecommendation of the Commissioner ofNational Integration, may at any timebefore the expiration of said period, byproclamation, make any of said provisionsapplicable to the Muslims and non-Christian inhabitants of any of the non-Christian provinces.”

Notably, before the expiration of the thirty-year period after which Muslims are enjoined tosolemnize their marriages in accordance with theCivil Code, P.D. 1083 or the Muslim Code waspassed into law. The enactment of the Muslim Codeon February 4, 1977 rendered nugatory the secondparagraph of Article 78 of the Civil Code whichprovides that marriages between Muslims thirtyyears after the approval of the Civil Code shall besolemnized in accordance with said Code.

22Second and Third Collateral Issues: The Validity ofSecond and Third Collateral Issues: The Validity ofSecond and Third Collateral Issues: The Validity ofSecond and Third Collateral Issues: The Validity ofSecond and Third Collateral Issues: The Validity ofMuslim Multiple Marriages Celebrated Before theMuslim Multiple Marriages Celebrated Before theMuslim Multiple Marriages Celebrated Before theMuslim Multiple Marriages Celebrated Before theMuslim Multiple Marriages Celebrated Before theMuslim Code; The Effect of Muslim Code; The Effect of Muslim Code; The Effect of Muslim Code; The Effect of Muslim Code; The Effect of People vs. SubanoPeople vs. SubanoPeople vs. SubanoPeople vs. SubanoPeople vs. Subano andandandandandPeople vs. DumpoPeople vs. DumpoPeople vs. DumpoPeople vs. DumpoPeople vs. Dumpo

Prior to the enactment of P.D. 1083, there wasno law in this jurisdiction which sanctioned multiplemarriages.32 It is also not to be disputed that theonly law in force governing marriage relationsbetween Muslims and non-Muslims alike was theCivil Code of 1950.

The Muslim Code, which is the firstcomprehensive codification33 of Muslim personallaws,34 also provides in respect of acts that transpiredprior to its enactment:

“Art. 186. Effect of code on pastacts – (1) Acts executed prior to theeffectivity of this Code shall be governed bythe laws in force at the time of theirexecution, and nothing herein except asotherwise specifically provided, shall affecttheir validity or legality or operate toextinguish any right acquired or liabilityincurred thereby.”

The foregoing provisions are consistent withthe principle that all laws operate prospectively,unless the contrary appears or is clearly, plainly andunequivocably expressed or necessarily implied;35

accordingly, every case of doubt will be resolvedagainst the retroactive operation of laws.36 Article186 aforecited enunciates the general rule of theMuslim Code to have its provisions applied

23prospectively, and implicitly upholds the force andeffect of a pre-existing body of law, specifically, theCivil Code – in respect of civil acts that took placebefore the Muslim Code’s enactment.

Admittedly, an apparent antagonism ariseswhen we consider that what the provisions of theCivil Code contemplate and nurture is amonogamous marriage. “Bigamous or polygamousmarriages” are considered void and inexistent fromthe time of their performance.37 The Family Codewhich superseded the Civil Code provisions onmarriage emphasizes that a subsequent marriagecelebrated before the registration of the judgmentdeclaring a prior marriage void shall likewise bevoid.38 These provisions illustrate that the maritalrelation perceived by the Civil Code is one that ismonogamous, and that subsequent marriagesentered into by a person with others while the firstone is subsisting is by no means countenanced.

Thus, when the validity of Muslim pluralmarriages celebrated before the enactment of theMuslim Code was touched upon in two criminalcases, the Court applied the perspective in the CivilCode that only one valid marriage can exist at anygiven time.

In People vs. Subano, supra, the Court convictedthe accused of homicide, not parricide, since –

“(f)rom the testimony of Ebol Subano,father of the deceased, it appears that thedefendant has three wives and that thedeceased was the last in point of time.

24Although the practice of polygamy isapproved by custom among these non-Christians, polygamy, however, is notsanctioned by the Marriage Law,39 whichmerely recognizes tribal marriage rituals.The deceased, under our law, is not thusthe lawful wife of the defendant and thisprecludes conviction for the crime ofparricide.”

In People vs. Dumpo, supra, Mora Dumpo wasprosecuted for bigamy when, legally married toMoro Hassan, she allegedly contracted a secondmarriage with Moro Sabdapal. The Court acquittedher on the ground that it was not duly proved thatthe alledged second marriage had all the essentialrequisites to make it valid were it not for thesubsistence of the first marriage. As it appears thatthe consent of the bride’s father is an indispensablerequisite to the validity of a Muslim marriage, andas Mora Dumpo’s father categoraically affirmed thathe did not give his consent to her union with MoroSabdapal, the Court held that such union could notbe a marriage otherwise valid were it not for theexistence of the first one, and resolved to acquit herof the charge of bigamy.

The ruling in Dumpo indicates that, had itbeen proven as a fact that the second marriagecontained all the essential requisites to make it valid,a conviction for bigamy would have prospered.40

25Fourth Collateral Issue: Law(s) Governing PropertyFourth Collateral Issue: Law(s) Governing PropertyFourth Collateral Issue: Law(s) Governing PropertyFourth Collateral Issue: Law(s) Governing PropertyFourth Collateral Issue: Law(s) Governing PropertyRelations of Muslim Marriages Celebrated BeforeRelations of Muslim Marriages Celebrated BeforeRelations of Muslim Marriages Celebrated BeforeRelations of Muslim Marriages Celebrated BeforeRelations of Muslim Marriages Celebrated Beforethe Muslim Codethe Muslim Codethe Muslim Codethe Muslim Codethe Muslim Code

This is the main issue presented by theinstant petition. In keeping with our holding thatthe validity of the marriages in the instant case isdetermined by the Civil Code, we hold that it is thesame Code that determines and governs theproperty relations of the marriages in this case, forthe reason that at the time of the celebration of themarriages in question, the Civil Code was the onlylaw on marriage relations, including propertyrelations between spouses, whether Muslim or non-Muslim. Inasmuch as the Family Code makessubstantial amendments to the Civil Codeprovisions on property relations, some of itsprovisions are also material, particularly to propertyacquired from and after August 3, 1988.

Which law would govern depends upon: (1)when the marriages took place; (2) whether theparties lived together as husband wife; and (3) whenand how the subject properties were acquired.

Following are the pertinent provisions of theCivil Code:

“Art. 119. The future spouses mayin the marriage settlements agree uponabsolute or relative community of property,or upon complete separation of property,or upon any other regime. In the absenceof marriage settlements, or when the sameare void, the system of relative community

26or conjugal partnership of gains asestablished in this Code shall govern theproperty relations between husband andwife.

Art. 135. All property brought bythe wife to the marriage, as well as allproperty she acquires during the marriage,in accordance with Article 148, isparaphernal.

Art. 136. The wife retains theownership of the paraphernal property.

Art. 142. By means of the conjugalpartnership of gains the husband and wifeplace in a common fund the fruits of theirseparate property and the income from theirwork or industry, and divide equally, uponthe dissolution of the marriage or of thepartnership, the net gains or benefitsobtained indiscriminately by either spouseduring the marriage.

Art. 143. All property of theconjugal partnership of gains is owned incommon by the husband and wife.”

The Civil Code also provides in Article 144:

“When a man and a woman livetogether as husband and wife, but they arenot married, or their marriage is void fromthe beginning, the property acquired byeither or both of them through their work

27or industry or their wages and salaries shallbe governed by the rules of co-ownership.”

In a long line of cases, this Court hasinterpreted the co-ownership provided in Article 144of the Civil Code to require that the man and womanliving together as husband and wife without thebenefit of marriage or under a void marriage mustnot in any way be incapacitated to marry.41 Situatingthese rulings to the instant case, therefore, the co-ownership contemplated in Article 144 of the CivilCode cannot apply to Hadji Abdula’s marriagescelebrated subsequent to a valid and legally existingmarriage, since from the point of view of the CivilCode, Hadji Abdula is not capacitated to marry.However, the wives in such marriages are notprecluded from proving that property acquiredduring their cohabitation with Hadji Abdula is theirexclusive property, respectively.42 Absent such proof,however, the presumption is that property acquiredduring the subsistence of a valid marriage – and inthe Civil Code, there can only be one validly existingmarriage at any given time – is conjugal property ofsuch subsisting marriage.43

With the effectivity of the Family Code onAugust 3, 1988, the following provisions of the saidCode are pertinent:.

“Art. 147. When a man and awoman who are capacitated to marry eachother, live exclusively with each other ashusband and wife without the benefit ofmarriage or under a void marriage, theirwages and salaries shall be owned by them

28in equal shares and the property acquiredby both of them through their work orindustry shall be governed by the rules onco-ownership.

In the absence of proof to thecontrary, properties acquired while theylived together shall be presumed to havebeen obtained by their joint efforts, work orindustry, and shall be owned by them inequal shares. For purposes of this Article,a party who did not participate in theacquisition of the other party of anyproperty shall be deemed to havecontributed jointly in the acquisition thereofif the former’s efforts consisted in the careand maintenance of the family and of thehousehold.

Neither party can encumber ordispose by acts inter vivos of his or her sharein the property acquired duringcohabitation and owned in common,without the consent of the other, until afterthe termination of the cohabitation.

When only one of the parties to avoid marriage is in good faith, the share ofthe party in bad faith in the co-ownershipshall be forfeited in favor of their commonchildren. In case of default or of waiver byany or all of the common children or theirdescendants, each vacant share shall belongto the respective surviving descendants. Inthe absence of descendants, such share shall

29belong to the innocent party. In all cases,the forfeiture shall take place upontermination of the cohabitation.

Art. 148. In cases of cohabitationnot falling under the preceding Article,only the properties acquired by both of theparties through their actual jointcontribution of money, property, orindustry shall be owned by them in commonin proportion to their respectivecontributions. In the absence of proof tothe contrary, their contributions andcorresponding shares are presumed to beequal. The same rule and presumption shallapply to joint deposits of money andevidences of credit.

If one of the parties is validlymarried to another, his or her share in theco-ownership shall accrue to the absolutecommunity or conjugal partnershipexisting in such valid marriage. If the partywho acted in bad faith is not validly marriedto another, his or her share shall be forfeitedin the manner provided in the lastparagraph of the preceding Article.

The foregoing rules on forfeitureshall likewise apply even if both parties arein bad faith.”

It will be noted that while the Civil Codemerely requires that the parties “live together ashusband and wife,” the Family Code in Article 147

30specifies that they “live exclusively with each otheras husband and wife.” Also, in contrast to Article144 of the Civil Code as interpreted byjurisprudence, Article 148 of the Family Code allowsfor co-ownership in cases of cohabitation where, forinstance, one party has a pre-existing valid marriage,provided that the parties prove their “actual jointcontribution of money, property or industry” andonly to the extent of their proportionate interesttherein. The rulings in Juaniza vs. Jose, 89 SCRA 306,Camporodendo vs. Garcia, 102 Phil. 1055, and relatedcases are embodied in the second paragraph ofArticle 148, which declares that the share of the partyvalidly married to another shall accrue to theproperty regime of such existing marriage.

Fifth and Sixth Collateral Issues: Laws(s) on Suc-Fifth and Sixth Collateral Issues: Laws(s) on Suc-Fifth and Sixth Collateral Issues: Laws(s) on Suc-Fifth and Sixth Collateral Issues: Laws(s) on Suc-Fifth and Sixth Collateral Issues: Laws(s) on Suc-cession and Dissolution of Property Regimescession and Dissolution of Property Regimescession and Dissolution of Property Regimescession and Dissolution of Property Regimescession and Dissolution of Property Regimes

Hadji Abdula died intestate on December 16,1993. Thus, it is the Muslim Code which shoulddetermine the identification of the heirs in the orderof intestate succession and the respective shares ofthe heirs.

Meanwhile, the status and capacity tosucceed on the part of the individual parties whoentered into each and every marriage ceremony willdepend upon the law in force at the time of theperformance of the marriage rite.

The status and capacity to succeed of thechildren will depend upon the law in force at thetime of conception or birth of the child. If the child wasconceived or born during the period covered by the

31governance of the Civil Code, the Civil Codeprovisions on the determination of the legitimacyor illegitimacy of the child would appear to be inpoint. Thus, the Civil Code provides:

“Art. 255. Children born after onehundred and eighty days following thecelebration of marriage, and before threehundred days following its dissolution orthe separation of the spouses shall bepresumed to be legitimate.

Against this presumption no evi-dence shall be admitted other than that ofthe physical impossibility of the husband’shaving access to his wife within the firstone hundred and twenty days of the threehundred which preceded the birth of thechild.

This physical impossibility may becaused:

1. By the impotence of thehusband;

2. By the fact that the husbandand wife were living separately,in such a way that access wasnot possible;

3. By the serious illness of the hus-band.

Art. 256. The child shall bepresumed legitimate, although the mothermay have declared against its legitimacy

32or may have been sentenced as anadulteress.”

If the child was conceived or born during theperiod covered by the governance of the MuslimCode, i.e, from February 4, 1977 up to the death ofHadji Abdula on December 18, 1993, the MuslimCode determines the legitimacy or illegitimacy ofthe child. Under the Muslim Code:

“Art. 58. Legitimacy, howestablished. – Legitimacy of filiation isestablished by the evidence of valid marriagebetween the father and the mother at thetime of the conception of the child.

Art. 59. Legitimate children. –1. Children conceived in lawful

wedlock shall be presumed to be legitimate.Whoever claims illegitimacy of or impugnssuch filiation must prove his allegation.

2. Children born after six monthsfollowing the consummation of marriage orwithin two years after the dissolution of themarriage shall be presumed to be legitimate.Against this presumption no evidence shallbe admitted other than that of physicalimpossibility of access between the parentsat or about the time of the conception of thechild.

Art. 60. Children of subsequentmarriage. - Should the marriage bedissolved and the wife contracts another

33marriage after the expiration of her ‘idda,’the child born within six months from thedissolution of the prior marriage shall bepresumed to have been conceived duringthe former marriage, and if born thereafter,during the latter.

Art. 61. Pregnancy afterdissolution – If, after the dissolution ofmarriage, the wife believes that she ispregnant by her former husband, she shall,within thirty days from the time she becameaware of her pregnancy, notify the formerhusband or his heirs of that fact. Thehusband or his heirs may ask the court totake measures to prevent a simulation ofbirth.”

Upon determination of status and capacityto succeed based on the foregoing provisions, theprovisions on legal succession in the Muslim Codewill apply. Under Article 110 of the said Code, thesharers to an inheritance include:

a) The husband, the wife;b) The father, the mother, the grandfather,

the grandmother;c) The daughter and the son’s daughter in

the direct line;d) The full sister, the consanguine sister, the

uterine sister and the uterine brother.

When the wife survives with a legitimatechild or a child of the decedent’s son, she is entitledto one-eighth of the hereditary estate; in the absence

34of such descendants, she shall inherit one-fourth ofthe estate.44 The respective shares of the othersharers, as set out in Article 110 abovecited, areprovided for in Articles 113 to 122 of P.D. 1083.

Seventh Collateral Issue: Muslim Divorces Before theSeventh Collateral Issue: Muslim Divorces Before theSeventh Collateral Issue: Muslim Divorces Before theSeventh Collateral Issue: Muslim Divorces Before theSeventh Collateral Issue: Muslim Divorces Before theEffectivity of the Muslim CodeEffectivity of the Muslim CodeEffectivity of the Muslim CodeEffectivity of the Muslim CodeEffectivity of the Muslim Code

R.A. 394 authorized divorce among Muslimsresiding in non-Christian provinces, in accordancewith Muslim custom, for a period of 20 years fromJune 18, 1949 (the date of approval of R.A. 394) toJune 13, 1969.45 Thus, a Muslim divorce under R.A.394 is valid if it took place from June 18, 1949 toJune 13, 1969.

From the seven collateral issues that we dis-cussed, we identify four corollary issues as to fur-ther situate the points of controversy in the instantcase for the guidance of the lower court. Thus:

1. Which of the several marriages was validly and legallyexisting at the time of the opening of the succession ofHadji Abdula when he died in 1993?

The validly and legally existing marriagewould be that marriage which was celebrated ata time when there was no other subsisting mar-riage standing undissolved by a valid divorceor by death. This is because all of the marriageswere celebrated during the governance of theCivil Code, under the rules of which only onemarriage can exist at any given time.

35Whether or not the marriage was validly

dissolved by a Muslim divorce depends uponthe time frame and the applicable law. A Muslimdivorce under R.A. No. 394 is valid if it took placefrom June 18, 1949 to June 13, 1969, and void if ittook place from June 14, 1969.46

2. There being a dispute between the petitioner and theoppositors as regards the heirship of the childrenbegotten from different marriages, who among thesurviving children are legitimate and who areillegitimate?

The children conceived and born of a validlyexisting marriage as determined by the firstcorollary issue are legitimate. The fact and timeof conception or birth may be determined by proofor presumption depending upon the time frameand the applicable law.

3. What properties constituted the estate of Hadji Abdulaat the time of his death on December 18, 1993? Theestate of Hadji Abdula consists of the following:

a. Properties acquired during the existenceof a valid marriage as determined by thefirst corollary issue are conjugalproperties and should be liquidated anddivided between the spouses under theMuslim Code, this being the law in forceat the time of Hadji Abdula’s death.

b. Properties acquired under the conditionsprescribed in Article 144 of the Civil Codeduring the period August 30, 1950 to

36August 2, 1988 are conjugal propertiesand should be liquidated and dividedbetween the spouses under the MuslimCode. However, the wives other than thelawful wife as determined under the firstcorollary issue may submit theirrespective evidence to prove that any ofsuch property is theirs exclusively.

c. Properties acquired under the conditionsset out in Articles 147 and 148 of theFamily Code during the period from andafter August 3, 1988 are governed by therules on co-ownership.

d. Properties acquired under conditions notcovered by the preceding paragraphs andobtained from the exclusive efforts orassets of Hadji Abdula are his exclusiveproperties.

4. Who are the legal heirs of Hadji Abdula, and what aretheir shares in intestacy? The following are HadjiAbdula’s legal heirs: (a) the lawful wife, asdetermined under the first corollary issue, and(b) the children, as determined under the secondcorollary issue. The Muslim Code, which wasalready in force at the time of Hadji Abdula’sdeath, will govern the determination of theirrespective shares.

As we have indicated early on, the evidencein this case is inadequate to resolve in its entiretythe main, collateral and corollary issues hereinpresented and a remand to the lower court is in

37order. Accordingly, evidence should be receivedto supply the following proofs: (1) the exact datesof the marriages performed in accordance withMuslim rites or practices; (2) the exact dates of thedissolutions of the marriages terminated by deathor by divorce in accordance with Muslim rites andpractices, thus indicating which marriage resultedin a conjugal partnership under the criteriaprescribed by the first, second, and third collateralissues and the first corollary issue; (3) the exactperiods of actual cohabitation (“common life” undera “common roof”) of each of the marriages duringwhich time the parties lived together; (4) theidentification of specific properties acquired duringeach of the periods of cohabitation referred to inparagraph 3 above, and the manner and source ofacquisition, indicating joint or individual effort, thusshowing the asset as owned separately, conjugallyor in co-ownership; and (5) the identities of thechildren (legitimate or illegitimate) begotten fromthe several unions, the dates of their respectiveconceptions or births in relation to paragraphs 1 and2 above, thereby indicating their status as lawful heirs.

