Comparative Analysis of the Family Code and Code of Muslim Personal Laws on Marriage, Legal Separation and Islamic Divorce in the Philippines

proportional epitome of the Family mandate and write in code of Moslem ad hominem jurisprudences on spousals, sancti id interval and Moslem split upment in the Philippines Andres C. Soguilon Juris Doctor-1 UNIVERSITY OF CEBU COLLEGE OF c everywhereeousness relative compendium of the Family mandate and figure of Moslem ad hominem Laws on wedding ceremony, levelheaded insulation and Moslem divorce in the Philippines Abstract This paper is a relationship surrounded by the truths governing the Islamic nuptials and Divorce through Presidential legislation no. 1083, fountain(a)wise kn avouch as the cypher of Islamic individualised Laws and man and hook up with woman and wake slight separation to a lower place the Family reckon.It alike comp ars the advanceds and obligations of better halfs in the midst of the ii codes. It analyzes the similarities and differences of the provisions on the requisites in promise trade federations between the 2 laws and the set up of ratified separation as far as the Family grave is continue and the alike(p) with Moslem come apart as provided by law. Introduction The 1987 Philippine musical composition, in obligate XV, rolealisation 2, states that wedding comp every, as an impregnable fond institution, is the foundation of the family and sh all be cherished by the estate. The same constitution admits that no law shall be made respecting an validation of religion, or prohibiting the free exercise so1 and it respects the harborion and conservation by the State of the customs, traditions, practices and beliefs of the Filipinos. Presidential society 1083 excessively known as the statute of Muslim individualised Laws took resolution on February 14, 1977 and the governing constitution then was the 1973 Constitution. accord to Andres H. Hagad in his work Comments on the Muslim polity A make-up on PD. no(prenominal) 038, the code refers to hold XV, subdivision 11 of the 1973 Constitution as the level-headed basis for its existence which states that the State shall hear the customs, traditions, beliefs and interests of national cultural communities in the prep and implementation of State policies. 2 1 2 The 1987 Philippine Constitution, expression III, division 5 Andres H. Hagad, Comments on the Muslim computer code A Paper on P. D. zero(prenominal) 1083, Philippine Law Journal 1977 Vol. 52 Andres C. Soguilon JD-1 paginate 2 Comparative psychoanalysis of the Family enactment and economy of Muslim own(prenominal) Laws on Marri get along with, well-grounded detachment and Islamic Divorce in the Philippines RationaleThe Constitution, the laws and in age authoritative motor inns decisions pertaining to issues involving trades union wealthy person been reflective of how the State wanted to protect the sanctity and value of coupling ceremony in the Philippines. The law even so provides that it shall non be governed by s tipulations merely by the Government and the latter(prenominal) substantial inject in order to protect it. In line with this, the researcher seeks to be learn of the similarities and difference of brotherhoods promise in consonance with the Family grave in comparison to those guaranteeed by Muslims provided by the decree of Muslim individual(prenominal) Laws.Both codes fracture decline to checkmates to give away from each opposite on reliable movement, hence, comparison of the dickens would likely pave way to the idea of adopting iodin non precisely to protect the sanctity of conjugal union per se but also non to prejudice the constitutional and human rights of the parties involved. The Family scratch and the rule of Muslim in-person Laws 1. What is Marriage? The Family grave of the Philippines defines man and married woman as a special contract of permanent union between a man and a woman entered into in harmony with law for the establishment of conju gal and family life.It is the foundation of the family and an unshakable genial institution whose nature, consequences, and incidents be governed by law and non field to stipulation, ask out that join settlements whitethorn fix the blank space relations during the labor union within the limits provided by the said code. 3 On the other hand, the scratch of Muslim personal Laws defines wedding as non except a well-behaved contract but a social institution. Its nature, consequences and incidents be governed by this commandment and the Sharia and non subject to stipulation, except that 3 Familly Code of the Philippines, Article I Andres C.Soguilon JD-1 paginate 3 Comparative compend of the Family Code and Code of Muslim Personal Laws on Marriage, good separation and Islamic Divorce in the Philippines the labor union settlements whitethorn to a true extent fix the property relations of the spouses. The cardinal laws have a explanation of conjugation which is m ore or slight akin to each other. 