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1983 SHARI’AH EXAMINATION ON

PERSONS, FAMILY RELATIONS AND PROPERTY

1. a) Under what circumstances may capacity to act be restricted? Give examples.

The following circumstances, among others, modify or limit capacity to act: age,
insanity, imbecility, the state of being deaf-mute, the condition of death illness (marad-
ul-maut), penalty, prodigality, absence, family relations, alienage, insolvency, and
trusteeship. [Art. 9, CMPL]

b) What do you understand by legal personality under the Muslim Code? How is it
acquired and extinguished?

Legal personality of a person begins at the time of his conception. He is already


considered a person in contemplation of law and is therefore possessed of inherent legal
capacity, which however is regarded as defective, but becomes manifest on birth.

Under the Code, birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it is born alive,
however briefly, at the time it is completely delivered from the mother’s womb. [Art.
10, CMPL]

Therefore, personality is acquired by birth and extinguished by death as provided for in


Art. 11 of the Code, which states, Civil Personality is extinguished by death.

2. a) What are the essential requisites of a valid marriage according to the Muslim Law?

No marriage contract shall be perfected unless the following essential requisites are
complied with:

(a) Legal capacity of the contracting parties;


(b) Mutual consent of the parties freely given;
(c) Offer (Ijab) and acceptance (qabul) duly witnessed by at least two competent
persons after the proper guardian in marriage (wali) has given his consent; and
(d) Stipulation of customary dower (mahr) duly witnessed by two competent persons.
[Art. 15, CMPL]

b) Explain briefly what you understand by option of puberty or Khayr-ul Bulugh?

Option of Puberty or Khiyar al-Bulugh is the right of a minor boy or girl who was
contracted into marriage by their guardian other than their father or grandfather during
their minority of repudiating their marriage upon attaining puberty or the age of fifteen,
provided that in the interim, no cohabitation has taken place. [Art. 16 (3), CMPL]

3. (a) What is the distinction between the two concepts of Dower in Islam: Mahr Musamma
and Mahr Methl?

Mahr Musamma or fixed dower is the amount or value of dower that may fixed by the
contracting parties before, during, or after the celebration of the marriage. While the
Mahr Methl or proper dower, is the amount or the value thereof that has not been so
fixed, which upon petition of the wife, be determined by the court according to the
social standing of the parties. [Art. 20, CMPL]

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(b) What may be the subject matter of Dower and what cannot be the subject matter of
Dower in Islamic Law?

Any lawful object in accordance with the Muslim law, that is of value or anything that
is within the commerce of man, or that may be legally sold and not forbidden under
Islamic law may be used as dower.

A tradition was reported that teaching of the Holy Qur-an was considered proper for a
dower.

However, things which are unlawful under the Muslim Law, i.e., pork, wine, or, those
that cannot be the subject of lawful, commerce, i.e., things not yet in existence such as
next year’s crop cannot be considered as property for the purpose of giving it as dower.
And, even personal services to be rendered by the husband, notwithstanding the
tradition in which personal services was considered proper, cannot be considered proper
for dower.

4. (a) What are the marriages prohibited by consanguinity and the marriages prohibited by
affinity under the Muslim Code?

As stated in Article 24 of the Muslim Code, Prohibition by consanguinity- No marriage


shall be contracted between:

(a) Ascendants and descendants of any degree;


(b) Brothers and sisters, whether germane, consanguine or uterine; and
(c) Brothers or sisters and their descendants within the third civil degree.

Marriages prohibited by affinity stated in Article 24 of the Muslim Code;

(1) No marriage shall be contracted between:

(a) Any of the spouse and their respective affinal relatives in the ascending line and in
the collateral line within the third degree;
(b) Stepfather and stepdaughter when the marriage between the former and the mother
of the latter has been consummated;
(c) Stepmother and stepson when the marriage between the former and the father of the
latter has been consummated; and
(d) Stepson or stepdaughter and the widow, widower or divorce of their respective
ascendants.

(2) The prohibition under this article applies even after the dissolution of the marriage
creating the affinal relationship.

(b) Monogamy is the rule in Islam. Under what circumstances or conditions may
subsequent or plural marriages be permitted under Muslim Code?

Notwithstanding the rule of Islamic law permitting a Muslim to have more than one
wife but not more than four at a time, no Muslim male can have more than one wife
unless he can deal with them with equal companionship and just treatment as enjoined
by Islamic law and only in exceptional cases. [Art.27, CMPL]

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5. (a) Classify the divorces under Muslim Law and discuss briefly each one of them.
The following are divorces under Muslim law:
(1) Divorce by talaq- (i) A divorce by talaq may be effected by the husband in a single
repudiation of his wife during her non-menstrual period (tuhr) within he has totally
abstained from carnal relation with her. [Art. 46, CMPL]

(2) Divorce by ila.- Where a husband makes a vow to abstain from any carnal relation
(ila) with his wife and keeps such ila for a period of not less than four months, she may
be granted a decree of divorce by the court after due notice and hearing. [Art. 47,
CMPL]

(3) Divorce by zihar- Where the husband has injuriously assimilated (zihar) his wife to
any of his relatives within the prohibited degrees of marriages, they shall mutually
refrain from having carnal relation until he shall have performed the prescribed
expiation. The wife may ask the court to require her husband to perform the expiation or
to pronounce a regular talaq should he fail or refuse to do so, without prejudice to her
right of seeking other appropriate remedies. [Art. 48, CMPL]

(4)Divorce by li’an- Where the husband accuses his wife in court of adultery, a degree
of perpetual divorce may be granted by the court after due hearing and after the parties
shall have performed the prescribed acts of imprecation (li’an). [Art. 49, CMPL]

(5)Divorce by Khul’- The wife, after having offered to return or renounce her dower or
to pay any other lawful consideration for her release (khul’) from the marriage bond,
petition the court for divorce. The court shall, in meritorious cases and after fixing the
consideration, issues the corresponding decree. [Art. 50, CMPL]

(6)Divorce by Tafwid- If the husband has delegated (tafwid) to the wife the right to
effect a talaq at the time of the celebration of the marriage or thereafter, she may
repudiate the marriage and the repudiation would have the same effect as if it were
pronounced by the husband himself. [Art. 51, CMPL]

(7)Divorce by faskh- The court may, upon petition of the wife, decree a divorce by
faskh on any of the following grounds: [Art. 52, CMPL]

(a)Neglect or failure of the husband to provide support for the family for at least
six consecutive months;
(b)Conviction of the husband by final judgment sentencing him to imprisonment
for at least one year;
(c)Failure of the husband to perform for six months without reasonable cause his
marital obligation in accordance with Code;
(d)Impotency of the husband;
(e)Insanity or affliction of the husband with an incurable disease which would
make the continuance of the marriage relationship injurious to the family;
(f)Unusual cruelty of the husband as defined under the next succeeding article;
or
(g)Any other cause recognized under Muslim law for the dissolution of marriage
by faskh either at the instance of the wife or the proper wali.

(b) Distinguish irrevocable divorce and perpetual divorce. Explain

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Divorce becomes irrevocable after the expiration of the ‘idda, meaning the marriage
bond is severed, and if the parties desire to reconcile, they have to marry again.

Whereas if the husband accuses his wife in court of adultery, a degree of perpetual
divorce may be granted by the court after due hearing and after the parties shall have
performed the prescribed acts of imprecation (li’an), and they can never remarry again.

6. a) Describe briefly the five (5) cases found in PD.1083 expressly falling under the
jurisdiction of the Agama Arbitration Council.

The five cases found in P.D. 1083 expressly falling under the jurisdiction of the Agama
Arbitration Council are the following, viz;

1. Article 161 on divorce by talaq and tafwid:


A Muslim male who pronounced talaq shall file with the Clerk of Court of the
Shari’a District Court of the place where his family resides a written notice of such
talaq. Within seven days from receipt of notice, the Clerk of Court shall require
each parties to nominate each representative. These representatives shall then be
appointed by the Court, with the Clerk of Court as Chairman, an Agama Arbitration
Council.
2. Article 162 on the application by the husband to contract a subsequent marriage:
A Muslim husband desiring to contract a subsequent marriage shall file a written
notice to the Clerk of Court of the Shari’a Circuit Court of the place where his
family resides. The clerk shall serve a copy of said notice to the wife or wives.
Should any of them object, an Agama Arbitration Council shall be
formed/constituted.
3. Article 163 on offenses against Customary Law:
In cases involving offenses against customer law which can be settled without
formal trial, the Shari’a Circuit Court, may direct the Shari’a Clerk of Court to
constitute a council of not less than two or more than four members, to settle the
case amicably.
4. Article 36(3) on the application by the wife to exercise any profession or engage in
lawful business:
a. The wife may, with her husband’s consent, exercise any profession or
occupation or engage in lawful business. However, if the husband refuses to
give consent, the matter shall be referred to Agama Arbitration Council.
5. Article 160 – other appropriate cases

b) Are the following marriages valid? Give your reasons:

1. Abdullah married the widow of his foster son. – Valid. Not covered by instances of
Article 26 of the Code, on the Prohibition due to fosterage.

2. Abdul, son of Abdullah’s brother, married Meriam, the youngest widow of


Abdullah.- Invalid, under prohibition by affinity.

3. A is a foster son of B. A’s brother married B’s two daughters - Invalid, in


contravention of the prohibition against unlawful conjunction.

7. a) What are the mutual rights and obligations of the spouses under the Muslim Code?

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Article 34 of the Code states that the mutual rights and obligations of spouses,
1. The husband and the wife are obliged to live together, observe mutual respect and
fidelity, and render mutual help and support
2. When one of the spouses neglects his or her duties to the conjugal union or brings
danger, dishonor or material injury upon the other, the injured party may petition the
court for relief. The court may counsel the offender to comply with his or her duties,
and take such measures as may be proper.
3. The husband and the wife shall inherit from each other in accordance with this Code,
4. The husband and the wife shall have the right to divorce in accordance with this Code.

b) What is the regime of property relations between the spouses under the Muslim Code,
in the absence of the stipulation in the marriage settlement?

Article 38 of the Code provides that, the property relations between the spouses, in
absence of any stipulation to the contrary in the marriage settlements or any other
contract, shall be governed by the regime of complete separation of property.

8. a) What are the exclusive properties of each spouse under the Muslim Code ?

The following shall be the exclusive property of either spouse:


1. Properties brought to the marriage by the husband or the wife;
2. All income derived by either spouse from any employment, occupation or trade;
3. Any money or property acquired by either spouse during marriage by lucrative title;
4. The dower (mahr) of the wife and nuptial gifts to each spouse
5. Properties acquired by right of redemption, purchase or exchange of the exclusive
property of either ; and
6. All fruits of properties mentioned in the foregoing paragraphs. [Art. 41, CMPL]

b) A’s wife left the conjugal property and refused to return and live with her husband,
who files a suit against his wife for restitution of conjugal rights. The wife engaged your
services as a Shari’ah lawyer to contest the suit. What grounds can you set up in defense
of her rights?

As her counsel, I will ask the court to exempt her from living with her husband on the
ground that the conjugal dwelling is not in keeping with her social standing or is, for
any reason not safe for the members of the family or her property. [Art. 35, CMPL]

9. a) Discuss the validity of the following marriages:


1.) A Muslim marries a Christian girl – Valid. Any Muslim male may validly
contract marriage with a woman who is khitabiyyah.

2,.) A Muslim marries a Buddhist girl – Irregular. Mixed marriages between a


Muslim male with a non-muslim female who is not a khitabiyyah is considered Fasid
under the Code.

3.) A Muslim girl marries a Christian male – Void. Mixed marriages prohibited
under Islamic law. (Although may be considered irregular under Art. 32 (f), CMPL )

9. b.) A married B. Subsequently, their marriage was dissolved. Within 2 years after the
dissolution of the marriage, C a child was born. Can C be presumed legitimate in Islamic
Law? If your answer is in the affirmative, is there any exception? Explain.
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Yes, the Code provides that, children born after six months following the consummation
of marriage or within two years after the dissolution of marriage shall be presumed to
be legitimate. Against this presumption no evidence shall be admitted other than that of
the physical impossibility of access between the parents at or about the time of the
conception of the child. [Art. 59, CMPL]

10. a.) What do you understand by Waqf, its classification and legal incidents, under Muslim
Law?

Waqf is a legal process by which a Muslim (waqif) creates and endowment of his
property for any purpose recognized by Islam as religious, pious and charitable.

It may be classified according to:

1.) Purpose
a. Waqf Khairi- endowment of a definitely religious or public nature
b. Waqf alal-awlad – a family endowment for the benefit of waqif children,
grandchildren or other relations or for other persons
2.) Time of its effectivity in relation to Waqif
a. Waqf inter vivos –that which become effective during the lifetime of the
waqif
b. Waqif mortis causa – that which becomes effective after the death of the
waqif
3.) Nature of the waqf property
a. Waqf constituted on immovable property
b. Waqf constituted on personal or movable property
4.) Extent of Waqf
a. Permanent and absolute. The owner relinquish his ownership of his property
to the Waqf foundation
b. Relative and temporary, in which only the use or enjoyment of the property
and its fruits are waqf, the ownership of which remains with the owner.

Waqf, to be valid, must comply with certain conditions, viz;


1.) The founder (waqif) must have full right of disposal over his property
2.) The object of endowment must be of permanent nature, primarily a real estate
3.) The purpose of the endowment must be a work pleasing to God, particularly for
pious, religious or charitable purposes
4.) The form need not be a written one.
5.) It must be made in perpetuity
6.) It must come into force at once and there must be no condition for postponing it
except the death of the founder
7.) It is an irrevocable legal transaction
8.) The conveyance of the endowment to those for whom it is intended or rather to the
administrator
9.) The property to be devoted to Waqf must be known and specific
10.) The beneficiary must be in existence at the time of constitution of the waqf of
known identity or capable of being identified, and is not disqualified under the
Muslim Law to become a beneficiary of a waqf.

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b) What do you understand by customary contract or Sandah or Sanla under the Muslim
Code? Compare it briefly with the contracts of mortgage, pledge, antichresis and
usufruct?

Under the Muslim Code, any transaction whereby one person delivers to another any
real estate, plantation, orchard or any fruit-bearing property by virtue of sanda, sanla,
arindao, or similar customary contract, shall be construed as a mortgage (rihan) in
accordance with Muslim law. [Art. 175, CMPL]

Customary contracts are those contracts which Muslims in this country are used to enter
into involving real estate or properties such as what is known in their localities as
sanda, sanla and arindao.

By sanda or sanla, the owner of a real estate, plantation, orchard or fruit-bearing trees
for consideration or certain sum of money mortgages his property by placing the same
in the occupation and enjoyment of the mortgagee for a fixed period of time or without
such period, with the condition that should the loan be paid within the period agreed, if
a period has been stipulated, or at any time, but not indefinitely, if no period is
stipulated, the property shall be returned to the owner, without any obligation to pay any
interest on the principal contract of loan.

Arindao is a customary contract whereby the owner mortgages his real estate,
plantation, orchard or fruit-bearing trees for a consideration or certain sum of money for
a fixed period of time with the condition that the mortgagor shall have the right of
occupation and enjoyment of the property during the period so stipulated, and upon the
expiration of that period, the mortgagor shall return the property to the mortgagee
without paying the consideration or money received by him.

In Civil law mortgage, there is a payment of legal rate interest and the property
mortgaged remains with the mortgagor for a definite period.

A pledge is something delivered as security for the payment of a debt or fulfillment of a


promise and subject to forfeiture on failure to pay or fulfill a promise.

By contract of antichresis, the accreditor acquires the right to receive the fruits of an
immovable of his debtor, with the obligation to apply them to the payment of interest, if
owing, and thereafter to the payment of his credit. [Art. 2132, NCC]

Usufruct gives a right to enjoy the property of another with the obligation of preserving
its form and substance, unless the title constituting it or the law otherwise provides.
[Art. 562, NCC]

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1987 SHARIA’H BAR EXAMINATION ON
PERSONS, FAMILY RELATIONS AND PROPERTY

1. a) What is the scope of the Muslim code and to whom does it apply?

The Code of Muslim Personal laws includes all laws relating to personal status,
marriage and divorce, matrimonial (rights and obligations between the spouses ) and
family relations (paternity and filiation, guardianship and custody of minors, support
and maintenance), succession and inheritance, and property relations between spouses,
as provided for in this code [Art. 7 (i), CMPL]
The provisions of this Code shall be applicable only to Muslims and nothing
herein shall be construed to operate the prejudice of a non-Muslim [Art.3 (3), CMPL]

b) What law shall govern in cases of marriage between a Muslim male and a non- Muslim
female solemnize under the civil code of the Philippines?