Amicus Curiae Congressman Matura agreesthat since the marriage of petitioner to decedent tookplace in 1972, the Civil Code is the law applicableon the issue of marriage settlement,47 but espousesthat customs or established practices amongMuslims in Mindanao must also be applied withthe force of law to the instant case.48 CongressmanMastura’s disquisition has proven extremely helpfulin impressing upon us the background in whichIslamic law and the Muslim Code need to beinterpreted, particularly the interconnectedness of

38law and religion for Muslims49 and theimpracticability of a strict application of the CivilCode to plural marriages recognized under Muslimlaw.50 Regrettably, the Court is duty-bound toresolve the instant case applying such laws andrights as are in existence at the time the pertinentcivil acts took place. Corollarily, we are unable tosupplant governing law with customs, albeit howwidely observed. In the same manner, we cannotsupply a perceived hiatus in P.D. 1083 concerningthe distribution of property between divorcedspouses upon one of the spouses’ death.51

WHEREFOREWHEREFOREWHEREFOREWHEREFOREWHEREFORE, the decision dated September26, 1994 of the Fifth Shari’a District Court of CotabatoCity in Special Proceeding No. 94-40 is SET ASIDESET ASIDESET ASIDESET ASIDESET ASIDE,and the instant petition is REMANDED REMANDED REMANDED REMANDED REMANDED for thereception of additional evidence and the resolutionof the issues of the case based on the guidelines setout in this Decision.

SO ORDERED.SO ORDERED.SO ORDERED.SO ORDERED.SO ORDERED.

(Sgd.) MINERVA P. GONZAGA-REYES(Sgd.) MINERVA P. GONZAGA-REYES(Sgd.) MINERVA P. GONZAGA-REYES(Sgd.) MINERVA P. GONZAGA-REYES(Sgd.) MINERVA P. GONZAGA-REYESAssociate Justice

WE CONCUR:WE CONCUR:WE CONCUR:WE CONCUR:WE CONCUR:

DAVIDE, JR. DAVIDE, JR. DAVIDE, JR. DAVIDE, JR. DAVIDE, JR. CJCJCJCJCJ, BELLOSILLO, MELO, BELLOSILLO, MELO, BELLOSILLO, MELO, BELLOSILLO, MELO, BELLOSILLO, MELO , PUNO,, PUNO,, PUNO,, PUNO,, PUNO,VITUG, KAPUNAN, MENDOZA, PANGANIBAN,VITUG, KAPUNAN, MENDOZA, PANGANIBAN,VITUG, KAPUNAN, MENDOZA, PANGANIBAN,VITUG, KAPUNAN, MENDOZA, PANGANIBAN,VITUG, KAPUNAN, MENDOZA, PANGANIBAN,QUISUMBING, PURISIMA, PARDO, BUENA,QUISUMBING, PURISIMA, PARDO, BUENA,QUISUMBING, PURISIMA, PARDO, BUENA,QUISUMBING, PURISIMA, PARDO, BUENA,QUISUMBING, PURISIMA, PARDO, BUENA,YNARES-SANTIAGO, DE LEON, JR., YNARES-SANTIAGO, DE LEON, JR., YNARES-SANTIAGO, DE LEON, JR., YNARES-SANTIAGO, DE LEON, JR., YNARES-SANTIAGO, DE LEON, JR., JJJJJJJJJJ.....

39CERTIFICATIONCERTIFICATIONCERTIFICATIONCERTIFICATIONCERTIFICATION

Pursuant to Section 13, Article VIII of theConstitution, it is hereby certified that the conclu-sions in the above Decision were reached in consul-tation before the case was assigned to the writer ofthe opinion of the Court.

(Sgd.) HILARIO G. DAVIDE, JR.(Sgd.) HILARIO G. DAVIDE, JR.(Sgd.) HILARIO G. DAVIDE, JR.(Sgd.) HILARIO G. DAVIDE, JR.(Sgd.) HILARIO G. DAVIDE, JR.Chief Justice

ENDNOTESENDNOTESENDNOTESENDNOTESENDNOTES

1 Record, p. 14.2 Exhs. C-1, D-1 & E-1.3 Record, p. 20.4 Ibid., p. 28.5 Ibid., p. 31.6 Ibid., pp. 32-36.7 Ibid., pp. 37-49.8 These banks were allegedly: (1) United Coconut Planters Bank; (2)Solidbank; (3) Far East Bank and Trust Company; (4) Philippine Com-mercial and Industrial Bank; (5) Bank of the Philippine Islands; (6)Metrobank; (7) Philippine National Bank; (8) Lank Bank of the Philip-pines, and (9) Development Bank of the Philippines.9 Record, pp. 50 & 59.10 Ibid., p. 52 & 61.11 Ibid., p. 220 (Exh. CC).12 Ibid., p. 219 (Exh. BB).13 Ibid., p. 221 (Exh. DD).14 Ibid., pp. 62-63.15 Ibid., p. 102-103.16 Ibid., p. 97.17 Ibid., pp. 123-126.18 Ibid., p. 108.19 Ibid., pp. 229-232.

4020 Ibid., pp. 222-228.21 Order of September 26, 1994, pp. 12-13; Rollo, pp. 25-56.22 Ibid., pp. 280-281.23 Ibid., p. 282.24 Ibid., p. 284.25 Petition, pp. 5 & 10.26 Retired Justice of the Court of Appeals and former Minister ofJustice, author, noted civil law professor, and law practitioner. He wasalso a member of the Family Code Revision Committee.27 Former Congressman, law practitioner, and member of the Presi-dential Code Commission which reviewed P.D. 1083.28 Justice Puno’s Compliance by Amicus Curiae was submitted onJune 27, 2000 while Congressman Mastura’s Memorandum was sub-mitted on March 29, 2000.29 The registration of marriages, divorces, revocations of divorce andconversions into Islam is now required under Title VI (Civil Registry)of P.D. 1083.30 TSN, Oral Argument of July 27, 2000. p. 26.31 As amended by Republic Act No. 6268, which was approved onJune 19, 1971 and was made to take effect as of June 18, 1969.32 Article 27 of P.D. 1083 now provides: “Notwithstanding the rule ofIslamic law permitting a Muslim to have more than one wife but notmore than four at a time, no Muslim male can have more than one wifeunless he can deal with them with equal companionship and justtreatment as enjoined by Islamic law and only in exceptional cases.”33 The Explanatory Note to the Draft Muslim Code states: “This (Code)is the first fundamental concept that the Muslim legal system breathesinto the Philippine legal system which has recognized to the presentonly the application of jural rules of mainly non-Muslim origin.”34 Includes all laws on personal status, marriage and divorce, matri-monial and family relations, succession and inheritance, and propertyrelations between spouses. Muslim Code, Art. 7, par. (i).35 Commissioner vs. Lingayen Gulf Electric Power Co., Inc., 164SCRA 27; Castro vs. Collector of Internal Revenue, 6 SCRA 886;Ichiong vs. Hernandez, 101 Phil. 1155.36 Segovia vs. Noel, 47 Phil. 220.37 Civil Code, Art. 80, par. 4.

4138 Family Code, Arts. 52, 53.39 The Marriage Law, approved on December 4, 1929, preceded theCivil Code of 1950 and was the governing law when People vs. Subanowas promulgated.40 This is significantly changed by the enactment of P.D. 1083, Article180 of which provides: “The provisions of the Revised Penal Coderelative to the crime of bigamy shall not apply to a person married inaccordance with the provisions of this (Muslim) Code or, before itseffectivity, under Muslim law.”41 Adriano vs. Court of Appeals, G.R. No. 124118, March 27, 2000;Belcodero vs. Court of Appeals, 227 SCRA 303; Juaniza vs. Jose, 89SCRA 306; Camporodendo vs. Anzar, 102 Phil. 1055; Osmeña vs.Rodriguez, 54 O.G. 5526; Malajacan vs. Rubi, 42 O.G. 5576.42 In Osmeña vs. Rodriguez, supra, the Court ruled that a parcel ofland acquired in the subsistence of a prior valid marriage did notbelong to the conjugal estate of such marriage, in the face of evidencesubmitted by the common-law wife that such land was her exclusiveproperty.43 Civil Code, Art. 160; Adriano vs. Court of Appeals, supra, Belcoderovs. Court of Appeals, supra.44 Art. 112, Muslim Code.45 The 20-year period expired on June 13, 1969, considering that therewere five leap years (1952, 1956, 1960, 1964, and 1968) since theapproval of R.A. 394 in 1949.46 Divorce provisions are now embodied in Articles 45 to 55 of theMuslim Code. Under Article 13 of the same Code, the provisions ondivorce apply to marriages “wherein both parties are Mulims, orwherein only the male party is a Muslim and the marriage “whereinboth parties are Muslim, and the marriage is solemnized in accordancewith Muslim law or this Code in any part of the Philippines.”47 Memorandum of Amicus Curiae, p. 9.48 Ibid., pp. 9, 27, 35-37, 42. Congressman Mastura particularlysuggests that the Court take judicial notice of the principle of sa-pancharian on property acquired through the joint efforts of thehusband and wife, judicially recognized by the Muslim courts ofMalaysia and Singapore and also allegedly practiced as custom byMuslims in Mindanao.49 Ibid., pp. 12, 18; TSN, Oral Argument, pp. 15-17.50 TSN, Oral Argument, p. 18 et. seq.51 TSN, Oral Argument, p. 24, Memorandum of Amicus Curiae, p. 14.

42REPUBLIC OF THE PHILIPPINESREPUBLIC OF THE PHILIPPINESREPUBLIC OF THE PHILIPPINESREPUBLIC OF THE PHILIPPINESREPUBLIC OF THE PHILIPPINES

SUPREME COURTSUPREME COURTSUPREME COURTSUPREME COURTSUPREME COURTMANILAMANILAMANILAMANILAMANILA

G.R. NO. 119064G.R. NO. 119064G.R. NO. 119064G.R. NO. 119064G.R. NO. 119064

NENG “KAGUI KADIGUIA” MALANGNENG “KAGUI KADIGUIA” MALANGNENG “KAGUI KADIGUIA” MALANGNENG “KAGUI KADIGUIA” MALANGNENG “KAGUI KADIGUIA” MALANGPetitioner,Petitioner,Petitioner,Petitioner,Petitioner,

- versus -- versus -- versus -- versus -- versus -

HON. COROCOY MOSON,HON. COROCOY MOSON,HON. COROCOY MOSON,HON. COROCOY MOSON,HON. COROCOY MOSON,Presiding Judge of 5Presiding Judge of 5Presiding Judge of 5Presiding Judge of 5Presiding Judge of 5th th th th th Shari’a District Court,Shari’a District Court,Shari’a District Court,Shari’a District Court,Shari’a District Court,Cotabato City, HADJI MOHAMMAD ULYSSISCotabato City, HADJI MOHAMMAD ULYSSISCotabato City, HADJI MOHAMMAD ULYSSISCotabato City, HADJI MOHAMMAD ULYSSISCotabato City, HADJI MOHAMMAD ULYSSISMALANG, HADJI ISMAEL MALINDATUMALANG, HADJI ISMAEL MALINDATUMALANG, HADJI ISMAEL MALINDATUMALANG, HADJI ISMAEL MALINDATUMALANG, HADJI ISMAEL MALINDATUMALANG, FATIMA MALANG, DATULNAMALANG, FATIMA MALANG, DATULNAMALANG, FATIMA MALANG, DATULNAMALANG, FATIMA MALANG, DATULNAMALANG, FATIMA MALANG, DATULNAMALANG, LAWANBAI MALANG, JUBAIDAMALANG, LAWANBAI MALANG, JUBAIDAMALANG, LAWANBAI MALANG, JUBAIDAMALANG, LAWANBAI MALANG, JUBAIDAMALANG, LAWANBAI MALANG, JUBAIDAKADO MALANG, NAYO OMAL MALANG andKADO MALANG, NAYO OMAL MALANG andKADO MALANG, NAYO OMAL MALANG andKADO MALANG, NAYO OMAL MALANG andKADO MALANG, NAYO OMAL MALANG andMABAY GANAP MALANG,MABAY GANAP MALANG,MABAY GANAP MALANG,MABAY GANAP MALANG,MABAY GANAP MALANG,


COMPLIANCECOMPLIANCECOMPLIANCECOMPLIANCECOMPLIANCEBYBYBYBYBY

AMICUS CURIAEAMICUS CURIAEAMICUS CURIAEAMICUS CURIAEAMICUS CURIAE

May it please this Honorable Court.

The undersigned Amicus Curiae, incompliance with the invitation graciously extendedby this Honorable Court in its Resolution dated 29February 2000, respectfully submits thismemorandum in relation to the principal purposeof the hearing of _____________________.

43PREFATORY FACTSPREFATORY FACTSPREFATORY FACTSPREFATORY FACTSPREFATORY FACTS

Hadji Abdula Malang, a Muslim, entered intoa contract of marriage with Aida (Kenanday) Limba.The couple begot three sons (Hadji MohammadUlyssis, Hadji Ismael Malindatu and Datulna) anda daughter (Lawanbai). Two children were alreadyborn to Aida when Hadji Abdula entered into asecond marriage with another Muslim namedJubaida Kado in Kalumamis, Talayan,Maguindanao. No offspring was begotten in HadjiAbdula’s second marriage with Jubaida Kado. Thefirst wife, Aida, was still pregnant with their fourthchild, when Hadji Abdula decided to divorce her.

Hadji Abdula married another Muslim (NayoH. Omar) in 1965. No child was born out of thisthird marriage.

Not long thereafter, Hadji Abdula contracteda fourth marriage with Hadji Mabai (Mabay) H.Adziz in Kalumamis, Talayan, Maguindanao. Theybegot a daughter named Fatima (Kueng). HadjiAbdula married three other Muslim women, shortlythereafter, namely: Saaga, Mayumbai and Sabai.However, he eventually divorced the three of them.

In 1972, Hadji Abdula moved from Talayanto Tambunan where he married Petitioner Neng“Kagui Kadiguia” Malang. They later establishedresidence in Cotabato City. No child was born tothe eighth marriage.

While living with Petitioner in Cotabato City,Hadji Abdula died on December 18, 1993, without

44leaving a last will and testament.

On January 21, 1994, Petitioner filed with theShari’a District Court in Cotabato City a petition forthe settlement of the estate of Hadji Abdula with aprayer for the issuance of letters of administrationin favor of her niece, Tarhata Lauban.

Petitioner alleged in her petition that she wasthe wife of Hadji Abdula, and that his other legalheirs are his three children named Teng Abdula,Keto Abdula and Kueng Malang. Petitioner alsoclaimed that he left a pick-up jeepney and seven (7)parcels of land, five (5) of them titled in the name ofHadji Abdula “married to Neng P. Malang.”

The petition was opposed by herein PrivateRespondents.

In this special civil action of certiorari, themain issue presented for resolution is whether ornot the regime of conjugal partnership of gains gov-erned the property relationship of the two Muslims,Hadji Abdula and Neng Malang, who contractedtheir marriage prior to the effectivity of the Code ofMuslim Personal Laws of the Philippines (hereafterreferred to as “P.D. 1083” or “Muslim Code”). Thequestion is interposed in relation to the settlementof the estate of the deceased husband, Hadji Abdula.

COLLATERAL ISSUESCOLLATERAL ISSUESCOLLATERAL ISSUESCOLLATERAL ISSUESCOLLATERAL ISSUES

The determination of the main issue hingesupon the following collateral issues that requireresolution by this Honorable Court:

451. What law governs the: (a) formal, and (b)

essential requisites for the validity of a Muslimmarriage celebrated under Muslim rites beforethe effectivity of the Muslim Code?

2. Are multiple marriages celebrated before theeffectivity of the Muslim Code valid?

3. How do the Supreme Court’s pronouncementsin People vs. Subano, 73 Phil. 692, and People vs.Dumpo, 62 Phil. 246, affect Muslim multiplemarriages celebrated before the effectivity of theMuslim Code?

4. What laws govern the property relationship ofMuslim multiple marriages celebrated before theMuslim Code?

5. What laws govern the succession to the estate ofa Muslim who died after the Muslim Code andthe Family Code took effect?

6. What laws apply to the dissolution of propertyregimes in the cases of multiple marriagesentered into before the Muslim Code butdissolved (by the husband’s death) after theeffectivity of the Muslim Code?

7. Are Muslim divorces effected before theenactment of the Muslim Code valid?

46First Collateral IssueFirst Collateral IssueFirst Collateral IssueFirst Collateral IssueFirst Collateral Issue

1.1.1.1.1. WHAT LAW GOVERNS THE: (A) FORMAL,WHAT LAW GOVERNS THE: (A) FORMAL,WHAT LAW GOVERNS THE: (A) FORMAL,WHAT LAW GOVERNS THE: (A) FORMAL,WHAT LAW GOVERNS THE: (A) FORMAL,AND (B) ESSENTIAL REQUISITES FOR THEAND (B) ESSENTIAL REQUISITES FOR THEAND (B) ESSENTIAL REQUISITES FOR THEAND (B) ESSENTIAL REQUISITES FOR THEAND (B) ESSENTIAL REQUISITES FOR THEVALIDITY OF A MUSLIM MARRIAGEVALIDITY OF A MUSLIM MARRIAGEVALIDITY OF A MUSLIM MARRIAGEVALIDITY OF A MUSLIM MARRIAGEVALIDITY OF A MUSLIM MARRIAGECELEBRATED UNDER MUSLIM RITESCELEBRATED UNDER MUSLIM RITESCELEBRATED UNDER MUSLIM RITESCELEBRATED UNDER MUSLIM RITESCELEBRATED UNDER MUSLIM RITESBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEMUSLIM CODE?MUSLIM CODE?MUSLIM CODE?MUSLIM CODE?MUSLIM CODE?

The time frame during which the marriagesin question took place appears to be covered by theCivil Code of 1950 which, accordingly, governs themarriages. The pertinent articles provide:

“Art. 52. (C.C.) Marriage is not amere contract but an inviolable socialinstitution. Its nature, consequences andincidents are governed by law and notsubject to stipulation, except that themarriage settlements may to a certainextent fix the property relations during themarriage.

Art. 53. (C.C.) No marriage shallbe solemnized unless all these requisitesare complied with:1. Legal capacity of the contracting

parties;2. Their consent, freely given;3. Authority of the person performing the

marriage; and4. A marriage license, except in a

marriage of exceptional character.

47

Art. 54. (C.C.) Any male of the ageof sixteen years or upwards, and any femaleof the age of fourteen years or upwards,not under any of the impedimentsmentioned in Articles 80 to 84, maycontract marriage.

Art. 55. (C.C.) No particular formfor the ceremony of marriage is required,but the parties with legal capacity tocontract marriage must declare, in thepresence of the person solemnizing themarriage and of two witnesses of legal age,that they take each other as husband andwife. This declaration shall be set forth inan instrument in triplicate, signed bysignature or mark by the contractingparties and said two witnesses, andattested by the person solemnizing themarriage.

In case of a marriage on the pointof death, when the dying party, beingphysically unable, cannot sign theinstrument by signature or mark, it shallbe sufficient for one of the witnesses to themarriage to sign in his name, which factshall be attested by the ministersolemnizing the marriage.

