REVIEW NOTES IN PERSONS AND FAMILY RELATIONS

SHARI’AH PRE-WEEK BAR REVIEW, JUNE 21-24, 2011, UP-ISSI

By ATTY. MEHOL K. SADAIN

Q1: What are the constitutional bases for the enactment of the CMPL?

A1: the original constitution basis in the 1973 constitution is sec 11; art XV which provides that “the state
shall consider the custom, traditions, beliefs, and interests of national cultural communities in the
formulation and implementation of state policies”. [Also in art.2 of the CMPL] under the 1987 constitution,
the above rationale has been embodied in sec 22, art. 11 which states: “the state recognizes and promotes
the rights of indigenous cultural communities within the framework of national unity and development”.
And sec 17, art. XIV which says: “the state shall recognize, respect and protect the rights of indigenous
cultural communities to preserve and develop their cultures, traditions and institutions. It shall consider
these rights in the formulation of national plans and policies.” The first one is among the state policies
enunciated in the constitution, while the second is in the article on education, science and technology, arts,
culture, and sports.

Aside from the foregoing general statement there is another provision an art. X on local government,
especially in the sections on the Autonomous Region which provides: “there shall be created autonomous
region in Muslim Mindanao and in the cordilleras consisting of provinces, cities, municipalities and
geographical areas sharing common and distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework of this constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines.” [sec. 15, art. X].

And still more specific, is the provision in sec. 18 of art. X which states: “the congress shall enact an
organic act for each autonomous region with the assistance and participation of the regional consultative
commission composed of representatives appointed by the President from the list of nominees from multi-
sectoral bodies. The organic act shall define the basic structures of government for the region consisting of
the executive department and legislative assembly, both of which shall be elective and representative of the
constituent political units. The organic acts shall likewise provide for special courts with personal, family
and property law jurisdiction consistent with the provision of this constitution and national laws”. Pursuant
to this, congress enacted R.A. 9054 (which amended R.A. 6734) which contains an article VIII on the
Administration of justice in the ARMM. [Enumerate each section in art.VIII]

Q2: WHAT ARE THE PURPOSES OF THE CMPL?

A2: Art 2 of the CMPL states that the CMPL “(a) Recognizes the legal system of the Muslim in the
Philippines as part of the law of the land and seeks to make Islamic institution more effective; (b) Codifies
Muslim personal laws; and (c) provides for an effective administration and enforcement of Muslim
personal laws among Muslims”.

The institutions mentioned to in par. (a) Refers to substantive legal institutions, like marriage, divorce,
inheritance and other aspects of family relations; while the phrase “effective administration and
enforcement” refers to the procedural institution of Muslim law, like the Sharia courts.

Q3: How do you resolve conflicts between any provision of the CMPL and laws of general
application?

A3: by way of preliminary discourse, laws of general application are those which apply to and operate
uniformly upon all [inhabitants of a national jurisdiction] members of any class of persons, places or things
[eg. The Revised Penal Code, the New Civil Code and the family code]. In case of such conflict the rule is
that the provision of the CMPL shall prevail. [par. 1, art.3 CMPL]

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Q4: How do you resolve conflicts between any provisions of the CMPL and laws of local application
or special laws?

A4: Local laws are those that apply to specific local jurisdictions (as in the case of municipal or city
ordinances, or regional laws) while special laws are those that apply to specific classes of persons or things
(as in the Magna Carta of women or P. D. 794 [or793] recognizing divorce among Muslims, but without
providing the grounds therefor). In case of such conflict, the special laws or laws of local application shall
be LIBERALLY CONSTRUED in order to carry out the CMPL. Par. 2, Art. 3, CMPL]

Q5: To whom shall the provisions of the CMPL be applicable?

A5: The provisions of the CMPL shall be applicable only to Muslims, and nothing in the code shall be
construed to operate to the prejudice of a non-Muslims [par.3, Art. 3, CMPL]. Subject to one exception
enunciated in par. 1 of Art. 13, CMPL: “the provisions of this title shall apply to marriage and divorce
wherein both parties are Muslims, or wherein only the male party is a Muslim and the marriage is
solemnized in accordance with Muslim law or this Code in any part of the Philippines.”

Q6: There is one glaring gap in this provision. What is it, and how is it resolved?

A6: The provision only provides for a situation where the male party is a Muslim and the marriage is
solemnized in accordance with Muslim law. What happens then if it is the female party that is a Muslim
and the marriage is solemnized in accordance with Muslim law? To answer, first, mixeg marriages in
classical Islamic are allowed only if the male is a Muslim. Mixed marriages where only the females are
Muslim are not allowed, and even considered forbidden. This is probably the reason why such situation
was not contemplated in Art.13, par. 1. Rerality, however, is different and has generated several situations
where the female is Muslim and either the male remains non-Muslim or converts to Islam for convenience,
and after the marriage, goes back to his religion, or is not a practicing

Muslim at all. How will such a marriage be governed then? Invoking the spirit of the law, which is to
provide Muslims a law to govern their family relations, and further invoking the intent of the law to always
uphold the CMPL in case of conflict, I opine that as long as the marriage was solemnized under Islamic
law or under the provision of the CMPL, Islamic law or the CMPL govern their marriage.

Q7: What is construction and interpretation mentioned in Art. 4, CMPL?

A7: Construction of the law is the process of discovering and expounding on the meaning and intention of
the authors of the law with respects to its application to a given case, where that intention is rendered
doubtful because the given case is not exactly provided for in the law. [Caltex Phil. v. Palomar, 18 SCRA
247] Let us then go to the difference between construction and interpretation. Usually interpretation
precedes construction under the basic rule that “one must interpret first before construes.” Interpretation is
limited to the use of intrinsic aids or those which are found in the law itself; while construction goes
beyond the next of the law, and make use of extrinsic aids or those found outside the law. The foregoing
rule say if a resolution can be reached by making use of intrinsic aids (found in the law), then there is no
need for extrinsic aids (found outside the law). [Commissioner of internal Revenue v. Linapan Investment
Corp., L-28571 and L-28644, July 31, 1970; Hidalgo v. Hidalgo, L-25326 May 29, 1970]

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Q8: When is construction and interpretation resorted to?

A8: When the language of the statue is ambiguous, doubtful or obscure when taken in relation to a set of
facts; and when reasonable minds disagree as to the meaning of language used in the statue. As a rule,
however, when the law is clear and categorical, there is no need to construe or interpret. It is basic that the
duty of the court is TO APPLY THE LAW , and not TO INTERPRET IT. [Rolando Suarez, Introduction to
Law, citing People v. Mapa, L-22301, August 30, 1967; Luzon Security v. De Garcia, L-25659, October
31, 1969]

Q8.1. basic rules that courts follow:

A8.1. first, the court can only pass on the validity or invalidity of the law if a case is brought before it.
Second, every statue or law is presume valid until declared otherwise [this is analogous with the rule of
Istishab or presumption of continuity in Islamic jurisprudence]. Third, the first duty of the court is to apply,
and not to interpret the law. Fourth, the ultimate aim of the court is to give the law the meaning that the
legislature intended it to have [hence, we have as tools of statutory construction, the ascertainment of
legislative intent].

Q9: How do you construe and interpret the provisions of the CMPL?

A9: “in the construction and interpretation of the code and other Muslim laws, the court shall take into
consideration the primary sources of Muslim law. Standard treatises and works on Muslim law and
jurisprudence shall be given persuasive weight in the interpretation of Muslim law.” [Art. 4, pars. 1 & 2,
CMPL]

Q10: Can you use Muslim law and ada which are not embodied in the CMPL?

A10: Yes, as implied in Art. 5, CMPL where Muslim law and ada not embodied in the code shall be
proven in evidence as a fact before they are given legal effect.

Q11: How do you prove in evidence as a fact Muslim law and ada that are not embodied in the
CMPL..?

A11: “Proving in evidence as a fact” means presenting evidence, whether documentary or by way of
testimony that such Muslim law does in fact exists in the source of Islamic law (eq. Holy Qur’an, Sunnah
of the prophet [SAW]), or such ada has been continuously used since time immemorial as part of
community custom or practice of a particular people, in this case, the Muslim in the Philippines.

Q11.1 Related provisions in the NCC:

A11.1: Art. 11 of the NCC provides: “Customs which are contrary to law, public order or public policy
shall not be countenanced,” And Art.12 of the NCC says: “A custom must be proved as a fact, according
to the rules on evidence.”

Q12: What happens if there are conflicts among the orthodox Muslim schools of law?

A12: That which is in consonance with the constitutions of the Philippines, this code, public order policy
and public interest shall be given effect. This is a standard rule in Philippine law.

But in Islamic law, the interpretation of the madhhab of the place usually prevails. In addition, there are
contemporary rules to offset the absence of ijtihabi in some Islamic law jurisdictions. These are talfic or
literary “patching together” which means combining rules of different schools of law to reach a single
resolution of the conflict; and takhayyur or “eclectic choice” which is shifting from one school to another
in resolving a legal issue. The is that one shift may be done on a single assue; and not several shifts on one
issue.

Q13: What is the scope of Muslim Personal law?

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A13: “Muslim Personal law” includes all laws relating to personal status, marriage and divorce,
matrimonial (rights and obligations between spouses) and family relations (paternity and filiation,
guardianship and custody, support and maintenance), successions and inheritance, and property relations
between spouses, as provided for in this code. [Art. 7(i), CMPL]

Q14: What is Legal Capacity? What is Juridical Capacity? What is Capacity to Act?

Q14: Legal Capacity (Dhimma in Arabic; also ahliyatu l-Qanuniyya) is the presence of both juridical
capacity (Ahliyatu l-wujub [Receptive Capacity]; also Ahliyatu l-Shariyah) and capacity to act (Ahliyatu l-
Ada [Active Capacity]; also Ahliyatu t-tasarruf [voluntary acts]).