In case of marriage between a Muslim and non-Muslim, solemnized not in accordance


with this code, the Civil Code of the Philippines shall apply. [Art.13 (2), CMPL].

c) On the preceding problem, supposing the marriage was solemnized in accordance with
Muslim law, but executed prior to the effectivity of P.D. No. 1083, what law shall apply?
Explain briefly.

It is provided under the Code of Muslim Personal Laws, that acts executed prior
to the effectivity of this code shall be governed by the law enforce at the time of
execution, and nothing here in except as otherwise provided, shall affect their validity
or legality or operate to extinguish any right acquired or liability incurred thereby. [Art.
186, CMPL].
Therefore, the Civil Code shall apply. Article 78 of the Civil Code recognizes
the right of Muslims to contract marriage in accordance with their customs and rites.

2. a) Who are authorized to solemnize marriage under the Muslim code?

Marriage maybe solemnized:

(1) by the proper wali (guardian) of a woman to be wedded;


(2) upon authority of the proper wali, to any person who is competent under Muslim
law; and
(3) by the judge of the Shariah district or circuit court or any person designated by the
judge, should the proper wali refuse without justifiable reason, to authorize the
solemnization.
[Art.18, CMPL]

b) Does an Imam (Muslim community leader) have authority to solemnize a marriage?


Explain.

An Imam is a competent person under Muslim law to solemnize marriage,


provided he is authorized by the proper wali of the woman to be wedded. [Art. 18(2),
CMPL]

c) Under what condition may a judge of the Shari’ah District court or Shari’ah circuit
court designate any person to solemnize marriage?

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A judge may designate any person to solemnize marriage should the proper wali
refuse without justifiable reason to authorize the solemnization. [Art. 18(3), CMPL]

3. a) Discuss briefly the validity of the following marriage:

1) Marriage between a Muslim male and a Jew female - Valid. A Muslim male can
validly contract marriage to any woman who is belonging to the people of the book
such as Muslim, Jew, Hebrew and Christian
2) Marriage between a Buddhist male and a Muslim female - Void. Mixed marriages
prohibited under Islamic Law (Although may be considered irregular under Art. 32
(f), CMPL)
3) Marriage between a Muslim male and the sister of his wife who is still living - Void.
A marriage contracted in contravention against unlawful conjunction is considered
void. [Art. 31 (b), CMPL]
4) Marriage while in a state of Ihram - Irregular. It can be validated when the party is
no longer in a state of ihram.
5) Marriage between a Muslim and non-Christian - Irregular. Mixed marriages
between a Muslim male with a non-Muslim female who is not a khitabiyyah,
(Christian, Jew, Hebrew), is considered irregular. [Art. 32 (f), CMPL]

b) What are the marriages prohibited by reason of fosterage?

Pursuant to the provision of the Code of Muslim Personal law which substantially
provides that, no person may validly contract marriage to any woman who breastfeed
him for at least five times within two years after his birth. The prohibition on marriage
by reason of consanguinity shall likewise apply to persons related by fosterage within
the same degrees, subject to exception recognized by Muslim law. [Art. 26, CMPL]

4. a) Distinguish between talaq bain sugra under Article 46 and talaq bain kubra under the
Article 30 of the Muslim code.

Talaq bain sugra is a minor irrevocable divorce. After the expiration of the ‘idda in the
first two divorces, the marriage bond shall become severed, if the parties wants to
reconcile during such stage of talaq, they have to marry again.

Whereas, Talaq bain kubra is major irrevocable divorce which results automatically
after the pronouncement of third divorce. Once talaq bain kubra sets in, the parties
cannot remarry until after the conditions of Article 30, P.D. 1083 complied.

b) What is the effect of Talaq bain kubra and what is the duty of the solemnizing officer
who performs the subsequent marriage?

Under the law, which substantially provides that, where a wife has been thrice
repudiated (talaq bain kubra) on three occasions by her husband, he cannot remarry her
unless she shall have married another person who divorces her after the consummation
of the intervening marriage and the expiration of the ‘idda.

No solemnizing officer shall perform the subsequent marriage mentioned in the


preceding paragraph unless he has ascertained that there was no collusion among the
parties. [Art. 30, CMPL]

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5. a) How shall the property relations between the spouses be governed?

The property relation between husband and wife shall be governed in the following
order:

(a) by custom;
(b) by contract before or at the time of the celebration of the marriage; and
(c) by provision of this code. [Art. 37, CMPL]

b) Is there a difference between the regime of property relations between spouses under
the Muslim Code and the Civil Code of the Philippines?

Yes. Under the Code of Muslim of Personal Laws which substantially provides
that, in the absence of any stipulation, the property relation of the spouses shall be
governed by regime of complete separation of property. [Art 38, CMPL]

Whereas, under the Civil Code of the Philippines, the system of relative
community or conjugal partnership of gains, shall govern the property relations between
husband and wife [Art. 119. NCC]

6. a) In what cases or instances may the wife sue or be sued independently by the husband?

Under the provision of the Code of Muslim Personal Laws, which substantially
provides that, the wife may, independently of the husband, sue or be sued on the
following grounds;
(a) when the litigation is between the husband and wife;
(b) if the suit concerns her exclusive property;
(c) if the litigation is incidental to her profession, occupation or business;
(d) if the litigation concerns the exclusive property of her husband, the administration
of which have been transferred to her; or
(e) Such other appropriate cases as may be allowed by the general principles of Islamic
law and other laws.
[Art 44. CMPL].

b) In the exercise of her profession, vocation or calling, is the wife required to get the
consent of her husband? Why?

Yes. The wife may, with her husband consent, exercise any profession,
occupation or engage in lawful business which is in keeping with Islamic modesty and
virtue. [Art. 36(3), CMPL]

c) Can the husband object and on what ground?

Yes. On the ground that his income is sufficient for the family according to the social
standing or his opposition is based on serious and valid grounds. [Art. 36(3), CMPL]

7. a) What are the grounds of divorce by Faskh and how shall the same availed by the
wife?
The court may, upon petition of the wife, decree a divorce by faskh on any of the
following grounds:
(a) neglect or failure of the husband to provide support for the family within six
consecutive months;

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(b) conviction of the husband to final judgment sentencing him to imprisonment for at
least one year;
(c) failure of the husband to perform for six months without reasonable cause his
marital obligation;
(d) impotency of the husband
(e) insanity or affliction of the husband with an incurable disease that would make the
continuous of marriage relationship injurious to the family;
(f) unusual cruelty of the husband
(g) any other cause recognized under Muslim law for the dissolution of marriage by
faskh either at the instance of the wife or the proper wali.
[Art. 52, CMPL]

b) What constitutes unusual cruelty as a ground for divorce by Faskh?

A decree of faskh on the ground of unusual cruelty may be granted by the court upon
petition of the wife if the husband:

(a) habitually assaults her or make her life miserable by cruel conduct even if this does
not result to physical injury;
(b) associates with persons of ill-repute or leads an infamous life or attempts to force
the wife to live an immoral life;
(c) compels her to dispose of her exclusive property or prevents her from exercising her
legal right over it;
(d) obstructs her in the observance of her religious practices; or
(e) does not treat her justly equitably as enjoined by Islamic law.
[Art. 53, CMPL]

8. a) X and Y, husband and wife, were divorced. Subsequently, Y became aware that she is
pregnant by X and immediately she notified the latter about such fact. If you were the lawyer
of X, what advice will you give him and why?

As counsel, I will advise him to ask the court to take measures to prevent the simulation
of birth as provided in the Code of Muslim Personal laws. [Art. 61, CMPL]

b) Supposing in the above problem X died, to who shall address such notice?

Should the former husband die, the wife should notify the heirs of her former husband
of such fact. [Art. 61, CMPL]

9. a) What are the acts or events affecting the civil status of a person that must be recorded in
the Muslim General Register?

Under the Code, only acts involving civil status of Muslim relating to marriages,
judgment declaring void Muslim marriages subject to the Code under Art. 32,
annulment of irregular marriage under Art. 33, including the registration of marriages
contracted by a Muslim male prior to the effectivity of this Code in accordance with
non-Muslim law, divorces, revocation of divorces and conversions are required and can
be recorded in the Muslim Civil Registry.

b) How about other acts, events or judicial decrees affecting the civil status of the Muslim,
where shall they be registered?

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All other acts, events, or judicial decrees affecting civil status of persons relating
to birth, death, correction of entries and change of name shall continue to the functions
of the existing civil registry created under the Civil Registry Law (Act No. 3753)

c) May the district or circuit registrar cancel, amend or make alterations of the entry in
the Muslim General Register? Why?

Yes. Under the law which substantially provides that, any entry in district or
circuit register may, upon verified petition of any interested party, be corrected upon
order of the Shariah District Court, subject to the provisions of the Rules of Court.
Every Registrar shall be civilly responsible for any unauthorized alteration made in the
registry to any person suffering damage thereby. However, the Registrar may exempt
himself from such liability if he proves that he has taken every reasonable precaution to
prevent the unlawful alteration. [Art. 84, CMPL]

10. a) A and B were married under Muslim law on February 7, 1974. Subsequently, A
contracted a subsequent marriage with C, a Christian woman under the Muslim code. Can A
be held liable for bigamy? Why?

The provisions of the Revised Penal Code relative to the crime of Bigamy shall
not apply to a person married in accordance with the provisions of the Code or, before
its effectivity, under Muslim Law. [Art. 180, CMPL] Hence, A cannot be liable for
bigamy.

b) Assuming in the above problem, the marriage between A and B was in accordance with
the Civil code, will your answer be the same? Why?

No, because under the Revised Penal Code of the Philippines, any person who
shall contract a second or subsequent marriage in accordance with the Civil Code,
before the former marriage has been legally dissolved, shall be liable to the crime of
Bigamy [Art. 349, RPC]

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1991 SHARI’AH BAR EXAMINATION ON
PERSONS, FAMILY RELATIONS AND PROPERTY

1. A, a Muslim male married B, a Muslim female, in accordance with Articles 78 and 79 of


the New Civil Code (the marriage law applicable among Muslims at the time) in Jolo,
Sulu, on July 10, 1960. Twelve (12) years later, B obtained a divorce in accordance with
Republic Act 394, the divorce law among Muslims at the time.
a) Was the marriage solemnized in 1960 between A and B valid under Muslim Law? If so,
explain.

Yes. The marriage between A&B is valid under Muslim law. Marriages between
a Muslim male and Muslim female solemnized in accordance with their customs, rites
or practices were recognized under the Civil Code prior to the effectivity of PD 1083.

Under the Code, a marriage contracted by a Muslim male prior to the effectivity
of this Code in accordance with non-Muslim law shall be considered as one contracted
under Muslim law provided the spouses register their mutual desire to this effect. [Art.
186 (2), CMPL]

2. a) What is the scope or application of the Muslim law on marriage and divorce? To whom
does the Code of Muslim Personal Law apply? Explain.

The scope of Muslim law on marriage and divorce are the following: the
essential requisites and legal impediments to marriage, divorce, paternity and filiation,
guardianship and custody of minors, support and maintenance, claims for customary
dower, betrothal, breach of contract to marry, solemnization and registration of
marriage and divorce, rights and obligations between husband and wife, parental
authority, and the property relations between husband and wife shall be governed by the
Code and other applicable Muslim laws.

The provisions of the Code of Muslim Personal Laws shall apply to marriage
and divorce wherein both parties are Muslims, or wherein only the male party is a
Muslim and the marriage is solemnized in accordance with Muslim law or this Code in
any part of the Philippines.
[Art. 13, CMPL]

b) In case the marriage between a Muslim and a non-Muslim is solemnized according to


civil rite, what law shall apply?

In case of a marriage between a Muslim and a non-Muslim, solemnized not in


accordance with Muslim law, the Civil Code of the Philippines shall apply. [Art. 13,
CMPL]

3. Discuss briefly the validity of the following marriages under the Muslim law, to wit;

a) Marriage between a Muslim female and a Buddhist male


Void. Mixed marriages prohibited under Islamic law (Although maybe considered
irregular under Art. 32 (f) CMPL)
b) Marriage between a Muslim male and his first cousin
Valid. First cousin is a relative in the 4th civil degree.
c) Marriage between a Muslim male and the sister of his wife who is still alive - Void.
A marriage contracted in contravention against unlawful conjunction is considered void. [Art.
31 (b), CMPL]

4. a) Classify divorce under the Muslim Code and discuss briefly each one of them.

The following are divorces under Muslim law:

13
(1) Divorce by talaq- (i) A divorce by talaq may be effected by the husband in a single
repudiation of his wife during her non-menstrual period (tuhr) within he has totally
abstained from carnal relation with her. [Art. 46, CMPL]

(2) Divorce by ila.- Where a husband makes a vow to abstain from any carnal relation
(ila) with his wife and keeps such ila for a period of not less than four months, she may
be granted a decree of divorce by the court after due notice and hearing. [Art. 47,
CMPL]

(3) Divorce by zihar- Where the husband has injuriously assimilated (zihar) his wife to
any of his relatives within the prohibited degrees of marriages, they shall mutually
refrain from having carnal relation until he shall have performed the prescribed
expiation. The wife may ask the court to require her husband to perform the expiation or
to pronounce a regular talaq should he fail or refuse to do so, without prejudice to her
right of seeking other appropriate remedies. [Art. 48, CMPL]

(4)Divorce by li’an- Where the husband accuses his wife in court of adultery, a degree
of perpetual divorce may be granted by the court after due hearing and after the parties
shall have performed the prescribed acts of imprecation (li’an). [Art. 49, CMPL]

(5)Divorce by Khul’- The wife, after having offered to return or renounce her dower or
to pay any other lawful consideration for her release (khul’) from the marriage bond,
petition the court for divorce. The court shall, in meritorious cases and after fixing the
consideration, issues the corresponding decree. [Art. 50, CMPL]

(6)Divorce by Tafwid- If the husband has delegated (tafwid) to the wife the right to
effect a talaq at the time of the celebration of the marriage or thereafter, she may
repudiate the marriage and the repudiation would have the same effect as if it were
pronounced by the husband himself. [Art. 51, CMPL]

(7)Divorce by faskh- The court may, upon petition of the wife, decree a divorce by
faskh on any of the following grounds: [Art. 52, CMPL]
(a)Neglect or failure of the husband to provide support for the family for at least
six consecutive months;
(b)Conviction of the husband by final judgment sentencing him to imprisonment
for at least one year;
(c)Failure of the husband to perform for six months without reasonable cause his
marital obligation in accordance with Code;
(d)Impotency of the husband;
(e)Insanity or affliction of the husband with an incurable disease which would
make the continuance of the marriage relationship injurious to the family;
(f)Unusual cruelty of the husband as defined under the next succeeding article;
or
(g)Any other cause recognized under Muslim law for the dissolution of marriage
by faskh either at the instance of the wife or the proper wali.

b) Distinguish and explain briefly irrevocable divorce and perpetual divorce.

Divorce becomes irrevocable after the expiration of the ‘idda, meaning the marriage
bond is severed, and if the parties desire to reconcile, they have to marry again.

14
Whereas if the husband accuses his wife in court of adultery, a degree of perpetual
divorce may be granted by the court after due hearing and after the parties shall have
performed the prescribed acts of imprecation (li’an), and they can never remarry again.
[Art. 49, CMPL]

5. a) How shall the property relations between spouses be governed under the Muslim
Code?

The property relation between husband and wife shall be governed in the following
order:

(a)by custom;

(b)by contract before or at the time of the celebration of the marriage; and

(c)by provision of this code. [Art. 37, CMPL]

b) Explain briefly the difference between the regime of property relations between
spouses under the Muslim Code, under the Civil Code and under the Family Code of the
Philippines.

Under the Code of Muslim of Personal Laws which substantially provides that,
in the absence of any stipulation, the property relation of the spouses shall be governed
by regime of complete separation of property. [Art 38, CMPL] Whereas, under the
Civil Code of the Philippines, the system of relative community or conjugal partnership
of gains, shall govern the property relations between husband and wife [Art. 119. NCC]
Under the Family Code, in absence of marriage settlements, the system of absolute
community of property as established shall govern [Art. 75, FC]

6. a) What are the kinds of prohibited marriages under the Muslim Code? Explain.