Art. 56. (C.C.) Marriage may besolemnized by:1. The Chief Justice and Associate

Justices of the Supreme Court;

482. The Presiding Justice and the Justices

of the Court of Appeals;3. Judges of the Courts of First Instance;4. Mayors of cities and municipalities;5. Municipal judges and justices of the

peace;6. Priests, rabbis, ministers of the gospel

of any denomination, church, religionor sect, duly registered, as provided inArticle 92; and

7. Ship captains, airplane chiefs, militarycommanders, and consuls and vice-consuls in special cases provided inArticles 74 and 75.”

For twenty (20) years after the approval ofthe Civil Code of 1950, the law recognized as validall marriages between Muslims and pagans subjectto the requirements of Article 78 of the Code whichreads:

“Art. 78. (C.C.) Marriagesbetween Mohammedans or pagans wholive in the non-Christian provinces maybe performed in accordance with theircustoms, rites or practices. No marriagelicense or formal requisites shall benecessary. Nor shall the personssolemnizing these marriages be obliged tocomply with Article 92.1

However, twenty years after theapproval of this Code, all marriagesperformed between Mohammedans orpagans shall be solemnized in accordance

49with the provisions of this Code. But thePresident of the Philippines, uponrecommendation of the Secretary of theInterior, may at any time before theexpiration of said period, by proclamation,make any of said provisions applicable tothe Mohammedan and non-Christianinhabitants of any of the non-Christianprovinces.”

One (1) year is computed at 365 days. Hence,the twenty-year period expired on June 13, 1969.From the date of approval of the Civil Code of 1950on June 18, 1949, there were five (5) leap years (1952,1956, 1960, 1964 and 1968) during the succeedingtwenty (20) years.

Second And Third Collateral IssuesSecond And Third Collateral IssuesSecond And Third Collateral IssuesSecond And Third Collateral IssuesSecond And Third Collateral Issues

2.2.2.2.2. ARE MULTIPLE MARRIAGES CELEBRATEDARE MULTIPLE MARRIAGES CELEBRATEDARE MULTIPLE MARRIAGES CELEBRATEDARE MULTIPLE MARRIAGES CELEBRATEDARE MULTIPLE MARRIAGES CELEBRATEDBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEMUSLIM CODE VALID?MUSLIM CODE VALID?MUSLIM CODE VALID?MUSLIM CODE VALID?MUSLIM CODE VALID?

3.3.3.3.3. HOW DO THE SUPREME COURT’SHOW DO THE SUPREME COURT’SHOW DO THE SUPREME COURT’SHOW DO THE SUPREME COURT’SHOW DO THE SUPREME COURT’SPRONOUNCEMENTS IN PRONOUNCEMENTS IN PRONOUNCEMENTS IN PRONOUNCEMENTS IN PRONOUNCEMENTS IN PEOPLE VS.PEOPLE VS.PEOPLE VS.PEOPLE VS.PEOPLE VS.SUBANOSUBANOSUBANOSUBANOSUBANO, 73 PHIL. 692, AND , 73 PHIL. 692, AND , 73 PHIL. 692, AND , 73 PHIL. 692, AND , 73 PHIL. 692, AND PEOPLE VS.PEOPLE VS.PEOPLE VS.PEOPLE VS.PEOPLE VS.DUMPODUMPODUMPODUMPODUMPO, 62 PHIL. 246, AFFECT MUSLIM, 62 PHIL. 246, AFFECT MUSLIM, 62 PHIL. 246, AFFECT MUSLIM, 62 PHIL. 246, AFFECT MUSLIM, 62 PHIL. 246, AFFECT MUSLIMMULTIPLE MARRIAGES CELEBRATEDMULTIPLE MARRIAGES CELEBRATEDMULTIPLE MARRIAGES CELEBRATEDMULTIPLE MARRIAGES CELEBRATEDMULTIPLE MARRIAGES CELEBRATEDBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEMUSLIM CODE?MUSLIM CODE?MUSLIM CODE?MUSLIM CODE?MUSLIM CODE?

In answer to these two questions, prevailingjurisprudence prior to the effectivity of the MuslimCode has decreed that Muslim multiple marriagesmay result in bigamy, provided that the prior and

50subsequent marriages comply with the requisites fora valid Muslim marriage. The consequence of therulings in Subano and Dumpo is that for purposesof both Civil Law and Criminal Law, the firstmarriage is valid and the second and succeedingmarriages are, in effect, void and bigamous. Thismeans that only one valid marriage can legally existat any given time.

In In In In In PEOPLE vs. PILUS SUBANO, (supra),PEOPLE vs. PILUS SUBANO, (supra),PEOPLE vs. PILUS SUBANO, (supra),PEOPLE vs. PILUS SUBANO, (supra),PEOPLE vs. PILUS SUBANO, (supra), the the the the theSupreme Court held:Supreme Court held:Supreme Court held:Supreme Court held:Supreme Court held:

“From the testimony of the fatherof the deceased, it appears that thedefendant has three wives and that thedeceased was the last in point of time.Although the practice of polygamy isapproved by custom among these non-Christians, polygamy, however, is notsanctioned by the Marriage Law whichmerely recognizes tribal marriage rituals.The deceased, under the law, is not thusthe lawful wife of the defendant and thisprecludes conviction for the crime ofparricide.”

Instead, the Court ruled that the crimecommitted was homicide.

In In In In In PEOPLE vs. MORA DUMPO, (supra),PEOPLE vs. MORA DUMPO, (supra),PEOPLE vs. MORA DUMPO, (supra),PEOPLE vs. MORA DUMPO, (supra),PEOPLE vs. MORA DUMPO, (supra), the the the the theSupreme Court ruled:Supreme Court ruled:Supreme Court ruled:Supreme Court ruled:Supreme Court ruled:

“In the case at bar we have theuncontradicted testimony of Tahari, anIman or Mohammedan priest authorized

51to solemnize marriages betweenMohammedans, to the effect that theconsent of the bride’s father or, in theabsence thereof, that of the chief of the tribeto which she belongs is an indispensablerequisite for the validity of such contracts.If the absence of this requisite did not makethe marriage contract betweenMohammedans void, it was easy for theprosecution to show it by refuting ImanTahari’s testimony inasmuch as for lackof one, there were two other lmans amongthe State witnesses in this case. It failed todo so, however, and from such failure weinfer that the Iman’s testimony for thedefense is in accordance with truth. It iscontended that, granting the absolutenecessity of the requisite in question, tacitcompliance therewith may be presumedbecause it does not appear that Dumpo’sfather has signified his opposition to thisalleged marriage after he had been informedof its celebration. But this presumptionshould not be established over thecategorical affirmation of Moro Jalmani,Dumpo’s father, that he did not give hisconsent to his daughter’s alleged secondmarriage for the reason that he was notinformed thereof and that, at all events, hewould not have given it, knowing thatDumpo’s first marriage was not dissolved.

x x x

52“It is an essential element of the

crime of bigamy that the alleged secondmarriage, having all the essentialrequisites, would be valid were it not forthe subsistence of the first marriage. Itappearing that the marriage alleged to havebeen contracted by the accused withSabdapal, her former marriage withHassan being undissolved, cannot beconsidered as such, according toMohammedan rites, there is nojustification to hold her guilty of the crimecharged in the information.”

The foregoing precepts providing for theinvalidity of Muslim multiple marriages still applyfrom the purely Civil Law standpoint. Only one (1)valid marriage can legally exist at any given time.

However, for purposes of Criminal Law, therule on bigamy has been amended ever sinceFebruary 4, 1977, when Article 180 of the MuslimCode took effect. It reads:

“ARTICLE 180. (M.C.) LAWAPPLICABLE. –

The provisions of the Revised PenalCode relative to the crime of bigamy shallnot apply to a person married inaccordance with the provisions of this Codeor, before its effectivity, under Muslimlaw.”

53Fourth Collateral IssueFourth Collateral IssueFourth Collateral IssueFourth Collateral IssueFourth Collateral Issue

1.1.1.1.1. WHAT LAWS GOVERN THE PROPERTYWHAT LAWS GOVERN THE PROPERTYWHAT LAWS GOVERN THE PROPERTYWHAT LAWS GOVERN THE PROPERTYWHAT LAWS GOVERN THE PROPERTYRELATIONSHIP OF MUSLIM MULTIPLERELATIONSHIP OF MUSLIM MULTIPLERELATIONSHIP OF MUSLIM MULTIPLERELATIONSHIP OF MUSLIM MULTIPLERELATIONSHIP OF MUSLIM MULTIPLEMARRIAGES CELEBRATED BEFORE THEMARRIAGES CELEBRATED BEFORE THEMARRIAGES CELEBRATED BEFORE THEMARRIAGES CELEBRATED BEFORE THEMARRIAGES CELEBRATED BEFORE THEMUSLIM CODE?MUSLIM CODE?MUSLIM CODE?MUSLIM CODE?MUSLIM CODE?

The property relationship may be governedeither by the Civil Code of 1950 or the Family Code.

Which law would govern depends upon:a) When the marriages took place.b) Whether the parties lived together as husband

and wife.c) When and how the subject properties were

acquired.

The Civil Code of 1950 provides:The Civil Code of 1950 provides:The Civil Code of 1950 provides:The Civil Code of 1950 provides:The Civil Code of 1950 provides:

“Art. 135. (C.C.) All propertybrought by the wife to the marriage, as wellas all property she acquires during themarriage, in accordance with Article 148,is paraphernal.

Art. 136. (C.C.) The wife retainsthe ownership of the paraphernal property.

Art. 142. (C.C.) By means of theconjugal partnership of gains the husbandand wife place in a common fund the fruitsof their separate property and the incomefrom their work or industry, and divideequally, upon the dissolution of themarriage or of the partnership, the net

54gains or benefits obtained indiscriminatelyby either spouse during the marriage.

Art. 143. (C.C.) All property of theconjugal partnership of gains is owned incommon by the husband and wife.

Art. 144. (C.C.) When a man anda woman live together as husband andwife, but they are not married, or theirmarriage is void from the beginning, theproperty acquired by either or both of themthrough their work or industry or theirwages and salaries shall be governed bythe rules on co-ownership.”

Article 144 (C.C.) applies to propertiesacquired during the period from the effectivity ofthe Civil Code of 1950 on August 30, 1950 and beforeAugust 3, 1988 when the Family Code took effect,provided that the conditions prescribed in this CivilCode Article are met.

The Family Code, on the other hand,The Family Code, on the other hand,The Family Code, on the other hand,The Family Code, on the other hand,The Family Code, on the other hand,provides:provides:provides:provides:provides:

“Art. 147. (F.C.) When a man anda woman who are capacitated to marryeach other, live exclusively with each otheras husband and wife without the benefitof marriage or under a void marriage, theirwages and salaries shall be owned by themin equal, shares and the property acquiredby both of them through their work orindustry shall be governed by the rules onco-ownership.

55

In the absence of proof to thecontrary, properties acquired while theylived together shall be presumed to havebeen obtained by their joint efforts, workor industry, and shall be owned by themin equal shares. For purposes of thisArticle, a party who did not participate inthe acquisition of the other party of anyproperty shall be deemed to havecontributed jointly in the acquisitionthereof if the former’s efforts consisted inthe care and maintenance of the family andof the household.

Neither party can encumber ordispose by acts inter vivos of his or hershare in the property acquired duringcohabitation and owned in common,without the consent of the other, until afterthe termination of their cohabitation.

When only one of the parties to avoid marriage is in good faith, the share ofthe party in bad faith in the co-ownershipshall be forfeited in favor of their commonchildren. In case of default of or waiver byany or all of the common children or theirdescendants, each vacant share shall belongto the respective surviving descendants. Inthe absence of descendants, such share shallbelong to the innocent party. In all cases,the forfeiture shall take place upontermination of the cohabitation.

56

Art. 148. (F.C.) In cases ofcohabitation not falling under thepreceding Article, only the propertiesacquired by both of the parties throughtheir actual joint contribution of money,property, or industry shall be owned bythem in common in proportion to theirrespective contributions. In the absenceof proof to the contrary, their contributionsand corresponding shares are presumed tobe equal. The same rule and presumptionshall apply to joint deposits of money andevidences of credit.

If one of the parties is validlymarried to another, his or her share in theco-ownership shall accrue to the absolutecommunity or conjugal partnershipexisting in such valid marriage. If theparty who acted in bad faith is not validlymarried to another, his or her share shallbe forfeited in the manner provided in thelast paragraph of the preceding Article.

The foregoing rules on forfeitureshall likewise apply even if both parties arein bad faith.”

Articles 147 (F.C.) and 148 (F.C.) apply toproperties acquired during the period from and af-ter the effectivity of the Family Code on August 3,1988, under the requisite conditions respectivelyprescribed in the two Articles.

57

There are two notable differences betweenArticle 144 of the Civil Code of 1950 and Articles147 and 148 of the Family Code. One difference isthat the Civil Code merely requires that the parties“live together as husband and wife” while the FamilyCode specifies that they “live exclusively with eachother as husband and wife.”

The other difference is that the Civil Codemakes no distinction in Article 144 (C.C.) as towhether or not the man and the woman “arecapacitated to marry each other.” On the other hand,in the Family Code, Article 147 (F.C.) requires themto have capacity to “marry each other as husbandand wife” and presumes that properties procuredduring cohabitation have been acquired equally bytheir joint efforts; while Article 148 (F.C.) does notexpressly require that that the man and the womanbe “capacitated to marry each other” and their jointacquisition must be proven, and not presumed.

Fifth And Sixth Collateral IssuesFifth And Sixth Collateral IssuesFifth And Sixth Collateral IssuesFifth And Sixth Collateral IssuesFifth And Sixth Collateral Issues

5.5.5.5.5. WHAT LAWS GOVERN THE SUCCESSIONWHAT LAWS GOVERN THE SUCCESSIONWHAT LAWS GOVERN THE SUCCESSIONWHAT LAWS GOVERN THE SUCCESSIONWHAT LAWS GOVERN THE SUCCESSIONTO THE ESTATE OF A MUSLIM WHO DIEDTO THE ESTATE OF A MUSLIM WHO DIEDTO THE ESTATE OF A MUSLIM WHO DIEDTO THE ESTATE OF A MUSLIM WHO DIEDTO THE ESTATE OF A MUSLIM WHO DIEDAFTER THE MUSLIM CODE AND FAMILYAFTER THE MUSLIM CODE AND FAMILYAFTER THE MUSLIM CODE AND FAMILYAFTER THE MUSLIM CODE AND FAMILYAFTER THE MUSLIM CODE AND FAMILYCODE TOOK EFFECT?CODE TOOK EFFECT?CODE TOOK EFFECT?CODE TOOK EFFECT?CODE TOOK EFFECT?

6.6.6.6.6. WHAT LAWS APPLY TO THEWHAT LAWS APPLY TO THEWHAT LAWS APPLY TO THEWHAT LAWS APPLY TO THEWHAT LAWS APPLY TO THEDISSOLUTION OF PROPERTY REGIMES INDISSOLUTION OF PROPERTY REGIMES INDISSOLUTION OF PROPERTY REGIMES INDISSOLUTION OF PROPERTY REGIMES INDISSOLUTION OF PROPERTY REGIMES INCASES OF MULTIPLE MARRIAGESCASES OF MULTIPLE MARRIAGESCASES OF MULTIPLE MARRIAGESCASES OF MULTIPLE MARRIAGESCASES OF MULTIPLE MARRIAGESENTERED INTO BEFORE THE MUSLIMENTERED INTO BEFORE THE MUSLIMENTERED INTO BEFORE THE MUSLIMENTERED INTO BEFORE THE MUSLIMENTERED INTO BEFORE THE MUSLIMCODE BUT DISSOLVED (BY THECODE BUT DISSOLVED (BY THECODE BUT DISSOLVED (BY THECODE BUT DISSOLVED (BY THECODE BUT DISSOLVED (BY THEHUSBAND’S DEATH) AFTER THEHUSBAND’S DEATH) AFTER THEHUSBAND’S DEATH) AFTER THEHUSBAND’S DEATH) AFTER THEHUSBAND’S DEATH) AFTER THE

58EFFECTIVITY OF THE MUSLIM CODE?EFFECTIVITY OF THE MUSLIM CODE?EFFECTIVITY OF THE MUSLIM CODE?EFFECTIVITY OF THE MUSLIM CODE?EFFECTIVITY OF THE MUSLIM CODE?

The status and capacity to succeed on the partof the individual parties each and every marriageceremony will depend upon the law in force at thetime of the performance of the marriage rite.

The status and capacity to succeed on the partof the children will depend upon the law in force atthe time of conception or birth of each child.

The identification of heirs in the order of in-testate succession and the respective shares of theseheirs will be determined by the Muslim Code whichtook effect on Februarv 4, 1977 and was already inforce when Hadji Abdula died on December 16,1993.

Subject to the enlightenment afforded to thisHonorable Court by Amicus Curiae Former Con-gressman Michael Mastura, the following relevantprovisions of The Muslim Code may be cited:

“ARTICLE 89. (M.C.)SUCCESSION DEFINED. –

Succession is a mode of acquisitionby virtue of which the estate of a person istransmitted to his heirs or others inaccordance with this code.

ARTICLE 90. (M.C.)SUCCESSIONAL RIGHTS, WHENVESTED. -

59The rights to succession are

transmitted from the moment of the deathof the decedent. The right to succession ofany heir who predeceases the decedent shallnot be transmitted by right ofrepresentation to his own heirs.

ARTICLE 91. (M.C.)REQUISITES OF SUCCESSION.-

No settlement of the estate of adeceased person shall be effected unless:

a) The death of the decedent isascertained;

b) The successor is alive at the time of thedeath of the decedent; and

c) The successor is not disqualified toinherit.

x x xx x xx x xx x xx x x

TITLE III. Legal Succession

Chapter One

SHARERS

ARTICLE 110. (M.C.) WHOARE SHARERS. The following personsshall be entitled to the inheritance assharers to the extent set forth in thesucceeding articles:

60a) The husband, the wife;b) The father, the mother, the

grandfather, the grandmother;c) The daughter and the son’s daughter

in the direct line;d) The full sister, the consanguine sister,

the uterine sister and the uterinebrother.

ARTICLE 111. (M.C.) SHAREOF SURVIVING HUSBAND.

The husband surviving togetherwith a legitimate child or a child of thedecedent’s son shall be entitled to one-fourth of the hereditary estate; should therebe no such descendants, he shall inheritone-half of the estate.

ARTICLE 112. (M.C.) SHAREOF SURVIVING WIFE.

The wife surviving together witha legitimate child or a child of thedecedent’s son shall be entitled to one-eighth of the hereditary estate; in theabsence of such descendants, she shallinherit one-fourth of the estate.”

The rest of the “sharers” and their respectiveshares are set forth in the articles following Article 112.

If the child was conceived or born during theperiod covered by the governance of the Civil Codeof 1950 (August 30, 1950 to February 3, 19972) the

61Civil Code of 1950 determines the legitimacy orillegitimacy of the child.

The Civil Code of 1950 provides:The Civil Code of 1950 provides:The Civil Code of 1950 provides:The Civil Code of 1950 provides:The Civil Code of 1950 provides:

“ART. 255. (C.C.) Children bornafter one hundred and eighty daysfollowing the celebration of the marriage,and before three hundred days followingits dissolution or the separation of thespouses shall be presumed to be legitimate.