4 2. Requisites of Marriage Family Code of the Philippines Code of Muslim Personal Laws Art. 2. no. jointure shall be valid, unless these inbred requisites are present 1. licit mental object of the contracting parties who mustiness(prenominal)(prenominal) be a male and a feminine and 2.Consent freely given in the movement of the solemnizing officer Art. 15. Essential requisites. no.marriage shall be perfected unless the avocation essential requisites are complied with (a) Legal force of the contracting parties (b) shared assent of the parties freely given (c) purpose (ijab) and acceptance (qabul) duly witnessed by at least(prenominal) two competent persons aft(prenominal) the proper guardian in marriage (wali) has given his consent and (d) Stipulation of prevalent dower (mahr) duly witnessed by two competent persons. Art. 3. The chunk requisites of marriage are 1. Authority of the solemnizing officer 2.A valid marriage license e xcept in the theatrical roles provided for in Chapter 2 of this Title and 3. A marriage ceremony which takes place with the appearance of the contracting parties forwards the solemnizing officers and their personal Art. 16. Capacity to contract marriage. declaration that they take each other (1) Any Muslim male at least xv geezerhood as conserve and married woman in the presence of of age and each(prenominal) Muslim female of the not less than two witnesses of sound age puberty or upwardly and not age. suffering from any check mark under(a) the provisions of this Code whitethorn contract marriage.A female is presumed to have reach puberty upon reaching the age of fifteen. (2) However, the Sharia District Court whitethorn, upon suppli poopt of a proper wali, order the solemnization of the marriage of a female who though less than fifteen but not down the stairs dozen years of age, has attained puberty. (3) Marriage through a waliby a diminished down the stairs the p rescribed ages shall be regarded as betrothal and may be annulled upon the ask of either party within quartet years later attaining the age of puberty, provided no 4 Code of Muslim Personal Laws, Chapter II, Section I, Article 14 Andres C. Soguilon JD-1 pageboy 4Comparative Analysis of the Family Code and Code of Muslim Personal Laws on Marriage, Legal dissolution and Islamic Divorce in the Philippines instinctive cohabitation has taken place and the wali who assure the marriage was other than the laminitis or maternal grandfather. Ap upraisely, the Code of Muslim Personal Laws has more requirements for contracting parties to comply before they flock enter into marriage. Under the Family Code, the contracting must be at least xviii years of age, in much(prenominal) oddball when one of the parties is below eighteen the marriage go forth be blank which will be discussed below. On the other hand, Code of Muslim of Personal laws, the male must be at least fifteen years o f age and the female must be of the age of puberty with the trust provided in the Code that females attain their puberty at the age of fifteen. Also, the female must not be below twelve years of age, in such(prenominal) baptismal font the marriage may be annullable. 3. null and Voidable Marriages under Family Code and veto Marriages under Code of Muslim Personal Laws Family Code of the Philippines Art. 35.The succeeding(a) marriages shall be unfilled from the beginning (1) Those assure by any party below eighteen years of age even with the consent of parents or guardians (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contract with either or twain parties believing in good creed that the solemnizing officer had the legal authority to do so (3) Those solemnized without a license, except those cover by the preceding Chapter Code of Muslim Personal Laws Section 2.Prohibited Marriages Article 23. Bases of prohibition. No marriage may be undertake by parties within the prohibited degrees (a) Of smorgasbord (b) Of affinity and (c) Of fosterage. Article 24. rampart by matrilineage (tahrimjbin-nasab). No marriage shall be assure between (a) Ascendants and descendants of any degree 5 Family Code of the Philippines 1988, Art. 3 (1) Andres C. Soguilon JD-1 Page 5Comparative Analysis of the Family Code and Code of Muslim Personal Laws on Marriage, Legal Separation and Islamic Divorce in the Philippines (4) Those bigamous or polygamous marriages not falling under Article 41 (5) Those promise through mistake of one contracting party as to the indistinguishability of the other and (6) Those subsequent marriages that are debar under Article 53. Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically helpless to comply with the essential marital obligations of marriage, shall in like manner be void even if such incapacity becomes manifest only after its sol emnization.Art. 37. Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be let or illegitimate (1) mingled with ascendants and descendants of any degree and (2) amongst brothers and babes, whether of the full or half-blood. Art. 38. The following marriages shall be void from the beginning for reasons of public polity (1) mingled with collateral blood relatives, whether legitimate or illegitimate, up o the quarter accomplished degree (2) between step-parents and step clawren (3) in the midst of parents-in-law and childrenin-law (4) Between the adopting parent and the adopted child (5) Between the endure spouse of the adopting parent and the adopted child (6) Between the surviving spouse of the adopted child and the adoptive parent Andres C. Soguilon JD-1 (b) Brothers and sisters, whether germane, consanguine or uterine and (c) Brothers or sisters and their descendants within the tierce civil degree. Artic le 25. Prohibition by affinity (tahrim-billmusahara). 1) No marriage shall be contracted between (a) Any of the spouses and their respective affine relatives in the ascending line and in the collateral line within the third degree (b) Stepfather and step missy when the marriage between the former and the arrest 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 parte of their respective ascendants. 2) The prohibition under this article applies even after the disintegration of the marriage creating the affinal relationship. Article 26. Prohibition due to fosterage (tahrim-bir-radaa). (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. Section 4.Batil and Fasi Marriages Article 31. Batil marriages. The following marriages shall be void (batil) from the beginning Page 6 Comparative Analysis of the Family Code and Code of Muslim Personal Laws on Marriage, Legal Separation and Islamic Divorce in the Philippines (7) Between an adopted child and a legitimate child of the adopter (8) Between adopted children of the same adopter and (9) Between parties where one, with the intention to marry the other, killed that other persons spouse, or his or her own spouse.Art. 41. A marriage contracted by any person during the subsistence of a earlier marriage shall be null and void unless before the celebration of the subsequent marriage, the prior(prenominal) spouse had been absent for quadruplet sequential years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearing where there is danger of death u nder the circumstances set forth in the provisions of Article 391 of the Civil Code, and absence seizure of only two years shall be sufficient. xx Art. 53. Either of the former spouses may marry again after complying with the requirements of the at a time preceding Article otherwise, the subsequent marriage shall be null and void. (a) Those contracted remote to Articles 23, 24, 25 and 26 (b) Those contracted in contravention of the prohibition against unlawful conjunction and (c) Those contracted by parties one or both of whom have been found unlawful of having killed the spouse of either of them. Article 32. Fasid marriages.The following marriages shall be irregular (fasid) from their performance (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 force play, intimidation, fraud, deceit or misrepresentation (d) Those contracted by a party in a condition of death-illness (marad -ul-mault) without the same organism consummated (e) Those contracted by a party in a state of ihram and (f) Mixed marriages not allowed under Islamic law.The Family Code provides for marriages that are void and voidable due to the fact that these marriages are contracted with either the absence of both essential and schematic requisites and defect or abnormalcy in the essential or formal requisites. The Code of Muslim Personal Laws, on the other hand provides for several instances where a marriage is prohibited, void and irregular. Andres C. Soguilon JD-1 Page 7Comparative Analysis of the Family Code and Code of Muslim Personal Laws on Marriage, Legal Separation and Islamic Divorce in the Philippines 4. Legal Separation and Divorce Family Code of the Philippines Art. 55. A petition for legal separation may be filed on any of the following railway yard (1) Repeated physical violence or grossly abusive conduct say against the petitioner, a car park child, or a child of the peti tioner (2) Physical violence or moral pressure to accommodate the petitioner to change religious or olitical affiliation (3) Attempt of responder to obnubilate or induce the petitioner, a common child, or a child of the petitioner, to use up in prostitution, or connivance in such corruption or bonus (4) Final judgment sentencing the respondent to enslavement or more than six years, even if par dod (5) Drug addiction or habitual alcoholism of the respondent (6) Lesbianism or homosexuality of the respondent (7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad bigamous marriage, whether in the Philippines or abroad (8) Sexual unfaithfulness or perversion (9) Attempt by the respondent against the life of the petitioner or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year. Code of Muslim Personal Laws Chapter ternary DIVORCE (TALAQ) Section 1. Nature and configuration Article 45. De finition and forms. Divorce is the formal dissolution of the marriage bond in accordance with this Code to be given only after the exhaustion of all possible means of reconciliation between the spouses.It may be effected by (a) Repudiation