Article 23 of the Muslim Code states that, no marriage maybe contracted by parties
within the prohibited degrees:
A) of consanguinity;
B) of affinity; and
C) of fosterage

b) When is prohibited marriage said to be permanent and when it is said to be temporary


under the Muslim Law? Explain briefly.

Prohibited marriages is said to be permanent (hurmut) when the bases of


prohibition is by consanguinity, affinity, or fosterage, as enumerated under Article 23
of the Muslim Code, and it is said to be temporary (muwakkat) when due to some cause
a man and a woman is forbidden to marry one another, but upon the cessation of the
cause giving rise to the prohibition in marriage between them, they are thereafter lawful
in marriage to one another under the Muslim law.

7. a) What are the customary contracts of Sandah, Sanla or Arindao under the Muslim
Code? Give illustrations.

By sanda or sanla, the owner of a real estate, plantation, orchard or fruit-bearing trees
for consideration or certain sum of money mortgages his property by placing the same in the

15
occupation and enjoyment of the mortgagee for a fixed period of time or without such period,
with the condition that should the loan be paid within the period agreed, if a period has been
stipulated, or at any time, but not indefinitely, if no period is stipulated, the property shall be
returned to the owner, without any obligation to pay any interest on the principal contract of
loan.

Arindao is a customary contract whereby the owner mortgages his real estate,
plantation, orchard or fruit-bearing trees for a consideration or certain sum of money for a fixed
period of time with the condition that the mortgagor shall have the right of occupation and
enjoyment of the property during the period so stipulated, and upon the expiration of that
period, the mortgagor shall return the property to the mortgagee without paying the
consideration or money received by him

b) Compare the customary contracts of Sandah in Islamic Law and the contracts of
pledge, mortgage, antichresis and usufruct under the New Civil Code of the Philippines.

By sanda or sanla, the owner of a real estate, plantation, orchard or fruit-bearing trees
for consideration or certain sum of money mortgages his property by placing the same
in the occupation and enjoyment of the mortgagee for a fixed period of time or without
such period, with the condition that should the loan be paid within the period agreed, if
a period has been stipulated, or at any time, but not indefinitely, if no period is
stipulated, the property shall be returned to the owner, without any obligation to pay any
interest on the principal contract of loan.

A pledge is something delivered as security for the payment of a debt or fulfillment of a


promise and subject to forfeiture on failure to pay or fulfill a promise.

In Civil law mortgage, there is a payment of legal rate interest and the property
mortgaged remains with the mortgagor for a definite period.

By contract of anticresis, the accreditor acquires the right to receive the fruits of an
immovable of his debtor, with the obligation to apply them to the payment of interest, if
owing, and thereafter to the payment of his credit. [Art. 2132, NCC]

Usufruct gives a right to enjoy the property of another with the obligation of preserving
its form and substance, unless the title constituting it or the law otherwise provides.
[Art. 562, NCC]

8. a) What are the mutual rights and obligations of spouses under the Muslim Code?
Enumerate briefly.

Article 34 of the Code states that the mutual rights and obligations of spouses,
1. The husband and the wife are obliged to live together, observe mutual respect and
fidelity, and render mutual help and support;
2. When one of the spouses neglects his or her duties to the conjugal union or brings
danger, dishonor or material injury upon the other, the injured party may petition the
court for relief. The court may counsel the offender to comply with his or her duties,
and take such measures as may be proper;
3. The husband and the wife shall inherit from each other in accordance with this Code;
4. The husband and the wife shall have the right to divorce in accordance with this Code.

b) How is the property relation of spouses under the Muslim Code? Explain.

16
Under the Code of Muslim of Personal Laws which substantially provides that,
in the absence of any stipulation, the property relation of the spouses shall be governed
by regime of complete separation of property. [Art 38, CMPL]

9. a) Is there a valid adoption under the Islamic law? Explain.

There is no adoption in Islam, although a person may take care of a child, but
such does not give rise to a valid relation of parentage. According to the PD 1083, no
adoption in any form shall confer upon any person the status and rights of a legitimate
child except that said person may receive a gift. [Art 64, CMPL]

b) What is the effect of adoption of a Muslim child, if any?

The only effect that adoption may occur is that a said person (adopted) may
receive a gift (hiba).

c) What is the difference between adoption and fosterage in the light of Islamic
Jurisprudence? Explain.

Fosterage is that status created by fiction of law when a woman breastfeeds a


strange child for at least five times within two years from birth of the child, thereby
establishing a relation between the child and the woman as though the former is the
natural child of the woman and consequently establishing a prohibition in marriage
between the foster child and the foster mother and the latter’s relation within the
degrees of prohibition in marriage by reason of consanguinity. In other words, fosterage
or kafalah is where a child is taken cared of as a ward, ensuring his support, upbringing,
education and protection, while adoption is an act whereby a person takes the child of
another as his own creating by operation of law a relationship that exists in a legitimate
paternity and filiation. In fosterage, the child does not cut his ties with his biological
parents and continue to recognize them as his legal parents. In adoption the legal
parents are the adopting parents.

10. a) Under the Muslim Code, what are the rights and obligations of parents and children
towards each other?

Duty to parents is provided under Article 72 of the Code, which states that,
children shall respect, revere and obey their parents always unless the parents cast them
to disbelief. And grandparents are likewise entitled to respect and reverence, and shall
be consulted whenever practicable by all members of the family on all important
questions.

Duty to children is provided for in Article 73 of the Code, which states that
every parent and every person exercising parental authority shall see to it that the rights
of the children are respected, and their duties complied with, and shall particularly by
precept and example, imbue them with religious and civic consciousness, love of
country, veneration of the national heroes and attachment to the ideal of permanent
world peace.

b) Who is the legal administrator of property of the children under parental authority?
Discuss it briefly.

The father, or in his absence the mother shall be the legal administrator of the
property of the child under parental authority.

17
The Court may appoint a guardian (wasi) in the absence of one who is natural or
testamentary. [Art. 75, CMPL]

c) May parental authority be removed or transferred? Explain.

Article 76 of the Code provides that, parental authority can neither be renounced
nor transferred except as otherwise provided in Articles 77 and 78 of this Code and the
general principles of Islamic law, which substantially provides that, the widowed
mother who contracts a subsequent marriage shall lose parental authority and custody
over all children by the deceased husband, unless the second husband is related to them
within the prohibited degrees of consanguinity. The court may deprive a person of
parental authority or suspended the exercise thereof if he treats his children with
excessive harshness, gives them corrupting or immoral orders and counsel, or
abandoned them.

18
1993 SHARI’AH BAR EXAM ON
PERSONS FAMILY PERSONS AND PROPERTY

1. a) Discuss briefly the background of Muslim Personal Laws of the Philippines.

The present Code of Muslim Personal Laws of the Philippines is the result of Islamic
influence that was first introduced in Sulu by the early Muslim missionaries. In
accordance, the tradition of Islam as started and developed in the Arabs, the Sultans or
Rajahs as heads of the Muslim communities of these islands then, were the protectors
and upholders of the Islamic law. They appoint Qadi, usually an Arab learned in Islamic
Law who serves as an adviser in matters of legislation of all important laws. On the
other hand, some datus had enough Islamic consciousness or sophistication that led
them to moderate differences between customary law and Holy laws. Thus, in order to
guide the Qadis, as well as their subjects for whom customary laws and Holy Laws in
some areas were intermingled without basics for distinction, the Sultans tried to codify
some selective aspects of the personal laws. Certainly, the Sulu Sultan Pulalun (Fadl)
around 1850 had one prepared and adhered closely to the classical texts especially on
punishments. His successor, Jamal-ul-Azam, had another code prepared where
punishments were relatively more moderate. This code was accepted by the leading
datus and other officials of the state in 1787 A.D. in Maguindanao, the qadis were
guided by the luwaran. Consisiting of 85 “articles” but amended in some details to
make them practical in the context of local situations and customs. After the American
Commonwealth Government in the Philippines and during the period of the government
of the Representatives of the Philippines, some laws were enacted recognizing certain
aspect of the Filipino Muslim Personal Law. The aspiration of the Filipino Muslims to
have their personal laws recognized by the state found its realization when President
Ferdinand E. Marcos on August 13, 1973, signed Memorandun Order 730 creating a
Research Staff to prepare a preliminary of the draft proposed Code of the Philippines
Muslim Laws and its implementing agencies. Subsequently on December 23, 1974, the
President issues Execution Order No.442, which created the Presidential Commission to
review the Code of Filipino Muslim Laws, directing further that, in the performance of
its task, it shall likewise considers the draft of the “Proposed Code of the
Administration of the Philippines Muslims Laws of 1974” which was submitted by the
Research Staff. Consequently on February 4, 1977, Presidential Decree 1083, otherwise
known as the “Code of Muslim Personal Laws of the Philippines” was signed into law
by then President Ferdinand E. Marcos, thereby finally giving reality to the aspiration of
the Muslims to have their system of Personal Laws, recognized enforced and applied to
them.

b) What are the primary purposes of the Muslim Code (PD 1083)? Explain.

Pursuant to Section 11 of Article XV of the Constitution of the Philippines which


provides that, the State shall consider the customs, traditions, beliefs and interests of
national cultural communities in the formulation and implementation of state policies,
this code:

(a) Recognizes the legal system of the Muslims in the Philippines as part of the law of
the land and seeks to make Islamic institutions more effective;

(b) Codifies Muslims personal laws; and

(c) Provides for an effective administration and enforcement of Muslim personal laws

19
among Muslims.

[Art. 2, CMPL]

2. It has been said that Islam is the most tolerant of all organized religions. Explain the
validity of the following marriages:

a) Marriage between a Muslim male and Christian female;

Valid. The Qur’an says, “. . . ; likewise you are permitted to marry chaste believing
women (Muslims) or chaste women among the people who were given the scripture
(Jews and Christians) . . . “. This verse, as noted, says that Islam permits Muslim men to
marry non-Muslims women who are Christians and Jews. Beyond, any doubt Islam is
patriarchal, so a Muslim man must have final control in the relationship.

b) Marriage between a Muslim female and a non-Muslim male;

Void. Mixed marriages prohibited under Muslim law (Although may be considered
irregular under Art. 32 (f), CMPL)

c) Marriage between a Muslim male and his first cousin or sister-in-law while the wife is
still living. Explain your answer.

Void. The Qur’an concerning this marriage provides, “prohibited to you (for marriage)
are two sisters in wedlock at the same time.” However, a man is debarred from
marrying his wife’s sister only so as the other sister continues to be his wife. If that
relationship terminates as the result of death or divorce, there is no inhibition to his
marrying a sister of his former wife. Hence, in this case, prohibition is not permanent.

3. a) What are the marriages prohibited by consanguinity under the Muslim Code?

Article 24 of PD 1083. Prohibition by consanguinity- No marriage shall be contracted


between:

(a) Ascendants and descendants of any degree;

(b) Brothers and sisters, whether germane, consanguine or uterine,

(c) Brothers and sisters and their descendants within the third civil degree.

b) What are the marriages prohibited by reason of affinity under the Muslim Code?

Article 25 of PD 1083. Prohibition by Affinity.- No marriage shall be contracted


between:

(a) Any of the spouses and their respective affinal relatives in the ascending line and in
the collateral line within the third degree;

(b) Stepfather and stepdaughter when the marriage between the former and the mother
of the latter has been consummated;

(c) Stepmother and stepson when the marriage between the former and the father of the
latter has been consummated; and

(d) Stepson and stepdaughter and the widow or widower or divorce of their respective
ascendants.

20
The prohibition under their article applies even after the dissolution of the marriage
creating the affinal relationship.

d) What are the marriages prohibited by reason of fosterage under the Muslim Code?

Under the Code, the prohibition due to fosterage-

(1) No person may validly contract marriage with the woman who breastfeed him for at
least five times within two years after his birth.

(2) The prohibition of marriage by reason of consanguinity shall likewise apply to


persons related by fosterage within the same degrees, subject to exceptions recognized
by Muslim Law.

[Art. 26, CMPL]

4. a) There are five (5) cases found in PD 1083 that fall under the Agama Arbitration Council.
Explain each one of them.

The five cases found in P.D. 1083 expressly falling under the jurisdiction of the Agama
Arbitration Council are the following;

1. Article 161 on divorce by talaq and tafwid:


A Muslim male who pronounced talaq shall file with the Clerk of Court of the
Shari’a District Court of the place where his family resides a written notice of such
talaq. Within seven days from receipt of notice, the Clerk of Court shall require
each parties to nominate each representative. These representatives shall then be
appointed by the Court, with the Clerk of Court as Chairman, an Agama Arbitration
Council.

2. Article 162 on the application by the husband to contract a subsequent marriage:


A Muslim husband desiring to contract a subsequent marriage shall file a written
notice to the Clerk of Court of the Shari’a Circuit Court of the place where his
family resides. The clerk shall serve a copy of said notice to the wife or wives.
Should any of them object, an Agama Arbitration Council shall be
formed/constituted.

3. Article 163 on offenses against Customary Law:


In cases involving offenses against customer law which can be settled without
formal trial, the Shari’a Circuit Court, may direct the Shari’a Clerk of Court to
constitute a council of not less than two or more than four members, to settle the
case amicably.

4. Article 36(3) on the application by the wife to exercise any profession or engage in
lawful business:
a. The wife may, with her husband’s consent, exercise any profession or
occupation or engage in lawful business. However, if the husband refuses to
give consent, the matter shall be referred to Agama Arbitration Council.
5. Article 160 – other appropriate cases

b) State whether the following marriages are valid or void and give reason for it.

1. Omar’s marriage with a widow of his foster son;

Valid. There is no milk (rada’) relation between Omar and the widow of his foster son.

2. Abdulkadir’s marriage with the widow of his uncle. Explain.


21
Void. The widow of Abdulkadir’s uncle is among the prohibited marriage by affinity.

3. Abdullah’s brother’s marriage with Abdullah’s foster father’s daughter. Explain.

Valid. There is no milk (rada’) relation between Abdullah’s brother and Abdullah’s
foster sister.

5. a) Explain the following regime of property relations between husband and wife, to wit:

1. Absolute community of property

By the regime of absolute community of property in marriage, the future spouses may
agree by way of marriage settlement before or at the time of the marriage contract that
all their present and future property not excepted by law shall form part of their
community of properties which shall be owned, enjoyed, administered by them jointly,
and upon the dissolution of the marriage or of the community, the same shall be divided
between them in accordance with their ante-nuptial contract, the law or their custom and
in case dissolution takes place by the death of one of them by the law of succession.

2. Complete separation of property

By the regime of complete separation of property in marriage, each spouse shall own,
possess, administer, enjoy and dispose of his or her own exclusive estate even without
the consent of the other and any debt or liability each shall have would be to his or her
own account alone and upon the dissolution of the marriage by the death of either of
them without their marriage having been earlier dissolved by divorce, annulment or
mutual relinquishments, the estate of the deceased spouse to the extent of two third of
the net portion thereof if there are bequest and devises and to the whole thereof, if there
are none, shall be transmitted to the and their heirs in accordance with this code and the
Muslim Law.

3. Conjugal partnership of gains

By means of the conjugal partnership of gains, the husband and wife place in a common
find the fruits of their separate property and the income from their work or industry, and
divide equally, upon the dissolution of the marriage or of the partnership, the net gains
or benefits obtained indiscriminating by either spouse during the marriage. All property
of the conjugal partnership of gains is owned in common by the husband and the wife.

b) What are the exclusive properties of each of the spouses under the Muslim Code?

The following shall be the exclusive property of either spouse:

a. Properties brought to the marriage by the husband or the wife;

b. All income derived by either spouse from any employment, occupation or trade;

c. Any money or property acquired by either spouse during marriage by lucrative title;

d. The dower (mahr) of the wife and nuptial gifts to each spouse;

e. Properties acquired by right of redemption, purchase or exchange of the exclusive

22
property of either; and

f. All fruits of properties mentioned in the foregoing paragraphs.

[Art. 41, CMPL]

6. a) Compare the customary contract of Sandah in Islamic traditions with the civil law of
contracts of pledge, antichresis and usufruct. Explain your answer.

In Sandah, the mortgagee shall have the possessions and enjoyment of the property
mortgaged; in Civil Law mortgage, the property remains with the mortgager.

In Sandah, there is no payment of interest on the principal contract of loan since


payment of interest on money lent is prohibited under the Muslim Law; in the Civil law
mortgage, there is a payment of legal rate of interest.