Against this presumption noevidence shall be admitted other than thatof the physical impossibility of thehusband’s having access to his wife withinthe first one hundred and twenty days ofthe three hundred which preceded the birthof the child.

This physical impossibility may becaused:

1. By the impotence of the husband;2. By the fact that the husband and wife

were living separately, in such a waythat access was not possible;

3. By the serious illness of the husband.

ART. 256. (C.C.) The child shallbe presumed legitimate, although themother may have declared against itslegitimacy or may have been sentenced asan adulteress.”

62However, if the child was conceived or born

during the period covered by the governance of theMuslim Code (February 4, 1977 up to the death ofHadji Abdula on December 18, 1993), the MuslimCode determines the legitimacy or illegitimacy ofthe child.

The Muslim Code provides:The Muslim Code provides:The Muslim Code provides:The Muslim Code provides:The Muslim Code provides:

“ARTICLE 58. (M.C.)LEGITIMACY, HOW ESTABLISHED.

Legitimacy of filiation isestablished by evidence of valid marriagebetween the father and the mother at thetime of the conception of the child.

ARTICLE 59. (M.C.)LEGITIMATE CHILDREN.

1. Children conceived in lawful wedlockshall be presumed to be legitimate.Whoever claims illegitimacy of orimpugns such filiation must prove hisallegation.

2. Children born after six monthsfollowing the consummation ofmarriage or within two years after thedissolution of the marriage shall bepresumed to be legitimate. Againstthis presumption no evidence shall beadmitted other than that of the physicalimpossibility of access between theparents at or about the time of theconception of the child.

63ARTICLE 60. (M.C.)

CHILDREN OF SUBSEQUENTMARRIAGE.

Should the marriage be dissolvedand the wife contracts another marriageafter the expiration of her “idda,” the childborn within six months from thedissolution of the prior marriage shall bepresumed to have been conceived duringthe former marriage, and if born thereafter,during the latter.

ARTICLE 61. (M.C.) PREG-NANCY AFTER DISSOLUTION.-

If, after the dissolution of marriage,the wife believes that she is pregnant byher former husband, she shall, withinthirty days from the time she became awareof her pregnancy, notify the formerhusband or his heirs of the fact. Thehusband or his heirs may ask the court totake measures to prevent a simulation ofbirth.”

Seventh Collateral IssueSeventh Collateral IssueSeventh Collateral IssueSeventh Collateral IssueSeventh Collateral Issue

7.7.7.7.7. ARE MUSLIM DIVORCES EFFECTEDARE MUSLIM DIVORCES EFFECTEDARE MUSLIM DIVORCES EFFECTEDARE MUSLIM DIVORCES EFFECTEDARE MUSLIM DIVORCES EFFECTEDBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEBEFORE THE EFFECTIVITY OF THEMUSLIM CODE VALID?MUSLIM CODE VALID?MUSLIM CODE VALID?MUSLIM CODE VALID?MUSLIM CODE VALID?

Absolute divorce according to Muslimcustom was legally recognized among Moslems,residing in non-Christian provinces, for a period of

64twenty (20) years from and after June 18, 1949 whenRepublic Act 349 was approved.

The twenty (20) year period expired on June13, 1969, considering that there were five (5) leapyears (1952, 1956, 1960, 1964 and 1968) during thesucceeding twenty (20) years.

COROLLARY ISSUESCOROLLARY ISSUESCOROLLARY ISSUESCOROLLARY ISSUESCOROLLARY ISSUES

From the seven (7) collateral issues, four (4)corollary issues arise, which may clearly collate thepoints of controversy and be decisive, taking intoconsideration the dates of effectivity of the pertinentlaws, to wit:

First Corollary IssueFirst Corollary IssueFirst Corollary IssueFirst Corollary IssueFirst Corollary Issue

QUESTION I: WHICH OF THE SEVERALQUESTION I: WHICH OF THE SEVERALQUESTION I: WHICH OF THE SEVERALQUESTION I: WHICH OF THE SEVERALQUESTION I: WHICH OF THE SEVERALMARRIAGES WAS VALIDLY AND LEGALLYMARRIAGES WAS VALIDLY AND LEGALLYMARRIAGES WAS VALIDLY AND LEGALLYMARRIAGES WAS VALIDLY AND LEGALLYMARRIAGES WAS VALIDLY AND LEGALLYEXISTING AT THE TIME OF THE OPENING OFEXISTING AT THE TIME OF THE OPENING OFEXISTING AT THE TIME OF THE OPENING OFEXISTING AT THE TIME OF THE OPENING OFEXISTING AT THE TIME OF THE OPENING OFTHE SUCCESSION OF HADJI ABDULA WHENTHE SUCCESSION OF HADJI ABDULA WHENTHE SUCCESSION OF HADJI ABDULA WHENTHE SUCCESSION OF HADJI ABDULA WHENTHE SUCCESSION OF HADJI ABDULA WHENHE DIED IN 1993?HE DIED IN 1993?HE DIED IN 1993?HE DIED IN 1993?HE DIED IN 1993?

Republic Act No. 394 June 18, 1949 up to June 13, 1969(authorizing Moslemdivorces)

The New Civil Code(Republic Act. No.386) August 30, 1950[except Article 78 C.C June 18, 1949 up to June 13, 1969](authorizing Moslemmarriage rites)

The Muslim Code February 4, 1977The Family Code August 3, 1988

65

The validly and legally existing marriagewould be that marriage which was celebrated at atime when there was no other subsisting marriagestanding undissolved by a valid divorce or by death.The rule is that only one (1) valid marriage can existat any given time. Whether or not the marriage wasvalidly dissolved by a Muslim divorce dependsupon the time frame and the applicable law.

A Muslim divorce is valid if it took place fromJune 18, 1949 to June 13, 1969 (Republic Act 394).

A Muslim divorce is void if it took place fromand after June 14, 1969 (Republic Act 394).

Second Corollary IssueSecond Corollary IssueSecond Corollary IssueSecond Corollary IssueSecond Corollary Issue

QUESTION II: THERE BEING A DISPUTE BE-QUESTION II: THERE BEING A DISPUTE BE-QUESTION II: THERE BEING A DISPUTE BE-QUESTION II: THERE BEING A DISPUTE BE-QUESTION II: THERE BEING A DISPUTE BE-TWEEN THE PETITIONER AND THETWEEN THE PETITIONER AND THETWEEN THE PETITIONER AND THETWEEN THE PETITIONER AND THETWEEN THE PETITIONER AND THEOPPOSITORS AS REGARDS THE HEIRSHIP OFOPPOSITORS AS REGARDS THE HEIRSHIP OFOPPOSITORS AS REGARDS THE HEIRSHIP OFOPPOSITORS AS REGARDS THE HEIRSHIP OFOPPOSITORS AS REGARDS THE HEIRSHIP OFTHE CHILDREN BEGOTTEN FROM DIFFER-THE CHILDREN BEGOTTEN FROM DIFFER-THE CHILDREN BEGOTTEN FROM DIFFER-THE CHILDREN BEGOTTEN FROM DIFFER-THE CHILDREN BEGOTTEN FROM DIFFER-ENT MARRIAGES, WHO AMONG THE SUR-ENT MARRIAGES, WHO AMONG THE SUR-ENT MARRIAGES, WHO AMONG THE SUR-ENT MARRIAGES, WHO AMONG THE SUR-ENT MARRIAGES, WHO AMONG THE SUR-VIVING CHILDREN ARE LEGITIMATE ANDVIVING CHILDREN ARE LEGITIMATE ANDVIVING CHILDREN ARE LEGITIMATE ANDVIVING CHILDREN ARE LEGITIMATE ANDVIVING CHILDREN ARE LEGITIMATE ANDWHO ARE ILLEGITIMATE?WHO ARE ILLEGITIMATE?WHO ARE ILLEGITIMATE?WHO ARE ILLEGITIMATE?WHO ARE ILLEGITIMATE?

The children who were conceived or born ofa validly existing marriage as determined by theFirst Corollary Issue are legitimate. The fact andtime of conception or birth may be determined byproof or by presumption depending upon the timeframe and the applicable law.

66

Third Corollary IssueThird Corollary IssueThird Corollary IssueThird Corollary IssueThird Corollary Issue

QUESTION III:QUESTION III:QUESTION III:QUESTION III:QUESTION III: WHAT PROPERTIES CON-WHAT PROPERTIES CON-WHAT PROPERTIES CON-WHAT PROPERTIES CON-WHAT PROPERTIES CON-STITUTED THE ESTATE OF HADJI ABDULA ATSTITUTED THE ESTATE OF HADJI ABDULA ATSTITUTED THE ESTATE OF HADJI ABDULA ATSTITUTED THE ESTATE OF HADJI ABDULA ATSTITUTED THE ESTATE OF HADJI ABDULA ATTHE TIME OF HIS DEATH ON DECEMBER 18,THE TIME OF HIS DEATH ON DECEMBER 18,THE TIME OF HIS DEATH ON DECEMBER 18,THE TIME OF HIS DEATH ON DECEMBER 18,THE TIME OF HIS DEATH ON DECEMBER 18,1993?1993?1993?1993?1993?

1. Properties acquired during the existence of avalid marriage as determined by the First CorollaryIssue are conjugal properties and should beliquidated and divided between the spouses underthe Muslim Code as the law in force at the time HadjiAbdula died on December 18, 1993.

2. Properties acquired under the conditionsprescribed in Art. 144 (C.C.) of the Civil Code duringthe period from August 30, 1950 to August 2, 1988are governed by the rules on co-ownership.

3. Properties acquired under the conditionsprescribed in Art. 147 (F.C.) and Art 148 (F.C.) ofthe Family Code during the period from and afterAugust 3, 1988 are governed by the rules on co-ownership.

4. Properties acquired under conditions notcovered by the preceding paragraphs and obtainedfrom the exclusive efforts or assets of Hadji Abdulaare his separate private properties.

67Fourth Corollary IssueFourth Corollary IssueFourth Corollary IssueFourth Corollary IssueFourth Corollary Issue

QUESTION IV:QUESTION IV:QUESTION IV:QUESTION IV:QUESTION IV: WHO ARE THE LEGALWHO ARE THE LEGALWHO ARE THE LEGALWHO ARE THE LEGALWHO ARE THE LEGALHEIRS OF HADJI ABDULA? WHAT ARE THEIRHEIRS OF HADJI ABDULA? WHAT ARE THEIRHEIRS OF HADJI ABDULA? WHAT ARE THEIRHEIRS OF HADJI ABDULA? WHAT ARE THEIRHEIRS OF HADJI ABDULA? WHAT ARE THEIRSHARES IN INTESTACY?SHARES IN INTESTACY?SHARES IN INTESTACY?SHARES IN INTESTACY?SHARES IN INTESTACY?

1. The intestate heirs are:a) The lawful wife, as determined, under the

First Corollary Issue;b) The children as determined under the Second

Corollary Issue.

2. Their respective shares are in accordance withthe Muslim Code which was in force when HadjiAbdula died on December 18, 1993.

THE EVIDENCE REQUIRED FORTHE EVIDENCE REQUIRED FORTHE EVIDENCE REQUIRED FORTHE EVIDENCE REQUIRED FORTHE EVIDENCE REQUIRED FORADJUDICATIONADJUDICATIONADJUDICATIONADJUDICATIONADJUDICATION

The record of this case appears to be inad-equate to resolve in their entirety the main, collat-eral and corollary issues in justiciable controversy.

From all indications, a remand of this case tothe Court a quo may be proper or necessary tosupply the missing links for purposes of providingthe bases for judgment.

It is respectfully submitted that evidenceshould accordingly be received to supply thefollowing proofs:

A. The exact dates of the marriages per-formed in accordance with Muslim ritesor practices;

68

B. The exact dates of the dissolutions of themarriages terminated by death or bydivorce in accordance with Muslim ritesand practices, thus indicating whichmarriage resulted in a conjugalpartnership under the criteria prescribedby the First, Second, and Third CollateralIssues and the First Corollary Issue;

C. The exact periods of actual cohabitation(“common life” under a “common roof”)of each of the marriages during whichtime the parties “lived together.”

D. The identification of specific propertiesacquired during each of the periods ofcohabitation referred to in Paragraph Cabove, and the manner and source ofacquisition, indicating joint or individualeffort, thus showing the asset as ownedseparately, conjugally or in co-ownership.

E. The identities of the children (legitimateor illegitimate) begotten from the severalunions, the dates of their respectiveconceptions or births in relation toParagraphs A and B above, therebyindicating their status as lawful heirs.

CODACODACODACODACODA

In resume, it is respectfully submitted thatthis Honorable Court, in the exercise of its supremejudicial power, may exercise its superior authority

69to remand this case to the Court a quo for furtherproceedings, and enable presentation of evidencethat will provide the missing links.

A few concluding words on a personal noteif it may please the Court.

Your “Amicus” begs to express most humblyhis profound thanks to the Chief Justice and theMembers of this Honorable Court for the rare anddistinct honor of this invitation to appear as AmicusCuriae before Your Honors at this hearing.

Other similar invitations were previouslyextended, twelve (12) years ago when thisHonorable Court’s Resolution of October 27, 1988directed my appearance as Amicus Curiae onNovember 17, 1988 in Diaz et al vs. IntermediateAppellate Court (18 SCRA 427), and again four (4)years ago in this Court’s Resolution of August 21,1996 directing anew my participation as AmicusCuriae on December 3, 1996 in Republic vs. Court ofAppeals and Molina (268 SCRA 198).

Despite the twilight now dimming with thepassing years and the ravages wrought by time onan aging mortal frame, I respectfully and humblynurture the hope that the honor of this latest graciousinvitation might not yet be the last.

Pasig City, Metro Manila for Manila,Philippines.

70Respectfully submitted:

RICARDO C. PUNORICARDO C. PUNORICARDO C. PUNORICARDO C. PUNORICARDO C. PUNOFormer Justice of the Court of AppealsFormer Justice of the Court of AppealsFormer Justice of the Court of AppealsFormer Justice of the Court of AppealsFormer Justice of the Court of Appeals

Retired Minister of JusticeRetired Minister of JusticeRetired Minister of JusticeRetired Minister of JusticeRetired Minister of JusticeAMICUS CURIAEAMICUS CURIAEAMICUS CURIAEAMICUS CURIAEAMICUS CURIAE

1212121212ththththth

Floor, Philippine Stock Exchange Centre Floor, Philippine Stock Exchange Centre Floor, Philippine Stock Exchange Centre Floor, Philippine Stock Exchange Centre Floor, Philippine Stock Exchange CentreExchange Road, Ortigas CenterExchange Road, Ortigas CenterExchange Road, Ortigas CenterExchange Road, Ortigas CenterExchange Road, Ortigas Center

Pasig City, Metro ManilaPasig City, Metro ManilaPasig City, Metro ManilaPasig City, Metro ManilaPasig City, Metro Manila

ENDNOTESENDNOTESENDNOTESENDNOTESENDNOTES

1 ART. 92. Every priest, or minister, or rabbi authorized by hisdenomination, church, sect, or religion to solemnize marriageshall send to the proper government office a sworn statementsetting forth his full name and domicile, and that he is autho-rized by his denomination, church, sect, or religion to solem-nize marriage, attaching to said statement a certified copy ofhis appointment. The director of the proper government of-fice, upon receiving such sworn statement containing the in-formation required, and being satisfied that the denomination,church, sect, or religion of the applicant operates in the Philip-pines, shall record the name of such priest or minister in a suit-able register and issue to him an authorization to solemnizemarriage. Said priest or minister or rabbi shall be obliged toexhibit his authorization to the contracting parties, to theirparents, grandparents, guardians, or persons in charge de-manding the same. No priest or minister not having the re-quired authorization may solemnize marriage.

2 The Muslim Code took effect on February 4, 1997.

71

Republic of the PhilippinesRepublic of the PhilippinesRepublic of the PhilippinesRepublic of the PhilippinesRepublic of the PhilippinesSUPREME COURTSUPREME COURTSUPREME COURTSUPREME COURTSUPREME COURT

ManilaManilaManilaManilaManila

FIRST DIVISIONFIRST DIVISIONFIRST DIVISIONFIRST DIVISIONFIRST DIVISION

G.R. NO. 119064G.R. NO. 119064G.R. NO. 119064G.R. NO. 119064G.R. NO. 119064

NENG KAGUI KADIGUIA MALANG,NENG KAGUI KADIGUIA MALANG,NENG KAGUI KADIGUIA MALANG,NENG KAGUI KADIGUIA MALANG,NENG KAGUI KADIGUIA MALANG,Petitioner,Petitioner,Petitioner,Petitioner,Petitioner,

- versus -- versus -- versus -- versus -- versus -

HON. COROCOY MOSON,HON. COROCOY MOSON,HON. COROCOY MOSON,HON. COROCOY MOSON,HON. COROCOY MOSON,Presiding Judge of 5Presiding Judge of 5Presiding Judge of 5Presiding Judge of 5Presiding Judge of 5ththththth Shari’a District Court, Shari’a District Court, Shari’a District Court, Shari’a District Court, Shari’a District Court,Cotabato City, HADJI MOHAMMAD ULYSSISCotabato City, HADJI MOHAMMAD ULYSSISCotabato City, HADJI MOHAMMAD ULYSSISCotabato City, HADJI MOHAMMAD ULYSSISCotabato City, HADJI MOHAMMAD ULYSSISMALANG, HADJI ISMAEL MALINDATUMALANG, HADJI ISMAEL MALINDATUMALANG, HADJI ISMAEL MALINDATUMALANG, HADJI ISMAEL MALINDATUMALANG, HADJI ISMAEL MALINDATUMALANG, FATIMA MALANG, DATULNAMALANG, FATIMA MALANG, DATULNAMALANG, FATIMA MALANG, DATULNAMALANG, FATIMA MALANG, DATULNAMALANG, FATIMA MALANG, DATULNAMALANG, LAWANBAI MALANG, JUBAIDAMALANG, LAWANBAI MALANG, JUBAIDAMALANG, LAWANBAI MALANG, JUBAIDAMALANG, LAWANBAI MALANG, JUBAIDAMALANG, LAWANBAI MALANG, JUBAIDAKADO MALANG, NAYO OMAL MALANG,KADO MALANG, NAYO OMAL MALANG,KADO MALANG, NAYO OMAL MALANG,KADO MALANG, NAYO OMAL MALANG,KADO MALANG, NAYO OMAL MALANG,AND MABAY GANAP MALANG,AND MABAY GANAP MALANG,AND MABAY GANAP MALANG,AND MABAY GANAP MALANG,AND MABAY GANAP MALANG,


MEMORANDUMMEMORANDUMMEMORANDUMMEMORANDUMMEMORANDUM

THIS REPRESENTATION, complying with theresolution of the Honorable Court en banc dated 29February 2000, respectfully submits thisMemorandum.

Prefatory StatementPrefatory StatementPrefatory StatementPrefatory StatementPrefatory Statement

The views herein are stated in my capacityas one who was actively involved in the drafting of

72

the Code of Muslim Personal Laws of the Philippinesand as an officer of this Honorable Court whoassisted in crafting the Special Rules of Proceduregoverning the Shari’a Courts. The statements areexpressed in the opinion of an Amicus Curiae andnot as a party-in-interest to the dispute at bar.