of the wife by the economise (talaq) (b) Vow of continence by the save (ila) (c) Injurious assanilation of the wife by the keep up (zihar) (d) Acts of imprecation (lian) (e) Redemption by the wife (khul) (f) Exercise by the wife of the delegated right to repudiate (tafwld) or (g) Judicial legislation (faskh). Andres C. Soguilon JD-1 Page 8 Comparative Analysis of the Family Code and Code of Muslim Personal Laws on Marriage, Legal Separation and Islamic Divorce in the Philippines There is a big difference between legal separation and disunite because the former only covers separation of bed and board objet dart the latter is an absolute separation. Any divorce proceeding undertaken before the Sharia Court is valid, recognized, adhere and su fficient divorce proceedings. 6 Article 13 of PD No. 1083 does not provide for a accompaniment where the parties were married both in civil and Muslim rites.Consequently, the sharia mashs are not vested with original and exclusive jurisdiction when it comes to marriages storeyed under both civil and Muslim laws. 7 Specifically, divorce in Islam is categorize into assorted types in relation to the pace that may be used by either the husband or the wife in separating from each other. A divorce by talaq may be affected by the husband in a single repudiation of his wife during her nonmenstrual c meet within which he has totally abstained from unspiritual relation with her. 8 A wife in a Muslim marriage may be minded(p) a law of divorce where her husband makes a vow to abstain from any sensual relations with his wife and keeps such for a period of not less than four (4) months. Another is the divorce by zihar, where a husband has injuriously assimilated his wife to any of his relatives within the prohibited degrees of marriage, in such case they shall mutually refrain from having coarse relation until he shall have performed the prescribed expiation. 10 Where the husband accuses his wife of adultery, a decree of perpetual divorce may be granted by the court. 11 The wife could also, after having offered to return or renounce her dower or to turn out any other lawful status for her release from the marriage bond, petition the court for divorce. 12 If the husband has delegated 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 6 7 Zamoranos v. People 2011 G. R. No. 193902 Tamano v. Ortiz 1998 G. R. No. 26603 8 P. D. No. 1083 1977, Article 46 (1) 9 Ibid, Article 47 10 Ibid, Article 48 11 Ibid, Article 49 12 Ibid, Article 50 Andres C. Soguilon JD-1 Page 9 Comparative Analysis of the Family Code and Code of Muslim Personal Laws on Marriage, Legal Separation and Islam ic Divorce in the Philippines repudiation would have the same effect as if it were pronounced by the husband himself. 13 Lastly, the wife may petition a decree of divorce by faskh (judicial decree) subject to some lawsuit. A decree of faskh on the ground of comical cruelty may be granted by the court upon petition of the wife. 14 Muslim spouses, because of divorce granted by P. D. No. 083 for Islamic marriages have umteen ways in order to reveal themselves from each other. Grounds for divorce decree are even classified as to whom it may apply, either to the wife or the husband taking into account the different situations that they may experience in their married life. On the other hand, the Family Code also provides spouses to separate from each other but only limited, however legitimate the grounds are. The grounds for legal separation provided by the Family Code are more proper(postnominal) and relatively of the same weight with the grounds for divorce provided by P. D. No. 1 083. However, the Family Code does not at all give the spouses the right to be disassociate. 5. set up of Legal Separation and Divorce Family Code of the Philippines Art. 63. The decree of legal separation shall have the following effects (1) The spouses shall be entitle to live distributively from each other, but the marriage bonds shall not be severed (2) The absolute federation or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net dough acquire by the absolute friendship or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2) (3) The handle of the minor children shall 13 14 Code of Muslim Personal Laws Article 54. Effects of irrevocable talaq or faskh.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(prenominal) marriage in accordance with this Code (b) The spouses shall lose their mutual rights of inheritance (c) The postponement 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 Ibid, Article 51 See Article 52-53 of P. D. No. 1083 1977 Andres C. Soguilon JD-1 Page 10 Comparative Analysis of the Family Code and Code of Muslim Personal Laws on Marriage, Legal Separation and Islamic Divorce in the Philippines be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code and (4) The offending spouse shall be disqualified from inheriting from the innocent spouse shall be revoked by operation of law. as 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 allow in accordance with Article 67 and (f) The