Legal Capacity is also defined as the quality by which a person becomes fit to what he is subjected to (ma
alai) and to what he is entitled to (ma lahu).

Juridical capacity is the fitness to be the subject of legal relations, is inherent in every natural person, and
is lost through death.

Capacity to act is the power to do acts with legal effect, is acquired and may be lost. [Art. 8, CMPL.]

Q15: Distonition between JC and CTA:

A15:

1. JC is the capacity for the inherence of rights and obligations while CTA is the capacity for the exercise
of rights and obligations.

2. JC is present as soon as the foetus is formed, but is considered defective until it is born alive, were JC
now becomes complete, while CTA acquired, albeit in restricted form, from birth, and is perfected upon
mental and physical maturity of the person.

3. JC is lost only through death while CTA may be lost or restricted even while the person is still alive.

Q16: What are the restrictions to Capacity? [Art.9, CMPL]

A16: The restriction is enumerated in Art. 9, CMPL, but the enumeration is not exhaustive (as note the
words “among aothers”). These are conditions that either limit or modify a person’s capacity to act, and
may be generally divided into THAMAWI (work or result of providence) and MAKSUBA (work or result
of man’s action).

The enumeration in the code as are follows: Age (aql), Insanity (majnun), imbecility (ma’tuh), satte of
being deaf-mute, condition of death-illness (marad ul-maut), penalty (hajr or in civil law, civil interdiction),
prodigality (tabdheer or israaf), absence (ghaibah), family relations (sate of being an usrah), alienage
(ghareeb or ajnabeyy?), insolvency (al ih’saara or al-ajza ‘ani l-wafaa’l; moh’sir is insolvent) and
trusteeship (al-wisaayah).

The other restrictions [actually modification of legal results] which are not in the enumerations are:
forgetfulness (nisyan) [usu. Applicable to rights of GOD, eg. Forgets that he is fasting, but a person in
state of forgetfulness causing damage to another is still liable], sleep (naum) [utterances made during sleep
or fainting spell not binding, but damage done must be rectified or restituted], mistake (khata) [an act
done by mistake not amounting to an offense and not injurious will be excused because of want of intention
{Shafii}, others however posit that a person is liable for his act without regard for his intention because it is
difficult to ascertain one’s intention, in addition to the presumption that an act is always intentionally done
{Hanafi}, coercion (ikraah), ignorance of law (jahi), fainting (bihushi), intoxication (nashah), jest
(hazl), and apostacy (state of being a murtad).

Q17: Are there juridical or artificial persons in Islamic Law?

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A17: Yes, modern Muslim jurist recognize the existence of corporations or donations, and enter into
contracts through their incorporators or trustees as the case may be.

Q18: What is the difference in the Islamic Law and civil law rule on premature birth?

A18: The Civil code has a provision (Art. 41) which provides that “for civil purposes, the fetus is
considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the
fetus had an intra-uterine life of less than 7 months it is not deemed born if it is dies within 24 hours after it
is completely delivered from the mother’s womb”.

Contrast this with the more favorable provision in Art.10 of the CMPL: “Birth determines personality but
the conceived child shall be considered born for all purposes that are favorable to it, provided it be born
alive, however briefly, at the time it is completely delivered from the mother’s womb.”

Q19: How is civil personality [Ash-shakhiyah al-madaniya] extinguished?

A19: Art 11 CMPL states that “civil personality is extinguished by death”, and “the effect of death upon
the rights and obligations of deceased person is determined by this code (provisions on intestate
succession), by contract (rights and liabilities accruing in contracts; eg. If the marriage settlement provides
a particular regime of property relation between spouses) and by will.

Q20: What is the period for the presumption of death?

A20: The normal period provided by Art.11 is “absence of seven years, it being unknown whether or not
the absentee still lives”. This applies to all acts, rights and obligations of such person to be presumed dead.
The presumption must be decreed by the court. The only exception to this period is the instance of
succession, where the period is 10 years of absence before a person is presumed dead by decree of the
court, and his share can be distributed to the other heirs. [see Art.98, Succession by absentee]

Q21: What is the rule in the CMPL on simultaneous death?

A21: Art 12 of the CMPL provides: “If, as between two or more persons who are called to succeed each
other, there is doubt as to which of them died first, whoever alleges the death of one prior to other shall
prove the same; in the absence of such proof it is presumed that they died at the same time and there ahsll
be no transmission of rights from one to the other, However, the succissional rights of their respective heirs
shall not be affected.”

A similar rule exists in the Rules of Court. Rule 131, Sec. 3 (kk) on Disputable Presumption, states: “that if
there is a doubt, as between two or more persons who are called to succeed each other shall prove the same;
in the absence of proof they shall be considered to have died at the same time.”

However, Rule 131 in Sec. (jj) contains a disputable presumption in this wise:

“that except for the purpose of succession, when two persons perish in the same calamity such a wreck,
battle or conflagration, and it is not shown who died first, and there are no particular circumstances for
which it can be inferred, the survivorship is determined from the probabilities resulting from the strange
and age of the sexes according to the following rules:

1. If both were under the age of 15 years, the older is presumed to have survived;

2. If both were above the age of 60, the younger is deemed to have survived;

3. If one is under 15 and the other is above 60, then the former is deemed to have survived;

4. If both over 15 and under 60, the male is presumed to have survived, if the age is the same, then the
older;

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5. If one be under 15 or over 60 and the other between those ages, then the latter is deemed to have
survived.”

This rule is pertinent only to the right of survivorship, which is the accruing to person in a co-ownership or
partnership, who survives his co-owner or partner.

Q22: What is marriage (nika)? [see Art. 14, CMPL]

A22: Marriage is a civil contract between a man and a woman that partakes of an ibadah (devotion) for the
purpose of legalizing sexual relation and procreation of children. As such it is a social institution for the
establishment of legitimate relationship in families. There are three aspects of marriage: (1) Contractual;
(2) Social; and (3) Religious. On the contractual level, it is a consensual contract between members of the
opposite sex, and as such, may to a certain extent contain stipulations in the marriage settlements. On a
social and personal level, it promotes love and union between the husband and the wife. On the spiritual
level, it prevents immoral relationships.

Q23: What is the difference between marriage and other civil contracts?

A23: (1) A Civil contract is exclusively governed by the laws on contract; a marriage contract is also
governed by spiritual and moral considerations. (2) A civil contract can be entered into between juridical
persons; a marriage contract is always between natural persons who should be of opposite sex (who are
both free from any legal impediment). (3) A civil contract can be terminated by mutual agreement of both
parties while a marriage contract can only be terminated under specific conditions deemed to safeguard the
sanctity of marriage. (4) In a civil contract, witnesses are not essential for validity, but in a marriage
contract, witnesses are essential for validity.

Q24: What are the legal consequences of marriage?

A24: (1) it makes lawful sexual relationship between a man and a woman; (2) it legitimizes children, and
establishes paternity and filiation; (3) it gives rise to obligation to support the wife and the children; (4) it
gives rise to mutual rights to inheritance; (5) Affects to a certain extent the parties’ capacity to act; (6)
gives rise to mutual rights and obligations between husband and wife; (7) the woman becomes emancipated
from her wali; (8) Waiting period or idda becomes imperative upon a woman after the dissolution of the
marriage ties; (9) Entitles the wife to her dower; (10) Marriage settlement becomes effective and nuptial
gifts become due. [Arabani, p.251]

Q25: What are the essential requisites of marriage?

A25: Art. 15 states that no marriage shall be perfected unless the following essential requisites are
complied with:

(1) Legal capacity of the contracting parties [elaborated in Art. 16]

(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, has given consent; [sec also Art 17, marriage ceremony; Art. 18,
Authority to solemnized Marriage and Art 19, place of solemnization] and

(4) Stipulation of customary dower [mahr] duly witnessed by two competent persons [Elaborated in
Art. 20 and 21]

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NOTE: there is NO mention of the requirement of a marriage license in the CMPL. In addition, Art. 33 of
the Family Code states: “Marriages among Muslims or among members of the ethnic cultural communities
may be performed validly without the necessity of a marriage license, provided they are solemnized in
accordance with their customs, rites or practices.”

Q26: What is breach of promise to marry, and how may one be liable for such breach?

A26: A promise to marry is not yet a contract; hence, failure to keep it is generally speaking, not
actionable. As Art. 22 CMPL provides: “Any person who has entered into a contract to marry but
subsequently refused without reasonable ground to marry the other party who is willing to perform the
same shall pay the latter the expenses incurred for the preparation of the marriage and such damages as
may be granted by the court.” [Relate this to torts or quasi-delict; see NCC on human relations: Art. 19
NCC: “Every person must, in the exercise of his right and in the performance of his duties act with justice,
give everyone his due and observe honesty and good faith.” Art 20 NCC: “Every person who contrary to
law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.” Art. 21
NCC: “Any person who wilfully causes loss or injury to another in a manner that is contrary to morals,
good custom or public policy shall compensate the latter for the damage.”]

Q27: What are the bases of prohibition in marriage:

A27:

(1) Consanguinity [or blood ties] See enumeration in Art. 24.

(2) Affinity [or marriage ties ] See enumeration in Art. 25.

(3) Fosterage [Common breastfeeding or sharing of milk] the holy Quran in 4:23 states “Prohibited to you
[in marriage] are your [milk] mothers who nursed you, your sister through nursing…[“wa ammahatukuma
l-laatee ardah nakum wa akhwaatukum mina r-radaa’ah…] According to the CMPL breastfeeding must be
done five times within two years after birth. Otherwise, it will not operate as a ban. A hadith of the Prophet
(s.a.w) says: “Breastfeeding makes unlawful what blood (relation) makes unlawful.”

Q28: What are prohibited by virtue of consanguinity [tahrim bi n-nasab]?

A28:

(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

Q29: What are prohibited by virtue of affinity [Tahrim bi m-musaharah]?