The AntecedentsThe AntecedentsThe AntecedentsThe AntecedentsThe Antecedents

This is a Petition for Certiorari under Rule 65for review and reversal of the decision of the 5th

Shari’a District, Cotabato City, in SPL. PROC. No.94-40 dated 26 September, ordering the distributionand adjudication of properties, real and personal,belonging to the decedent in accordance with Islamiclaw [P.D. No. 1083].

The case from which this Petition arisescommenced when Petitioner Neng Kagui KadiguiaMalang filed on 20 January 1994 a verified petitionin the matter of the intestate estate of Hadji AbdulaMalang and for issuance of letters of administrationbefore Presiding Judge Corocoy D. Moson, hereinPublic Respondent. The children of the decedentHadji Ismael Malindatu Malang as heirs filedopposition thereto. Jubaida Kado Malang, NayoOmal Malang, and Maby Ganap Malang assurviving widows and other heirs Datulna andLawanbai are claimants.

At trial, the Shari’a District Court appointedHadji Mohammad Ulyssis Malang as administratorof all properties located in the Province ofMaguindanao. Neng Kagui Kadiguia Malang andHadji Ismael Malindatu Malang were appointed

73

joint administrators of all properties, real andpersonal, found existing in Cotabato City.

The joint administrators submittedinventories of property left by the deceased HadjiAbdula Malang consisting of parcels of land coveredby ten (10) titles located in Maguindanao Province;land covered by twelve (12) titles located in CotabatoCity; one (1) motor vehicle; and bank deposits inCotabato City.

The Shari’a District Court named as lawfulheirs the four wives of the decedent, his three sonsand two daughters in the court order of adjudicationand distribution dated 16 September 1994. Thedispositive portion reads:

“WHEREFORE, premises consid-ered, the Court orders the following:

1. That the estate shall pay thecorresponding estate tax, reimbursethe funeral expenses in the amount ofP50,000.00 and the judicial expensesin the amount of P2,040.80;

2. That the net estate, consisting of realand personal properties, located inTalayan, Maguindanao and inCotabato City is hereby distributed asfollows:

a) Jubaida Kado Malang -2/64 of the estate;

74

b) Nayo Omar Malang -2/64 – do – ;

c) Mabai Aziz Malang -2/64 – do – ;

d) Neng “Kagui Kadiguia” Malang -2/64 – do – ;

e) Mohammad Ulyssis Malang -14/64 – do – ;

f) Ismael Malindatu Malang -14/64 – do – ;

g) Datulna Malang -14/64 – do – ;

h) Lawanbai Malang -7/64 – do – ;

i) Fatima (Keung) Malang -7/64 – do – ;

Total: 64/64

3. That the amount of P250,000.00 given toNeng “Kagui Kadiguia” Malang by way ofadvance be charged against her share and ifher share is not sufficient, to return the excess;and

4. That the heirs are hereby ordered to submit tothis court their Project of Partition forapproval, not later than three (3) months fromreceipt of this order.

SO ORDERED.”

The Shari’a Court denied on 10 January 1995a motion for reconsideration of Petitioner afterPrivate Respondents filed an opposition thereto.

75

Hence this recourse under Rule 65 of the Rules ofCourt.

Facts Appearing from the RecordsFacts Appearing from the RecordsFacts Appearing from the RecordsFacts Appearing from the RecordsFacts Appearing from the Records

Evidence for Petitioner consisted ofdocuments and testimonial witnesses but at trial shedid not testify in her own behalf. PrivateRespondents, oppositors below, offeredcorroborative testimonies together with theirwitnesses.

Petitioner and Private Respondents are allMuslims and the intestate property and effects inquestion are located in Cotabato City and theProvince of Maguindanao. It is admitted that HadjiAbdul Malang died intestate on 18 December 1993in Cotabato City.

From the averments of the parties, it is notdisputed that Hadji Abdul Malang and NengKadiguia Malang lived together as husband and wifesince 1972 up to the time of his death on 18 Decem-ber 1993. The story of the decedent’s marital rela-tionships goes back in time when Abdul Wagai – aname he was known prior to performing the hajj -married and then divorced his first wife, Aida Limba,also identified as “Kenenday.” Subsequently, HadjiAbdul Malang married herein Private RespondentsJubaida Kado, Nayo Omal, Mabay Ganap, andherein Petitioner Neng Kadiguia Malang.

It appears on the original records of the casethat the first wife was still alive when Hadji AbdulMalang entered into his second marriage. All

76

succeeding marriages were entered into after hedivorced the first wife who died later. No exact dateswere given of such facts. Under these circumstances,an issue arises whether the fact of death of the firstwife took place before or after the subsequentmarriage of Hadji Abdul Malang to the Petitioner.

The trial judge, Public Respondent herein,was satisfied by oral evidence adduced at theintestate estate proceedings that three (3) priormarriages were “existing before the decedentmarried the petitioner” and, therefore, “conjugalpartnership” between the deceased and petitionercould not be sustained.

On the face of records, the preliminary pointwas taken by the learned judge that the phrase“married to Neng Malang” appearing in thecertificate of title (Exhs. “K” to “DD”) is merelydescriptive of the civil status of Hadji AbdulaMalang, the decedent. The mere fact that Petitionerrelied on her being the only lawful widow shiftedthe burden of evidence to the oppositors. PrivateRespondents introduced similar proofs of such entryin the certificates of title in which the decedent islikewise described as one “married to Aida Limba,”married to Nayo Omal,” and “married to MabayAdji Adzis.” On the face of these documents, theyear 1972 appears as factual point of reference tothe civil status of Hadji Abdula Malang, theregistered owner and his spouses.

In the course of trial, oppositors conceded inopen court the fact of marriage of petitioner to thedecedent as a matter of abbreviating the

77

proceedings. The circumstances of record in this caseprovide no contracts or registrations in respect ofthe unregistered eight (8) marriages. The partylitigants clearly proceeded upon the assumption thatthese marital relationships have been solemnized“according to Muslim rites, customs and practices”as recognized under Article 78 of the Civil Code.

Evidence supports the finding that HadjiAbdul Malang sustained a life of plural maritalstatus from 1972 until he died in 1993. Whether hehad in fact married Saaga Malang, MayumbaiMalang, and Sabai Malang, one after the other, thetrial judge found it of little legal consequence for thedecedent divorced all of them later. Not one of themintervened in the proceedings nor testified in court.Still, it is the very essence of evidence (bayynat) asdistinguished from statements of witnesses (shuhud)in Shari’a Court proceedings under the Special Rulesof Procedure, Sec. 6 (2) [1983] promulgated for theShari’a Courts, that it gives information of that factat issue. As oral evidence, its practical effect was toadduce the preferred proof as to the number ofunregistered marriages that the decedent had duringhis lifetime.

As in juristic rule logic, evidence relating to afact can be one-sided but regard for the principle ofcase logic makes provision for excluding falsity orpossible errors in the trial judge’s finding of facts.As a proof, it substantiates the multiple marriagesand previous divorces that the decedent contractedor repudiated according to Muslim customs, rites,or practices during his lifetime.

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As a matter of law, the Shari’a District Courttook judicial notice of R.A. No. 394 [1949] as thenapplicable to decedent’s divorce from his first wifeand the dissolution of marriages with three otherwives. H.B. No. 343 was filed amending R.A. No.394 [1949] which, however, was overtaken by P.D.No. 1083.

At the conclusion of the trial, PublicRespondent herein found that the decedent had, atthe time of his death, four (4) wives including hereinPetitioner. The estate court ruled that the legal heirsentitled to inherit are four (4) widows and five (5)other surviving heirs. The existing three marriagesare disputed in the instant Petition.

The undisputed facts are that, at the time ofhis death, no child was born to the second and thirdmarriages, but Hadji Abdul Malang was survivedby a total of five (5) children. Three are full-bloodbrothers and one sister, and one consanguine sisterwho is a minor.

Three sons – herein Respondents HadjiMohammad Ulyssis (also identified as “TengAbdula”), Hadji Ismael Malendatu (also identifiedas “Keto Abdula”), Datulena, are all by his firstspouse, Aida Limba. One daughter – herein Respon-dent Lawanbai is also by his first spouse, AidaLimba. One daughter – herein Respondent Fatima(also identified as “Keung”), is by his other spouse,Mabay Ganap.

The declaration of the children as survivingheirs of the decedent is supported by evidence,

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acknowledged in the petition and opposition, andthe prayer for distribution of the property inquestion.

The factual setting of the household istraditional in that the late Hadji Abdula Malang wasthe chief and sole breadwinner of all his families. Itis clear from the evidence of both parties that hissource of income were farmlands and from “buy-and-sell” business. Out of his own earnings as wellas from gains in business with his partner HadjiSalim Alim, he purchased lands in Cotabato City.

The uncontroverted facts are that HadjiAbdula Malang introduced into his matrimonialhousehold Jubaida Kado, Nayo Omal, Mabay Ganapand received them as spouses who actually workedon his farmlands in Talayan, Maguindanao.

The estate court found no evidence relatingto the participation of spouse Neng Kagui Kadiguiain farming nor in running the business of herhusband. The undisputed testimony revealed thatonly his sons Hadji Mohammad Ulyssis and HadjiIsmael Malindatu by the first wife assisted him inthe business.

The IssuesThe IssuesThe IssuesThe IssuesThe Issues

Petitioner assails the finding of the Shari’aCourt and ascribes the errors as follows:

I. In ruling that at the time petitioner marriedthe decedent, the latter had “three existingmarriages” in consequence of which the

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properties acquired during the marriage ofthe decedent and petitioner could not beconsidered conjugal.

II. In holding that “the properties in question arenot conjugal” because under Islamic law theregime of relationship is complete separationof property, in the absence of any stipulationto the contrary in the marriage settlement orany other contract.

Petitioner, in her Memorandum, poses as thepivotal issue:

“Whether or not the propertiesacquired during the marriage of petitionerwith the decedent (Exhs. “K” through“DD”) were conjugal.”

We should start off with a query in develop-ing this issue in our own opinion.

1. If the issue is taken in the affirmative, in whatcapacity (as Muslim or not) and under what lawdid Petitioner establish her marriage status andright to inherit properties acquired duringcoverture?

2. A negative view gives rises t o another query:Is the surviving wife upon death of thehusband entitled to claim more than herdistributive share in the property underconsideration given the Islamic rules of intestacyunder P.D. 1083?

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Petitioner invokes the general principle inCivil Law that conjugal partnership between thedecedent and petitioner was created in 1972 by themere fact of marriage and that all the assets forsettlement are presumed conjugal partnership gains.She draws the conclusion that the Muslim Codeenacted in 1977 is not applicable to determine themarital status and regime of property withretroactive effect as it would impair vested rights ofherein Petitioner. My further question is:

3. Does not Petitioner’s status as the only lawfulwife negate her submission that her propertyinterest must be deduced first as governed bythe Civil Code before the net remainder couldbe distributed to the heirs in pursuant to P.D.1083?

Private Respondents, in their Comments,insist that in regard to the rights of parties toinheritance the main issue is:

“Whether or not PublicRespondent has to apply P.D. 1083 insettling the estate of the Muslim decedentwhose religion allowed him to have fourwives.”

Therefore, in reply to the issue posed above,Private Respondents contend that the argumentadvanced is flawed because the existence of fourmarriages argued against Petitioner’s partnershiptheory of conjugality. As we see it, both PublicRespondent and Private Respondent reduceargument thus to bargaining outcomes:

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4. If partnership or co-ownership did exist, bywhose marriage (first, second, third, fourth orwith all) and with what property sustained suchlegal relation?

5. Should Petitioner maintain that decedent’s pluralmarriages are bigamous or polygamous, then,could not her personality be thought of equallyunder the law in terms of similar bigamousstatus?

The Problem in FocusThe Problem in FocusThe Problem in FocusThe Problem in FocusThe Problem in Focus

Much of what the law’s concern with civilstatus and property system is as principaldeterminants to marriage settlement, divorcesettlement, intestate or testate settlement. Thedetermination of the net estate of the decedent, thestatus and right of succession of the litigants disposeof the case before us.

We are here in need of an analyticalframework to apply the finding of facts to law. Legaltheorists describe property ownership in terms of a“bundle of rights.” The present controversy onreview by certiorari will subject Muslim lawlegislation, in its effects, to civil law principles andwill test the criteria for proof of Muslim customs.The problem appears to focus on statutorypresumption of acquired property during coverturethus:

1. Assume in intestate proceedings, ex hypothesi.

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Once it is proved that property is jointlyacquired during marriage coverture or thatwidow/s children had assisted in working onit, a wife of a Muslim deceased husband claims ahalf of it as hereditary share.

Now the law presumes that the property inquestion was conjugal property.

Therefore it falls on other spouse/s heir/swho denies the claim to rebut the presumption.Can she deduct one-half and distribute sharesunder Muslim law?

2. Affirm or Reverse or Modify decision inproceedings.

Now the estate court finds that property inquestion was exclusive property of the husbandand so decides to apply Muslim law/custom.

Therefore it relieves the spouse/s’ heir/swho oppose/s the claim of presumption in or-der to establish their claims to have shares. Isdistribution of hereditary shares under Muslimlaw proper?

Discussion and AnalysisDiscussion and AnalysisDiscussion and AnalysisDiscussion and AnalysisDiscussion and Analysis

We agree, as Petitioner contends, that sincethe marriage of the decedent to her took place in1972, the applicable law in this case is the Civil Code[R.A. No. 386] on the issue of marriage settlement.It is my view that, whereas the Muslim Code [P.D.No. 1083] which became only effective only in 1977

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was applied in the case at bar, the nature of theproperty in question has not been sufficiently arguedbefore the Shari’a District Court based on the findingof facts.

Review under Rule 65, not Rule 45:Juristic rules and procedure

To clear the way, it is not out of context tosuggest that this most learned Court take localcustom or customary law seriously as having theforce of law. After the submission of party litigantshave been made and replied to, we beg leave of theCourt to explain briefly the novelty in proceduralprocess as embodied in P.D. No. 1083. The OrganicAct for the Autonomous Region in MuslimMindanao provided for a Shari’a Appellate Courtwith limited jurisdiction (R.A. No. 6734, Sec. 2).

We submit that such Appellate Court is notfunctioning is beside the point. No appeal andadequate remedy is available in the ordinary courtsof law, hence the petition for certiorari with theprayer to annul or modify judgement in theproceedings (Rule 65, Sec. 1). What is the intentbehind the provision of P.D. No. 1083 that reads:

“Art. 145. Finality of Decisions.– The decisions of the Shari’a DistrictCourts, whether on appeal from the Shari’aCircuit Court or not, shall be final.Nothing herein contained shall affect theoriginal and appellate jurisdiction of theSupreme Court as provided in theconstitution.”

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The Shari’a courts are not so constrained bycase law in exercising ijtihad or using independentreasoning on a point of Islamic law. A judge hearinga fresh suit in the Shari’a court is free to follow orignore an earlier decision, even if the facts and issuesinvolved are to all intent and purpose in pari materia,in the exercise of his own ijtihad vis-à-vis givencircumstances of each case brought before him.

Our drafters of P.D. No. 1083, known as theCode of Muslim Personal Laws of the Philippines(MPC, for brevity), were aware that upon petitionfor review, it would entail a juristic act to receive inevidence proof of Islamic law. The reason is thatonce a case is reviewed on its sound discretion (Rule45, Sec. 6) and difficult questions of law decided bythe Supreme Court, the effect of leaving the questionopen is eliminated. In such case the doctrine ofprecedent applies authoritatively, unless overturnedin another case. Needless to say, to understandIslamic law properly, one must have knowledge ofthe religion of Islam.

May we point out to this Court that Articles4, 5, 6 and Article 186 of P.D. No. 1083 (Muslim Code)are provisions intended in aid of proceduralefficiency of the litigation process. To review thesubstantive provisions in the light of juristic rulesmight be more appropriate to the Court of last resortto ascertain and apply Islamic law as known andadministered in our jurisdiction. This considerationfor fiqh or (juris) prudentia should be read in relationto the power of the Supreme Court to promulgatethe Special Rules of Procedure Governing the Shari’aCourt [1983].

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It takes “judicial activism” more than“adversary advocacy” to hold a view that makesboth possible and desirable for disputes to bedecided by appeal to considerations of justice orequity rather than by reference to strict legal rules.In the Shari’a Court, evidence consists of two parts:The first must be directed to the facts of the case andthe second is focused on the proofs of Muslim law(shari’a) and jurisprudence (fiqh) within itsjurisdiction. Admission in evidence of matters oflocal custom (adat) or established practices and itsexistence among local Muslims as applicable to thecase is a function of the second part.

The matter of family status has not beensufficiently argued in this Court and so it is myprivilege to participate as an Amicus Curiae. Thepoint of personal laws, which is often not graspedby expositors of the law, is that these include familystatus relating to religion. It is of judicial notice thatin neighboring jurisdictions, personal laws are verymuch part of their family laws, and not just as speciallegislation. With the permission of this Court, I shalloffer relevant jurisprudence and the latest expositionon the law.

Marriage of Exceptional Character:Art. 77 Art. 78, Civil Code

The marriage of Petitioner and the decedentHadji Abdula Malang was one – in thecontemplation of the Civil Code – of an exceptionalcharacter authorized in Chapter 2 of Title III. Theprovision of the Civil Code reads:

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“Art. 78. Marriages betweenMohammedans [sic] or pagans [sic] wholive in the non-Christian provinces maybe performed in accordance with theircustoms, rites or practices. No marriagelicense or formal requisites shall benecessary. Nor shall the personssolemnizing these marriages be obliged tocomply with Article 92” [amended by R.A.No. 6268].

This peculiar provision was meant to be botha transitional rule and a transition period as thesecond paragraph says what it is. “However, twentyyears after the approval of this Code, all marriagesperformed between Mohammedans [term ispolitically incorrect] or pagans shall be solemnizedin accordance with the provisions of this Code”unless extended by the President. Second paragraphof Art. 78 would be in a public law the counterpartto the Administration of Muslim MarriageEnactment in Indonesia, Malaysia, Singapore, SriLanka, Pakistan and India. Our own proposedenabling Draft Code was reviewed and modified bythe Presidential Commission. In our jurisdiction itis presently covered by the Code of Muslim PersonalLaws. In our Report dated 29 August 1975 we stated:

“Consequently, the present ‘Codeof Muslim Personal Laws of thePhilippines’ which the Commission hasdrafted, differs substantially from the‘Proposed Code of the Administration ofPhilippine Muslim Laws of 1974’ preparedby the Research Staff created under

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Memorandum Order No. 370. The formeris primarily substantive whereas the latteris principally administrative in nature andcontent. For all practical purposes, it maybe said that with reference to the draft Codereviewed by the Commission, this Code isalmost in its entirety a new one.”

It is my conviction that the transition periodwas a public policy approach to the law’s reluctanceto impose a secular moralist view of matrimonialunion. There is a rationale, furthermore, to find adistinction between the nature of a Muslim marriage(nikah) from a purely civil marriage.

Article 77 of the Civil Code covers a situationwhen “two persons married in accordance with lawdesire to ratify their union in conformity with theregulations, rites, or practices of any church, sect, orreligion.” This represents an adverse objectivecondition because “it shall no longer be necessaryto comply with the requirements of Chapter 1 of thisTitle and any ratification so made shall merely beconsidered as a purely religious ceremony.” Itappears that in the eyes of the law in a civil marriage,the parties do not act on account of religious beliefor on shari’a pinciple. Quite to the contrary effect, ifthe marriage does not fulfill the conditionsprescribed by the tenets of Islam, it will be invalidin the opinion of Muslim jurists.