In Sandah, there may or may not be a period for redemption of the mortgaged property,
hence the reason why the mortgagee is entitled to the possession and enjoyment of the
property mortgaged, until the mortgagor shall have paid him the principal loan; but in
Civil Law mortgage, there is a definite period either as stipulated by the parties or in the
absence thereof, as fixed under the civil law.

b) How do you distinguish the contract Sandah and the contract of Arindao?

The contract of Sandah is the owner of a real estate, plantation, orchard or fruit-
bearing trees for consideration or certain sum of money mortgages his property by
placing the same in the occupation and enjoyment of the mortgagee for a fixed period of
time or without such period, with the condition that should the loan be paid within the
period so agreed, if a period has been stipulated, or at any time, but not indefinitely, if
no period is stipulated, the property shall be returned to the owner without any
obligation to pay any interest on the principal contract of loan.

On the other hand, the contract of Arindao, is whereby the owner mortgages his
real estate, plantation, orchard, or fruit-bearing trees for a consideration or certain sum
of money for a fixed period of time with the condition that the mortgagor shall have the
right of occupation and enjoyment of the property during the period so stipulated and
upon the expiration of that period, the mortgagor shall return the property to the
mortgagee without paying the consideration or money received by him.

7. a) Yasin who is married to Fatima desires to marry Laila. If you are consulted by Laila is
your legal advice to Laila?

If Yassin wants to marry Lailah in an exceptional case, where he can deal with them
(his wives) with equal companionship and just treatment as enjoined in Islamic law, then she
can accept the offered marriage. [Art. 27, CMPL]

b) If Fatima objects to Yasin’s proposed marriage to Laila, what is the procedure


to be followed by Yasin under the Muslim Code? Explain.

If after the Agama Arbitration Council has been constituted and has failed to obtain the
wife’s consent to the proposed marriage, Yassin should prove to the court that he is able to deal

23
with his wives with equal companionship and just treatment as enjoined in Islamic law. [Art.
161, CMPL]

8. a) Muhammad and Latifa are husband and wife. In the absence of her husband, Latifa
accepted from Ismael her uncle, brother of her father, jewelries worth P 250,000,000. When
Muhammad returned from his journey and came to know the donation, he ordered his wife to
return the jewelry, but Latifa refused. If you were the judge, was Latifa’s acquisition proper or
valid under Islamic Law? Explain.

Generally, the wife cannot, without the husband’s consent, acquire any property by
gratuitous title, except from her relatives who are within the prohibited degrees in marriage. In
applying the law to the instant case, Ismael is her uncle, a relative within the prohibited degrees
in marriage, hence, her acquisition was valid under Islamic law. [Art. 36 (2), CMPL]

b) Supposing the donor was Kadir who is Latifa’s first cousin, what is your answer?
Explain.

If the donor was Kadir, Latipha’s cousin, then her acquisition is not proper or valid
under Islamic law. Therefore, she must return the jewelries. [Art. 24 (C), CMPL]

9. In Islamic Law, there are seven (7) forms of divorce namely: Tafwid, Talaq, Khul, Zihar,
Faskh, Ila and Li’an. In Muslim Mindanao, the common forms of divorce are Talaq and Faskh.
What do you understand by Talaq? Explain your answer.

A divorce by talaq may be effected by the husband in a single repudiation of his wife
during her non-menstrual period (tuhr) within which he has totally abstained from
carnal relation with her. Any number of repudiations made during one tuhr shall
constitute only one repudiation and shall become irrevocable after the expiration of the
prescribed ‘idda.

A husband who repudiates his wife , either for the first or second time, shall have the
right to take her back (ruju) within the prescribed ‘idda by resumption of cohabitation
without need of a new contract of marriage. Should he fail to do so, the repudiation
shall become irrevocable (talaq bain sugra)

[Art. 46, CMPL]

10. Idris and Maimona were married. Maimona is a registered nurse by profession. She
wanted to work abroad in the hospital but her husband refused.

a) In case of conflict, who settles the controversy? Explain your answer.

Under the Code, the Agama Arbitration Council may settle the controversy in case of
conflict between the husband and the wife with regards to the wife exercising her profession.
[Art. 162, CMPL]

b) Briefly explain the rights and obligations of the wife under the Muslim Code.

The rights and obligations of the wife under the Muslim Code are the following.

24
1) The wife shall dutifully manage the affairs of the household. She may purchase
things necessary for the maintenance of the family, and the husband shall be bound to
reimburse the expenses, if he has not delivered the proper sum.

2) The wife cannot, without the husband’s consent, acquire any property by gratuitous
title, except from her relatives who are within the prohibited degrees in marriage.

3) The wife may, with her husband’s consent, exercise any profession or occupation or
engage in lawful business which is in keeping with Islamic modesty and virtue.
However, if the husband refuses to give his consent on the ground that his income is
sufficient for the family according to its social standing or his opposition is based on
serious and valid grounds, the matter shall be referred to Agama Arbitration Council.

4) The wife shall have the right to demand the satisfaction of her mahr.

5) Unless otherwise stipulated in the marriage settlements, the wife retain ownership
and administration of her exclusive property.

6) The wife shall be entitled to an equal and just treatment by her husband.

[Art. 36, CMPL]

25
1995 SHARI’AH BAR EXAMINATION ON
PERSONS, FAMILY RELATIONS AND PROPERTY

1. Nasser and Napisa both Muslims are husband and wife. Subsequently, Nasser, for the second
time and while Napisa is still alive, married `Aisha, another Muslim as his second wife in
accordance with the Muslim Code. Napisa filed a complaint for bigamy against Nasser under
the Revised Penal Code.
a. If you were the Shari’ah Judge, how would you decide? Cite your authorities.
Since both of them are Muslims, I assume that they were married in accordance
with Muslim law. As Shariah Judge, I will dismiss the case since the provisions of the
Revised Penal Code relative to the crime of bigamy shall not apply to a person married
in accordance with the provisions of the Code of Muslim Personal laws, or before its
effectivity, under Muslim law. [Art. 180, CMPL]

b. Supposing Napisa is a Christian who invokes that as a Christian, she should not be
prejudiced by the Muslim Code in her complaint for bigamy, what is your opinion?
Give your reason.

The case will still be dismissed, because the Code clearly states in Article 180,
that the provisions of the Revised Penal Code relative to the crime of bigamy shall not
apply to a person married in accordance with the provisions of this Code or, before its
effectivity, under Muslim law.

2. Give the coverage of the Islamic prohibited marriages under the Muslim Code.
a. By consanguinity (Tahrim bin-nasab)- No marriage shall be contracted between:

(1) Ascendants and descendants of any degree


(2) Brothers and sisters, whether germane, consanguine or uterine
(3) Brothers or sisters and their descendants within the third civil degree. [Art. 24,
CMPL]

b. By affinity (Tahrim bil Musahara)- No marriage shall be contracted between:

(1) Any of the spouses (husband and wife) and their respective affinal relatives in the
ascending line and in the collateral line within the third degree.

(2) Stepfather and stepdaughter when the marriage between the former and the mother
of the latter has been consummated.

(3) Stepmother and stepson when the marriage between the former and the father
of the latter has been consummated.

(4) Stepson or stepdaughter and the widow, widower or divorcee of their


respective ascendants

The prohibition under this article applies even after the dissolution of the marriage
creating the affinal relationship.
[Art. 25, CMPL]

c. By fosterage (Tahrimbir-Rada‟a)
No person may validly contract marriage with any woman who breastfed him for atleast
five times within two years after his birth.

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The prohibition on marriage by reason of consanguinity shall likewise apply to a person
related by fosterage within the same degrees, subject to the exceptions recognized by
Muslim law.
[Art. 26, CMPL]

3. Al-rashid and Amina are husband and wife. They are both Muslims. Al-rashid wants to
marry Aisha as a second wife.
a) Is polygamy permitted in Islam? If so, under what conditions? Explain.

Yes, contracting subsequent marriage by the husband with existence of a former


marriage is permitted subject to certain conditions. Under the Code, the following are
conditions or pre-requisites before a man may be allowed to contract a subsequent marriage,
namely: First, that he can deal with them with equal companionship and just treatment as
enjoined by Islamic law; that he is seeking it “only in exceptional cases” or on exceptional
grounds; and, the order of the proper Shari’ah Circuit Court authorizing him to contract a
subsequent marriage, upon the written consent of the former wife, or if the latter refuses to give
her consent to the proposed marriage, upon the court’s order. [Art. 27, CMPL]

b) Supposing Al-rashid insists on the second marriage despite objection of the first wife
Amina. May Amina demand a divorce? If so, under what ground? Explain.

Yes, on the ground of unusual cruelty if the husband does not treat her justly and
equitably as enjoined by Islamic law, or on his failure to perform his marital obligations to her.

4. a) What are the seven (7) forms of divorce under the Muslim Code? Explain each of them.

1. Divorce by Talaq. A divorce by talaq may be effected by the husband in a single


repudiation of his wife during her non-menstrual period (tuhr) within which he has
totally abstained from carnal relation with her. Any number of repudiation made during
one tuhr shall co nstitute only one repudiation and shall become irrevocable after the
expiration of the prescribed 'idda.
A husband who repudiates his wife, either for the first or second time, shall have the
right to take her back(ruju) within the prescribed 'idda by resumption of cohabitation without
need of a new contract of marriage. Should he fail to do so, the repudiation shall become
irrevocable (Talaqbainsugra). [Art. 46, CMPL]

2. Divorce by Ila. Where a husband makes a vow to abstain from any carnal relations
(ila) with his wife and keeps such ila for a period of not less than four months, she may be
granted a decree of divorce by the court after due notice and hearing. [Art. 47, CMPL]

3. Divorce by Zihar. Where the husband has injuriously assimilated (zihar) his wife to
any of his relatives within the prohibited degrees of marriage, they shall mutually refrain from
having carnal relation until he shall have performed the prescribed expiation. The wife may ask
the court to require her husband to perform the expiation or to pronounce a regular talaq should
he fail or refuse to do so, without prejudice to her right of seeking other appropriate remedies.
[Art. 48, CMPL]

4. Divorce by Li'an. Where the husband accuses his wife in court of adultery, a decree
of perpetual divorce may be granted by the court after due hearing and after the parties shall
have performed the prescribed acts of imprecation (li'an). [Art. 49, CMPL]

5. Divorce by Khul'. The wife ma y, after having offered to return or renounce her

27
dower or to pay any other lawful consideration for her release (khul') from the marriage bond,
petition the court for divorce. The court shall, in meritorious cases and after fixing the
consideration, issue the corresponding decree. [Art. 50, CMPL]

6. Divorce by Tafwid. If the husband has delegated (tafwid) to the wife the right to
effect a talaq at the time of the celebration of the marriage or thereafter, she may repudiate the
marri age and the repudiati on would have the same effect as if it were pronounced by the
husband himself. [Art. 51, CMPL]

7. Divorce by Faskh. The court may, upon petition of the wife, decree a divorce by
faskh on any of the following grounds: [Art. 52, CMPL]

(a) Neglect or failure of the husband to provide support for the family for at least
six consecutive months;
(b) Conviction of the husband by final judgment sentencing him to
imprisonment for at least one year;
(c) Failure of the husband to perform for six months without reasonable cause
his marital obligation in accordance with this code;
(d) Impotency of the husband;
(e) Insanity or affliction of the hus band with an incurable disease which would
make the continuance of the marriage relationship injurious to the family;
(f)Unusual cruelty of the husband as defined in Muslim Law; or
(g) Any other cause recognized under Muslim law for the dissolution of
marriage by faskh either at the instance of the wife or the proper wali.

b) What are the essential requisites of Islamic marriage under Muslim Code? Explain fully.
The law substantially provides that no marriage contract shall be perfected unless the
following essential requisites are compiled with: [Art. 15, CMPL]

(a) Legal capacity of the contracting parties. – It means that the parties must be adult
(bulugh), sane and not otherwise suffering from any inhibition from contracting marriage to
one another under the law. The law substantially provides that any Muslim male at least
fifteen years of age and any Muslim female of the age of puberty or upwards and not
suffering from any impediment under the provisions of the Muslim Code may contract
marriage. A female is presumed to have attained puberty upon reaching the age of fifteen.
(b) Mutual consent of the parties freely given. –The law requires that the consent of the
contracting parties must be freely or voluntarily and knowingly given by them in person
except in the case of betrothal marriage under the Muslim Code. There is a unanimity
among the Muslim schools of law that in the case of minor girl, the father may give her in
marriage with or without her consent, provided she is under age, a virgin or without any
marriage experience, and that it is in her best interest. The giving of consent must be done
in one and the same occasion personally by the bride and the groom. Hence, marriage by
proxy is not allowed under the Muslim Code.
(c) Offer (ijab) and acceptance (qabul) duly witnessed by at least two competent persons
after the proper guardian in marriage (wali) has given his consent. – Almost all the legist-
doctors are agreed that witnesses are essential to the performance of a marriage. It is related
by Abdullah bin Abbas that the Apostle of God said: “The woman who marry without
witnesses, i.e., in secrecy, are adulteress.” There is no nikah (marriage) without witness.
Hence, the marriage is null and void if it is solemnized without the presence of persons who
testify that the event has duly taken place. One authority however, classifies marriage
without witnesses of the proper number and quality as fasid (irregular), but not void. The

28
claim to marriage must not fail merely on account of absence or non-availability of
witnesses. Circumstantial evidence is very much relevant and at times conclusive.
(d) Stipulation of customary dower (mahr) duly witnessed by two competent persons. –It is
a token of the man’s love, affection and esteem of the integrity and honour of the woman he
is marrying. It is not a consideration proceeding from the husband for the contract of
marriage, but an obligation imposed by law on the husband as a mark of respect for the wife
as is evident from the fact that the non-specification of dower at the time of the marriage
does not affect the validity of the marriage.

5. a) What are the rights and obligations of the husband under the Muslim Code?
Answer:
The Code provides that the husband shall fix the residence of the family. The court may
exempt the wife from living with her husband on any of the following grounds:
(i) Her dower is not satisfied in accordance with the stipulations; or
(ii)The conjugal dwelling is not in keeping with her social standing or is, for any reason, not
safe for the members of the family or her property.
[Art. 35, CMPL]

b) What are the rights and obligations of the wife under the Muslim Code?

The Code provides that:


(1) The wife shall dutifully manage the affairs of the household. She may purchase
things necessary for the maintenance of the family, and the husband shall be bound to
reimburse the expenses, if he has not de livered the proper sum.
(2) The wife cannot, without the husband's consent, acquire any property by gratuitous
title, except from her relatives who are within the prohibited degrees in marriage.
(3) The wife may, with her husband's consent, exercise any profession or occupation or
engage in lawful business which is in keeping with Islamic modesty and virtue.
However, if the husband refuse s to give his consent on the ground that his income is
sufficient for the family according to its social standing or his opposition is based on
serious and valid grounds, the matter shall be referred to the Agama Arbitration
Council.
(4) The wife shall have the right to demand the satisfaction of her mahr.
(5) Unless otherwise stipulated in the marriage settlements, the wife retain ownership
and administration of her exclusive property.
(6) The wife shall be entitled to an equal and just treatment by the husband.
[Art. 36, CMPL]
6. a) What do you understand by Islamic Guardianship, its kind and coverage?

Guardianship is the right to have charge of the ward or his property or both. It involves
supervision and control of all matters to be undertaken concerning the child or his
property. It may be classified into:
1. Guardianship over the person of the ward (jabr)
2. Guardianship in marriage (wilayat al-ijbar)
3. Guardianship over the ward’s property

29
Under Muslim law, the right of guardianship is recognized in the father, as provided for
in Articles 71 and 78. Guardianship in marriage is mentioned in Art. 79 which gives the
following order of preference as guardians: (1) father, (2) paternal grandfather, (3)
brother and other paternal relatives (eg uncle, first cousin on father side), (4) paternal
grandfather’s executor or nominee; (5) the court. Guardianship over property is
mentioned in Article 80 of the CMPL.

a) What is the meaning of parental authority under the Muslim Code and its effect upon
persons and property?

Parental authority which is a natural incident of the parent-child relationship is a


personal right and duty obtaining on the parents of the child.
Under the Code, the father and the mother shall jointly exercise just and reasonable
parental authority and fulfill their responsibility over their legitimate and acknowledged
children. In case of disagreement, the father’s decision shall prevail unless there is a
judicial order to the contrary.
The mother shall exercise parental authority over her children born out of wedlock, but
the court may, when the best interests of the children so require, appoint a general
guardian.
The effects upon persons and property are provided for under Articles 74 and 75 of the
Code which states:

Art. 74. Effects upon person of children. — The parents have, with respect to their
unemancipated children:

(a) The duty to support them, have them in their company, educate and instruct them in
keeping with their means and represent them in all actions which shall redound to their
benefits; and

(b) The power to correct, discipline, and punish them moderately.

