Policy, purpose, and constitutional basis
- The Code is anchored on Section 11 of Article XV of the Constitution, requiring the State to consider the customs, traditions, beliefs and interests of national cultural communities in formulating and implementing policies (Article 2).
- The Code recognizes the legal system of Muslims in the Philippines as part of the law of the land and seeks to make Islamic institutions more effective (Article 2).
- The Code codifies Muslim personal laws (Article 2).
- The Code provides for effective administration and enforcement of Muslim personal laws among Muslims (Article 2).
How the Code applies and is interpreted
- When there is a conflict between a provision of the Code and a law of general application, the Code prevails (Article 3(1)).
- When there is a conflict between a provision of the Code and special laws or laws of local application, the special or local law is liberally construed to carry out the Code (Article 3(2)).
- The Code’s provisions apply only to Muslims and must not be construed to operate to the prejudice of a non-Muslim (Article 3(3)).
- Courts must, in construing and interpreting the Code and other Muslim laws, take into consideration the primary sources of Muslim law (Article 4(1)).
- Standard treatises and works on Muslim law and jurisprudence are given persuasive weight in interpreting Muslim law (Article 4(2)).
- Muslim law and ‘Ada not embodied in the Code must be proven as facts in evidence (Article 5).
- No ‘Ada that is contrary to the Constitution, the Code, Muslim law, public order, public policy, or public interest is given legal effect (Article 5).
- When there is conflict among orthodox Sunni Muslim schools of law (MadhAhib), the rule consonant with the Constitution, the Code, public order, public policy, and public interest is given effect (Article 6(1)).
- For purposes of the Code, the Muslim schools of law are the Hanfi, Hanbali, Maliki, and Shafi ‘i (Article 6(2)).
Definitions and key concepts
- “Agama Arbitration Council” means a body composed of the Chairman and a representative of each party that takes all necessary steps to resolve conflicts between them (Article 7(a)).
- “Ada” means customary law (Article 7(b)).
- “General Register” means the General Register of marriages, divorces, revocations of divorces, conversion, and other deeds or instruments kept by the Registrar under the Code (Article 7(c)).
- “Ihram” signifies the state of ritual consecration of a person while on pilgrimage to Mecca (Article 7(d)).
- “Madhhab (plural, MadhAhib)” means any of the four orthodox Sunni schools of Muslim law (Article 7(e)).
- “Month” means a period of thirty days (Article 7(f)).
- “Muslim” is a person who testifies to the oneness of God and the Prophethood of Muhammad and professes Islam (Article 7(g)).
- “Muslim Law (Shari’a)” refers to ordinances and regulations governing Muslims found principally in the Qur’an and Hadith (Article 7(h)).
- “Muslim Personal Law” includes laws relating to personal status, marriage and divorce, matrimonial and family relations, succession and inheritance, and property relations between spouses as provided in the Code (Article 7(i)).
Scope: persons, marriage, and divorce rules
- The rules on marriage and divorce apply to:
- marriages and divorces where both parties are Muslims, or
- where only the male party is a Muslim and the marriage is solemnized under Muslim law or the Code anywhere in the Philippines (Article 13(1)).
- If marriage is between a Muslim and a non-Muslim and is solemnized not in accordance with Muslim law or the Code, the Civil Code of the Philippines applies (Article 13(2)).
- The Code governs essential requisites and legal impediments to marriage, divorce, paternity and filiation, guardianship and custody of minors, support and maintenance, claims for customary dower (mahr), betrothal, breach of contract to marry, solemnization and registration of marriage and divorce, rights and obligations between husband and wife, parental authority, and property relations between spouses, subject to applicable Muslim laws (Article 13(3)).
- Marriage is treated as a social institution and is not only a civil contract; its nature, consequences, and incidents are governed by the Code and Shari’a, not subject to stipulation, except that marriage settlements may to a certain extent fix property relations (Article 14).
Marriage: requisites, solemnization, and dower
- A marriage contract is perfected only if the following essential requisites are complied with (Article 15):
- legal capacity of the parties,
- mutual consent freely given,
- ijab and qabul duly witnessed by at least two competent persons after the proper guardian (wali) gives consent,
- stipulation of customary dower (mahr) duly witnessed by two competent persons.
- Capacity to contract marriage:
- Any Muslim male at least fifteen years of age and any Muslim female of the age of puberty or upwards may contract marriage (Article 16(1)).