(Parenthetically, this point has been reviewedand incorporated in Art. 36 of the Family Code andhas become a watershed in jurisprudentialexposition of both civil law and canon law).

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Precedent calls for an affirmance in order to removeuncertainty of proof of marriage as a basis of legalright.

We are thus faced with divergent rule logicand case logic alongside tests that focus on equityand substantive justice. Of question-begginganalogy, it has been said that arguments can be rightfor wrong reasons. And so, from the way theformulation of the assignment of errors is made, weget a specific understanding of the workings of thelegal order facing a Muslim family constituted bysubsequent marriage relationships. In my view,such celebrations of matrimony were not civilmarriages per se, but considered in extenso marriagesof exceptional character envisioned under the NewCivil Code [R.A. No. 386, 1949, Art. 78] that was thelaw then in force.

R.A. No. 6268 [19 June 1971] amended thesecond paragraph of Art. 78, extending to thirtyyears its applicability, with a proviso that it shallnot apply to marriages sought to be validated thereinif the contracting parties are separated at the time ofits approval. This exceptional character is carriedinto the Family Code as follows:

“Art. 34. Marriages amongMuslims or among members of the ethniccultural communities may be performedvalidly without the necessity of a marriagelicense, provided they are solemnized inaccordance with their customs, rites orpractices.”

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Thus, non-Muslim polygamous marriages arenot possible, but a Muslim can validly perform suchmarital relations subject to the provisions of theMuslim Code [P.D. 1083].

Effect of Bigamy Rule on Subsequent Marriages

There is a dilemnatic choice of rules of decisionhere that has implications for case logics in ourjurisdiction. Just the same we might as well remindourselves of the paradox in Lee v. Jones, 224 La. 231[1953], that judges “do not base their dissent on thelogic of rule.” Needless to say, this learned Courtcannot overturn the axiom that public policysacrifices the individual to the general good. Law isa normative system and its norms must derive fromgiven sources and its roots in some externalinstitutions. To say that, in this sense, a given legalsystem is prone to penetration by the norms andpower relations in the larger society is true.

Questions of value judgement often creep intoindividual acts such as the one reformulated hereleading to mea culpa or déjà vu logic.

Should Petitioner maintain that decedent’splural/multiple marriages are bigamous orpolygamous, then, could not her personality bethought of equally under the law in terms of similarstatus?

There never was doubt in our mind asdrafters of the Muslim Code to protect Muslimmarriages and divorces contracted before this Codethat were bigamous at Civil Law. No proof of nullity

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under the law or custom was offered in evidence inregard to their plurality such as being “bigamous”or“polygamous” in the dispute at bar. Yet it hasbecome a contentious point of what is or what isnot admissible in the light of the assigned error thatPublic Respondent has no legal and factual basisbecause –

“[T]hose alleged three marriagescould not exist at the same time under theNew Civil Code for being polygamous,especially so that those alleged three wivesallegedly married the decedent during thelifetime of Aida Limba, the first wife (SeePage 2, Item 2 of Opposition to Motionfor Reconsideration filed by PrivateRespondents marked as Annex C, andTSN Page 36 of the hearing on August18, 1994). Hence, the petitioner whomarried the decedent after the death ofAida Limba is the only legal wife.”

Public Respondent, in his comment on thispoint [Memorandum, Sept. 12, 1996, p. 2] says thatthe divorce was not only valid under Islamic lawbut also under Philippine law, citing R.A. No. 394.Lawful or “legal wife” must be established underMuslim law.

From my point of view, that she predeceasedhim makes the issue of divorce no less importantthan when exactly did she die or he got remarried.That the decedent divorced his first wife Aida Limbaand when was it precisely becomes important beforethis Court because remarriage in the case at bar is

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put at issue. Was it revocable (talak raj’iy) orirrevocable (talak bain sugra)? Between husband andwife there occurs inheritance in the period of iddahfrom a talak raj’iy, according to all the four schoolsof Islamic law. This principle is adopted in theMuslim Code. There is no succession betweendivorced persons, except for the natural right thatexists during the period of iddah [Art. 96 (1), P.D.1083]. Is this a hiatus in the Muslim Code?

This point needs to be explained in relationto division of “acquired property” upon dissolutionof marriage by divorce. Article 54 (e) says that adivorce as soon as it becomes irrevocable (faskh) hasthe effect of discharging the husband from hisobligation to give support in accordance with Art.67. The conjugal partnership, if stipulated in themarriage settlements, shall be dissolved andliquidated [Art. 54, (f), P.D. 1083].

We observe, in the context of facts and oralevidence, that the rationale of the decision of theShari’a District Court was informed by the spouse’spersonal status on religious grounds or customsestablished as practices before the Muslim Code[1977] P.D. No. 1083 went into effect. We cannotoverlook this fact: Petitioner is the last wife of thedecedent [Cf. Public Respondent Memorandum] ofan exceptional character.

We need to stress that the Supreme Courtonce faced this dilemma and, in dealing with theadmission of the facts of Muslim culture includingits legal component, said:

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“We formulate no generalstatement regarding the requisitenecessary for the validity of a marriagebetween Moros according toMohammedan rites. This is a fact of whichno judicial notice may be taken andno judicial notice may be taken andno judicial notice may be taken andno judicial notice may be taken andno judicial notice may be taken andmust be subject to proof in everymust be subject to proof in everymust be subject to proof in everymust be subject to proof in everymust be subject to proof in everyparticular case particular case particular case particular case particular case [emphasis mine]. It isan essential element of the crime of bigamythat the alleged second marriage, havingall the essential requisites, would be validwere it not for the subsistence of the firstmarriage” (People v. Mora Dumpo, 62Phil 247).

Whenever thin lines are drawn, as in the caseof Republic of the Philippines v. Court of Appeals andRoridel Olaviano Molina (G.R. No. 108763, February13, 1997), this Court finds always a harmonizingprecept to suit to the view of a case as Panganiban J.penned:

“Ideally – subject to our law onevidence – what is decreed as canonicallyinvalid should also be decreed civilly void.”Inversely, as herein, what in juristic edictis deemed valid should be decreed civillyvalid. Considered juristically, Muslimmarriage is a contract, not a sacrament.”

Be that as it may, P.D. No. 1083 categoricallysuspends the effect of the felony defined as bigamyin the Revised Penal Code. It fills up the legallacunae with a “rule on bigamy” stated as follows:

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“Art. 180. Law applicable. – Theprovisions of the Revised Penal Coderelative to the crime of bigamy shall notapply to a person married in accordancewith the provisions of this Code or, beforeits effectivity, under Muslim law.”

Public Respondent, in his Memorandum,invokes Art. 1080 in taking judicial notice of the factof divorce of the decedent and remarriage to PrivateRespondents Jubaida Kado Malang, Nayo OmalMalang, Maby Ganap Malang and Petitioner Neng“Kagui Kadiguia” Malang. The estate court ruledthat all of the wives of the decedent Hadji AbdulaMalang are entitled to inherit under Islamic law.

We want to put on record, with leave of thisHonorable Court, that when we drafted the MuslimCode in all its intendment and operative effect, weaimed to reconstruct the boundaries fordecriminalization of bigamous or polygamousmarriages. These are familiar grounds: Civil lawshave no retroactive effect, unless otherwise providedtherein (NCC, Art. 4). Penal laws have a retroactiveeffect insofar as favorable to the accused (RPC, Art.22). And thus, the “Rule on Bigamy” in ChapterOne of P.D. No. 1083 must be read in correlation toChapter Two, Section 1 on requisites of marriage,Section 2 on prohibited marriages, Section 3 on void(batil) and irregular (fasid) marriages.

The transitory provisions are designed tocover some of the awkward gaps in the Civil Code:

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“Art. 186. Effect of Code on pastacts. –

(1) Acts executed prior to the effectivityof this Code shall be governed by thelaws in force at the time of theirexecution, and nothing herein exceptas otherwise specifically provided,shall affect their validity or legality oroperate to extinguish any rightacquired or liability incurred thereby.

(2) A marriage contracted by a Muslimmale prior to the effectivity of this Codein accordance with non-Muslim lawshall be considered as one contractedunder Muslim law provided thespouses register their mutual desire tothis effect.”

Two points are contemplated under thisprovision. The first provides a mode of proofavailable to a party to his prior acts: for instance, inpursuance to Art. 4 on proving a law or custom (adat)in evidence as a fact or in correlation to the codalprovision concerning proof of Muslim. The secondpoint is a technical one as to the registration ofmarriages or divorces, giving retroactive effect to thecodal provisions concerning proof of Muslim lawor custom.

Prior acts necessarily must be scrutinized inthe light of the Transitional Provisions of the Civil

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Code in the same manner that the Muslim Codemakes its provisions suppletory in its application.The principles upon which the transitionalprovisions of the Civil Code are based can, byanalogy, be applied to the Muslim Code notspecifically regulated by them. Thus, in rights toinheritance the amount can be reduced if in no othermanner can every compulsory heir be given his fullshare (Art. 2263, R.A. 386) in relation to the MuslimCode as to reduction of shares from the totality ofall shares assigned (Art. 129, P.D. 1083).

Petitioner, in her Memorandum, argues thatthe retroactive application of the Muslim Code onmatters involving marital and property relationswould impair vested rights. Viewed in the light ofArt. 2254 of the Civil Code, she did not acquire theright to the property in question until the husband’smoment of death. This Court in Luque v. Villages [30SCRA 417] ruled that a vested right is one that isalready established or fixed free from furthercontingency, uncertainty or controversy. If ananalogy is to be made that no legal impedimentcan result in the retroactivity of adjective provisionsof the Muslim Code, as herein, it could be made tothe case of Cabanatuan v. CFI [51 SCRA 171]. Thelaw applicable to successional rights to the estateof a deceased person is that which governs at thetime of his death (Balais v. Balais [1959 SCRA 47]).

Qua Contract of Muslim Marriage permits SeparateLegal Relations

Problems of proof become difficult inqualifying or excluding boundaries of the private

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states and personal status. Noteworthy is how were-institutionalize in a statutory form Islamicmandatory injunction against a Muslim person whocontracts subsequent marriages.

When we think about the interconnectednessof law and religion among Muslims, it is tounderstand the bearing of these words on theinstitution of marriage and divorce:

“Art. 27. By husband –Notwithstanding the rule of Islamic lawpermitting a Muslim to have more thanone wife but not more than four at a time,no Muslim male can have more than onewife unless he can deal with them withequal companionship and just treatmentas enjoined by Islamic law and only inexceptional cases [P.D. 1083].”

My opinion on the dispute at bar picks fromthis clause, “notwithstanding the Islamic law thatpermits a Muslim to have more than one wife, noMuslim can have more than one wife unless.” Thepermissible is given but the absolute prohibitioncomes not while the first marriage is in effect buton the fourth one. The definition of marriage in P.D.No. 1083, Art. 14, is not only a c ivil contract thatimplies conditions of capacity and performance.Neither is it a sacrament but a civil contract thatis concerned with law (shari’a) and an act onlydone with religious intent (niyyat). It is, as a rule,formulated per verb de praesanti. Once done itbecomes an act of will to perform a duty.

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As a matter of law, it is that portion of shari’aapplied to Muslim personal status implying relationor social institution. Under the Muslim Code, theprovisions that merit consideration are theprovisions on legal capacity and its restrictionsrelative to operative effect. For purposes of theadministration of justice – Who is to be considereda Muslim? Because the courts of law treat allreligions with equality, we have to discover someobjective tests to answer the question. Thecomponents of this question are the profession offaith, existence of belief, and tenets of trueconversion [precedents exit].

In the dispute at bar, we submit that the ruleof decision on the matter is Islamic law that qualifiesthe personality. There are a number of precedentsthat can be cited but it can create also someconsiderations of statutory construction andinterpretation. In the case at bar, it is undeniablethat all party-litigants are Muslims. The Civil Codeconsiders void ab initio those marriages solemnizedwithout marriage license, save marriages ofexceptional character, Art. 78 and those bigamousor polygamous marriages not falling under Art. 83,No. 2. This is now reproduced under Art. 35 of theFamily Code.

It is of public knowledge that local Muslimsget married to more than one up to four wivesvalidly under Islamic law. This state of marital“cohabitations” were not “live-in relationships” hadit not for the personal situation in which they foundthemselves under state laws - as couples ‘heedlessof civil sanctions’ - so aptly described in Republic of

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the Philippines v. Court of Appeals in the SeparateOpinion of Romero J.

The premise of Petitioner’s argument is builtupon family status governed by Civil Law as thegeneral law of the land. There never was a marriagesettlement contract, but Petitioner’s position is notinnovative of the Nepomuceno v. Court of Appeals (139SCRA 206 [1985]) decision of this Honorable Courtupholding the petitioner and the decedent who“lived together in an ostensible marital relationship”for 22 years until his death. In the case at bar, theirfamily relationship continued for 20 years until 1993.There is a question from the records about the factof a prior marriage and a divorce between thedecedent and his first wife before the cohabitationbetween Petitioner and the deceased husband, notto mention the supervening cohabitation and maritalreputation.

Rule on Acquired Property during Coverture

For a moment we may neglect the issue ofmarriage, and focus on the ex hypothesi that Petitionernow adopts on the matter of the property acquiredduring the subsistence of marriage with thedecedent.

In the Philippines, the general provisions ofthe Civil Code, Family Code, and Muslim Code areidentical in the order in which property relationsbetween husband and wife are determined. Thus thespouses may stipulate the system to govern theirproperty rights by contract that decides on themarriage settlement in case of dissolution or death

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of one spouse. In the absence thereof, the provisionsof law or custom established by practices are applied(NCC, Art. 118, FCP, Art. 74, CMP, Art. 37). The lawgoverns family relations as status. No custom,practice or agreement that is destructive of the familyshall be recognized or given any effect (NCC, Art.218). The law requires that a custom must be provedas a fact, according to the rules of evidence (NCC,Art. 12, Yao Kee v. Sy-Gonzales, 167 SCRA 736).

There is here, for the Honorable Court, aThere is here, for the Honorable Court, aThere is here, for the Honorable Court, aThere is here, for the Honorable Court, aThere is here, for the Honorable Court, amatter of formulating rule of decision in dividingmatter of formulating rule of decision in dividingmatter of formulating rule of decision in dividingmatter of formulating rule of decision in dividingmatter of formulating rule of decision in dividingproperty upon divorce or death of one of theproperty upon divorce or death of one of theproperty upon divorce or death of one of theproperty upon divorce or death of one of theproperty upon divorce or death of one of thespouses on the bases of customs or establishedspouses on the bases of customs or establishedspouses on the bases of customs or establishedspouses on the bases of customs or establishedspouses on the bases of customs or establishedpractices among Muslims in Mindanao, and aspractices among Muslims in Mindanao, and aspractices among Muslims in Mindanao, and aspractices among Muslims in Mindanao, and aspractices among Muslims in Mindanao, and asgoverned by Muslim personal law.governed by Muslim personal law.governed by Muslim personal law.governed by Muslim personal law.governed by Muslim personal law.

Petitioner anchors her claim to and right ofsuccession to the property under intestacyproceedings based on Civil Law. The point is thatunlike Civil Law, Islamic Law is essentially jurists’(fuqaha) law. In what can best fit into the context offacts and rules of decision, the Shari’a District Courtturned to the question of applicability of the MuslimCode in that intestate proceedings uponconsiderations of our pluralistic, legal system. Itmight help at this stage to be more specific on myquery No. 4:

“If other partnership or co-ownership form was established, by whosemarriage (first to fourth) and with whatjointly acquired property sustained suchlegal relations?”

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Where, as herein, the intent (niyyat) of theparties is not plain, there is a presumption in law asto the standard governing property ownership.Article 220 says, in case of doubt, all presumptionsfavor the solidarity of the family. Thus, everyintendment of law or fact leans toward thecommunity of property during marriage (NCC, Art.220). On the other hand, the Muslim Code clearlyindicates that the regime of complete separation ofproperty pursuant to its provisions and, in asuppletory manner, by the general principles ofIslamic law and the Civil Code shall apply unlessmarriage settlement is stipulated (CMP, Arts. 38, 39).Its effects bear on jointly acquired property.

Petitioner insists that Public Respondenterred in applying this particular provision of theMuslim Code to the intestate estate of Hadji AbdulaMalang who died on December 18, 1993. Shecontends in her pleadings that the applicableprovision is Art. 160 of the Civil Code in the case atbar. She holds ground that death terminatesconjugal partnership of gains under Art. 175 only toassert it as a reckoning point that determines theproperty regime of the spouses.

Now, as Petitioner asserts, that conjugalproperty relation commences precisely on the datethe marriage is celebrated (NCC, Art. 119). In theabsence of marriage settlements or when the sameare void, the regime of conjugal partnership governsthe property relations between husband and wife(NCC, Art. 119). That operative phrase, “in theabsence of settlements or when the regime agreedupon is void,” defines the relative community of

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property as established in the Civil Code, but nowunder the Family Code, the prevailing principle isthe absolute community of property (FCP, Art. 75).

Again, on that presupposition, PrivateRespondents concede that on the question of thedecedent’s extant marriages, the Civil Codegoverned the same, but they qualify the presumptionto apply only to the first marriage of decedent withAida Limba, not with respect to his subsequentspouses.

On re-reading the Court Order dated 26September 1994, now subject of this review incertiorari, in the opinion of the Shari’a District Court:

“1. No evidence was adduced by petitionerthat a regime of conjugal partnershipwas ever formed or at least could haveexisted between them. Hence, thecontention of the petitioner that theseproperties are conjugal because theywere acquired during the existence ofher marriage with the decedent doesnot merit the consideration of thisCourt.

2. Article 160 of the Civil Code andArticle 116 of the Family Code cannotbe applied because said provisions oflaw are only applicable if there is onlyone wife. In the case at bar, evidencehas clearly established that thedecedent x x x at the time of his death,had four wives x x x that the decedent

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had contracted eight marriages duringhis lifetime.

3. In this jurisdiction, conjugalpartnership presupposes a valid civilmarriage, not a plural marriage orcommon law relationship.

4. Under Islamic law, the regime ofproperty relationship completeseparation of property, in the absenceof any stipulation to the contrary inthe marriage settlement or any othercontract (Art. 38, P.D. 1083). Therebeing no evidence of such contrarystipulation or contract, this courtconcludes as it had begun, that theproperties in question, both real andpersonal, are not conjugal, but ratherexclusive property of the decedent.”

Effect of Burden of Evidence: Change of Theory ofCase?

Public Respondent Judge plausiblyproceeded upon a premise that the estate assets inquestion are the exclusive property of the decedentHadji Abdula Malang. To my mind, PublicRespondent Judge is correct in ruling that conjugalproperty cannot exist in plural marriages. We agreewith the estate court that the marriage could not bea civil marriage because it was not monogamous.

What is it that puzzles us? The challengedCourt Order rested on a premise that rules out the

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applicability of Art. 160 of the Civil Code based onthe evidence that affirms the factuality of decedent’sexisting marriages. Put another way, the fact thatdecedent was survived by four widows at the timeof death overturns the legal presumption ofconjugality. What it does simply is to determine theoperative law governing their marital relationships.The burden of proof remains where it is. But theburden to show the nature of the property rests onthe one alleging that it pertains exclusively to thedecedent or the petitioner or the surviving wives orheirs, and the general presumption now operates infavor of the one who transfers the ownership.