A29:

(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

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NOTE: The prohibition under this article applies even efter the dissolution of the marriage creating the
affinal relationship.

Q30: What is the prohibition due to fosterage?

A30: See Art. 26, CMPL, and see A27 on the Quranic basis of the prohibition. Requisites: (1) The period
of breastfeeding should be within the first two years after birth, (2) the frequency should be 5 times, (3) the
infant should have been fully fed at the time of the breastfeeding, and (4) the wet nurse must have attained
puberty.

A further provision (brought about by fiqh) states that “the prohibition on marriage by reason of
consanguinity shall likewise apply to person related by fosterage within the same degree, subject to
exception recognized by Muslim law.”

The exceptions recognized by law are (1) A man may marry the foster sister of his natural child; and (2) A
man may marry the foster mother of his natural sister or brother. Reason: there is no rada’a connection
between such a man with the foster sister or the foster mother.

Q31: What are the types of subsequent marriages?

A31: The first one in Art. 27, CMPL is subsequent marriage by a husband, which is polygamy exempted
from criminal prosecution under the Revised Penal Code. The provision is expressed in the negative in
order to highlights the general rule on monogamy, as follows: “Notwithstanding the rule of Islam 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. There are two Quranic
verses pertinent to this type of subsequent marriage:

QURANIC VERSES on SUBSEQUENT MARRIAGE BY A MAN

“And if your fear you will not be able to deal justly with the orphans, then marry those that please
you of [other] women, two or three or four. But if you fear that you will not be just, then [marry
only] one or those your right hand possesses. That is more suitable that you may not incline [to
injustice].” [4:3]

“And you will never be able to be equal (in feelings) between wives, and even if you should strive (to
do so). So do not incline completely toward (one) and leave the other hanging [neither divorced nor
enjoying the right of marriage]. And if you amend (your affairs) and fear ALLAH, then indeed ALLAH
is ever forgiving and merciful.” [4:129]

The second and third types of subsequent marriage are subsequent marriage by a Widow [Art. 28, CMPL]
and Subsequent Marriage by A Divorced [Art. 29, CMPL], respectively, in other words, subsequent
marriage after dissolution of the marriage.

The common provision for these two types of marriage are the observance of an idda period or period of
waiting, which is four months and ten days for the widow counted from the time of the death of her
husband, and three monthly courses for a divorcee counted from the date of the divorce; and the prohibition
for the widow or divorcee from remarrying within the idda period, or if pregnant, until a reasonable time
after delivery.

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Q32: What is the iddah and What is it purpose?

A32: (1) To ascertain whether the woman (widow or divorcee) is pregnant; and (2) to provide a period for
divorced couples to think things over and reconcile. If the reconciliation is within the idda period (of three
monthly courses), then for the first two divorces, there is NO NEED for a new marriage. In the case of a
third divorce, the divorced immediately becomes talaq bain kubra which is irrevocable in nature and
imposes more conditions in case the estranged husband and wife want to get together again.[See discussion
on Art. 30, Marriage after three talaq]

Q33: What is talaq bain and talaq bain kubra? What is talaq raj’i?

A33: Talaq bain sughra is the minor irrevocable divorce, while the talaq bain kubra is the major irrevocable
divorce. Talaq raj’i is revocable divorce.

In talaq raj’I, the divorce remains revocable until the expiration of the idda, and the marriage ties remains
intact. Hence, while the talaq raj’i, the parties may reconcile while without benefit of a new marriage. It
obtains during the idda of the first and second divorces.

After the expiration of the idda period in the first two divorces, the talaq becomes a minor irrevocable
divorce of talaq bain sughra, meaning the marriage bond is severed, and if the parties desire to reconcile
during such stage of talaq, they have to marry again.

Talaq bain kubra or major irrevocable divorce results automatically (meaning without waiting for the
expiration of the idda) after the pronouncement of the 3rd divorce. Once talaq bain kubra sets in the parties
cannot remarry until after the conditions in Art. 30 sets in.

Q34: Is there also a waiting period for dissolved marriages in Philippine civil law?

A34: Yes, but this is found in the Revised Penal Code, specifically Art. 351 thereof on premature
marriages: “Any widow who shall marry within 301 days from the date of the death of her husband, or
before having delivered if pregnant at the time of death, shall be punished by arresto mayor and a fine not
exceeding P500.00. The sum penalty shall be imposed upon any woman whose marriage shall have been
annulled or dissolved if she shall marry before delivery or the expiration of 301 days from the annulment or
dissolution of the marriage.”

Q35: What are sahi, fasid and batil marriage?

A35:

Sahi marriages are valid marriages that comply with all the requirements of marriage under Art. 15 of the
CMPL, and as such it gives rise to all the rights and obligations pertaining to a marriage.

Batil marriage on the other hand are those which are void from the beginning, does not have any legal
effect, and does not give rise to any rights or obligations pertaining to a marriage

Fasid marriage are those where some conditions (shurut) are missing, or the legal baris merely temporary,
or an essential requisite is merely defective (not missing), making the quality (wasf) of the marriage bad,
but the essence (ayn) is good. The rule is, before consummation the fasid marriage creates no legal effect,
but after consummation or cohabitation, the fasid marriage creates limited legal rights. These are
intitlement to dower (although the lesser amount if two amounts are stipulated, the creation of paternity
relation (nasab) which treats the child born as legitimate; the observance by the wife of idda in case of
separation, and non-liability for zina. However, once the irregularity of the marriage is known by the
parties, they should immediately separate (mutarikah or mutual relinguishment) in contrast from talaq.

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Q36: What marriages are batil or void from the beginning?

A36: The following marriages shall be void from the beginning:

(1) Those contracted contrary to the prohibition against unlawful conjunction; and unlawful conjunction is
simultaneous marriage to two women who are so related by consanguinity, affinity or fosterage that these
women cannot lawfully marry each other if they are of opposite sex. This is based on IV: 23 of the Holy
Quran: “Prohibited to you in wedlock are two sisters at one and the same time.” Likewise the Prophet
Muhammad has said: “No one should conjoin in marriage his wife and her father’s or mother’s sister.”

Rule: if it cannot be determined which of the two marriages in unlawful conjunction was performed first,
BOTH shall be declared VOID. If such is determinable, only the last performed shall be declared VOID.

(3) Those contracted by parties, one of whom or both have been found guilty of having killed the spouse of
either of them.

(4) Those contracted by a married woman;

(5) Those contracted with a fifth wife;

(6) Those contracted with a former wife who have been divorced by li’an;

(7) Those contracted without witnesses (void according to Code, but fasid according to commentaries)

(8) Those contracted without consent of the parties, and without any wali.

Q37: What marriages are fasid?

A37: The following marriages shall be fasid from their performance:

(1) Those contracted with the woman observing idda – cured by subsequent marriage after observing idda.

(2) Those contracted contrary to Art. 30 or without complying with the requirements for marriage after
three talaq – cured by subsequent marriage after complying with the requirements in Art. 30.

(3) Those wherein the consent of either party is vitiated by violence, intimidation, fraud, deceit or
misrepresentation – cured by subsequent marriage after the causes vitiating consent have ceased, and
consent in how freely and voluntarily given.

(4) Those contracted by a party in a condition of death illness or marad ul-maut without having been
consummated – cured by subsequent marriage when the party recovered from the illness.

(5) Those contracted by a party in a state of ihram – cured by subsequent marriage by the party when he or
she or they is/are no longer in the state of ihram.

(6) Mixed marriage not allowed under Islamic law (according to some commentaries this is batil) [see
V:45…] – cured by subsequent marriage after conversion to Islam or a faith where marriage can be
lawfully undertaken.

NOTE: The effects of the new marriage shall retroact to the date of celebration of the fasid marriage.

10
Q38: What are the rights and obligations between spouses?

A38: [see chart below]

RIGHT OF RIGHT OF MUTUAL RIGHT

HUSBAND WIFE ALONE
ALONE
Live together, respect, 
fidelity, help, support [Art.
34, par.1]
Inheritance 
Right to divorce 
Husband
pronounces, except
in Tafweed
Fix residence 
Reimbursement for 
advance for family
maintenance
Consent to wife’s 
receiving gifts
To exercise profession or 
occupation subject to
conditions
To object to wife 
exercising profession or
occupation
To demand satisfaction of 
mahr
To retain exclusive 
property
Equal in just treatment 

Q39: What are the regimes of property relationships recognized by the CMPL and how do you
define each?

A39: The regimes of property relationship are complete separation of property, Conjugal Partnership of
Gains and Absolute Community of Property. In addition, it is possible that an unnamed system of property
relationship established by custom may also be recognized by the code because of Art. 37, CMPL, on how
Property Relations between spouses are governed.

CSP is a regime of property relation where the husband and wife retains exclusive ownership (to the
exclusion of the other) and power to administer of their respective properties, whether brought into the
marriage or acquired during the marriage. In the CMPL, the expenses for the family is to be shouldered by
the husband, with the wife managing the affairs of the household, and entitled to reimbursement if she
spends or advances money for the upkeep of the family.

CPG is a regime of property relations where the husband and wife retain their respective exclusive
properties (as enumerated in Art. 109, FC) but place in a common fund the proceeds, products, fruits and
income from their separate properties and those acquired by either or both of them through their efforts or
by chance, and upon dissolution of the marriage or the partnership, the net gains or benefits obtained by
either spouses shall be divided equally between them, unless there is a different agreement in the marriage
settlement [Art. 106, FC]. The rules on partnership shall govern the conjugal partnership. [Art. 108, FC].
The CPG recognizes the exclusive property of either spouse, as follows [Art. 109, FC]: (1) that which is
brought into the marriage as his or her own; (2) That which each acquires during the marriage by gratuitous
title; (3) That which is acquired by right of redemption, by barter or by exchange with property belonging
to only one of the spouses; (4) that which is purchased by exclusive money of either husband or wife.