- A female is presumed to have attained puberty upon reaching the age of fifteen (Article 16(1)).
- A Shari’a District Court may, upon petition of a proper wali, order solemnization of a female’s marriage if she is less than fifteen but not below twelve and has attained puberty (Article 16(2)).
- A marriage through a wali by a minor below the prescribed ages is regarded as betrothal and may be annulled upon petition of either party within four years after attaining puberty, provided no voluntary cohabitation occurred and the wali who contracted the marriage was other than the father or paternal grandfather (Article 16(3)).
- No particular form is required, but ijab and qabul must be declared publicly in the presence of the person solemnizing and two competent witnesses, and recorded in an instrument in triplicate, signed/marked by the parties and witnesses, and attested by the solemnizing officer; one copy is given to the parties and another sent to the Circuit Registrar, with the officer keeping the third (Article 17).
- Authority to solemnize marriage includes:
- the proper wali of the woman,
- any competent person under Muslim law upon authority of the proper wali,
- the Shari’a judge or designated person if the proper wali refuses without justifiable reason (Article 18).
- Place of solemnization must be public in a mosque, office of the Shari’a judge, office of the District or Circuit Registrar, residence of the bride or her wali, or any other suitable place agreed upon by the parties (Article 19).
- Dower specification:
- amount/value may be fixed before, during, or after celebration (marh-musamma),
- if not fixed, court determines mahr-mithl upon petition of the wife according to social standing of the parties (Article 20).
- Dower payment:
- dower may be fully/partially paid before, during, or after marriage,
- the husband’s property/estate is liable for unpaid dower (Article 21).
- Breach of contract to marry:
- a person who refuses without reasonable ground to marry after contracting to marry must pay the other party the expenses for preparation and damages granted by the court (Article 22).
Prohibited marriages and invalidity categories
- No marriage may be contracted within prohibited degrees of:
- consanguinity,
- affinity, or
- fosterage (Article 23).
- Consanguinity prohibitions include marriages between:
- ascendants and descendants of any degree,
- brothers and sisters (germane, consanguine, or uterine),
- brothers/sisters and their descendants within the third civil degree (Article 24).
- Affinity prohibitions include marriages between:
- spouses and their affinal relatives in the ascending line and collateral line within the third degree,
- stepfather-stepdaughter when the stepfather’s marriage with the stepdaughter’s mother has been consummated,
- stepmother-stepson when the stepmother’s marriage with the step-son’s father has been consummated,
- stepson/stepdaughter and the widow/widower/divorcee of the respective ascendant (Article 25(1)).
- The affinity prohibition applies even after dissolution of the marriage that created the affinal relationship (Article 25(2)).
- Fosterage prohibition:
- no person may validly marry a woman who breastfed him at least five times within two years after his birth (Article 26(1)).
- consanguinity-by-fosterage applies in the same degrees subject to exceptions recognized by Muslim law (Article 26(2)).
- Subsequent marriage limitations:
- while Islamic law permits more than one wife up to four, the Code limits: no Muslim male can have more than one wife unless he can deal with them with equal companionship and just treatment and only in exceptional cases (Article 27).
- ‘Idda conditions for remarriage:
- widow must observe ‘idda of four months and ten days counted from husband’s death; if pregnant, she may remarry within reasonable time after delivery and must produce the corresponding death certificate (Article 28).
- divorcee must observe ‘idda of three monthly courses counted from divorce; if pregnant, she may remarry only after delivery (Article 29(1)).
- if repudiated spouses reconcile during ‘idda, husband has a better right to take her back without need of a new marriage contract (Article 29(2)).
- if it is indubitable that marriage was not consummated when divorce occurred, no ‘idda is required (Article 29(3)).
- Marriage after three talaq:
- after thrice repudiated (talaq bain lubra) on three different occasions, husband cannot remarry unless wife marries another person who divorces her after consummation and expiration of ‘idda (Article 30(1)).
- solemnizing officer must ascertain no collusion among parties before performing the subsequent marriage (Article 30(2)).
- Batil marriages (void from the beginning) include:
- marriages contracted contrary to Articles 23, 24, 25, and 26,
- marriages contracted in contravention of the prohibition against unlawful conjunction,
- marriages where either party was found guilty of having killed the spouse of either of them (Article 31).
- Fasid marriages (irregular from performance) include:
- marriages with a female observing ‘idda,
- marriages c