“While Islamic law permits a Muslim to have more than one wife, he must deal with them with equal companionship and just treatment”
People have various misconceptions about Muslim marriage, primarily because of a lack of knowledge of Muslim culture and law.
The author will discuss the minimum requirements for marriage and divorce under the Muslim Personal Law (MPL) which took effect on February 4, 1977 (Presidential Decree No. 1083).
The MPL applies when both parties are Muslims, or when the male party is a Muslim and the marriage is solemnized under Muslim Laws or the MPL.
However, the Civil Code of the Philippines will apply to marriages solemnized between a Muslim and a non-Muslim outside of the former’s law and the MPL (Article 13 [1], MPL).
In one case, Rohaina and Abdulgani, both Muslims, were first married under Muslim rites. Barely six years after, they renewed their wedding vows in a civil ceremony.
The Muslim Code under which their first marriage was celebrated still applies, and consequently, the civil law will not (Sumagka v. Sumagka, G.R. No. 200697, June 10, 2019).
In yet another case, the Supreme Court, citing Justice Rasul and Dr. Ghazali’s Commentaries and Jurisprudence on the Muslim Code of the Philippines, declared that in “combined Muslim and civil law wedding rites” where both parties are Muslims, the law governing the first marriage (Muslim Law) prevails (Zamoranos v. People, G.R. No. 193902, June 1, 2011). The Court says:
It is of no moment that a second wedding between the parties was celebrated using the solemnities of civil law. The second wedding cannot and does not alter the character of the first wedding. After all, it is the first wedding which creates the marriage bonds between the parties (Zamoranos v. People, G.R. No. 193902, June 1, 2011).
No marriage or nikah shall be perfected unless the contracting parties have legal capacity and have freely given their mutual consent.
It is also essential that the offer (ijab) and acceptance (qabul) is duly witnessed by at least two competent persons after the proper guardian in marriage (wali) has given his consent (Article 15, MPL).
Another essential requirement is the stipulation of the customary dower (mahr), which must be witnessed by two competent persons (Article 15, MPL). The dower is the gift given by the husband to the wife as a consequence of the marriage (Quran 4:4).
Who has the capacity to marry under the MPL? Any Muslim male who is at least 15 years of age and any Muslim female who has begun puberty and is not suffering from any impediment under the provisions of the MPL may contract marriage.
There is a presumption of puberty when the female reaches the age of 15 (Article 16, MPL).
However, a wali or guardian may petition the Shari’a District Court for an order allowing a female Muslim to marry even if she is less than 15 (but not below 12) years of age if she has reached puberty (Article 16, MPL).
Marriage through a wali by a minor below the prescribed age shall be regarded as betrothal.
Within four years from reaching puberty, either party may petition to end or an’ed the marriage, provided no voluntary cohabitation has taken place and the wali was someone other than the father or paternal grandfather (Article 16, MPL).
While Islamic law permits a Muslim to have more than one wife, he must deal with them with equal companionship and just treatment (Article 27, MPL).
“Polygamy is only encouraged by the Koran where it concerns the ‘oppressed or the orphans among women,’ if justice can be done by marrying more than one” (Muhammad Asadi).
There is no particular form of marriage ceremony required, but the ijab and the gabul in marriage shall be declared publicly in the presence of the person solemnizing the marriage and the two competent witnesses (Article 17, MPL).
The marriage shall be solemnized publicly in any mosque, office of the Shari’a judge, office of the District or Circuit Registrar, residence of the bride or her wali, or at any other suitable place agreed upon by the parties (Article 19, MPL).
The marriage can be solemnized by the proper wali of the woman to be wed; or upon authority of the proper wali, by any person who is competent under Muslim law to solemnize marriage (Article 18, MPL).
The judge of the Shari’a District Court of Shari’a Circuit Court or any person designated and authorized by the judge may also solemnize the marriage, should the proper wali refuse without justifiable reason (Article 18, MPL).
It is prohibited to marry parties who are related by consanguinity (tahrimjbin-nasab), or affinity (tahrim-bill-musahara) (Article 23, MPL). Relationship by consanguinity extends to brothers or sisters and their descendants within the third civil degree (Section 24, MPL).
On the other hand, relationship by affinity extends to stepfather and stepdaughter, stepmother and stepson, and stepson or stepdaughter and the widow, widower or divorcee of their respective ascendants (Article 25, MPL).
Marriage arising from fosterage is prohibited (tahrim-bir-rada’a) (Article 26, MPL). This is when a person marries a woman who has breastfed him for at least five times within two years after his birth (Article 26, MPL).
No widow shall contract a subsequent marriage unless she has observed an ‘idda’which is the period of waiting prescribed for a woman whose marriage has been dissolved by death or by divorce (Article 56, MPL).
In the case of dissolution of marriage by death, an ‘idda is a period of four months and 10 days counted from the date of the husband’s death.
However, in the case of termination of marriage by divorce, the ‘idda is for a period of three monthly courses or menstrual cycles, counted from the date of divorce (Article 57, MPL).
Should a repudiated or divorced woman and her husband reconcile during her ‘idda, he shall have a better right to take her back without need of a new marriage contract. Where it is indubitable that the marriage has not been consummated when the divorce was affected, no ‘idda shall be required (Article 29, MPL).
There are different kinds of divorce in the MPL. The divorce by talaq is when a husband repudiates his wife during her non-menstrual period (tuhr) and totally abstains from having carnal relations with her. The talaq shall become irrevocable after the expiration of the prescribed ‘idda (Article 46, MPL).
The Shari’a Circuit Court explained that the Muslim Code is silent regarding the grounds upon which a husband may divorce his wife by talaq.
However, consistent with the commentaries of a Muslim author, Asaf A.A. Fyzee, the court was convinced that a Muslim husband can repudiate his wife anytime with or without cause (Sumagka v. Sumagka, G.R. No. 200697, June 10, 2019).
While the right to divorce by talaq is given to the husband, a similar right may be delegated to the wife (tafwid) at the time of the celebration of the marriage or thereafter, where she may repudiate the marriage and the repudiation would have the same effect as if it were pronounced by the husband himself (Article 51, MPL).
Where a husband makes a vow to abstain from any carnal relations (ila) with his wife and keeps the ila for a period of not less than four months, she may be granted a decree of divorce by ila by the court after due notice and hearing (Article 47, MPL).
There is also divorce by li’an, where the husband accuses his wife in court of adultery. A decree of perpetual divorce may be granted by the court after due hearing and after the parties shall have performed the prescribed acts of imprecation (Article 49, MPL).
The diverse laws, customs, and traditions of our people make our country unique. Respecting this uniqueness while finding common ground as Filipinos will forge a stronger nation.