11
ACP is a regime of property relations where all the properties of the H and W, whether brought into the
marriage or acquired during the marriage, are considered parts of the community of property of the
spouses. The only exceptions are those in Art. 92 of the FC: (1) Property acquired through gratuitous title
by either spouse, and income therefrom, unless the giver expressly provides that the property is for the
community of property. (2) Property for personal and exclusive use of either spouse; except jewelry which
shall part of the ACP. (3) Property acquired before the marriage by either spouse who has legitimate
ascendants by a former marriage, and the fruits as well as income thereof. The administration of such
property shall pertain to both spouses, and shall be governed by the rules on co-ownership [Art. 90, FC].

Q40: How is property relations between spouses governed?

A40: Art. 37 provides that property relations between the spouses shall be governed in the following order:
(1) by contract before or at the time of the celebration of marriage: (2) by the provision of this code; and (3)
by custom. When the law says “in the following order” it means that if there is a contract, then the
provision of the contract shall be followed. If there is no contract the regime shall be that which is provided
in the code, especially Art. 38, which is complete separation of property, to be interpreted according to the
general principles of Islamic law and the civil code of the Philippines, In addition, it is likewise possible
that even with the “default” regime of property, some properties of the spouses may be partake of
customary characteristics, in which case, in addition to applicable regime of property relationship,
customary law may apply. Stated differently, if there are properties that are customary in nature (eq.
customary heirlooms), then custom may be made to apply to determined how the spouses will each
exercise their right of ownership over said customary property.

Q41: What is divorce in Islam?

A41: Divorce is the formal dissolution of marriage affected by the parties or by juricial decrees.

Dissolution of marriage however is of three kinds: (1) by act of parties; (2) by judicial decree and (3) by
death.

Rationale for divorce: K.N. Ahmad in his book Muslim Law on Divorce says: Dissolution of marriage
brings about disintegration of family life with consequences and uncertainty for children…on the other
hand, it must equally be conceded that dissolution … is evidently desirable when the spouses can no longer
live harmoniously and have lost their mutual regard. The continuance of an unhappy marriage breeds hate
and disgust and is likely to ruin the lives of the parties involved…”

Islam takes a realistic and sympathetic view of human affairs… and attaches importance to the happiness
of the spouses.

Every attempt should be made to maintain a marriage, but if all else fails and the very object of the
marriage is defeated, then Islamic law does not makes scruples on separating the spouses and severing the
marital bond.

IV: 35 “And if you fear a breach between the two, then appoint an arbiter from his people and an arbiter
from her people. If they desire agreement, ALLAH will affect harmony between them.”

[Relate this to the Agama Arbitration Council, more precisely Art. 161, CMPL]

Q42: Classification of divorce?

12
A42: Talaq (Divorce)

1. Ordinary: (a) Talaq (b) Tafweed

2. Special (a) Ila (b) Zihar (c) Li’an (d) Khul

Faskh (judicial Rescission): Requisites judicial process at the instance of the wife.

Q43: Classification of Ordinary Talaq:

A43: This is either Sunnah or Talaq Bida’a

Talaq sunnah is divided into two:

1. Talaq Ahsan (Most Approved)

(a) One repudiation

(b) During tuhr or non menstrual period [ O Prophet, when you divorce women, divorce them at
their menstrual period. [XV:1]

(C) Where the spouses did not have carnal relation

(d) Followed thereafter by observance of iddah by the wife

2. Talaq Hasan (Approved)

(a) Three repudiation

(b) Made separately in three successive tuhr

(c) Where spouses did not have carnal relation

(d) Followed by observance of idda by the wife

Talaq Bida’a

In the following instances.

(a) Where the Talaq is pronounced three times in a single instance

(b) Where talaq is mentioned during hayd or menstrual period

(c) Where carnal relation has taken place during the tuhr

Q44: What is divorce by ‘ila? [ila- to vow or to swear]

A44: it is a divorced granted by decree of the court when a husband makes a vow to abstain from carnal
relation with his wife, And keeps such ila for a period of not less than 4 months. As a term in law, ila is an
act of divorce executed by H and W whereby he swears he will not have sexual intercourse with her, and
keeps the vow of more than 4 months. According to Maliki, [agreed by Shafii and Hanbali] judicial
reccurse is needed. According to Hanafi, the divorce becomes effect after lapse of 4 months without need
of judicial recourse.

[See II: 226-227]. “For those who take an oath of abstention from their wives, a waiting for four months is
ordained. If they return, ALLAH is oft-giving, most Merciful. But if their intention is firm for divorce,
ALLAH heareth and knoweth all things.”

13
Q45: What is divorce by zihar? [zahr: back]

A45: A divorce affected by uttering to the wife the following words or words of the same meaning: “You
are to me like the back of my mother (or any mahram), “followed by abstinence from sexual relation.
According to Arabani, the constituent of zihar is the “comparison” Wher there is NO comparison, there is
NO zihar. Hence, a statement, You are my Mother, does not give rise to divorce by Zihar. In addition,
however, I personally believe that BOTH the comparison and the abstinence from sexual relation should
combine to give effect to the divorce by zihar. [See LVIII 1-4, Holy Qur’an]

Q46: What is divorce by li’an [li’an- imprecation or curse]

A46: Under Art. 49, a divorce by li’an is one where the husband accuses his wife of adultery (zina), but
does not have the required number of four male witnesses to prove his accusation. The CMPL and Islamic
law allows such a husband to file a petition for divorce by lian in court, which is usually granted if the
husband affirms his accusation under oath four times and on the fifth times invokes the wrath of ALLAH
on himself if he is not telling the truth, while the wife does the same in denying the charge and on the fifth
instance, similarly invokes the wrath of ALLAH on herself is she is not telling the truth. Thereafter, the
court shall grant a decree of divorce in perpetuity, which according to most commentators will permanently
bar the parties from marrying each other again. If the wife does not take the oath then she will be found
guilty of zina. [See Holy Qur’an, XXIV: 6-9 for basis]

Q47: What is divorce by Khul [redemption; literally, to extract]

A47: Under Art. 50, divorces by khul or redemption is granted by the court upon petition by the wife
where she renounces and offers to return her dowry or part of it or any other consideration, by way of
redeeming herself from the marriage state by offering and paying a consideration. In actual cases, a
redemption amount of less than the dowry is usually adjudged by the court if the husband is somehow
contributory to the desire of the wife to be divorce from him. [See also Holy Qur’an, 11:229 for basis]

Q48: What is mubara’ah (Mutual Freeing)?

A48: A divorce affected by mutual aversion (or consent/agreement) by the parties. Difference with Khul:
Khul emanates from the wife, Mubara’ah emanates from both; Khul needs redemption considering from
the wife, mubara’ah no such need as both are satisfied by mutually freeing each other. On the other hand,
mutarikah, which is also mutual relinquishment is NOT exactly divorce, because it proceed from a
recognition of an irregular (and therefore not entirely lawful) marriage. Mubara’ah however presupposes a
valid marriage.

Q49: What is divorce by tafweed? [lit. to delegate]

A49: Divorce by tafweed is a divorce where the husband gives or delegate to the wife the right to
pronounce divorce and is based on Quanic verse (31: 28-29) which states: “O Prophet, say to your
consorts: if it be that ye desire the life of this word and its glitter, then come, I will provide for your
enjoyment and you set you free.” The delegation may be made at the time of the solemnization of marriage
(in the marriage settlement) or thereafter. The tafweed divorced pronounced by the wife has the same effect
as if it were pronounced by the husband. [Art. 51, CMPL]

Q50: What id divorce by faskh? [lit. to annul]

A50: Divorce by faskh is dissolution of the marriage by a judicial decree at the instance of the wife who
files the faskh petition before the sharia circuit court. The grounds for the divorce by faskh are enumerated
in Art. 52 of the CMPL, and includes, among others, Unusual Cruelty, the instances of which are also
enumerated in Art. 53 of the CMPL.

14
NOTE 1: the failure to perform marital obligation (which is actually sexual obligation) as a ground for
faskh requires a period of six months; on the other hand, the divorce by ila (vow) to abstain from sexual
relation with the wife only needs a period of 4 months of abstention to constitute a requirement for ila.

NOTE 2: the ground of obstruction in the observance of religious practices in Art. 53 (d) as a form unusual
cruelty and therefore a ground for divorce by faskh, refers to a non-Muslim woman who married a Muslim
man under Islamic rites but has not converted to Islam.

Q51: What are the effects of irrevocable divorce?

A51: [See enumeration in Art. 54 and elaboration in Art 55]

Q52: What is paternity? What is filiation?

A52: Paternity is the other part of parentage; maternity being the other part. Paternity refers to the
relationship between the father and his child. Maternity to the relationship between the mother and his
child. Maternity is a lot easier to establish than paternity [eq. thru the testimony of midwife or doctor who
delivered the baby or the people in attendance].

Parentage is defined as the legal relationship of the parents with children created by their birth in
consequence of a legal marriage entered into between the parents.

Filiation on the other hand is the status of the child with respect to his or her parents.

Q53: How is legitimacy established in the CMPL?

A53: Legitimacy is established by evidence and valid marriage. [Art. 58]

Related Q: What is difference between legitimacy and legitimation?

A: Legitimacy is the status of the child which results from a valid marriage and obtains at the time of
conception of the child. [In other system of law, time of birth] Legitimation is a proceeding which creates
the status of legitimacy. In Islam there is NO process of legitimation; only acknowledgment (iqrar).

Q54: What are the presumptions of legitimacy?

A54: Children conceived in lawful wedlock are presumed to be legitimate. Whoever claims illegitimacy or
impugns filiation MUST prove his allegation. [Art. 59 (1) CMPL]

Under the NCC, an action to impugn must be filed within from registration of birth in the civil registry or
18 months if heirs are absent or out of the country. Proofs: Medical; testimonies; continuous possession of
status; etc.

Q55: What are the periods of presumption of Legitimacy?