My more basic question turns to the effect ofthe burden of evidence on the statutory presumptionof property relations between the spouses. In caseof doubt, all presumptions favor the solidarity of thefamily. Thus, every intendment of law or facts leanstoward the validity of marriage x x x the communityof property during marriage (Art. 220). The assaileddecision derives from the negation of the statutorypresumption under Art. 160, thus giving support tothe application of Art. 148 governing exclusiveproperty of each spouse. Petitioner invoked Art. 145and Art. 146 that conjugal partnership commencesprecisely on the date of the marriage and that awaiver or any stipulation to the contrary is void. Itis not disputed that the decedent got married to thespouses in 1974, prior to the date when P.D. No. 1083took effect in 1977.

To my mind, the correlative provisionsapplicable in the case at bar are Art. 148 of the CivilCode and Art. 41 of the Muslim Code. The court

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assumed that, even in point of time, if the partiesagreed on a regime of conjugal partnership gains, itwould have been contrary to the Islamic-lawprescribed regime of complete separation ofproperty and directed public policy considerations.

Contrariwise, Public Respondent applied Art.38 of the Muslim Code. My careful evaluation andreading of codal texts of the Civil Code, particularlyArts. 145, 146, and 160, cannot be reconciled to Art.38, P.D.1083 as correlatives and opposites.Arguments put up appear to me as a fallacy basedon the negation of opposites rather than theaffirmation of legal order. The proper interpretationof the second sentence in Art. 119 of the Civil Codein relation to Art. 38 of the Muslim Code and Art. 75of the Family Code will settle the options on theregime of property relations between spouses. Thiswill become clear when we deal with the facts of thecase at bar. The core correlatives of legal systemsare Art. 37 of the Muslim Code and Art. 118 of theCivil Code, and now Art. 74 of the Family Codebecause these operate to create relations andsituations we in the bench and bar state as legal orderor rule of law.

Situation makes less abstract the ground rulesunder the Civil Code and Muslim Code that applyto property acquired during coverture for a validcivil marriage:

Situation A

In which Petitioner finds its position perMemorandum: Petitioner as the only legal wife

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surviving with children of first wife.

Legal or Statutory Presumption;Admission of Proof of Presumption

Not only does Petitioner cite the provision oflaw that “all property of the marriage is presumedto belong to the conjugal partnership (NCC, Art.160), she also banks on the fact that legalpresumption stands in place of evidence. But theburden of proof exists only with a fact in issue (C.J.S.711). It is a basic rule that the effect of a statutorypresumption upon burden of evidence is to relievethose favored thereby of proving the fact presumed(Velasco v. Masa, 10 Phil 272). In the dispute at bar,the admission in open court by the PrivateRespondents of the fact of marriage of Petitioner tothe decedent sustains the burden of evidence(bayyinat) on that point which it covers only.Objective probability is taken into account, which isa reverse of the presumption.

The burden of proof remains with thePetitioner to establish her claim to the property inquestion. On this point, the onus probandi is on theparties to sustain their respective contentions. The

Art. 143. A ll property of the conjugal Civil Status: legal spousespartnership of gains Property Relations

i. is owned in common [Sharik at or partnership law]ii. by the husband and wife Conjugal partnership, 147 NCC

Art. 160. A ll property of the marriage Acquired property [coverture]i. Presumed to belong to the conjugal [No legal presumption in sharik atpartnership, unless Common fund/Co-owners

ii. It be proved that it pertains exclusively to Exclusive property, Art. 148 NCCthe husband or to the wife [Or Art. 41, P.D. 1083]

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burden of evidence merely creates a prima facie casein her favor that seems to impress the PrivateRespondents as a change in Petitioner’s “theory ofconjugality.” The effect of the legal presumption ofconjugal ownership is to create the necessity ofpresenting evidence on the part of PrivateRespondents to overcome the prima facie case which,if they fail to dispute or rebut with evidence, willprevail. In support of her averment, Petitioner hassubmitted evidence of facts established by judicialadmissions of Private Respondents as well as familyportraits, certificates of titles, tax declarations, deedsof sale, car registration, and certificates of bankdeposits all originally marked as Exhibits “K” to“DD.”

At this juncture, it occurs to me, that part ofthe bone of contention of the party litigants arisingfrom the rebutable or disputable presumption is thatunder the provision of the Civil Code, the phrase“acquired during the marriage” does not appear in Art.160 as worded. The progeny of such phrase istraceable to case laws that “properties acquiredduring coverture” are conjugal as against the claimthat these are exclusive properties. Presumption ofconjugal partnership is rebuttable. The Court, a quo,requires clear, satisfactory and convincing proof inrebuttal of statutory presumption (Ahem v. Julian,30 Phil. 607). It may be pointed out that in thecounterpart of Art. 160 as now reproduced in theFamily Code as Art. 116, the clause “acquired duringthe marriage, whether the acquisition appears tohave been made, contracted or registered in thename of one or both spouses” is inserted. Proof ofacquisition during the coverture is a condition sine

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qua non for the operation of the presumption in favorof conjugal ownership (Maramba v. Lozano, 20 SCRA474).

Public Respondent now contends that thereis no allegation whatsoever in the petition that saidproperties are conjugal and notes that Petitioner’s“theory of conjugality is rather strange and newlyadopted, having raised it only after the decision wasrendered” [Memorandum]. It is here pertinent topoint out that under juristic rules, no suchpresumption arises in rights to property or co-ownership under Islamic law. The oppositeprinciple of antedating an event as little as possibleoperates in favor of Respondents. They rejectPetitioner’s conjugal theory as a “newly-adoptedposture.”

On the other hand, Private Respondentsrelying on the decision in Wong v. Court of Appeals(204 SCRA 297) contend that properties to beconjugal by nature must be proven by clear proofsthat they were acquired during the marriage. Todetermine the nature of property acquired duringthe coverture, the controlling factor is the source ofthe money utilized in the purchase thereof (Wongsv. Intermediate Appellate Court, 200 SCRA 792). Onrecord, it appears that Public Respondent Judgeapproved the granting of cash advance from theintestate assets the amount of P250,000 for hermedical expenses despite the objection of PrivateRespondent. It appears that Petitioner assumed thatthe property exclusively belonged to the husbandfrom the very beginning of the settlemnetproceedings for there is no clear allegation of

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partnership in the petition.

At trial, the estate court observed thatPetitioner did not testify orally in her behalf whereasthe Private Respondents and their witnesses who,despite appearing illiterates, testified naturally. Theestate court found that neither the evidence of theopposition nor that of petitioner shows thatpetitioner Neng “Kagui Kadiguia” Malang had anyparticipation in the farming and business activity ofthe decedent.

Public Respondent Judge found thatPetitioner failed to adduce evidence showing thatshe had contributed to the funds used in theacquisition of the properties in question. At the closeof the proceedings, the estate court gave credenceto the oral evidence that proved other members ofthe families contributed, notably wives JubaidaKado, Malang, Nayo Omar Malang, and Mabay AzizMalang who were also farming the property.

Public Respondent Judge held that theproperties covered by Exhibits “K” to “DD” cannotbe considered conjugal and do not form parts of aconjugal property regime. The sharing in theconjugal partnership of gains and benefits is the firsttest applied in determining whether a partnershipexists.

The estate court, in applying the law to theevidence relating to the decedent’s propertyacquired during marriage, ruled that conjugalpartnership was not contemplated. The estate courtmerely followed a rule of decision in Magallon v.

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Montejo (146 SCRA 282), Litam v. Rivera and Stuartv. Yatco (12 SCRA 718), holding that once entry onthe certificate of title has been established byevidence, it is no longer disputable as resulting frommistake or fraud [i.e., rule of indefeasibility of title].But it does not necessarily prove that the land is“conjugal” property. Thus, in a case such as underconsideration, the phrase “married to Neng Malang”in said certificate of title is “merely descriptive ofthe civil status” of the registered onvner.

Established Practices as Customary law (Adat)

The consideration of what corresponds to“acquired property during coverture” in Islamic lawor Muslim local custom was inadequately passedupon at initial proceedings before the Shari’a DistrictCourt. In my view there is an alternative approachthat falls within the contemplation of the MuslimCode, Civil Code, and Family Code. In my viewthere is a misapplication of the provisions onconjugal partnership gains, for under Muslim lawand custom, there is no “statutory separate estate”of the wife as a sharer.

It is incumbent upon the Shari’a Courts toexamine in reference to the joint effort orcontribution in the production of income with whichthe properties in question were acquired during thesubsistence of marriage as sharikat or sa-pacharianproperty. Settled is the rule in Kadi Courts ofMalaysia and the Shari’a Court of Singapore thatonce it is clearly established that property was“acquired during coverture,” a presumption arisesunder adat or customary law that it is harta

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sapancharian (Zainoon v. Mohammed Zain [1981] 2M.L.J.111). This ruleof law is Muslim custom ratherthan of Islamic law which the court must take judicialnotice of, and then it proceeds to consider the wife’sclaim based on Islamic law as in the Order hereinchallenged.

The similarity in Mindanao, Basilan, Sulu andPalawan is evident in the custom relating to betrothaland marriage which gives proof of their propertyrelations. It is in respect of only one land [OCT NO.P-05317] registered in his given names “AbdulWagai married to Aida Limba” that we find the fullimplication of what rules govern the partition anddistribution of property jointly acquired on divorceor death of one spouse.

It is recognized in the Muslim Code that thedowry (mahr) of the wife and nuptial gifts (hiba) toeach spouse is determined under Muslim customand Islamic law (Art. 41 (d), P. D. 1083). This isconsidered exclusive property. Noteworthy is theprovision on the order of preference of claims underTitle IV covering Settlement and Partition of Estatethat includes unpaid dowry alms (Art. 136, P. D.1083).

Situation B

In which Private Respondents find its alter-native position per Memorandum: Deceased firstwife as co-owner, three other widows as co-ownerson joint efforts. Consider that Art. 144 applies therules of co-ownership to common properties:

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This could have been the provision appliedto the dispute were it not for the fact that unionswithout marriage are not acceptable from the Islamicshari’a viewpoint. The counterpart provision as nowreworded under the Family Code uses “capacitatedto marry each other“ to imply possible removal ofimpediments.

In my opinion, the marriage in the case at barcannot be “common-law relation” because it is nota monogamous union. Strictly speaking, there is nosuch thing as a widow’s estate in Islamic law of suc-cession because upon the death of an owner, hisproperty will be divided into numerous fractions,following extremely rigid rules.

We are of course aware of the early decisions,Layson v. Aliquino et al., (C.A. O.G. 4216) and DelCastillo, et al. v. Ventura, et al., (C.A, G.R. Nos. 13263[1957]), that ruled on the effects of void marriagessuch as the bigamous marital relations of the par-ties. The point is whether the marriage is in goodfaith or bad faith on the part of both or one of them,their common property was divided between themand shared alike.

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The principle we are interested in at themoment is that decisions of the Court declare theparties have an equal interest in properties acquiredthrough their joint efforts. Art. 144 provides that theproperty be acquired by either or both of them to createcivil partnership. Given the structural relations ofplural law situation obtaining now in thisjurisdiction and the legal constraints of Malang’srelationship to his spouses and to his families cannotcontinue to be informed by the law’s inner ideal thatPanganiban J. reasons out in Molina’s situation. Herethe judicial task is to use case logic to strive towarda more purposive jurisprudence.

Situation C:

Modifications in which we give effect tomarriage of exceptional character under the CivilCode and subsequent marriages under adjectiveprovisions of the Muslim Code (P.D. No. 1083) with-out prejudice to Art. 2255 re: vested or acquiredright.

The question for decision here is not simplycivil status but the determination in Civil Law,Islamic law, customs or established practices on therights or claims to property in cases of intestacy anddivorce.

Can a wife/widow, upon divorce or on deathof the husband, claim greater share in the hereditaryestate consisting of properties, real and personal,acquired jointly by the spouses or one of them duringthe subsistence of marriage?

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If law is, as suggested, a function ofundisclosed attitudes of judges that influence theirdecision on private interests, it will be on groundsof equity and public policy:

“Art. 218. The law governs familyrelations. No custom, practice oragreement which is destructive of thefamily shall be recognized or given anyeffect.

Art. 220. In case of doubt, allpresumptions favor the solidarity of thefamily. Thus, every intendment of law orfacts leans toward the validity of marriage,the indissolubility of the marriage bonds,the legitimacy of children, the communityof property during marriage, the authorityof parents over their children, and thevalidity of defense for any member of thefamily in case of unlawful aggression.”

Where, as herein, we decide to look intoproperty relations between husband and wife inanalogous citation can be found in P. D. No. 1083,Arts. 37 and 118 of R.A. No. 386 and Art. 74 of E.O.No. 209. It is essential to understand theirjurisprudential structures, borrowing a phrase fromequity, in the confluence of two streams in onechannel that do not mix but move on in continuum.Islamic law is a system of jus (law of edicts) ratherthan a lex (marriage regulation) for it preceded thestate’s existence meant to be something more thanmere custom. Subjecting the provisions of theMuslim code to the test of repugnancy against the

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Civil Code provisions finds common ground incustomary law.

With respect to law and equity as it is in theoriginal jurisdiction of this Court, it is such rule ofdecision which would have been applied by it to acase, if Art. 37 (c) and Art. 118 (3) and Art. 74 (3) hadnot been rendered operational by law.

Common Groundsfor the Codal Provisions

Statutory exceptions are not so unusual asexemptions that are shown here. In case of conflictbetween any provision of the Muslim Code and lawsof general appilication, the former shall prevail (Art.3, P.D. 1083).

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What is common to these provisions of theMuslim Code, Civil Code, and Family Code? To thisquestion, various answers can be made but what weare interested here at the moment is legal order orsequence in which law and family are bound by arule of decision. Out there, in Muslim Mindanao,there is a search for companionship in the household,familial relationships and, at times, a tendency tolive and lead a life outside state law. Out there,reason or logic is not the kind that disputes betweenis and ought proposition.

At intestate estate proceedings, there is clearevidence that the party litigants are Muslims whohave been engaged in traditional occupation ofworking on farmlands and whose properties aremostly confined to lands and animals. As head ofthe family, Hadji Abdula Malang took up residenceat Cotabato City where he owned lands, conductedbusiness and kept bank accounts, and drove hismotor vehicle to his farms. The type of interests inland and the methods of transferring those propertyinterests are very much part of what the disputedshares to inheritance and succession before us.

The theory of Islamic Jurisprudence on whichthe right of succession and inheritance is basedassumes that even after death, the decedent’s rightto his property still inhere in him to answer forcharges and claims (Art. 135). The estate of adeceased Muslim in the Philippines is administeredunder the provisions of P.D. No.1083. Theinheritance is defined as follows:

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“Art. 92. Inheritance (mirath). -The inheritance of a person includes allproperties of any kind, movable orimmovable, whether ancestral or acquiredeither by onerous or gratuitous title, aswell as all transmissible rights andobligations at the time of his death andthose that accrue thereto before partition.”

The law applicable to the inheritance of adeceased Muslim is the school of law according towhich rite he professed at the time of his death. Ifthe deceased person’s madhab is known, the Shafi’ischool of law may be given preference together withthe special rules of procedure adopted to this Code(Art. 134, Par. 2).

“The cause for inheritance amongthe people are three, everyone of whichentitles the possessor thereof the right toinherit provided that there is no impediment.They are nikahnikahnikahnikahnikah (marriage), wala’wala’wala’wala’wala’(relationship) and nasab nasab nasab nasab nasab (kinship). Thereis no other cause for inheritance besides these[Ilmul Fara’id].”

Vesting of Rights to Inheritance Upon Death of theHusband

The question of vesting of inheritance restsentirely upon the time when the person, throughwhom the heirs claim, died. On the death of aMuslim person, inheritance is vested in his heirsaccording to their respective shares. The

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transmission of hereditary estate to his heirs andothers is governed by the Muslim Code (Art. 89;NCC Art. 777). Muslim heirs are independentowners of their shares and they succeed to the wholeof the deceased person’s estate as common ownersin specific shares at the moment of his death. Thephysical distribution takes place much later than theappointment in the eye of the law. Petitioner’s claimfor half-share will not be in the nature of vestedrights, but adverse claims and the residuim is not thesame as the tasib (residue) in Islamic law.

Evidence of Private Respondents has clearlyestablished that decedent Hadji Abdula Malang, atthe time of his death, was survived by four wivesand children by his first and fourth wife. Evidencefurther shows that the decedent had contracted eight(8) marriages during his lifetime including the hereinPetitioner. The dispute at bar is a rare case wherethe husband maintained four wives after divorcinghis first wife with a talaq ba’in (irrevocable). And,having remarried three wives, he married a fourthwife in her stead, then divorced her only to marryand divorce twice before marrying herein Petitionerthe last of the fourth, but the eighth. The marriagewas potentially polygamous from the beginning.The processes of law adaptation that is designed topromote compromises not only have prospective butalso retroactive effect under Art. 2266 (NCC). Mus-lim custom is subject in its effect both to Civil lawand Islamic law.

The Shari’a District Court applied the MuslimCode citing the proof of Islamic law as follows:

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“Under lslamic law, the share of awife is 1/8 of the hereditary estate, if thedecedent has descendant; if no descendant,1/4 of the estate (Art. 112, P.D. 1083; 4:12,Holy Qur’an). If more than one wife butnot exceeding four, they share equally inthe 1/8 or 1/4 as the case may be. The chil-dren or descendants of the decedent, if maleand female concur, inherit as residuaries;the share of a male is double the share of afemale (Art. 122, par. (1), P.D. 1083; 4:11,Holy Qur’an).”

Now it may well be that the Shari’a DistrictCourt was hard put to find the objective of propertyrights in partnership (sharikat) in the Muslim Code.No legal presumption in the Shafi’i school of lawarises in favor of claim against the estate even if it isshown that the property was acquired during themarriage. There exists only among Muslims in theSouth the customary practice of pancharian mean-ing joint earnings of a husband and his wife as dis-tinct from waris pusaka meaning inherited or ances-tral property. The first thing that might have beenlooked into would be Art. 43 of P.D. 1083 for it sayshousehold property that customarily pertains to oris used by either spouse shall be prima facie presumedto be the property of said spouse.

The common term for property is tamokamong the Maguindanaons and Maranaos amd hartaamong the Tausogs. The question at this juncture ishow to apply customary (adat) law to the facts of thecase at bar. There has been no decision in this Courtof the applicability of the principle of tamok a-

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pantiarian or harta sapancharian. It is settled rule inBrunei, Indonesia, Malaysia and Singaporejurisdictions that harta sapancharian is not so muchbased on Islamic jurisprudence as on customspracticed by (Muslims) Malays. Conceived initiallyas a part of custom to be verified by Kathi Courtand village elders, it had earned judicial notice andreceived the stamp of certainty, if not predictability.