Art. 75. Effects upon property of children. — (1) The father, or in his absence the
mother, shall be the legal administrator of the property of the child under parental
authority. If the property is worth more than five thousand pesos, the father or the
mother shall give a bond to be approved by the court.

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

7. a) Give the meaning of “fosterage” and its basis under Islamic Law.

Fosterage is technically known as Rada’a in Shari’a, and it is a process whereby


a baby is breastfed by a wet-nurse, and as a consequence there emerges a relationship
between the infant and the foster-mother whereby some degree of marital prohibition
similar to that of consanguinity would be established between the two.

In His divine book, the Holy Quran, Allah, All-mighty, the Most Gracious, says,
“forbidden to you (for marriage) are: your mothers, your daughters, your sisters, your
father’s sisters, your mother’s sisters you brother’s daughters, your sister’s daughters,
you foster mother who gave you suck, you foster sisters, your wives’ mothers, your
step-daughters under your guardianship, born of your wives into whom you have gone –
but there is no sin on you if you have not gone into them (to marry their daughters) –
the wives of your sons (you spring) from your own loins, and two sisters in wedlock at
the same time, except for what has already passed. Verily, Allah is Oft-forgiving, most
merciful.” (An-Nisa 4;23)

30
b) What are the two (2) kinds of fosterage? Explain.

Fosterage with respect to the prohibitions attached to it is of two kinds:

1. Where a woman takes a strange child to nurse, by which all future matrimonial relation
between the child and the woman, or her relations within the prohibited degrees by
consanguinity is rendered illegal;

2. Where a woman nurses two children, male and female, upon the same milk, which
prohibits any future matrimonial connection between them.

8. a) What are the void (batil) marriages, under the Muslim Code?

The P.D. 1083 substantially provides in Article 31 that the following marriages shall be
void (batil) from the beginning:

a.) Those contracted contrary to Articles 23,24, 25 and 26;


b.) Those contracted in contravention of the prohibition against unlawful conjunction;
c.) Those contracted by parties one or both of whom have been found guilty of having
killed the spouse of either of them

c) What are the irregular (fasid) marriages, under the Muslim Code?

The P.D. 1083 substantially provides in Article 32 that the following marriages shall be
irregular (fasid) from the beginning:

a.) Those contracted with a female observing ‘idda’;


b.) Those contracted contrary to Article 30;
c.) Those wherein the consent of either party is vitiated by violence, intimidation, fraud,
deceit or misrepresentation;
d.) Those contracted by a party in a condition of death illness (marad-ul-maut) without the
same being consummated;
e.) Those contracted by a party in a state of ihram; and
f.) Mixed marriages not allowed under Islamic law.

d) How are irregular (fasid) marriages validated under the Muslim Code? Explain briefly
each one of them.

The P.D. 1083 substantially provides in Article 33 that Irregular marriages may be made
regular by a new marriage contract in the following cases:

a.) Those referred to in Article 32 (a), after the impediment has been removed;
b.) Those referred to in Article 32 (b), upon compliance with the requirement of Article 30;
c.) Those referred to in Article 32 (c), after the cause vitiating consent have ceased;
d.) Those referred to in Article 32 (d), in case the party recovers;
e.) Those referred to in Article 32 (e), when the party is no longer in a state of ihram; and
f.) Those referred to in Article 32 (f), after conversion to a faith that could have made the
marriage valid.

9. a) What are the grounds for Islamic divorce by Faskh under the Muslim Code?

The P.D. 1083 substantially provides in Article 52 that the court may, upon petition of
the wife, decree a divorce by faskh on any of the following grounds:

(a) Neglect or failure of the husband to provide support for the family for at least six
consecutive months;

31
(b) Conviction of the husband by final judgment sentencing him to imprisonment for at
least one year;

(c) Failure of the husband to perform for six months without reasonable cause his
marital obligation in accordance with this code;

(d) Impotency of the husband;

(e) Insanity or affliction of the husband with an incurable disease which would make the
continuance of the marriage relationship injurious to the family;

(f) Unusual cruelty of the husband as defined under the next succeeding article;
or

(g) Any other cause recognized under Muslim law for the dissolution of marriage by
faskh either at the instance of the wife or the proper wali.

b) What are the effects of the irrevocable Talaq in Islamic Law?

The P.D. 1083 substantially provides in Article 54 that a talaq or faskh, as soon as it
becomes irrevocable, shall have the following effects:

(a) The marriage bond shall be severed and the spouses may contract another marriage
in accordance with this Code;
(b) The spouses shall lose their mutual rights of inheritance;

(c) The custody of children shall be determined in accordance with Article 78 of this
code;

(d)The wife shall be entitled to recover from the husband her whole dower in case the
talaq has been affected after the consummation of the marriage, or one- half thereof if
effected before its consummation;

(e) The husband shall not be discharged from his obligation to give support in
accordance with Article 67; and

(f) The conjugal partnership, if stipulated in the marriage settlements, shall be dissolved
and liquidated.

10. Who exercises parental authority? What are the obligations of parents to children and the
latter’s obligation to their parents under the Muslim Code?

The P.D. 1083 substantially provides in:

Article 71. Who Exercises - (1) The father and the mother shall jointly exercise just and
reasonable parental authority and fulfill their responsibility over their legitimate and
acknowledged children. In case of disagreement, the father's decision shall prevail
unless there is a judicial order to the contrary.

(2) The mother shall exercise parental authority over her children born out of wedlock,
but the court may, when the best interests of the children so require, appoint a general
guardian.

The obligations of parents and their children to each other are also provided under the
Code as follows:

Art. 72. Duty to parents. — (1) Children shall respect, revere, and obey their parents
always unless the latter cast them into disbelief.

32
(2) Grandparents are likewise entitled to respect and reverence, and shall be consulted
whenever practicable by all members of the family on all important questions.

Art. 73. Duty to children. — Every parent and every person exercising parental
authority shall see to it that the rights of the children are respected, and their duties
complied with, and shall particularly by precept and example, imbue them with
religious and civic attachment to the ideal of permanent world peace.

Art. 74. Effects upon person of children. — The parents have, with respect to their
unemancipated children:

(a) The duty to support them, have them in their company, educate and instruct them in
keeping with their means and represent them in all actions which shall redound to their
benefits; and

(b) The power to correct, discipline, and punish them moderately.

33
2001 SHARI’AH BAR EXAMINATION ON
PERSONS, FAMILY RELATIONS AND PROPERTY

I. A. Define marriage as understood under the Muslim Code or Islamic Law.

Under the Muslim Code Marriage is not only a civil contract but a social institution , its
nature, consequences and incidents are govern by this code and the Shariah and not subject to
stipulation except that the marriage settlement may to a certain extent fix the property relation
of the spouses. [Art. 14, CMPL]

In Islamic Law, the Arabic word for marriage is “nikah”, which means uniting together.
Technically, marriage is defined as a contract for the legalization of intercourse and the
procreation of children. A legal contract, in consequence whereof, the married couple acquires
the right of enjoyment of all benign association between themselves allowed under the Shariah.
A basic social institution sanctioning thereby sexual relations between two members of the
opposite sexes with a view to the preservation of the human species, the fixing of descent,
restraining men from debauchery, the encouragement of chastity and the promotion of love and
union between the husband and the wife and of mutual help in earning a livelihood.

B. What are the essential requisites or marriage under the Muslim Code or Islamic Law?
Explain each briefly.

The Muslim Code provides that, no marriage contract shall be perfected unless the
following essential requisites are complied with: [Art. 15, CMPL]

1. Legal capacity of the contracting parties. This requisite refers to both Juridical
capacity and Capacity to act of the contracting parties, like the age, a person may
contract marriage; fifteen years of age for the male and upon reaching the age of
puberty for the female.

2. Mutual consent of the parties freely given. This means that consent of either of the
party was not vitiated with violence, fraud deception or misrepresentation but freely
given by the parties.

3. Offer (ijab) and acceptance (qabul) duly witnessed by at least two competent persons
after the proper guardian in marriage (wali) has given consent. This requisite is the most
important for the it determines the validity or invalidity of the marriage. It is a Shart for
a valid marriage. For the witness according to the Hadith of the prophets the woman
who marry without witness is an adulteress. Lastly, for the proper guardian (wali) is
indispensable for marriage of minors.

4. Stipulation of customary dower (mahr) duly witnessed by two competent persons.


The last requisite is dower, which is according to the Qur’an it is a free gift given by the
husband to his wife. However, in the absence of such stipulation, marriage is still valid,
and the remedy of the wife is to petition the court for the fixation of her proper dower.

II. Peter Mercado, a Christian is an enlisted man in the Armed Forces. While serving in Jolo,
Sulu, he converted to Islam and married Amina Karim a Muslim in accordance with
Muslim rites sometime in 1976. He has also a subsisting marriage with Nene Corpuz a
Christian with whom he has three (3) children. In 1980, Peter figured in an ambush by
some local outlaws. He died as a consequence. The Christian and Muslim wives of
deceased Peter are claiming for his death benefits and pension. The marriage of Peter
with Amina was not registered with the local Shari’ah Court. If you are the Shari’ah
Judge where the conflicting claims of the wives are filed, how will you decide the case?

34
If I were the judge of the Shari’ah Court where the conflicting claims of the wives are
filed, I will decide in favor of the Christian wife Nene Corpuz because the law in force
at the time of the marriage celebration of Peter and Nene was the Civil Code of the
Philippines wherein plural marriages is not recognized. Since, the marriage of Peter and
Nene are still subsisting when Peter married Amina Karim, even though he converted to
Islam, their marriage is still void under the Civil Code. The PD 1083 also provides that,
the Code applies only to Muslims and nothing herein shall be construed to operate to
the prejudice of a non-Muslim. Hence, I submit that if there is a valid marriage contract
between a Non-Muslim male with Non- Muslim female solemnized in accordance with
the Civil Code of the Philippines, the Non- Muslim male even though he converted to
Islam, cannot prejudice his Non-Muslim wife. The PD 1083 can not be applied to their
marriage.

III. Ismail and Ruqaya are husband and wife. They are both Muslims, Ismail wants to marry
Mariam, also a Muslim but his wife Ruqaya objects to the proposed second marriage.

A. Under the above circumstances, what is the recourse if Ismail under the Muslim Code?
Explain and justify your answer.

The recourse of Ismail is to file a written notice to the Clerk of Shari’a Circuit Court of
the place where his family resides. Upon receipt of such notice, a copy thereof shall be
served to Ruqaya whereby the Agama Arbitration Council will be constituted, each
parties shall be required by the court to nominate a representative which shall be
appointed by the court together with the clerk of court as a chairman. A report on the
proceedings of the AAC shall be submitted to the Judge along with their evidences and
subject to Article 27, the Judge will render decision whether to sustain or not Ismail
will be allowed to marry Mariam or not.

B. How about Ruqaya despite her objection, Ismail insists on the second marriage? May
she demand a divorce? If so, under what ground? Explain.

If the judgment is rendered in favor of Ismail after compliance of the said article,
Ruqaya may file a petition for divorce by faskh on the ground of unusual cruelty if the
husband does not treat her justly and equitably as enjoined by Islamic law, or divorce by
khul.

IV. State the property relations between husband and wife under the Muslim Code.

Under the Muslim Code, the property relations between the spouses, in the absence of
any stipulation to the contrary in the marriage settlements or any other contract, shall be
governed by the regime of complete separation of property in accordance with this code and, in
a suppletory manner, by the general principles of Islamic Law and Civil Code. [Art. 37, CMPL]

B. Suppose the Muslim spouses were married prior to the effectivity of the Muslim Code,
will their property relations be the same as stated under the Muslim Code?

Yes, their property relations will be the same as stated under Muslim Code provided the
spouses register their mutual desire to that effect. The Code provides that a marriage contracted
by a Muslim male prior to the effectivity of this code in accordance with non-Muslim law shall
be considered as one contracted under Muslim law provided the spouses register their mutual
desire to this effect. [Art. 186, CMPL]

V. A. What is the status of marriages among Muslims solemnized in accordance with Muslim
Law but prior to the effectivity of P.D. 1083? What law shall apply? Explain.

35
The status of marriages among Muslims solemnized in accordance with Muslim law
prior to the effectivity of P.D. 1083 is valid and governed by Articles 78 and 79 of the Civil
Code, which was amended by R.A. 6268 extending its effectivity for 10 years.
Art. 186 of the Code states that:
(1) Acts executed prior to the effectivity of this Code shall be governed by laws in force
at the time of their execution, and nothing herein except as otherwise specifically
provided, shall effect their validity of legality or operate to extinguish any rights
acquired or liability incurred thereby;
(2) A marriage contracted by a Muslim male prior to the effectivity of this Code in
accordance with non-Muslim law shall be considered as one contracted under
Muslim law provided the spouses register their mutual desire to this effect.

B. What law governs divorces among Muslims prior to the effectivity of P.D. 1083?
Explain.

Prior to the effectivity of the P.D. 1083, the law that governs divorces among Muslims
is Republic Act No. 394, an act authorizing for a period of twenty years divorce among
Muslims residing in non-Christian provinces in accordance with Moslem customs and
practices. It was enacted on June 18, 1949 and was extended by the P.D. 793, with a
retroactive effect on June 19, 1969.

VII A. Abdullah and Josefina are husband and wife. They were married in accordance with
the Muslim Code. They were later divorced. Subsequently, Josefina became aware that
she is pregnant by Abdullah and immediately she notified the latter about such fact. If
you are the lawyer of Abdullah, what advice will you give him? Why? Explain.

If I am the lawyer of Abdullah, I will counsel him to reconcile with Josefina for the
interest of the child. However if it fails, the law provides that he may ask the court to take
measures to prevent simulation of birth. [Art. 61, CMPL]

B. Suppose in the same problem Abdullah died, to whom shall Josefina address such
notice? As the lawyer of the late Abdullah, what steps will you advice the heirs of the
deceased?

If Abdullah dies the law provides that the notice will be addressed to his heirs, whom
may ask the court to take measure to prevent simulation of birth. It is also deemed
proper to notify them on the successional rights of the conceived child under Article 97
of the P.D. 1083.

VII A. May a divorced woman or widow having been married under Muslim law or the
Muslim Code contract another marriage before the expiration of her idda? What is the
status of her subsequent marriage?

The Muslim Code substantially provides that a divorcee or widow shall not contract a
subsequent marriage unless she has observed an idda of three monthly courses (for
divorcee) or four months and ten days (for widow) counting from the date of dissolution
of her marriage or death of her husband. If at the time, the divorcee or widow is
pregnant, she may remarry within a reasonable time after delivery.

The Code also provides that marriage contracted by a woman observing ‘idda is
irregular (fasid) and that she will be liable to specific offenses under Article 182 of the
P.D.1083.

B. Under what condition may a wife who had been divorced by talaq bain kubra
remarry her former husband?

36
The Code provides under Article 30 which substantially states that Wife who
has been thrice repudiate (Talaq bain kubra) on three different occasion by the husband
can not remarry her unless she shall have married another person who divorces her after
the consummation of the intervening marriage and expiration of her ‘idda.

No solemnizing officer shall perform the subsequent marriage mentioned in the


preceding paragraph unless he has ascertained that there was no collusion among the
parties.

VIII. A. Who are the persons who have authority to act as a guardian for marriage (wali) in the
order of precedence under the Muslim Code?

Under the Muslim Code, the following persons shall have authority to act as guardian
for marriage (wali) in the order of precedence:

1. Father;
2. Paternal Grandfather;
3. Brother and other paternal relatives;
4. Paternal grandfather’s executor or nominee; or
5. The court.
[Art. 79, CMPL]

B. Who are the people who shall exercise guardianship over the property of minors in the
order of precedence under the Muslim Code?

Under the Muslim Code, the following persons shall exercise guardianship over the
property of minors in the order of precedence:

1. Father;
2. Father’s executor or nominee;
3. Paternal grandfather;
4. Paternal grandfather’s nominee; or
5. The court.
[Art. 80, CMPL]

IX. A. What is the duration of support of the wife by her husband?

Under the Muslim law, the husband’s obligation to support his wife commences from
the moment the wife surrenders herself to her husband as an incidence of a valid
marriage contract and continues while the marriage subsist, and is extinguished upon
the dissolution of the marriage by death of either of them or by divorce, but in case of
divorce he shall continue to support her till after her period of probation is over, and if
she is pregnant till after her delivery and if she breastfed the child until after the period
of weaning which is fixed at two years.