A55: Child born after 6 months from consummation of marriage OR within 2 years after the dissolution of
marriage. [Art. 59 (2)]

In case of remarriage by wife (re: children of subsequent marriage):

Child born within 6 months from dissolution of prior marriage is presumed to be the child of the previous
husband

Child born thereafter is presumed to be the child of the present husband. [Art. 60]

Related Question: Why 6 months? Qur’anic verses on carrying and weaning of the child:

Holy Qur’an, 46:15 “the carrying of the child to its weaning is a period of 30 months,”

15
Holy Qur’an, 31:14 “…and his weaning is in two years.”

On the basis of these verses, the minimum period of gestation is said to be six (6) months.

Q56: Rights of legitimate child.

A56: 3S: Surname, Support, Share [Art. 62, CMPL]

See also Art. 65 on the kinds of support and 68 on support between ascendants and descendants, [the
RULE is, he who first inherits must also be the first to give support]

Related Item (also on support): EXPLANATION on ART.68:

The term used by Art. 68 referring to ORDER in which the ascendant and descendant are called to inherit
from each other should more correctly be “degree of relationship” because, the “order” would be the broad
classification of shares, Residuaries and distant kindred, without specification as to who individually is
being referred to; while the term “degree of relationship” will refers to the individual heirs. Hence, under
this rule, the closest would be the Father, then the Mother, then the Paternal Grand Father, then the Paternal
Grand Mother (under Art. 110) and the male descendants individually or collectively (according to Art.
125). It is to these people that the rule enunciated above applies.

Q57: Acknowledgement by father

A57: [See Art. 63] In addition, the requisites for acknowledgement are:

1. Father must acknowledge publicly that he is the father of the child

2. Child must not impugn the acknowledgement

3. The child must not be the child of another (meaning public documents already point out and the public
already knows that the child has a father other than the acknowledger)

4. The relation does not appear impossible by reason of disparity in age

5. There is uncertainty of the marriage (usually a fasid marriage that was not regularized); hence there is
NO zina, otherwise the child is a waladu z-zina and cannot be acknowledged.

6. Parents are not within the prohibited degrees of marriages.

Q58: Is there adoption in Islam?

A58: There is no adoption in Islam [See Art. 64], although a person may take care of a child, but such does
not give rise to a valid relation of parentage: hence the said child will not enjoy the rights of a legitimate
child, except that he may be given a gift or hiba. The basis of the prohibition is the Holy Qur’an [33:4-5]:

“And whim ye claim to be your sons, your sons. This is but a saying of your mouths Proclaim their
real parentage; that will be more equitable to ALLAH. If you know not their fathers, let them be your
brethren.”

A related concept in Islam, in lieu of adoption, is Kalafa (or fosterage) where a person (usually a child) is
taken cared of as a ward, ensuring his support, upbringing, education and protection. The difference
between the foster and the adopted child is that the foster child DOES NOT cut his ties from his biological
parents, and continues to recognize them as his legal parents. In adoption, the legal parents are the adopting
parents.

16
Q59: What is support or nafaqa?

A59: Art. 65 says that support “includes everything that is indispensable for sustenance, dwelling, clothing,
medical attendance and education” of the person needing support. This should also include transportation
needs.

Related Question: What are the causes of support?

The causes that give rise to the obligation to support are: (1) Relationship; (2) Marriage; and (3) Property.
Property is a classical concept that refers to master-slave relation where the slave (in the concept of “whom
one’s right hand possesses) is also entitled to support by his master. This no longer obtains now because
the institution of slavery has been long abolished in the present world.

Q60: How much should be given in support?

A60: Art. 66 provides that the amount shall be in proportion to the resources of the giver and the needs of
the recipient. This is in accordance with the Qur’anic verse [65:7] which provides: “Let the man of means
spend according to his means, and let the man whose resources are restricted spend according to what
ALLAH has given him. ALLAH does not charge a soul except according to what he has given him…”

Q61: What is the rule on support for wife and infant?

A61: The wife is entitled to support during the marriage, and in case of divorce, she is entitled to support
until the expiration of her idda. If she is pregnant at the time of divorce, she is entitled to divorce until she
delivers. And if she breastfeeds her child, she is entitled to continuing support until the time of weaning
(which is 2 years from birth). [Art.67]

The infant of course is always entitled to support until he or she is emancipated, whether or not the mother
is divorced.

If instead of a divorce, the marriage is dissolved by death of the husband, the entitlement of the wife to
support from the husband is shifted to the estate of the husband.

Q62: How is payment of support made?

A62: Art. 69 states that “the obligation to support shall be demandable at the time it is needed”, but “it
shall not be paid except from the date it is extra judicially demanded.”

This means that the reckoning of when supports begin is at the time of need by the recipient. The second
sentence on the other hand provides that giver’s liability to pay begins only when he is notified (even an
extra judicial demand will do) of the need for support. This provision is important in determining the
giver’s liability for the amount given in support, as well as any interest accruing thereto in case of delay in
the giving of such amount.

The mode of payment may be made daily, weekly or monthly in advance, AS MAY BE STIPULATED.

If the recipient dies, his heirs get the support given him in advance; hence, no need to reimburse the giver.

17
Q63: When is the obligation to provide support extinguished?

A63: Art. 70 provides:

(1) When the recipient dies. (Support is not inherited by his heir because it is personal between the giver
and the recipient.)

(2) When the resources of the giver are so reduced or dissipated that he can no longer give support without
neglecting his own needs and the needs of his immediate family. The only exception here is the support to
the wife, which the husband must give even if he is himself needy.

(3) When the recipient commits any act (like turning apostate or committing any act of disloyalty to the
giver) that will disqualify him from inheriting or will disqualify the denial of support. [See also Art. 93 of
the CMPL]

Q64: What is Parental Authority? Custody and Guardianship?

A64: the concept of parental authority originates from the Roman law concept of partia Potestas, and
hence,mis not really based on shari’ah, but drawn from the civil code. In the beginning the patria postestas
was the father’s power over the life and death of his family, which of later years acquired the meaning of
the authority of the parents over their children. Custody and guardianship on the other hand are hidhana
and wilayah, respectively, in Islamic law the literal meaning of hidhana is upbringing. There is a consensus
among the companion of the Prophet that it is the mother who is first entitled to custody over her children.

In the Philippine jurisdiction, under the CMPL, the provision on custody is Art. 78 which states: “The care
and custody of children below 7 years of age whose parents are divorced shall belong to the mother, and in
her absence, to the maternal grandmother, the paternal grandmother, and sister and aunts (in that order). In
their default, it shall belong to the father and the nearest paternal relatives. The minor however who is
above 7 years of age but below the age of puberty, may choose the parent with whom he or she wants to
stay, Provided that the unmarried daughter reaching the age of puberty shall stay with her father; while the
unmarried son who has reach the same age of puberty shall stay with the mother.”

It should be noted that if the parents are not divorced or separated, then the hadhanah over their children
shall pertain to both of them, which can be analogically implied from Art. 71 (on who exercises parental
authority) of the CMPL.

Q65: What are the different kinds of guardianship or wilayah the CMPL?

A65: Guardianship is classified into three:

1. over the person of the minor

2. over the property of the minor

3. In marriage

Guardianship over the person of the minor or the child is elaborated on in Art. 71, 73 (duty to children), 74
(Effect upon person of children), 76 (non-transferability of parental authority) and 77 Extinguishment of
parental authority), these articles confusingly term and equate hadhana or custody with parental authority
which is not exactly an Islamic law concept.

Guardianship over the property of the minor or the child is mentioned in Art. 75 (Effects upon the property
of the children) under the title on nature and effects of Parental Authority, and in Art. 80 (enumeration of
who can be guardian of the minors property) under the chapter on Custody and Guardianship. As such,
even as both article acknowledges that the first guardian over the minor’s property is the father, the two
article conflicts when the father is absent. Under Art. 75, guardianship over the minor’s property is
devolved on the mother; while Art. 80 specifies a line of guardian after the father, as follows: Father’s
executor or nominee, then paternal grandfather, then paternal grandmother’s executor or nominee, then the
18
court (meaning the court may decide on who the guardian will be). It is submitted, however, that Art. 80 is
closer to Islamic law than Art 75, because the former is a detailon hadhanah while the latter is a detail in
parental authority, which is not an Islamic concept.

Finally, 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.

Selected explanation/commentaries on the provisions of

19
 CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES
On Persons, Property and Family Relations

ALWAYS REMEMBER THAT IT IS NECESSARY TO READ AND MEMORIZE THE CODE IF

POSSIBLE. THIS ONLY SUPPORTS YOUR KNOWLEDGE OF THE CODE!!!

Article 2 (a) – “recognizes the legal system of Muslim in the Philippines as part of the law of the
land and seeks to make Islamic institutions more effective.” According to Esteban Bautista of the UP
LAW CENTER the effect of the provision is that our country does not only recognize P.D. 1083 but the
entire legal system of Muslim in the Philippines. The decision of the Sharia Circuit Courts or the Sharia
District Courts is binding for as long as it is based on the sources of Islamic law because the Muslim legal
system has been recognized as part of the law of the country by virtue of this provision.
Islamic institutions refers to madaris, sharia courts (already existing), Baitus Zakat, Awqaf (not
existing but very possible to establish through the join efforts of the Muslim Filipinos), etc.
Article 2 (c) – provides for effective administration and enforcement of Muslim Personal Laws
among Muslim. The government, to administer and enforce Muslim Laws establishes the sharia courts as a
body to implement the law coupled with special rules of procedures (IJRAATUL MAHAKIMUS
SHARI’A).
Artile 3 (3) – The provision of this code shall be applicable only to Muslims and nothing herein
shall be construed to operate to the prejudice of a non-Muslim In the interpretation and implementation of
Muslim Law, it must not violate the right of non-Muslim. Example: H and W are husband and wife. Both
are non-Muslims and solemnized in accordance with civil code of the Philippines. W, subsequent was
converted to Islam. W cannot file a divorce by faskh against H because H is still a non-Muslim and Muslim
Code will not apply to him. Another example: the municipality of piagma passed an ordinance that all
persons fond not performing sala or prayer will be fined 500.00. Mr. Mr. Bean, a non-Muslim can question
the ordinance invoking Art. 3 (3).