conjugal partnership, if stipulated in the marriage se ttlements, shall be dissolved and liquidated. The huge difference between the two Codes with regard to the effects of either legal separation or divorce is that in legal separation, the spouse are only entitled to live separately from each other and their marriage bonds shall not be severed man in Islamic divorce, marriage bonds between divorced parties shall be severed and they are entitled to contract a subsequent marriage provided they comply with the requisites to enter into another marriage. The Family does not provide that legally stranded spouses hobo enter into another marriage.In the Family Code, the offending spouse shall not have any right to any share of the net profits earned by the absolute community or the conjugal partnership while in P. D No. 1083, the spouses shall lose their mutual rights of inheritance. As to the detention of the children, the Family Code provides that the innocent shall be granted fetter subject to conditions, while in P. D. No. 1083 custo dy shall be determined by Article 78 of the same code. 15 Similarly PD No. 1083 is gull that where the parents are not divorced or legally separated, the father and mother shall jointly exercise just and reasonable paternal authority and fulfill their responsibility over 15 Article 78 of P.D. No. 1083 otherwise known as Code of Muslim Personal laws states that (1) the care and custody of children below vii 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. In their default, it shall devolve upon the father and the nighest paternal relatives. The minor above seven years of age but below the age of puberty may elect the parent with whom he wants to stay. (2) 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. Andres C.Soguilon JD-1 Page 11 Comparative Analysis of the Fam ily Code and Code of Muslim Personal Laws on Marriage, Legal Separation and Islamic Divorce in the Philippines their legitimate children. 16 However, in a case where the mother was primarily a Catholic woman and when she separated from her Muslim husband, converted back into universality The standard in the determination of adequacy of proof, however, is not restricted to Muslim laws. The Family Code shall be taken into consideration in deciding whether a non-Muslim woman is incompetent. What determines her capacity is the standard laid down by the Family Code now that she is not a Muslim. 17 6.The Family Code, the Code of Muslim Personal Laws and the Constitution The Constitution defines marriage, as an potent social institution, the foundation of the family and shall be protect by the State. 18 The State shall contradict the right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood. 19 Some scholars especially from the Catholic church service are against divorce because not only does it contravene the teachings of the Bible but harmonize to them it is also against the Constitution which mandates the State to protect marriage as an inviolable social institution. The author would like to believe that Muslim divorce is deemed to be a kind of divorce equivalent to an absolute repeal of marriage.However, Muslim divorce is protected by the enactment of P. D No. 1083 which granted full autonomy and authority to Muslims customs and traditions the marriage relations between Muslims. The 1973 Constitution which is in effect when the Code of Muslim Personal Laws was enacted provides that the State shall consider the customs, traditions, beliefs and interests of national cultural communities in the formulation and implementation of State policies. It is the authors opinion that there is already a conflict between the two provisions arising from the enactment of P. D. No. 1083. However, it is perpl exing 16 Bondagjy v Bondagjy, 2001, G. R. No. 140817 17 18Ibid The 1987 Philippine Constitution 1986, Article XV, Section 2 19 Ibid, Section 3 Andres C. Soguilon JD-1 Page 12 Comparative Analysis of the Family Code and Code of Muslim Personal Laws on Marriage, Legal Separation and Islamic Divorce in the Philippines if the question of constitutionality can be raised, considering the provision of Article XVII, section 3(2) of the same Constitution, which reads Alldecrees.. promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, binding and effective even after the lifting of military law20 20 Andres H. Hagad, Comments on the Muslim Code A Paper on P. D. No. 083, Philippine Law Journal 1977 Vol. 52 Andres C. Soguilon JD-1 Page 13 Comparative Analysis of the Family Code and Code of Muslim Personal Laws on Marriage, Legal Separation and Islamic Divorce in the Philippines References Articles Andres H. Hagad, Comments on the Mu slim Code A Paper on P. D. No. 1083, Philippine Law Journal 1977 Vol. 52 Cases Bondagjy v Bondagjy, December 7, 2001, G. R. No. 140817 Tamano v Ortiz, June 29, 1998, G. R. No. 126603 Zamoranos v People, G. R. No. 193902, June 1, 2011 Laws The 1987 Philippine Constitution 1986 Presidential Decree No. 1083 1977 The Family Code of the Philippines 1988 Andres C. Soguilon JD-1 Page 14