B. Is the wife who exercises any profession or occupation or engages in lawful business
without her husband’s consent still entitled to support? Why? Explain.

No, under Muslim law the obligation of the husband to provide maintenance to the wife
during marriage is not absolute and unconditional. It hinges upon the condition that the
wife lives with her husband in the same dwelling place and afford him the right of
consortium. His obligation therefore to provide maintenance may be excused If the wife
without any valid reason or just cause commits any of the following;

1. When she refuse to live with her in the same dwelling place;
2. When she leave their conjugal dwelling and live elsewhere;
3. When she denies the husband entry to the house to live with her
4. When their marriage is proved to be irregular, except in the marriage without
witnesses.

37
5. When she turn apostate.
6. When she is guilty of infidelity
7. If inspite of her husband’s valid objection, she engages herself out for the purpose
of earning and the husband losses control over her.
In the case at bar, I opined that the husband will be excused to give support because the
acts of the wife fall under the conditions no. 7 mentioned.

X. Karim who is an engineer and gainfully employed in Saudi Arabia regularly remits his
salaries to his wife. Since the amount sent home by Karim is substantial, his wife Napisa
saved part of it and built a five (5) door apartment and a bungalow. She also bought a
new car out of his savings. She also opened a store which was making income. While in
Saudi Arabia, Karim contracted a second marriage. He later communicated with his wife
Napisa informing her of his subsequent marriage and his decision to have divorced (talaq)
her. When Karim came home, he demanded from Napisa recovery of the money he
remitted to her. The wife refused to give Karim his money claiming that his was all hers
by way of support. If you are the judge of the Shari’ah Court, how will you decide the
case?

If I were the judge of the Shari’ah Court I will resort first to the property relations
governing their marriage as indicated in their marriage settlements, however, if there is
none, I will award the ownership to the spouse whose name the property is registered in
the case of real property involved, as to personal property or household property that
which is customarily pertains to or is used by either spouse shall be prima facie
presumed to be the property of said spouse (car).
It should be noted that although the income of Karim is his exclusive property under the
Muslim Code, the amount he remits to his wife constitutes support, which he is obliged
to give and the recipient, his wife is not obliged to return what she has received in
advance. [Art. 69, CMPL]
Thus, in the light of the evidences of both parties, the real property is awarded to the
spouse whose name the property is registered and the personal property or household
property is awarded to the spouse to whom is due in accordance with provisions of
Article 41 and 43 of the Muslim Code.

38
2003 SHARI’AH BAR EXAMINATION
PERSONS, FAMILY RELATIONS AND PROPERTY

I. A. Is there a valid adoption under Islamic law? Explain briefly

There is no adoption in Islam, although a person may take care of a child, but such does
not give rise to a valid parentage. According to the PD 1083, no adoption in any form
shall confer upon any person the status and rights of a legitimate child except that said
person may receive a gift. [Art 64, CMPL]

B. What is the difference between adoption and fosterage in the light of Islamic
jurisprudence?

Fosterage or kafalah is a child is taken cared of as a ward, ensuring his support,


upbringing, education and protection, while adoption is an act whereby a person takes
the child of another as his own creating by operation of law a relationship that exists in
a legitimate paternity and filiation. In fosterage, the child does not cut his ties with his
biological parents and continue to recognize them as his legal parents. In adoption the
legal parents are the adopting parents.

II. A. What law determines the status of a child conceived or born during the period
covered by the Civil Code of 1950 (August 30, 1950 to February 3, 1977)? Is it the Civil
Code, Family Code or the Muslim Code?

The law that determines the status of a child conceived or born during the period
covered by the Civil Code is the Civil Code itself. Under the transitory provision of the
PD1083, it provides, acts executed prior to the effectivity of the Muslim Code shall be
governed by the laws in force at that time. [Art. 186, CMPL] From August 30, 1950 to
February 3, 1977 the law in force is the Civil Code, therefore children conceived or
born during that period are governed by the Civil Code of the Philippines.

B. Suppose the marriage was contracted on February 3, 1977 and the child was
conceived or born on August 7, 1977. What law governs the status of the child?
Explain.

If the marriage was contracted on February 3, 1977 a day before the effectivity of the
PD1083 and the child was conceived or born on August 7, 1977, the law that governs
the status of a child is the Muslim Code. According to the PD1083, birth determines
personality, a conceived child is considered born for all purposes favorable to it,
provided it be born alive however briefly at the time it is completely delivered from
mother’s womb. [Art.10, CMPL] Since personality begins at birth, the law in force at
the time of his birth governs the status of a person. Hence, Muslim code governs the
status of the child born on August 7, 1977.

III. Ali and Soraya were married under Muslim Law on January 5, 1978. Later Ali
contracted a second marriage with Susan, a Christian woman under the Muslim Code.
A. Can Ali be held liable for bigamy under the law? Why? If Soraya is aggrieved,
what will be her recourse or cause of action against Ali, if any?

No, Ali can not be held liable for the crime of bigamy because under Article 180 of the
PD1083 otherwise known as the Code of Muslim Personal Law, it states that, the
provisions of the revise penal code relative to the crime of bigamy shall not apply to

39
persons married in accordance with the provision of the said Code or before its
effectivity under Muslim laws.

If Soraya is aggrieved, she may file a divorce by faskh on the grounds provided for in
Article 52 of the Muslim Code, or file a case in court against the husband provided
under Article 183 of the same code.

B. Assuming if in the same problem, Ali and Soraya were married in accordance with
the Civil Code of the Philippines, will your answer be the same? Why? Please
explain.

No, my answer will not be the same. If the marriage was solemnized in accordance with
the Civil Code of the Philippines, Ali will be liable for bigamy. Under the Muslim Code
only persons married in accordance with the PD1083 or Muslim Law are exempted for
the crime of bigamy.

IV. A. State the specific provision of law that governed or recognized as valid marriages
between Muslim and non-Christian from August 30, 1950 up to February 3, 1977.

Article 78 and 79 of the New Civil Code, as amended by RA 6268, which provides:

Article 78. Marriages between Mohammedans or pagans who live in non-Christian


provinces may performed in accordance with their own customs, rites or practices. No
marriage license or formal requisites shall be necessary.

Article 79. Mixed marriages between a Christian male and a Mohammedan or pagan
female shall be governed by the general provision of this Title and not by those of the
last preceding article, but mixed marriages between a Mohammedan or pagan male and
a Christian female may be performed under the provision of the last preceding article if
so desired by the contracting parties

B. What particular law governed dissolution of Muslim marriages from and after June
18, 1949 prior to the effectivity of the Muslim Code on February 4, 1977?

The law that governed dissolution of marriage was Republic Act No. 394, An Act
authorizing for a period of twenty years divorce among Moslems residing in non-
Christian provinces in accordance with Muslim customs and practices, as amended by
PD 793 on September 4, 1975.

V. Mansur, a Muslim and Anna, a non-Muslim got married before a judge of the
Regional Trial Court of Cebu. The marriage was registered with the Civil Registrar of
Cebu. Six (6) months after, on a visit to Marawi, the couple for the second time were
married before an Imam who is authorized to solemnize Muslim marriages. Anna has
remained a non-Muslim despite marriage.

A. What law governs the marital relations between Mansur and Anna?

40
In the case at bar, I submit that the law that governs the marriage of Mansur and Anna is
the Civil Code. Under the Muslim Code, on Article 13 second paragraph it provides
that, in case of a marriage between Muslim male and a non-Muslim solemnized not in
accordance with the PD1083 or Muslim laws the civil code of the Philippines shall
apply. The second marriage solemnization by an Imam in Marawi City was only
ceremonial citing the case of Samson R. Pacasum, Sr. vs. Atty. Marietta D.
Zamoranos SCRA

B. Can Mansur proclaim talaq on Anna?

No, Mansur can not proclaim talaq because the Civil Code does not recognize talaq
(divorce).

C. Can Mansur take a second wife as a Muslim?

No, Mansur cannot take a second wife because he will be liable to the crime of bigamy,
which is punishable under the Revised Penal Code.

D. Can Anna similarly sue Mansur on any legal grounds for divorce by Faskh?

No, Anna can not sue Mansur on any legal grounds for divorce by faskh, because faskh
or any other divorce in not recognized under the Civil Code.

E. Supposed Anna converted to Islam one month after her civil marriage to Mansur,
will your answer still be the same as a,b,c and d? Please give reasons to your
answer?

Yes my answer is still the same. In a so-called combined Muslim-Civil marriage, the
first marriage is to be considered valid and effective as between the parties while the
second marriage is merely ceremonial, being a surplusage and unnecessary. Therefore,
Anna’s conversion to Islam will not have any legal effect on their marriage.

VI. Haron, a Muslim male married Konisa, a Muslim female, in accordance with Articles
78 and 79 of the New Civil Code, the marriage law applicable among Muslims at that
time in Jolo, Sulu, on July 10, 1960. Twelve (12) years later, Konisa obtained a divorce
in accordance with Republic Act 394, the divorce law among Muslims at that time.
A. Was the marriage solemnized in 1960 between Haron and Konisa valid under
Muslim law? If so, explain.

Yes, the marriage solemnized in 1960 between Haron and Konisa was valid. Under the
transitory provision of the PD1083, acts executed prior to the effectivity of this Code
shall be governed by the laws in force at the time of their execution, and nothing herein
except otherwise specifically provided shall affect their validity or legality to operate to
extinguish any right acquired or liability incurred thereby. [Art. 186, CMPL]

B. Is the divorce obtained in 1972 valid under Muslim law? If not, why?

No. RA 394, the law that recognized dissolution of marriages among Muslims lapsed on
June 18, 1969. It was not until September 4, 1975 that it was extended by PD 793 with a
retroactive effect on June 19, 1969. Therefore, the divorce obtained in 1972 was invalid.

41
VII. A. What is the legal effect of registration of marriage, divorce, revocation of divorce,
conversion and all other documents relating thereto?

The legal effect of registration under the PD1083 provides that, the books making up
the registry of Marriage, divorce, revocation of divorce conversion and all other
documents relating thereto shall be considered public documents and shall be prima
facie evidence of the fact therein contained. However, nothing herein provided shall
affect the intrinsic validity or invalidity of the acts registered. [Art.86, CMPL]

C. Are deaths among Muslims required to be registered in the Muslim General


Register?

No, death among Muslims is not required to be registered in Muslim General Registrar but
in the city or municipal civil registrar.

VIII. A. Who are authorized to solemnize marriage under the Muslim Code?

According to the PD1083 the following are authorized to solemnize marriage:

a. The proper wali of the woman to be wedded


b. Upon the authority of the proper wali to any person competent under Muslim Law to
solemnize marriage
c. The Shariah Distric Judge or the Shariah Circuit Judge of any person designated by the
judge should the proper wali refuse without justifiable reason to authorize the
solemnization.
[Art. 18, CMPL]

B. Does an Ustadz (Muslim teacher) or Imam (religious teacher) have authority to


solemnize Muslim marriages under the Muslim Code?

Yes, the Ustadz or the Imaam can solemnize marriage provided they are authorized by the
proper wali, contemplated as the competent person under Muslim Law to solemnize
marriage. [Art. 18 (b), CMPL]

D. Under what condition may a judge of the Shariah District Court designate any
person to solemnize marriage?

According to the PD 1083 or the Muslim Code, when the proper wali refuse to
authorize the solemnization of the marriage without justifiable reason the Shariah Judge
may designate any person to solemnize marriage. [Art. 18 (c), CMPL]

E. What is the legal effect of marriage among Muslims which is solemnized both
under civil rites and Muslim rites? What law shall govern the marriage?

According the Supreme Court, in a so called combined Muslim-Civil marriage rites,


whichever comes first is the validating rite and the second rite is merely ceremonial
one. [Pacasum vs Zamoranos]

42
IX. Ibrahim and Amina, both Muslims were married on January 5, 1977. On February 4,
1978, Amina gave birth to a baby boy. In March of 1979, trouble started to brew in
the marriage of the couple. Ibrahim suspected that Amina was meeting with her
former boyfriend Karim. Amina on the other hand got rumors that Ibrahim was
courting another woman. The marriage broke up and they decided to divorce on
March 28, 1979. On June15, 1979, Amina without informing Ibrahim or any of his
relatives married her former boyfriend. Amina gave birth to a baby girl on September
1, 1979. Given the above facts, please answer fully but concisely, the following
questions:
A. What is the status of the two (2) children of Amina with respect to Ibrahim? What
is the status of the second child of Amina with respect to her second husband?

In the case at bar I submit that the two children all belongs to Ibrahim because the first
child was born during the time of the marriage of Ibrahim and Amina while the second
though born after their marriage broke up the date of the divorce in relation to the birth
of the second baby is within six months from the dissolution of prior marriage and
according to the PD1083, the child born within six months from the dissolution of prior
shall be presumed to have been conceived during former marriage and if born
thereafter, during the latter. Hence, it is presumed to have been conceived during the
former marriage of marriage of Ibrahim and Amina.

B. What is the applicable rule in determining the paternity of the second child of
Amina?

The Applicable rule is provided under Art 60 of PD 1083 which states that Should the
marriage be dissolved and the wife contract a subsequent marriage after the expiration
of idda, the child born within six months from the dissolution of the prior marriage shall
be presumed to have been conceived during the former marriage and if born thereafter,
during the latter.

C. Since it appeared that Amina was pregnant during the month of March 1979, what
steps should she have taken to safeguard legitimacy of her second child? Explain
your answer.

If after the dissolution of Marriage, the wife believes that she is pregnant by her former
husband, she shall within thirty days from the time she became aware of her pregnancy,
notify the former husband or his heirs of the fact. The husband or his heirs may ask the
court to take measures to prevent a simulation of birth. [Art. 61, CMPL]

X. A. Under what circumstances may capacity to act be restricted under the Muslim
Code? Give examples.

Under the Muslim code, the following among others modify or limit Capacity to act :
age, insanity, imbecility, the state of being deaf mute, the condition of death illness
(maradul maut), absence, penalty, prodigality alienage, insolvency and trusteeship. The
consequences of these circumstances are govern by this code and other Islamic laws and in
suppletory manner by other laws. [Art 9, CMPL]

B. What do you understand by legal personality under the Muslim Code? How is it
acquired and extinguished?

43
Legal personality of a person begins at the time of his conception . He is already
considered a person in contemplation of law and is therefore possessed of inherent legal
capacity, which however is regarded as defective, but becomes manifest on birth.

Under the Code, birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it is born alive, however
briefly, at the time it is completely delivered from the mother’s womb. [Art. 10, CMPL]

Therefore, personality is acquired by birth and extinguished by death as provided for in Art.
11 of the Code, which states, Civil Personality is extinguished by death.

44
2006 SHARI’AH BAR EXAMINATION
PERSONS, FAMILY RELATIONS AND PROPERTY

I. A. Prior to the effectivity of the Muslim Code (P.D 1083), what were the laws that
governed marriages among Muslims or mixed marriages between Muslim male and
non- Muslim female in the Philippines ? Explain your answer.

Prior to the effectivity of Muslim Code (P.D. 1083) the laws governing marriages
among Muslims or mix marriages between Muslim male and non-Muslim female in the
Philippines are Articles 78 and 79 of the Civil Code which took effect on August 30,
1950. This was extended for 10 years through amendment by virtue of R.A. 6268 until
the PD 1083 was passed into law on February 4, 1977.

Article 78 of the Civil Code, substantially provides that, marriage among


Mohammedans or pagans in non-Christian provinces may be solemnized in accordance
with their customs, rite and practices. No marriage license is required and the
solemnizing officer is not obliged to follow Article 92 of the Code.

However, twenty years after approval of this Code, all marriages shall be solemnize in
accordance with the civil code. This was until August 30 of 1970 because it was
extended by R.A. 6268 passed on June 19, 1971

Article 79 provides Mixed marriages between a Christian male and a Mohammadan or


pagan female shall be govern by the general provision of this Title and not by those of
the preceding article, but mixed marriages between Mohammadan male or a pagan male
and a Christian female may be performed under the provision of the last preceding
article if so desired by the contracting parties, subject however, in the latter case to the
provision of the second paragraph of said article 26

B. Give the definition of marriage under the Muslim Code (P.D1083). What are its
essential requisites?

Marriage is not only a civil contract but a social institution. Its nature, consequences and
incidents are governed by the Sharia and not subject to stipulation, except that the
marriage settlement may to a certain extent fix the property relations of the spouses.