TITLE 1. CIVIL PERSONALITY

This deal with person. In its technical sense, i.e. a natural or juridical being, capable of possessing
legal rights and obligations. Cognizant of the above, a person maybe natural (Zaid, for example) or
juridical corporation or even mosque or charitable institutions whose existence depends on the law creating
them). It follows that not all human beings are persons and there are persons who are not human beings.
Before proceeding to Article 8, it is worthy to note that the idea on Capacity to Act is not copied
from the new Civil Code of the Philippines or the Family Code as many observes commented. It is the
reverse because it is the civil Code that is patterned to the Muslim code. It must be noted that Iberian
Peninsula (Spain and Portugal) had been under Islamic domination for almost 8 centuries (July 9, 811 to
January 2, 1942). Much of the Codigo Civil de Espanol or Spanish Civil Code of 1899 is practically a
translation of the work of sadrush shariat entitled “TAUDI” which was written in the 45th century and is
recognized as standard work on the subject.

Article 8. Legal Capacity. It is may be defined as the sum total of man’s rights and obligations. Capacity
has two kinds, namely:
1. 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;
2. Capacity to Act which refers to the power to do acts with legal effects which is acquired and may be
lost.
In Islamic concept, capacity is of two kinds also and they are:
1. Ahliyatul wujub (Receptive or inherent Capacity) which corresponds to Juridical Capacity. This is the
capacity for the inherent rights and obligations;
2. Ahliyatul Ada (Active Capacity) corresponds to Capacity to Act. This is the capacity for the exercise of
rights and the discharge of obligations.
Article 9. Restrictions on capacity. Restrictions on Capacity to act are grouped into two: 1. SAMAWI-
those that are beyond man’s control like age, insanity, imbelicity, etc. 2. MAKSUBA- those that are within

20
the control of man like ignorance of law, family relations (this may also be included under samawi),
penalty, etc.
In what way can restrictions limit one’s capacity? Age limits the capacity to act in the sense that a minor
person cannot inter into contract of marriage or business without the consent of his parents or guardian.
Family relations restrict the capacity of a person in marriage because he or she is prohibited to marry his or
her relatives within prohibited degree of marriage like his brother or sister, uncle or aunt, as to penalty, if
man is convicted to an imprisonment of 1 year or many years, he is restricted from paternity of his
children, custody and guardianship and other rights insolvency, if a man once declared

Insolvent, he cannot just dispose his property without notifying his creditors. Trusteeship, a trustee cannot
act beyond what is entrusted of him. He can only act in accordance with the article of trusteeship or
authority given to him.

ARTICLE 10. Personality how acquired. Under this article, it provides favorable presumption to the
conceived child provided he was born alive however briefly after he was completely delivered from the
mother’s womb. Presumption favorable to the child include, among others, the following:
1. That the child is male for purpose of inheritance. We know that the share of male is twice bigger than the
female and to presume that the fetus is female that a portion of the estate equivalent to a share of female
was reserve for her and later on it come out to be a male, then his share is prejudiced.
2. That the conceived child is presumed to be Muslim. To presume that the fetus is not a Muslim would
mean that he is disqualified to inherit from hs Muslim parents. Therefore, the fetus must be presumed
Muslim because that is favorable to him.
3. That the child is presumed to be human and not a monster. A non human cannot inherit hence the
favorable presumption is that the fetus is human.
4. That the child is presumed to be not disqualified to inherit. It is always favorale to the fetus to be
presumed qualified to inherit.

ARTICLE 11. Extinction of personality. It speaks of two kinds of death: Actual death and presumptive
death.
Actual or physical death refers to the end of life with one or more persons who knew the fact death.
Presumptive death refers to the absence of a person for a certain period of time that disappeared from his
domicile and it is not known whether he still lives. He shall be declared by the court dead upon petition by
proper party.
Under P.D. 1083, After absence of seven years for purpose of marriage of surviving spouse (Art. 11, par 2)
and 10 years for purpose of inheritance (Art. 98, par. C). In some circumstances shorter period is required
like: when the absentee is 78 years which requires two to three years of absence before the court can
declare him dead; missing in airplane crash, destroyed vessel or in war which requires four years for
presumption of death.
View of the Imam: a. Abu hanifa: an absentee is presumed dead when none of his contemporary is living or
after 90 years of absentee. B. Malik is of the view that after the lapse of four years. C. Shafi’I opines that
when none of his kind is existing d. Ahmad ibn hanbal said the after the lapse of four years or depending
upon the court’s discretion.
ARTICLE 12: Simultaneous death. This refers to two heirs who are known to have died in the same
calamity and it is not known as to who died first then they shall be presumed to have died at the same time.
But before the court may decide, it may use the disputable presumptions on survivorship in the rules of
court as follows:
RULE 131, PAR. JJ OF THE RULES OF COURT: “Except for purposes of succession, when two
persons perish in the same calamity, such as wreck, battle or conflagration, and it is not shown who died
first, and there are no particular circumstances from which it can be inferred, the survivorship is determined
from the probabilities resulting from the strength and age of the sexes, according to the following rules:

1. If both were under the age of fifteen years, the older is deemed to have survived;
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2. If both were above the age of sixty, the younger is presumed to have survived;
3. If one is under fifteen and the other above sixty, the former is deemed to have survived;
4. If both were over fifteen and under sixty and the sex be different, the male is deemed to have survived. If
the sex be the same, the older;
5. If one be under fifteen or over sixty and the other between those ages, the latter is deemed to have
survived.

Article 13. Application. This article has six imports:

1. It automatically applies if both are Muslims;
2. It applies if male is Muslim and married under Muslim law;
3. It does not applies even if male is Muslim but married under the Civil Code;
4. In combine marriage, the first marriage is validating and the second is merely ceremonial;
5. The marriage of male Muslim and polytheist female is void;
6. The marriage of Muslim female and non-Muslim male is void.
In addition to the above is article 178, once a non-Muslim couple was converted to Islam, the marriage was
rectified as if they were solemnized in accordance with the provision of this code or Muslim law, for as
long as there is no legal impediment to marriage under Muslim law.
Example: A non- Muslim couple was converted to Islam, their civil marriage was automatically
transformed into an Islamic marriage if there is no legal impediment to their marriage under Muslim law. If
they related by fosterage, an impediment recognized under Muslim law, their marriage is still void,
Preliminaries to marriage, Islam encourages the acquaintance of a man and woman to be married, in
short, courtship must precede marriage.
“khitba” refers to message or expression of man’s desire to marry a woman and this is included in the
process of courtship. Khitba is prohibited to the following:
1. to a woman whom the man cannot lawfully marry because of temporary or permanent prohibition;
2. to a woman whom khitba is pronounced by another man;
3. to a woman observing idda.

Rules on the obligation or prohibition in marriage

1. Fardh or obligatory to a Man who is financially capable, having desire for offspring, he is certain on
NOT deceiving the wife and sure to full into fornication if he will not marry;
2. Mandub or desirable to a man capable of supporting a family and having the desire to marry;
3. Mubah or permissible to a man who has enough means to marry but having a little desire to marry;
4. Makruh of detestable to a man who have no means to marry though having a desire to have a wife;
5. Haram of forbidden to a man who are NOT financially capable and have acquired incurable serious
disease, and have acquired incurable serious disease.
Article14. Nature. This provision speaks on the nature of marriage which is not only a civil contract but a
social institution. Family is an imperative of the society and it can only be established through marriage.
Needles to state, that the stability of a society depends on the quality of the families that comprise it.

Consequences of Marriage.

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The effects of valid marriage are:
1. Sexual intercourse between man and woman becomes valid;
2. Wife is entitled to dower;
3. Wife is entitled for support;
4. Mutual rights of inheritance starts;
5. Husband can restrict wife’s movement;
6. Rules on affinity operates;
7. Idda will be observed in case of divorced;
8. Marriage settlement can be agreed upon should the couple desire to do so.

Article 15. Essential Requisites.

Requisites of marries are classified into:
1. Ruk’n or essential requisites which is the ingredients of marriage. Absence of one of the Ruk’n renders
the marriage void.
2. Shart or formal requisites the absence of any of the formal requisite may or may not void the marriage.

Shart is classified into:

1. Shurut (plural of shart) Ingad pertains to requiremernts of contract. The contract to marry satisfies the
requirement prescribed by Islamic marriage;
2. Shurut Sihha refers to the requirement of correctness in marriage;
3. Shurut nafad is the requirement that a marriage must be executed in accordance with prescribed
manner;
4. Shurut luzum requirement on the intention to contract permanent marriage and not temporary

Article 16 (3) on capacity to contact marriage, this refers to Khiyarul bulugh or option of puberty. Take
note of the requisites that in option of puberty:
a. The girl was minor
b. She was given in marriage by a wali other than her father or paternal grandfather;
c. No consummation has taken place;
d. The annulment of marriage must be within four years upon attaining the age of puberty.

Article 20. Specification of dower. This provision speaks on the fixing of dower either by mahr
musamma (fixed dower) or mahr mithl (unspecified). Mahr mithl is further classified into: Prompt
dower, those dowers to be given upon demand and Deferred dower, those to be given upon divorced.

What are the causes that will forfeit the dower?