Cases and Rules of Islamic Jurisprudence on Custom

There is much to be quoted than said for theapproach to adat or customary law, decision viewed,in the Courts of law. Shari’a courts have likewiseconsistently applied the rules of fiqh or Islamicjurisprudence. Standard treatises and works onMuslim law and jurisprudence shall be givenpersuasive weight in the interpretation of Muslimlaw (Art. 4., par. (2), P.D. 1083). In this regard, thelandmark case on the widow’s claim for a share ofharta sepacarian [variation in spelling] upon herhusband’s death is Hujah Lijah binti Jamal v. Fatimabinti Mat Diah [1930] (16 M.L.J. 63) for its definition:

“The phrase harta sepancarianharta sepancarianharta sepancarianharta sepancarianharta sepancarianI understand to mean “acquired property”with the specialized meaning in thiscontext of ”property acquired during thesubsistence of their marriage by a husbandand a wife out of their resources or by theirjoint efforts.” The acquisition referred tomay extend to cover mere enhancement ofvalue by reason of cultivation ordevelopment.”

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The Hujah Lijah v. Fatimah decision says awidow’s suit for harta sepancharian is not a claimfor a share of the deceased’s estate, but a claimadverse to the estate for property of the claimantheld in the name of the deceased husband. Theshare is usually one-half (1/2). This share is apartfrom any question of her claim to a distributiveshare in the (fara’id) intestate estate. By way ofcomparison, the extreme circumstance is one whois “so situated that they cannot inherit underIslamic law” which we have recognized in Art. 93of our Muslim Code. By operation of law, it alsoprovided under our Muslim Code: “The parent orspouse, who is otherwise disqualified to inheritin view of Art. 93 (c) shall be entitled to one-thirdof what he or she would have received withoutsuch disqualification” (Art. 107, P. D. 1083).

Jurisprudence rests upon recognition of thepart played by the divorced spouse in the acquisitionof the property. The High Court’s holding ondivorce in Boto binti Taha v. Jaafar bin Muhamed ([1985]2 M.L.J.98) holding on divorce established the“automatic entitlement” to “a minimum one-third(1/3)” with results further than “a mere rebuttalpresumption.” One-third (1/3) share of propertyacquired during the marriage goes up to one-half(1/2) share if she assisted in the cultivation of theland or the acquisition. Writing for the majority,Sallah Abas, C. J. opined:

“In my judgement the fact of theplaintiff accompanying the defendant inhis business trips and giving upemployment because of the marriage must

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amount to her joint efforts in theacquisition of these properties. Grantingthat the plaintiff took no direct part in thedefendant’s fish business, but her constantcompanionship was responsible for thedefendant’s peace of mind which enabledhim to function effectively as abusinessman x x x Thus, it is the fact ofthe marriage and what the parties didduring their marriage that makes theseproperties harta sepancarian.harta sepancarian.harta sepancarian.harta sepancarian.harta sepancarian.”

The following rules are parallel to our ownSpecial Rules of Procedure Governing the Shari’aCourt (Ijra-at Mahakim al-Shari-ah) taken from thecelebrated case of Zainuddin v. Anita [1979] (WilayahPersekutuan Syarikat Court of Appeals, Civil Ap-peal No. 12.79) issued as guidelines:

“Where properties have beenacquired through the joint efforts of thehusband and wife, and the parties nowdispute their contribution, the disputeshall be settled as follows:

i. If there is sufficient evidence to provethe contribution of the person makingthe claim, then the claimant is entitledto a share in that property (inproportion to the value of suchcontribution);

ii. In the absence of any evidenceestablishing such contribution, both

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parties should take the oath. If both ofthem took the oath, the properties areto be divided equally. If both partiesrefused to take the oath, the propertiesare also to be divided equally. Whereonly one party was willing to take theoath whereas the other refuses to do so,the properties will be given absolutelyto the one taking the oath. If eitherparty or both of them have died, theoath should be taken by the heirs of thedeceased, if they so desire; and

iii. If there is a custom or establishedpractice according to which one partyputs in more effort than the other, thedivision of properties will be made byagreement in accordance with suchcustoms or established practice. If theparties disagree, the division will besettled in accordance with theprinciples stated in (i) and (ii) above.”

In that case, the wife claimed a half-share inthe matrimonial home acquired during coverture asharta sepencarian upon the husband’s divorce whichthe Chief Kadi’s Court granted. The husband filedan appeal. The Court of Appeals found that the ChiefKadi had not actually made a specific finding thatthe property was harta sepencarian but merely gavehis opinion that the wife was entitled to a share ofthe property. The Court of Appeals then providedthe above guidelines for dealing with claims of hartasepancarian upon divorce. In our jurisdiction, no

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judge or court shall decline to render judgment byreason of the silence, obscurity or insufficiency ofthe laws (Art. 9, NCC).

Mutual oath (tahalif) is provided in Section15 of our Special Rules of Procedure. The Zainuddinruling was based on both parties taking the oath thatthe party was harta sepencarian. The Chief Kadi’sdecision was consequently affirmed. As our Courtrecognizes in Midapak Tampar, et. al. v. Esmael Usman,et. al. (G.R. No. 8207, August 16, 1991), we had toput up with a contrasting worldview. There, thisCourt shared the concern of petitioners in the use ofthe “yamin” (oath) in the proceedings, and for thatmatter, before Philippine Shari’a courts. This Courtin Tampar gives a gist with respect to the effect ofcustom on judicial decision under Section 7, SpecialRules of Procedure:

“If the plaintiff has no evidence toprove his claim, the defendant shall takean oath and judgement shall be renderedin his favor by the Court. On the otherhand, should defendant refuse to take anoath, plaintiff may affirm his claim underoath, in which case judgement shall berendered in his favor.

Said provision effectively deprivesa litigant of his constitutional right to dueprocess. It denies a party his right toconfront the witness against him and tocross-examine them (Sec. 6, Rule 132,Rules of Court). It should have no placeeven in the Special Rules of Procedure of

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the Shari’a Courts of the country.

The possible deletion of thisprovision from the said rules should beconsidered. For this purpose, a committeeshould be constituted by the Court toreview the said special rules, including theabove discussed provision so thatappropriate amendments thereof may beundertaken by the Court thereafter.”

And this obiter, if it pleases this Court, makesgood footnote in case law. There existed probablysome dissatisfaction among the Justices but thisCourt found no necessity to make changes. Theponente somewhat applied the “hard cases make badlaw” approach but had he looked hard enough tothe persuasive weight of Zainuddin, the commentsin Tampar would have been tempered with betterappreciation of the process.

Now the point to be made is that our Shari’aDistrict Court could have turned to customs asestablished procedurally under the Muslim Code:Art. 37(c) by custom guided by Art. 4: Constructionand Interpretation and Art. 5: Proof of Muslim Lawand Adat, and Art. 6: Conflict in Islamic Schools ofLaw and, suppletorily, through Arts. 118, 218 and12 of the Civil Code. As a general rule, resultingfrom compelling considerations as well of justice asof policy, it is my submission that this Court, if thecase is sent for retrial, must lay down principles andpractices in the clearest term “what must amount tojoint efforts in the acquisition of these properties.”The fact of multiple marriages and divorces that the

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decedent entered into bears the bonds of matrimonywith exceptional character. The unintendedconsequences of the double–edged body of ruleswere not, after all, intended to be applicable toabstract persons and acts but real life situations.

Comments onComments onComments onComments onComments onPetitioner’s PrayersPetitioner’s PrayersPetitioner’s PrayersPetitioner’s PrayersPetitioner’s Prayers

I. Turning back to the First Assignment of Errorswe answer Query No. 1.

We are not called here to pass upon a conflictof laws. In reviewing the statutory construction ofthe Muslim Code, we draw an uncertain line butcross the path in code harmonization of P.D. No.1083 and R.A. No. 386 and to some extent E.O. No.209.

A basic postulate of our plural law situationis that those deriving joint ownership, those arisingfrom matrimonial regime and duty of support, andeven those devolving by universal succession haveunprecedented point of contact with Islamic law. Ofmore fundamental import is how the law exists inthe life of the person to whom that law applies andwhose activities it affects. The question who isconsidered a Muslim person becomes evident in theground or cause of inheritance such as marriage,relations and kinship. Thus, the nature of contractof the marriage is determined by lex actus on thispoint of adjective law rather than lex loci. Theconcept of a Muslim person’s responsibility issubsumed under that of his capacity. The need tolook into the capacity arises from the need for a

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primary rule of recognition in the choice of lawsituation governing the adherence to a particularschool of law for purposes of the Muslim Code (Art.6, P.D. 1083).

In my view, Muslim marriages wereconsidered of exceptional character because of thecircumstances in which the parties were situatedeither as modifying or limiting their capacities. Lexactus governs in choice of law situation. Issues onthe three marriages situate the parties to a conflictof personal laws within bounds of the state.

Not only is there absence of arbitrariness butPublic Respondent Judge did not err in givingcredence to oral evidence of marriages contractedby the decedent. It matters in the dispute at bar thatthe form of admission (iqrar) of the fact of marriagesof Private Respondents were admitting the right ofanother against themselves which therefore can notbe taken as self-serving. After decedent divorced(talak ba’in) his first wife and remarried thus enteredinto potentially polygamous unions performedunder customary rites. An essential element to thiswas that the succeeding fourth wife was introducedand received by the existing families who are therespondents herein.

The admission of oral evidence in order toprove the three marriages was not an erroneous orcapricious exercise of judgement on the part of therespondent judge. The term ‘shuhud’ in the SpecialRules of Procedure governing the Shari’a courts [Sec.6 (2)] means statement of witnesses and derives from‘shahada’, in the sense of testimonial proof, can mean

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either testimony or witnessing. In the Muslimsystem of procedure and evidence, it might help toexplain here that it is the deposition made before ajudge, of a witness supporting the claim of oneperson against another in a lawsuit. The testimonyis based upon prior knowledge as to statementsabout a fact or facts. Hence, the identity of the shuhudwho gave it is analogous to the offer of documentand its acceptability. Witnesses must testify to theformal acknowledgement (iqrar) made by the partiesand not just their affirmation [Fat. ‘Alam, 423].

This is at the heart of the issue: Muslims willalways be Muslims as a Muslim. The legislature didnot step in and validate or invalidate those pluralmarriages between Muslims performed inaccordance with the customs, rites or practices. Thisis evident from Art. 80 (4), Art. 83 (2) and Art. 144which provisions, when read together, treatbigamous or polygamous marriages as exceptedupon removal of the impediments thus exemptingfor the time being those so situated from the generalprohibition. And so, we stress the point, statutoryexceptions are not so unusual as exemptions.

II. Turning to the Second Assignment of Error, weanswer Query No. 2.

Questions of property and Musliminheritance seldom reach the court of litigation asgreat cases are settled out of court. Such mattersoften end up in compromise or agreement and thetendency is to provide the widow more than hershare under Muslim law. The aliquot part of the

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wife sums up low. In vast number of Muslimfamilies, one-eighth of the estate does not provide thewidow with enough subsistence. The matter of claimof the wife therefore has been regulated by customhaving the force of law with regard to the interest ofthose concerned. My query No. 2 is:

Is a surviving wife on death of the husband en-titled to claim more than her distributive share in jointlyacquired property given the Islamic rule of intestacy un-der P. D. 1083?

Petitioner’s prayers for relief is premisedupon the allegation that the estate court has amplyregarded Private Respondents 96.875% of the estateand a meager share of only 3.125%. The heirs of firstwife were awarded 75% of the properties underconsideration. To compare, in my view, the totalityor universality of assets and liabilities of the estateand the net remainder under Civil Law with IslamicLaw can be misleading. [Suffice it to explain herethat sharers are persons who take a definite fractionand residuaries, those who take the residue after thesharers are satisfied, or the whole if there are nosharers, but nothing until the sharers, if any, havebeen deducted.] Making a whole number of thefixed-fractional shares each person is entitled to, isthe first primary rule of calculation which must notbe conceived as some heirs taking the bulk of theproperty. My query turns now to No. 3:

Does not Petitioner’s status, allegedly as the onlywife, negate her submission that her property interestmust be deducted first as governed by the New Civil Code

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before the net reminder could be distributed to the heirspursuant to P. D. 1083?

It is incorrect to say that the widow Petitionerhas a separate conjugal share of one-half forwhatever action she takes against the estate of thedeceased husband are in the nature of an adverseclaim to and share in the estate of the decedent. Theinfluence of Civil Law is certainly felt in the assignederror because a widow’s claim under Islamic Lawto a “share” in the intestate estate of her deceasedhusband is confined to her distributive share in hisestate as hereditary property (waris pusaka). The factis - and this is important - that it is only the “residue”that is available for distribution among the heirs.Whether a widow is entitled to any greater inheritedshare (farai’d) in the estate of her deceased husbandthan her waris pusaka inherited or ancestral wouldamount to harta sa-panchirian acquired by jointearnings or joint efforts during coverture.

As we observed it, this Court has to considerthat the relief Petitioner seeks ultimately is to declareco-ownership of the properties acquired during hermarriage with the decedent and to distribute the netestate to herself and the children of the decedent withhis first wife (now deceased).

We are of the opinion as Amicus Curiae thatthe conclusion arrived at by the learned judge of the5th Shari’a District Court on this part of the case iscorrect.

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Petitioner’s claim for conjugal partnership isuntenable other than as rights of partnership(sharikat) suit adverse to Hadji Abdula Malang’sintestate estate that is rarely brought by a Muslimwidow. Working on the land is more visible thanmonetary contributions to the joint earnings or jointefforts. It is very difficult in most cases for thewoman to prove the purchase of the land frommonies acquired by joint labor. The family pursebeing a private matter between husband and wifecan seldom be proved by extraneous evidence torebut presumptions. But the fact that the deceasedhusband is the registered owner of property or thetitle holder is not itself sufficient to dismiss the wife’sclaim or widow’s shares, as in the dispute at bar. Inreal life situation, it is natural as it is often acustomary practice among Muslims in Mindanao forthe title to be registered in the name of the husband.

We seriously think that such types of claimor forms of ownership have not been contemplatedin the Muslim Code in its present statutory form, inother manner except as sa-pancharian joint earningsor efforts during coverture.

Where, due to the personal relation of par-ties as Muslims, the Court may justifiably grant thatthe Islamic rule of intestacy governs the case, whatis to be done?

1. We submit, as Amicus Curiae, for this Court’sresolution to uphold Public Respondent Judgein holding that the property in question was theexclusive property of decedent based on Art. 160

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of the Civil Code in correlation to Art. 41 of P.D.1083 as the operative principles, and to Art. 145of the Code only in regard to establishing the dateof celebration of marriage.

2. We submit for this Court’s resolution to modifythe order of respondent judge in considerationof the effect of the provisions of Arts. 27and 38of P.D. 1083 that operates in the absence ofmarriage settlement. The Court should takejudicial notice of the customary form of jointlyacquired property by husband and wife subjectto rules of evidence on dissolution of marriageby divorce or death of one spouse.

RECOMMENDATIONRECOMMENDATIONRECOMMENDATIONRECOMMENDATIONRECOMMENDATION

A further question emerges as to whether ornot the Supreme Court is the proper forum, or alegislative enactment is needed on questions of therights of parties upon divorce, and upon successionto the estate of deceased intestates. A statutorydefinition is not necessary for we have applicablecodal provisions under the Civil Code, the FamilyCode, and the Muslim Code. Legis constructio nonfacit injuriam. By statutory construction, werespectfully submit, this Honorable Court En Banccan set a precedent. The jurisdiction of this Court todecide questions of law and existing jurisprudenceon the matter can be very well be made use of inorder to determine the rights of the parties.

WHEREFORE, it is respectfully submittedthat this Honorable Court take consideration of thefollowing –

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1. Judicial notice of the governing principle of sa-panchiarian as part of the Muslim custom inMindanao being enforceable and not contrary tolaw, public order or public policy.

2. Judicial guidelines as to reception of evidence indisputes on property, real or personal, acquiredduring coverture for the court to take judicialnotice on dissolution of marriage by divorce ordeath of spouse.

3. Judicial holding that once proof is adduced thatthe immovable property is acquired duringcoverture, a rebuttable presumption arises as sa-panchiarian.

4. Justiciable issue to form bases of action for a wifeupon dissolution of marriage or widow upondeath of the husband on her claim to propertyacquired during coverture by joint earnings,efforts or resources.

5. Recognition of custom established as practice toaward a wife or widow one-third to one-halfshare over and above their one-eighthdistributive share.

There is merit in the claim of Petitioneradverse to the estate that sa-pancharian propertiesjointly acquired by husband and surviving spousesduring coverture recognized by custom wereapparently included in the total inventory of theintestate assets.

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The quantum of sa-pancharian to be awardedto each spouse is one-half of the undivided portionof land as identified or one-third as compensatoryentitlement if unidentifiable before dividing theshares between them and the residues to bedistributed according to Islamic rules of inheritanceunder P.D. No. 1083. The distribution in the Orderof the estate court should be confirmed withadjustment made for this purpose.

Judicial guidelines set along the lines in theZainuddin decision should be adopted andincorporated in this Court’s holding applicable todisputes on acquired property upon divorce or inintestacy proceedings before the Shari’a DistrictCourts.

As to Relief, the decision rendered by thePresiding Judge of the 5th Shari’a District Court,Cotabato City should stand insofar as it affects thestatus of surviving heirs and their distributiveportion. Said court order dated 26 September 1994should be modified to provide for each of thesurviving widows one-third to one-half of theproperty acquired on joint earnings and joint effortsbased on the quantum of customary sa-pancharianinventoried, above their one-eighth portion asQur’anic shares.

Decision is modified with instruction that theShari’a District Court determine joint earnings andjoint efforts in accordance with local custom orestablished practice under Art. 160, Title 11 of P. D.No. 1083 which is applicable.

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Manila City, Philippines, March 29, 2000.

(Sgd.) Michael O. MasturaAmicus Curiae

Blk 8, Lot II Maharlika VillageTaguig, 1637 Metro Manila

[EXPLANATION]Pursuant to Sec. 6 of Rule 45 and Sec. 6 of Rule 65

The foregoing Memorandum is submittedwith no copies being served to the party litigants.We beg leave of the Honorable Court for the formattaken and our inability to reproduce enough copies.This Representation recognizes the special andimportant reasons for its Resolution En Banc dated29 February 2000 and will appear as Amicus Curiae.Therefore, as an officer of the learned Court, we havetaken liberty to raise justiciable issues that in ouropinon arises out of the assignment of errors in thecase at bar.

(Sgd.) Michael O. Mastura Amicus Curiae

ANNEXANNEXANNEXANNEXANNEX

As adduced from records, the decedent’smarital relations is covered by Art. 78 of the NewCivil Code when “marriages betweenMohammedans (Muslims)” are performed inaccordance with “their customs, rites or practices.”

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Here is a matrix of the marriages:

NOTESNOTESNOTESNOTESNOTES

Rules for calculation of inheritance isconsidered to be one of the major achievements ofMuslim scholars. To simplify:

Take the whole of the property. From it, takea share according to the dictates of the Qur’an, andlet the residue, which in most cases constitute thebulk of property, go to the residuaries.

The Quranic heirs consisting mainly ofwomen, with a few exception, are called the sharers.Residuaries so called are heirs through the male line,hence the Agnatic heirs.

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The fractional portions mentioned in theQur’an are 1/2, 1/4, 1/8, 2/3, 1/3 1/6. The role ofthe fraction’s denominator is most vital for makinga whole number from the problem.

The preferences on order of payment of taxes,debts, funeral expenses are recognized.

Documents

PJJ Vol. 2, Issue 5 July-September 2000