For the essential requisites of marriage, the Code provides that, no marriage contract
shall be perfected unless the following essential requisites are complied with:

1. Legal capacity of the contracting parties ;


2. Mutual consent of the parties freely given ;
3. Offer (ijab) and acceptance ( qabul ) duly witnessed by at least two competent
persons after the proper guardian in marriage ( wali) has given his consent ; and
4. Stipulation of customary dower (mahr) duly witnessed by two competent persons. [Art.
15, CMPL]

II. A. Define divorce as allowed under the Muslim Code (P.D 1083 ) .
What are the different kinds of ways by which divorce may be effected?

45
Under the Code, divorce is defined as the formal dissolution of the marriage bond in
accordance with this code to be granted only after the exhaustion of all possible means of
reconciliation between spouses. It may be effected by: [Art. 45, CMPL]
1. Repudiation of the wife by the husband. (talaq)
2. Vow of continence by the husband (ila)
3. Injurious assimilation of the wife by the husband (zihar)
4. Acts of imprecation (li’an)
5. Redemption by the wife (Khul)
6. Exercise by the wife of the delegated right to repudiate (tafwid)
7. Judicial decree (faskh)

B. What is fosterage under Muslim Code (P.D 1083)? State the rule on prohibition against
marriage due to fosterage and the reason behind it? Differentiate fosterage with adoption
in the light of Islamic jurisprudence? Is adoption allowed under the Muslim Code (P.D
1083) ? Explain.

Fosterage is that status created by fiction of law when a woman breastfeeds a strange
child for at least five times within two years from birth of the child, thereby establishing
a relation between the child and the woman as though the former is the natural child of
the woman and consequently establishing a prohibition in marriage between the foster
child and the foster mother and the latter’s relation within the degrees of prohibition in
marriage by reason of consanguinity.

The rule on prohibition due to fosterage (Tahrim bir-rada’a) provides that, [Art. 26,
CMPL]

(1) No person may validly contract marriage with any woman who breastfed him for at
least five times within two years after his birth

2. ) The prohibition on marriage by reason of consanguinity shall likewise apply to


persons related by fosterage within the same degrees, subject to exception recognized
by Muslim law.

The reason behind the prohibition because it was stated in the glorious Qur’an, Aya 23
in Surah Al Nisa. Secondly in my humble opinion it is a mercy from Allah allowing a
stranger to have full access to the reserved areas in the family home of the foster
Mother. The upbringing of the child may now be shared by all members of the family
including daughters of his foster mother or his foster sister. Allah knows best.

On the difference between fosterage and adoption;

First, fosterage is sanction by Islam while adoption is not allowed.

Second in Fosterage, the child recognizes his biological family while in Adoption, the
biological parents is the adopted parents.

Third, in fosterage the right to succession is not conferred to foster child while in
adoption as practiced in the civil code, the adopted child is conferred with all rights
similar to the legitimate child.

Lastly, on the question, Is adoption allowed under Muslim Code? The Code provides
that, No adoption in any form shall confer upon any person the status and rights of a
legitimate child under the Muslim law ,except that said person may receive a gift (hiba)
. hence, No, adoption is not allowed in Islam.

46
III. A. As provide for under the Muslim Code (P.D 1083), what properties are
considered as the exclusive properties of either spouse?

Under the Code, the following shall be the exclusive property of either spouse: [Art. 41,
CMPL]
1. All properties brought to the marriage by either the husband or the wife
2. All income derived by either spouse from any employment ,occupation or trade
3. Any money or property acquired by either spouse during marriage by lucrative title
4. The dower (mahr) of the wife and nuptial gifts to each spouse
5. Properties acquired by right of redemption ,purchase or exchange of the exclusive
property of either ; and
6. All fruits of properties mentioned in the foregoing paragraphs.

B. State the rule on property relations between husband and wife under the Muslim Code
(P.D 1083) ?

The property relation between husband and wife shall be governed in the following
order:

(d) by custom;
(e) by contract before or at the time of the celebration of the marriage; and
by provision of this code. [Art. 37, CMPL]

Article 38 of the Code provides that, the property relations between the spouses, in
absence of any stipulation to the contrary in the marriage settlements or any other
contract, shall be governed by the regime of complete separation of property.

IV. A. What are the requirements under the Muslim Code in order that a Muslim male
validly contract a subsequent marriage while the first marriage is subsisting?

For the subsequent marriage to be valid the law provides that Any Muslim husband
desiring to contract a subsequent marriage shall, before so doing, file a written notice
thereof with the Clerk of Court of the Shari’a Circuit Court of the place where his
family resides. Upon receipt of said notice, the Clerk of Court shall serve a copy to the
wife or wives. Should any of them object, an Agama Arbitration Council (AAC) shall
be constituted. If the AAC failed to obtain the wife consent the Court, subject to Article
27 of the PD 1083, decide whether or not to sustain the objection of the wife. (Art. 162)

B. Enumerate the specific offenses which are punishable by imprisonment or fine


under the Muslim Code ( P.D 1083)

The following are the specific offenses enumerated in the PD 1083: [Art. 181-5, CMPL]

1. Illegal solemnization of marriage


2. Marriage before the expiration of idda
3. Offenses relative to subsequent marriage , divorce , and revocation of divorce
4. Failure to report for registration
5. Neglect of duty by Muslim Civil Registrars.

V. Ali and Mona were married in accordance with the Muslim law. But before and during
the celebration of their marriage there was no stipulation made as to the dower.

47
A. Does the absence of the stipulation on customary dower between Ali and Mona
render their marriage invalid? Explain your answer.

No, because the stipulation of the dower before the celebration of the marriage is not a
requirement for the validity of the marriage. The contract of marriage can be valid even
without the specification of dower before its celebration because the dower is not a shart
sihla . It is just an offshoot of a valid contract marriage. It would therefore be a
sufficient compliance with the requirement that dower is specified or given either before
,during or even after the celebration of marriage .

B. Suppose Ali and Mona, after the celebration of the marriage voluntarily specified
the dower. Will the specified dower in its entirety become due after the consummation
of marriage? Suppose takes place before the consummation of the marriage, will your
answer be the same as in the preceding question?

Yes, because according to Hanafis and Malikis , the dower , on account of valid
retirement , becomes preemptory and mandatory , although according to Shafii ,
retirement is not equivalent to cohabitation . If divorce is pronounced or the marriage
contract is dissolved, after valid retirement, the entire dower shall at once become due,
whether it be prompt or deferred.

VI. On December 12, 1976, Sali a Muslim and Rita, a Christian were married in a civil
wedding solemnized by a municipal judge and their marriage was registered with the
office of local registrar. Four years later , Rita embraced Islam , and thereafter they
registered with the Shariah Court their mutual desire to have their marriage
considered as one contracted under the Muslim law . Aside from being blessed with
five children, they acquire several properties.

A. What law governs the family and property relations of Sali? Explain your answer.

Their property relationship shall be governed by the Muslim code from the time of their
marriage as a consequence of the ratification of their marriage by a reason of their
conversion. The conversion of non Muslim spouses to Islam shall have legal effect of
ratifying their marriage as if the same been performed in accordance with the provision
of this code or Muslim law; provide there is no legal impediment to the marriage under
the Muslim law.

B. Suppose Sali and Rita failed to register with the Shariah Court their mutual desire to
have their marriage considered as one contracted under the Muslim law. Sali failed to
provide support to Rita for more than ten (10) consecutive months on that ground, Rita
filed a person petition for divorce by faskh . If you are the Shariah judge, will you grant
the divorce? Explain.

No, I will not grant the divorce of faskh because under the Article 13 it provides that In
case of a Marriage between Muslim male and a non-Muslim female solemnized not in
accordance with Muslim law or this code, the civil code of the Philippines shall apply.
Therefore their marriage is not covered by the PD 1083.

VII. B. What is Idda ? What are their purposes?

Idda is the period of waiting prescribed for a woman whose marriage has been dissolved
by death or by divorce the compliance of which shall enable her to contract a new
marriage. [Art. 56-57, CMPL]

48
The purpose of the Shariah in ordaining the observance of Idda by the wife are the
following

1. To provide a period of probation during which the husband has the right to
revoke the divorce he has pronounced , and reconcile with the wife
2. To require the husband to provide maintenance to the wife during the period
of the idda , and even thereafter , if the wife is pregnant until she delivers
the child , and until after the period of weaning so as not to prejudice the
condition of the wife as consequence of the divorce
3. To ascertain the condition of the wife whether she is pregnant or not
4. To ascertain paternity if a child is conceived.
5. To provide period of mourning by the widow

B. What is the status of marriage contracted by a woman while observing Idda ? Can it
be validated? If so, what are its legal effects? Explain.

A marriage contracted by a woman while observing idda is Irregular (Fasid). The


code provides under Article 32 of the PD 1083 that women observing idda is among
the irregular marriages. Which may be validated by contracting a new marriage after
the expiration of idda. In this case the effectivity of the new marriage shall retroact to
the date of the celebration of the irregular marriage.

VIII. A.Alma, a widow has a Muslim suitor who desires to contract marriage with her She
comes to you for advice and asks you, if still necessary for her to secure the consent of
her guardian, considering that she has been emancipated by her previous marriage.
Give your answer and explain.

In the case a Muslim female who reach the age puberty with a marriage experience,
Muslim jurists have the same view regarding the thayyibah or a female by herself enter
into a contract of marriage without the intervention of her proper guardian. But, the
Hanafi’s differs from that view and hold that such a Muslim female can contract her
own marriage without the intervention of a proper guardian.

B.Suppose Alma further asks you, who are authorized to solemnize marriage under the
Muslim code (P.D 1083).

The following are authorize to solemnize Marriage under the Muslim Code: [Art. 18,
CMPL]

1. By the proper wali of the woman to be wedded;


2. Upon the authority of the proper wali , by any person who is competent under the
Muslim law to solemnize marriage ; or
3. By the judge of the Sharia District Court or Sharia Circuit court or any person
designated by the judge, should the proper wali refuse without justifiable reason , to
authorize the solemnization .

IX A. State or explain the rules on the care and custody of the children of divorced
parents under the Muslim Code (P.D 1083).

The Code substantially provides that the care and custody of children below
seven years of age whose parents are divorced shall belong to the mother or ,in her
absence , to the maternal grandmother ,the paternal grandmother , the sister and aunts .

49
In this default , it shall devolve upon the father and nearest paternal relatives . The
minor above seven years of age , but below the age of puberty , may choose the parent
with whom he wants to stay and with regards to the unmarried daughter who has
reached the age of puberty shall stay with the father , the son , under the same
circumstances , shall stay with the mother. [Art. 78, CMPL]

B. In order of presence, enumerate the persons who shall exercise guardianship


over the property of minors, and state at least one Qur’an verse on which the law
of guardianship is based.

The guardian of minor’s property this are the following persons shall exercise
guardianship over the property of the minor in order of precedence: [Art. 80, CMPL]

1. Father
2. Father’s executor or nominee ;
3. Paternal grandfather
4. Paternal grandfather’s nominee
5. The court
The basis of this law on guardianship is from the Sura IV:6 of the Holy Quran which
states:
“And test the orphans until they attain puberty; then if you find in them maturity
of intellect, make over to them their property, and do not consume it extravagantly and
hastily, lest they attain to full age…”

X. A. Under the Muslim Code (P.D 1083), what is support (nafaqa), and what does it
include?

Support (nafaqa) includes everything that is indispensable for sustenance, dwelling,


clothing and medical attendance according rto the social standing of the person obliged
to give it, and the education of the person entitled to the support until he completes his
education, training or vocation even beyond the age of majority. [Art. 65, CMPL]

B. Who are entitled to support, and who are obliged to give it?

The Sharia mandates the man to provide support to his wife or wives equitably, his
children and between him and his nearest ascendant and descendants in the order in
which they are called to succeed by intestacy the person who has the right to claim
support, in an amount which shall be in proportion to the resources of the giver and the
needs of the recipient.

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2008 SHARI’AH BAR EXAMINATION ON
PERSONS, FAMILY RELATIONS AND PROPERTY

1. a) Distinguish juridical capacity from capacity to act. Please explain and give
examples.

Juridical capacity, which is the fitness to be the subject of legal relations, is


inherent in every natural person and is lost only through death. In Islamic
concept, this is called inherent capacity or Ahliyatul wujub.
Capacity to act which is the power to do acts with legal effects, is acquired and
may be lost. In Islamic law, this is called active capacity or Ahliyatul ada.
[Art. 18, CMPL]
b) What is the effect of death upon the rights and obligations of a deceased
person? Please explain.

By death is the state of a natural person who, though possessing natural life has
by the cessation of life from his being lost all his civil rights by the
extinguishment of his civil personality. The rights and obligations of a person
are of two kinds, those that are personal to him alone, or which he himself alone
can exercise or be acquired to perform; and those which he can assign, transfer,
or cede. [Arabani, Bensaudi I, Commentaries on the Code of Muslim Personal
Laws of the Philippines with Jurisprudence and Special Procedure. Page 238]

2. a) What are the sanctions that the court may impose upon a husband who
contracts a subsequent marriage without informing his wife? Please explain.

The Muslim Code states that a person who fails to comply with the requirements
of Articles 85, 161, and 162 of the Code shall be penalized by arresto mayor or
a fine of not less than two hundred pesos but not more than two thousand pesos,
or both, in the discretion of the court. [Art. 183, CMPL]

b) May a widow validly contract a subsequent marriage before the expiration


of her iddah? Can her former husband file a case against her? Please justify your
answers.

No widow shall contract a subsequent marriage unless she has observed an


iddah of four months and ten days counted from the date of the death of her
husband. If at that time the widow is pregnant, she may remarry within a
reasonable time after delivery. In such case, she shall produce the corresponding
death certificate. [Art. 28, CMPL] The former husband cannot file a case against
his wife for he is already dead prior to the wife’s observation of her iddah.

3. a) Can the husband and wife enter into a marriage settlement that the wife
will provide s pport for the family if the husband cannot find a job? Please explain.

No. To provide support and maintenance are part of the


obligations of the husband, he is not suppose to enter into a marriage settlement
unless he is able to sustain the needs of his family.

b) What are the instances when the husband is exempt from providing
support to his wife?

The husband may not be obliged to give support and maintenance on any of the
following, to wit:
 When the wife refuses to leave with him in the same dwelling place;
 When she leaves their conjugal dwelling to live elsewhere;
 When she denies the husband entry to the house to live with her;
 When their marriage is proved to be irregular except, in case of marriage
without witnesses;

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 When she turn apostate; when she is guilty of infidelity. i.e., adultery,
acts of lewdness; and
 If in spite of her husband’s valid objection, she engages herself in some
employment and thus, keeps herself out for purposes of earning and the
husband loses control over her.

4. a) Why is divorce allowed under Muslim Law? Please explain fully.

Divorce is corollary to the contract of marriage which the Muslim law allows to
be availed by either or both of the spouses as a means of dissolving their
contract of marriage in abnormal circumstances, that is when divorce becomes a
necessity because of irreconcilability of the spouses, or due to a just cause, that
it becomes inevitable that divorce must be effected as the only possible recourse
and appropriate remedy. [lbid., 320]

b) May a Shari’ah Judge disregard the pronouncement of divorce by the


husband? Please explain.

Yes. The Shari’ah Judge may disregard the pronouncement of divorce by the
husband because his divorce pronouncement shall be effected to his wife even
without the discretion of the court.

5. a) Can the wife contest the pronouncement of divorce by her husband, before
the Shari’ah Court? Please explain.

Yes. Under Article 44 of the Code of Muslim Personal Laws, it substantially


provides that the wife may independently of the husband, sue or be sued if the
litigation is between them.

b) In cases of restitution of marital rights, can the Shari’ah Judge issue an


order directing the wife to live with the husband? Please explain.

Yes. The Shari’ah Judge has the full discretion of doing so, but still the decision
depends on the wife if she wants to live with her husband. However, the court
may exempt the wife from living with her husband on any of the following
grounds:
 Her dower is not satisfied in accordance with the stipulations; or
 The conjugal dwelling is not in keeping with her social standing or is, for
any reason, not safe for the members of the family or her property.

6. Saddam and Indira, both Filipinos, got married in Saudi Arabia and later secured
a divorce paper in that place. Is their marriage and subsequent divorce recognized
under the Code of Muslim Personal Laws of the Philippines (P.D. 1083)? Please justify
your answer.