1. When the wife initiated a divorced before the consummation of marriage;
2. When the wife condone her entire dower to her husband;
3. When the wife renounces her dower as a consideration for her release from marriage bond. (khul)
4. When the marriage is fasid on the ground that it lacks witnesses and the separation take place
before the consummation.
One of the circumstances where dower become due and demandable is when the marriage is consummated
and consummation is of two kinds:

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 1. Dukhul or actual consummation
2. Khilwatus Sahih or Valid retirement
Dhukul refers to the actual or physical consummation of marriage while Khilwas sahih refers to a
circumstance where the couple happened to be in a place where no body or nothing can stop them from
consummating their marriage, In such case, the law presumed that their marriage was consummated
although in actual is not.

Opinions of the Imams of the Four Sunni School of Law on Khilwatus Sahih.
1. Abu hanifa and Ahmad Ibn Hanbal: Dower becomes due in full once the couple was placed in
valid retirement of khilwatus sahih.
2. Malik bin Anas is of the view that it should not be full unless the wife had stayed longer with
the husband.

3. Shafi’i said that it should be half based on the Quran verses which say that “And if ye divorced
them before consummation but after the fixation of the dower for them, then the half of the dower is
due to them.” Al-baqarah: 237.

4. Abu Hanifa and Ahmad Ibn Hanbal reinforced their view with Quranic verses: “But if ye decide
to take one wife in place of another, even if ye had given the whole treasure for dower, take not the
least bit of it back, would you take it by slander or manifest sin?”
Similarities and differences between DUKHUL and KHILWATUS SAHIH
Similarities - they have similar effects in the following:
1. Both rendered dower fully demandable when the marriage was consummated either in dukhul or
khilwatus sahih
2. Both made idda’ requires upon divorce after the consummation either dukhul or khilwatus sahih
3. Both gave rights to support during Idda’
4. The husband is prohibited to marry woman related to wife within the prohibited degrees of marriage.

Differences – the effect of dukhul and khilwatus sahih differ in the following:
1. Commision on Zina by either of the spouse penalized with STONING TO DEATH if their marriage was
consummated by dukhul but 80 STRIPES or FLUGGING for khilwatus sahih;
2. Three times divorce requires intervening marriage for the couple to return to each other if the marriage
was consummated by dukhul but in the case of khilwatus sahih, intervening marriage is not required;
3. In marriage consummated bu dukhul, idda’ is observe but not in khilwatus sahih;
4. In dukhul when one of the spouses dies, the surviving spouse can inherit but noy in khilwatus sahih.

Article 23. Bases for prohibition

There are two kinds of prohibition:
1. Permanent – those prohibitions enumerated under article 23, par, (a) and (c) and (b) when the affinal
relationship still exists with some exceptions that even after the affinal relationships cease, the prohibition
still exist. E.g. Sister-in-law or brother–in-law when the spouses divorced or when one of them dies, the
surviving spouse can marry the sister or brother of the deceased;
2. Temporary – some of the prohibitions enumerated in art. 32, par. (a-f)

Art. 31. Batil or void marriages

In void marriage, there is locking in the essential requisites (ruk’n) of marriage and no civil rights and
obligations are created between the parties and the offspring is illegitimate.

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Article 32. Fasid or irregular marriage
In fasid marriage, formal requisite is locking. It may be terminated at any time if no consummation took
place. The wife is entitled to proper

Dower, idda’ is to be observed in case of divorced and the children are legitimate,

Article 34. Mutual rights and obligations

a. Rights of the husband
1. Must be the head of the family
2. Must be followed
3. His wealth must be safeguarded
4. His honor must be protected
5. His children must be taking cared of
6. His dwelling must be clean and taken cared of
7. He deserved to be listened
8. Must be respected
9. Can impose that anybody not related to his wife within the prohibited degree of marriage cannot enter
the house without his consent
10. To live in tranguility with the wife and their chidren

b. Rights of the wife

1. To be cared
2. To be taught on morality and decency
3. To cover her secret
4. To be supported
5. Her chastity must be protected
6. She deserves just and equitable treatment
7. She must be monitored
8. She must be treated with patience
9. She must not be exposed to hazardous works
10. She must not be left alone for a long time

Article 38. Regime of Property Relations

The property relations which may be agreed by spouses are:
1. Absolute community of property relation. This shall consist of all properties owned by both spouses at
the time of celebration of their marriage or acquired thereafter. The rule on co-ownership applies for their
properties.
2. Conjugal partnership of gains. The coupled placed common funds and the fruits, proceeds, and income
constitute a conjugal partnership of gains.
As to Complete Separation of Property relations, this could not be agreed by the couple since the above
stated article provides that in the absence of any stipulations or agreement on the property relations, the law
presume that the property relation of the spouses is Complete Separation of Property.

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Article 45. Definition and form of divorced
There are six classifications of dissolution of marriage. Do not be confused with the forms of divorce
enumerated in the Article 45 because they are the forms or kinds of divorce. The following are kinds or
classification of dissolution of marriage that has the effect of divorced:
A. Khiyarul Bulugh or Option of Puberty. This kind of dissolution happened when a minor was given in
marriage by a wali who is neither her father nor paternal grandfather and the law regards it as betrothal.
This may be annulled upon the petition of either party within four years after attaining the age of puberty,
provided no voluntary cohabitation has taken place. See Artivle 16 par. 3
b. Unilateral act of the husband or Talaq. See Article 46
c. Mutual consent or mubaraat. This happen when the couple mutually agree to divorce
d. Judicial Dissolution refers to divorce by faskh in Article 52
e. Perpetual Divorce refers to the decree of divorce issued by the court after the couple had performed the
prescribed act of imprecation. See article 49
f. Automatic dissolution of Marriage refers to dissolution of marriage of couple found to be related
within prohibited degrees. Upon knowing of the fact, their marriage is automatically dissolved without the
court interference.

Principle Laid by Quran on divorced

1. Divorce should be pronounced during the period of TUHR (purity). The Quran speaks: “O Prophet,
when you divorce women, divorce them in their prescribed period.” (sura Al- talaq:1)

2. The pronouncement of divorced should be spread over three periods. The Quran said: “Divorced women
shall wait concerning themselves for three monthly periods.” Surah Al-Baqarah: 228

Condition of Valid talaq

1. The husband should be in proper state of mind while pronouncing talaq;
2. The husband should be an adult;
3. The pronouncement of divorce was made voluntarily, not because of duress, force or intimidation;
4. The language used in pronouncing divorce must be clear or should imply the intention to give divorce.
Ruling on Talaq. According to jurist, talaq is either
1. Semi-obligatory if the husband is incapable of fulfilling conjugal rights by reason of impotency, etc. or
cannot maintain the requisite of the wife;
2. Unlawful or haram if after the divorce the husband will be punished to adultery, or if the divorce is
used to deny lawful rights of others;
3. Makruh or loathsome if it is pronounced for no valid reason:
4. Mandub or Commendable, if the wife is immoral, indulged in illicit connections, ill mannered,
arrogant, or has given up obligatory duties like prayers, fasting, etc..

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Article 46. Divorce by Talaq.
When the husband divorces his wife, they need to observe the three menstrual periods or three months
period of idda’. Within the period of idda’, the spouses are required to sleep in separate bed but under one
roof or in one house. Within this period, talaq is regarded as TALAQ RUJU or revocable divorce because
the husband can return to his wife any time within this period without the benefit of new marriage contract.
Once the period of idda’ has lapsed, the divorce become TALAQ BAIN SUGHRA or irrevocable divorce
of lesser degree and the husband can only be return to his wife with new marriage contract. The reason
behind it is during the period of idda’, the marriage ties is still existing and once the idda’ has lapsed, the
marriage was severed or cut. If the husband has divorce the wife for two times and in each divorce, the
prescribed period of idda’ has been observed, once the husband has returned to his wife, he can not just
divorce her for the third time with the period of idda’ lapsed because it becomes a TALAQ BAIN KUBRA
or irrevocable divorce of highest degree. The husband can only return to the wife if she will be married to
another man and the second husband divorces her and idda’ has been observed.

What is TAHLIL? Is the legalization of the marriage of a thrice divorced couple after an
intervening marriage took place and then they divorced and idda’ is observed.
If the husband remarried his wife after complying with the requirements of tahlil, how many talaq
can he make again? Three divorces are available to him because the effect of tahlil is as if they have not
divorced even once.

EFFECT OF IRREVOCABLE TALAQ:

1. The marriage bond shall be severed or cut and the spouses may contract another marriage;
2. The spouses shall lose their mutual right of inheritance;
3. The custody of children shall be determined in accordance with article 78;
4. The wife shall be entitled to recover from the husband her whole dower in case the talaq has been
affected after the consummation of marriage, or one half thereof if effected before its consummation;
5. The husband shall not be discharged from his obligation to give support in accordance with the rules on
support as embodied in the code;
6. The conjugal partnership, if stipulated in marriage settlement, shall be dissolved and liquidated.

Article 47. Divorce by ila

It is an old arab practice to swear not to go near his wife if they want to divorce his wife, Since the
hidden meaning of the vow is divorce, the Code provides that if the husband’s vow extends to four months,
the wife is given the right to file a petition for divorce by ila and after due trial and hearing, the court may
grant the divorce to the wife.
The husband can return to his wife within the period of four months but he has to perform the
prescribed expiation by 1. Free a slave or feed ten poor people or cloth them or fast for three days.

Article 48. Divorce by zihar.

This is part of arab subtlety or being indirect that sometimes when they want to divorce their wives.
They do it indirectly by assimilating or likening their wives with the woman related to them within
prohibited degrees of marriage. Anytime after the zihar, the husband can return to his wife provided he will
performed the prescribed expiation: Free a slave or fast for two months consecutively or feed 60 poor
peole.
Unless the prescribed expiation is performed, it can not be substituted by new marriage contract i.e
the husband after the lapsed of three months, for example, the divorce become irrevocable then he married
again the wife. This can not be legalized either by TAHLIL. The only way is performance of expiation or
kifarat.

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Article 49. Divorce by li’an
The prescribes procedure for the acts of imprecation: The judge will let the husband swear for four
times that his wife has committed adultery and in the fifth time, he will invoke the wrath or curse of God if
he is telling a lie. Then the judge will require the wife to swear for four times that the accusation of the
husband is not true and in the fifth time, she will invoke the wrath of curse of God if she is telling a lie.
Thereafter, the judge will issue an order of perpetual divorce.

Why four times swearing? Because in the adultery case, it requires four witnesses to prove it, since
the husband has no witness, the court requires him to swear for four times. Take note that this procedures is
not applicable in the case of adultery because such case requires the testimonies of four competent
witnesses

The basis for this type of divorced is the Prophetic Traditions which state:

1. “The spouses who accuse one another of adultery shall not join each other anymore”

2. “The spouses who accuse one another of adultery shall not be joined together forever.”

Article 50. Divorce by khul.

In this kind of divorce, once it is granted by the court, it becomes talaq bain or irrevocable divorce
according to the jumhur-ul fuqaha or majority of the jurists
Can the consideration in khul be greater than the dower?
According to the jumhur, it is makruh on the part of the husband to demand an amount which is greater
than the dower given by him in marriage.

Article 51. Divorce by tafwid

Delegation of the power to effect talaq may be done also through third person and that is what we
call TAUKIL. This simply means that the husband delegated any person other than the wife to effect the
talaq between him and his wife. Example, the husband delegated his father- in -law to effect talaq if one of
the conditions set forth in the delegation is violated.

Difference between tafwid and taukil

1, In Tafwid, once the power to effect talaq was given to the wife, it can not be withdrawn but in taukil, the
husband may revoke the taukil at any time he wish;
2. In Taukil, the delegate works at the pleasure of the husband but in tafwid, the wife can work at her
pleasure.
Article 51. Divorce by faskh
What are the effects of faskh? The effect of faskh are:
1. The contract of marriage is rendered void ab initio (from the very beginning) if the ground for faskh was
existing at the time of the celebration of marriage;
2. The contract of marriage is just nullified if the ground for faskh is not existing at the time of the
celebration of marriage;
3. The faskh shall not be counted as talaq to be deducted from the number of divorce that the husband is
entitled;
4. The faskh has the same effect as those stated in paragraphs 2,3,4,5 and 6 of the effect of irrevocable talaq
stated above.

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Difference between talaq and faskh
1. In talaq, during the period of idda’ or talaq ruju, marriage is not severed but in faskh, marriage severesd
upon decree of the court because there is no idda’
2. In talaq, once idda’ has lapsed it is considered one talaq and it is to be deducted to the three talaq to be
exercised by the husband but notin faskh;
3. Talaq is endowed by ALLAH to the husband but in faskh, when there exist among the grounds.

Article 56. Idda’

Idda’ is defined as the period of waiting prescribes for a woman whose marriage has been dissolved by
death or by divorce, the completion of which shall enable her to contract a new marriage.
It is also a period given to the couple to have soul-searching efforts and think about their marriage. The
purpose includes among others the following:

1. To let the divorcing couple think thoroughly if they do not love each other anymore;
2. To determine whether or not the wife is pregnant;
3. In cased of widowed wife, to console with her and as a sign of respect to her and her bereaved family.

Qur’anic basis of idda’

1. “Divorced women shall wait concerning themselves for three monthly periods” Surah al-baqara: 228

2. “Such of your women as have passed the age of monthly courses, for them the prescribed period, if
ye any doubt, is three months, and those who have no courses (it is the same). For those who carry
(burden within their wombs) their period is until they deliver their burdens.” Surah Al-Talaq: 4

Under the provision on idda’, there are kinds of women contemplated as follows:
1. Pregnant widow, whose idda’ extends up to the delivery of her burden or four months and ten days to be
counted from the death of her husband whichever is longer,
2. Not pregnant widow whose idda’ is four moths and ten days counted from the death of her husband;
3. Pregnant divorcee whose idda’ is until delivery of her burden;
4. Not pregnant divorcee who is menstruating regularly, whose idda’ is three menstrual periods;
5. Not pregnant divorcee whose menstruation is irregular or not menstruating at all. The idda’ is three
month counted from the death of her husband.

Kinds od idda’
1. idda al aqra’ is a kind of idda’ wherein woman is required to observe her idda’ for menstrual courses;
2. idda’ al ash-hur is another kind of idda’ wherein the woman is required by the sharia to observe her
idda’ for a period of three months because her menstruation is irregular or not menstruating at all.
3. Idda al ham is a third kind of idda’ wherein the woman is pregnant and required to obderved idda’ until
her delivery.

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Article 63. Acknowledgement by the father
In addition to the conditions set forth in paragraph (a) and (b) of this article, the case of Muhammad
Allahdad vs. Moh’d Esmail decided by the high court of Pakistan laid down some essential conditions are
acknowledgement, as follows:
1. The acknowledged child is of unknown paternity;
2. The acknowledging father has the intention to confer legitimacty
on the child;
3. The acknowledging father must be at least twelve years older than the acknowledged child;
4. There is a possibility of legal marriage between the acknowledging father and the mother of
acknowledged child;
5. The child must be a WALADUS ZINA or child through adultery;
6. The child must not be known to be a child of somebody;
7. The child must not repudiate the acknowledgement.

Article 64. Adoption.

In Islam adoption is not recognized and even prohibited. The reason is that in adoption, the adopter
is conferring rights to the adopted child like that of legitimate child. Islam does not want that the heir of the
adopter be prejudiced. However, Islam upholds and praises doing good and humanitarian acts. An orphan
may be put under the care and custody of a capable person for the interest of the child. That is why Article
64 only provides that no adoption in any form shall confer upon any person the status and right of
legitimate child under Muslim law, except that said person may received a gift (hiba).
Personally, I am of the view that a Muslim can adopt a child for purposes of care and custody but
subject to the limitation that the adopter shall not confer upon the adopted child the status and rights of his
legitimate child.
Hiba or Gift is a transfer of a determinate property without any exchange Freon one person to another, and
accepted by or on behalf of the latter. Unless there is an acceptance, the gift is not valid and the property or
thing given was delivered to the receiver. The delivery must not necessarily be actual, constructive delivery
is sufficient.
Example of actual delivery: A cake given as gift was delivered to the receiver and to the latter had
received it, constructive delivery: A car given as gift was constructively delivered when the deed of
donation was executed wherein the car to be given was described in details together with the supporting
documents and delivered and received by the done by signing the acceptance provided for in the deed of
donation. Even the car was not yet delivered, there is a constructive delivery.
The requisite of donation are:
1. The giver must be of legal age;
2. The giver is of sound mind and able to understand the effect of giving;
3. The act of giving is voluntarily, not force, duress or any form of coercion is involved;
4. The giver is the owner of the things given.

Gift and will distinguished

1. In gift, the donor can give his entire property to the done while in WILL, only the disposable third is
allowed to be given:
2. The gift can be given to anybody, i.e. a stranger, distant relative or to the heir of the donor but in will ,
heir is excluded;
3. In gift the transfer of property takes effect upon acceptance of the delivery of the thing while in will, it
takes effect upon the death of the testator.

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Conditions Gift distinguished from Gift with condition
A conditional gift is one which is made contingent upon the happening of something. E.g. Rashid said to
his friend: If I die, my car is yours. This is an invalid gift but it is a will. Gift with a condition refers to a
thing given but with attached condition. E.g I give you my car if you will perform daily prayers regularly.

Article 65. Support

Causes that make support obligatory:
1. Marriage
2. Kinship
3. Ownership (master slave relationship)

Requisite for support

1. The wife surrendered himself to the husband (Marriage consummated)
2. The marriage is valid
3. Wife’s movement is controlled by the husband.
As to the amount of support, the Muslim School of law, have their option, to wit;
1. Hanafi Madhab is of the view that the amount of support shall be proportionate to the richness and
poverty of the spouses; and the resources of the husband.
2. Maliki Madhab Opines that the amount is determined by the richness and difficulty of the spouses.
3. Shafi’I Madhab said that support shall include food, clothing which depends to the resources of the
husband and it also includes dwelling in accordance with the social standing of the wife.

Article 68. Support between Ascendants and Descendants

The four Sunni School differ in the opinion on who are relative that need to support each other, as follows;
1. Hanafi Madhab holds that relatives are those within the prohibited degree of marriage
2. Shafi’I belived that relatives include ascendants and descendants of any degree.
3. Maliki Madhab is of the opinion that relatives are confined to parents and legitimate children.
4. Hanbali Madhab opines that relative extends to persons who can be an heir.

Article 73. Duty to children

Among the obligation of the parents toward their children are:
1. Parents shall treat children as blessing and not additional burden;
2. They pray that their children will be pious;
3. Upon delivery of the child, the parents must cause the recital of ADHAN and IQAMA in the child’s
right and left ear respectively
4. The child must first taste sweets like date or honey as part of TAHNIK
5. The child must be given good names, Bad sounding names will develop the feeling of inferiority.
6. The performance of AQIQA (slaughtering of 2 goats for a male child and 1 goat for female);
7. Male child must be circumcised;
8. Parents must teach the child with ALIMA SAHADA and its meaning

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9. Suckling of the baby is also the obligation of parents;
10. Child must not be frightened cause it will have negative effect on his psychological makeup;
11. Child must not be scolded for the wrong he has done because he do not understand it
12. Parents much show sympathy to the child;
13. Child deserves proper upbringing;
14. He must show sympathy to the child;
15. Talk to the child well. Do not imitate their way of talking;
16. Parents must set themselves as example of virtues to the child;

Article 79.
One of the purposes of guardianship in marriage is to see to it that the choice of the husband of the girl to
be married is near to ideal if not perfect. The guardianship has also the privilege to object to the marriage if
he believes that said marriage will give disgrace to the family of the girl. In doing so, the parent or guardian
shall ensure that KAFAAT (equality) is closer or proximate in term of
1. Lineage
2. Religion
3. Character
4. Property
5. Profession
6. Status

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