Yes. The marriage and subsequent divorce of Saddam and Indira in Saudi Arabia is
still recognized by the Code of Muslim Personal Laws (P.D. 1083) because it
follows the Filipino Muslims anywhere in the world.

7. a) What are the presumptions of legitimacy under the Code of Muslim


Personal Laws of the Philippines?

A child conceived in lawful wedlock is presumed to be legitimate. Islamic law leans


favorably towards holding the children to be of legitimate parentage so that they
may be recognized as legitimate children and confusion or immorality may spread
in the society. [A.A. Fyzee, Outline of Muh. Law, pp. 164-165;
and lbid., 362]

b) How should legitimacy be impugned? Please explain in detail.

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The presumption of legitimacy may be impugned as follows:
1. As far as the presumption of legitimacy of children conceived in lawful
wedlock is concerned, whoever claims illegitimacy of or impugns filiation
must prove his allegation.
2. As far as the presumption of legitimacy of the children born after six months
following the consummation of marriage or within two years after the
dissolution of the marriage is concerned, no evidence shall be admitted
against this presumption other than that of physical impossibility of access
between the parents at or the time of the conception of the child.

8. a) Is the father obliged to give support to his son who is single but is already
gainfully employed? Please explain.

Under the Islamic Law, it provides that the father is bound to give support to his
son(s) until they attain the age of puberty. Although the son is single and already
gainfully employed, he is still entitled to support if he has not yet attain the age
of puberty.

b) What are the nature and effects of parental authority under the Code of
Muslim Personal Laws of the Philippines?

Article 71 of the Muslim Code provides the following as the nature and
effects of parental authority, to wit:
 The father and the mother shall jointly exercise just and reasonable
parental authority and fulfill their responsibility over their legitimate and
acknowledged children. In case of disagreement, the father’s decision
shall prevail unless there is a judicial order to the contrary.
 The mother shall exercise parental authority over her children born out
of wedlock, but the court may, when the best interests of the children so
require, appoint a general guardian.

c) What is the reason why a child below seven (7) years old should be under
the care and custody of the mother in case of divorce? Please explain.

According to Imaam Malik Bin Anas, the mother has the right of custody of her
son till he attains his full power of speech and of her daughter till she is
contracted into marriage. [lbid., page 412]

9. Sarah filed a divorce case against her husband Abdullah on the ground of
abandonment and non-support. Please answer the following questions exhaustively.
a) As a lawyer for Sarah, what should you do in order for the court to grant
the divorce?

If I am the lawyer for Sarah, I will file a case on divorce by faskh on the ground
of negligence as stated under paragraph a of the Article 52 of the Code of
Muslim Personal Laws. This is in line with the Provisions of Article Number
3815 of the Revised Penal Code as amended and Article 276 which substantially
states that the penalty of arresto mayor and a fine not exceeding 500 pesos shall
be imposed upon anyone who shall abandon a child under seven years of age,
the custody of which is incumbent upon him.

b) As a lawyer for Abdullah, what should you do in order for the case to be
dismissed?

If I am the lawyer for Abdullah, although the filing a case to dismiss or to


quash is not allowed under Muslim Law, I will ask the honorable court to
dismiss the case for my client did not commit such abandonment, he went
elsewhere to find a resources to sustain the needs of his family, but if he

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cannot find though, he is exempted to give support as provided for under
Article 70 of the Muslim Code which provides under paragraph b that when
the resources of the obligor have been so reduced that he cannot give
the support without neglecting his own need and those of his family.

c) As a Shari’ah Judge. What will be your decision?

As a Shari’ah Judge, I will first constitute an Agama Arbitration Counsel


so that both parties may present their evidences before going into trial, if
it so happen that the wife insisted to support and the husband has no enough
resources to give support, I will decide the case in favor of the wife to grant
a divorce decree so that the husband may find any lawful job for support if
he still wants to live with his wife.

10. In a divorce case, the Shari’ah Judge failed to constitute the Agama Arbitration
Council, and proceeded to try the case and render a decision.
a) What is the status of the decision of the Shari’ah Judge? Please explain.

I humbly submitted that although the Shari’ah Judge has the full authority to
give the verdict, his decision shall become void for he fails to constitute the
Agama Arbitration Council before the Pre-Trial Hearing which is
mandatory, the said council is very important in every court proceedings for
it will give the possibility of an amicable settlement between the two parties.

b) What is the remedy of the losing party? Please explain.

If the losing party is not contented with the decision of the court, he may
contest the case to the high tribunal like of that Shari’ah District Court all the
way the Supreme Court as the final arbiter of the law. If he fails to do so, his
counsel may file a motion for reconsideration again to the afore-mentioned
courts.

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2011 SHARI’AH BAR EXAMINATION
PERSONS, FAMILY RELATIONS AND PROPERTY

I. A. Distinguish a person’s juridical capacity from his capacity to act.


A person’s juridical capacity is his fitness to be the subject of legal relations which is
inherent in every natural person, while his capacity to act is the power of such person to
do acts with legal effects. [Art 8, CMPL]
B. Does a ten (10) years of age acquire his capacity to act if his level of intelligence is more
than that of an eighteen-year old person? please explain .
No he does not have capacity to act at his age, being a restriction as provided under the
Code of Muslim Personal Laws which states that, the following circumstances, among
others modify or limit capacity to act: age, insanity, imbecility, and the state of being
deaf-mute, condition of death-illnes, penalty, prodigality, absence, family relations,
alienage, insolvency and trusteeship. The consequences of these circumstances are
governed by this code, & other Islamic laws, & in a suppletory manner, by other laws.
[Art 9, CMPL]

II. A. What is marriage and what is its purpose?

Under the code, marriage is not only a civil contract but a social institution. Its nature,
consequences and incidents are governed by this code, and the Shari’ah and not subject
to stipulation, except that the marriage settlements may to a certain extent fix the
proprty relations of the spouses. [Art 14, CMPL]

The Arabic word for marriage is nikah, which means uniting together. Technically,
marriage or nikah is defined as a contract for the legalization of intercourse and the
procreation of children. This may also be considered as the purpose of marriage.

Marriage is also regarded as a sacred covenant, since its constitution and performance is
governed by Islamic Shari’ah, therefore it is also an act of worship.

B. There are outstanding differences between marriage under the code of muslim
personal laws and marriage under the civil code of the Philippines. Enumerate at least
three (3) differences.

The following are differences between marriages under Muslim code and the Civil
code:
1. Under the Muslim Code, a dower is an essential requisite, whereas under the Civil
code, it is not;
2. A marriage license is not required for a Muslim marriage, but it is essential in a
Civil law marriage;
3. The property relations between spouses under the Muslim Code in absence of any
stipulation to the contrary in the marriage settlements or any other contracts is
governed by the regime of complete separation of property, whereas under the Civil
code, the regime of property relations is presumed to be that of conjugal partnership
of gains.

III. A. The Philippine constitution recognizes the fundamental equality before the law of
women and men. Is this state policy equality available to muslim women under Islamic
Laws? Please explain.

Yes, I submit that although Islamic Laws does not recognize equality as understood in
the West which means “the same” but it enjoins justice and fairness among men and
women. Allah Almighty says in the glorious Qur’an “Verily, Allaah enjoins Al-‘Adl (i.e.
justice)”[Noble Qur’an 16:90], Oftentimes the believers are address by Allah Almighty

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as “believing men and women emphasizing equality of men and women in regard to
their respective duties, rights, virtues and merits. Hence the equality before the Shari’a
of women and men is more practical and comprehensive than a mere equality, which
mean the same because in Islam equity, fairness and justice is paramount.

B. In the distribution of inheritance, the male beneficiary gets a share twice that of the
female. Do you consider this difference in shares an inequality of women and men under
Islamic Laws? Why or Why not?

No, it is not an inequality rather equity and justice. The man having twice the share of a
woman is an exemplar of justice and equity because
the man has more responsibility compared to woman.
The man is required to give mahr while the woman is entitled to receive one.
The man is responsible to support his family while the women is entitled for support by
her husband. Allah is the Most Just. Allah knows best.

IV. A. Basari and Sohra were married without having entered into an ante-nuptial
agreement. By their joint effort, they were able to establish a flourishing chain of
groceries stores, but the financial success became the cause of a divorce that ended the
marriage after 10 years. What property regime shall govern the property relation of
couple? Please explain?
If Basari and Sohra were married in accordance with the Muslim Code, the property
relations between the spouses in absence of any stipulation to the contrary in the
marriage settlements or any other contracts is governed by the regime of Complete
Separation of Property. But if their marriage was solemnized under the Civil code, the
regime of property relations is presumed to be that of conjugal partnership of gains if
marriage was celebrated before August 3, 1988 on and after the said date it will be
Absolute Community of Property under the Family Code of the Philippines.
B. What are the property regimes which, under the code of muslim personal laws , the
parties to a marriage may mutually adopt to govern their property relation? Please
describe each.
The property regimes which under the law that parties may by mutual agreement adopt
are:
1. The regime of complete separation property – whereby each spouse shall own, possess,
administer, enjoy and dispose of his or her own exclusive estate even without the
consent of the other, and any debt or liability each shall have would be to his or her
account alone and upon the dissolution of the marriage by the death of either of them
without their marriage having been earlier dissolved by divorce, the estate of the
deceased spouse to the extent of two third of the net portion thereof if there are bequest
and devises, and to the whole thereof, if there are none, shall be transmitted to the other
and their heirs in accordance with this code and Muslim law.
2. The regime of conjugal partnership of gains – whereby the husband and the wife place
in a common fund the fruits of their separate property and the income from their work
or industry, and divide equally, upon the dissolution of the marriage or of the
partnership, the net gains or benefits obtained indiscriminately by either spouse during
the marriage. All property of the conjugal partnership is owned in common by the
husband and the wife.
3. Mixed – Mixed or combination of both the regime of complete separation property and
the conjugal partnership of gains, whereby they agree that some of their properties shall
remain as their exclusive properties, and some shall be conjugal partnership properties.
4. The regime of absolute community of property – whereby future spouses may agree by
way of marriage settlement before or at the time of the marriage contract that all their
present and future property not excepted by law shall form part of their community of

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properties which shall be owned, enjoyed, administered by them jointly, and upon the
dissolution of the marriage or the community, the same shall be divided between them
in accordance with their ante-nuptial contract, the law, or their custom, and in case
dissolution takes place by the death of one of them by the law of succession.

V. A. Distinguish custody from Guardianship?


Custody is the right to have the child under the care of the person entitled to his custody
which generally involves the rearing or upbringing of the child, while guardianship is
the right to have charge of the ward or his property or both which involves supervision
and control of all matters to be undertaken concerning the child or his property. Under
the muslim law, the right of the guardianship is recognized in the father, while the
mother has natural right of custody of her minor children up to a certain age , or during
the age of nurture .

B. What is adoption? What wisdom is behind the prohibition of adoption in Islamic laws?
Adoption is an act whereby a person takes the child of another as his own creating by
operation of law a relationship that exists in a legitimate paternity and filiation.
The code provides that, no adoption in any form shall confer upon any person the status
and rights of a legitimate child under Muslim law, except that said person may receive a
gift. [Art. 64, CMPL]
. The wisdom behind the prohibition of Adoption in Islamic laws is to protect the rights
of the legitimate heirs of the inheritance from being deprived of their successional
rights. This deprivation usually results in quarrels and breaking up of relationship
among relatives because of an intruder who encroaches upon them and usurps the rights
of legitimate heirs.
By legal Adoption, a stranger through the fiction of law becomes member of the family
allowing him to access to the privacy of adult women who are not his mahram. Allah
knows best.
VI. A. Saphia was divorce by her husband Moamar. Ten (10) days before the lapse of period
of waiting (idda), Moamar died. After a month from Moamar’s death, Saphia contracted
a new marriage with Mojib. Was there a valid new marriage between Saphia and Mojib?
Please explain.

No, there was no valid marriage between Saphia and Mojib because Saphia did not
complete her idda. The law provides that “should the husband die while the wife is
observing idda for divorce, another idda for death shall be observed” In the case at bar,
since Moamar died while Saphia was suppose to be observing her idda for divorce
which is Three (3) monthly courses, she has to observe another idda of Four (4) months
and Ten (10) days because of the death of her husband. Hence the code provides further
that marriage contracted with a female observing idda is irregular.

B. The fact that Moamar died before the end of period of idda, does Saphia have the
right to inherit from the Estate of Moammar? Please state your reasons.

No, under article 96 of the PD1083 which states that the husband who divorces his wife
shall have mutual right of inheritance with her while she is still observing idda, After
the expiration of idda, there shall be no mutual right of succession between them. Since
Saphia did not observed her idda it is humbly submitted that she has lost her right to
inherit. It is a ground for disqualification to succession under Article 93 (b) Those who
have committed any other act which constitute a ground for disqualification to inherit
under Islamic law, because to let her share with the legitimate furu of the decedent is an

57
insult to the family and relatives of the decedent. It is also an act of injustice which the
principles of Shariah cannot countenance.

VII. A. Barely four (4) months after Sarah was Divorced by Hussien, Sarah got married anew
to Omar. Six (6) months and Ten (10) days thereafter, Sarah begot a very handsome son.
Hussien filed a petition for paternity over the child arguing that Six (6) months and Ten
(10) days was so short a time for the child to be conceived during the subsequent? If you
were the judge, will you award paternity of the child to Hussien? Please support your
answer.

No, the Muslim Code is clear which provides that should the marriage be dissolved and
the wife contract another marriage after the expiration of her idda, the child born within
Six (6) months from the dissolution of the prior marriage shall be presumed to have
been conceived during the former marriage, and born thereafter of the latter. Hence the
paternity of the child cannot be awarded to Hussien.

B. Differentiate Paternity from Filiation

Paternity is the status of the father’s relation to the child while Filiation is the civil
status of the child with regards to father or mother

VIII. A. Hejara was married to Hassan after she was divorced by Hamid. Five (5) months
thereafter, Hassan died but not without leaving behind Khalid who was born to Hejara
four months after his death. Hamid remarried Hejara intending to acknowledge Khalid
as his son. Will Hamid be allowed to acknowledge Kahalid? Please state your reasons.

No, Hamid is not allowed to acknowledge Khalid. Although there seems to be no legal
impediment on the conditions provided in the Code for Hamid to acknowledge Khalid,
the jurisprudence in Muslim law in suppletory manner requires among others that for
acknowledgment to be valid, the paternity of the child should be unknown and That the
acknowledge child must not be known to be the child of another.

B. What is the effect of acknowledgment of a child by a father?

The code provides that Acknowledgement (iqrar) of a child by the father shall establish
paternity and confer upon each other the right to inherit from the other exclusively in
accordance with article 94, provided the following conditions are complied with:
(a) The acknowledgment is manifested by the father’s acceptance I public that he is the
father of the child who does not impugn it; and
(b) The relation does not appear impossible by reason of disparity in age.

IX. A. What is the essence of Divorce under Muslim law?

Islam does not encourage divorce, according to the hadith the prophet said of all things
permissible, the most detestable in the sight of Allah is divorce. Divorce is strictly
tolerated in Islam only after the all possible attempt for reconciliation failed and the
dissolution of marriage bond is inevitable. The Code provides that Divorce is the formal
dissolution of Marriage bond in accordance with the PD1083 to be granted only after
the exhaustion of all possible means of reconciliation between the spouses. If the
marriage union becomes irrecocialiable and brings more sufferings than happiness
divorce is becomes a remedy.

B. Ditinguish Revocable Divorce and Irrevocalble Divorce?

Revocable divorce or Talaq raj’I is while on the period of idda, divorce are revocable.
The parties may reconcile without a new marriage contract. While,

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Irrevocable divorce or Talaq bain sugra is after the idda of the first and second
repudiation meaning the marriage bond is severed and the parties of they decided to
reconcile needs a new marriage contract.

X. Monib married Suasanna, a non- Muslim woman, on agreement that Suasanna will
convert to Islam after a year, Monera was born to the marriage but Susanna remains a
non-Muslim. Explain your answer to the following:

A. Is there a valid Marriage?


Yes, there is a valid marriage. In the case at bar, there is no legal impediment to rule
otherwise. Either in the civil code or in the Muslim law.

B. Is Monera a legitimate Child?


Yes, Monera is legitimate in the eyes of law and in the eyes of God. Under the law
children conceived in lawful wedlock shall be presumed to be legitimate.

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