Philippine Code of Muslim Personal Law (P.D. 1083)

1. Philippine Code of Muslim Personal Law (P.D. 1083)

2. The Code of Muslim Personal Laws(P.D. 1083) • Key points at the legal reform level 1. Essential Requisites of Marriage 1) Age at Marriage (a) male, at least 15 yrs., while female of the age of puberty which is presumed to be 15 years; (b) proper wali may petition for the marriage of a female less than fifteen years of age

3. but has attained puberty; (c) marriage through a wali by a minor below the prescribed ages which is regarded as betrothal (Art. 16, CMPL) PROPOSED REVISION: (1) Adopt provision within the New Philippine Family Code (E.O. 209) which is 18 years for both male and female; (2) Requirement of a Prenuptial Agreement which shall stipulate the:

4. (a) The amount, schedule and mode of payment of the dower; (b) Type of marriage, whether monogamy or polygamy; (c) Whether divorce by tafwid will be available to the wife; (d) Agreement on support of the family after the idda, in case of divorce; (e) Fixing of the family residence; and (f) The governing property relations of the spouses.

5. (3) Marriages of parties of all ages, shall, in addition, be allowed only after the parties have obtained certificates from the solemnizing officer and from a marriage counselor to the effect tat the parties have undergone marriage counseling.

6. 2) Consent of the wali- the consent of the wali is equally important to that of the contracting parties as a requisite of marriage (Art. 15, CMPL). PROPOSED REVISION: (1) Consent of the woman – whether virgin, divorced or widowed should be sought first and should prevail over that of the wali; (2) Withdrawing the authority of the wali to solemnize the marriage of his “ward”

7. 3) Customary dower (mahr) – (a) the amount or value of the dower may be fixed by contracting parties (Art. 20, CMPL); (b) the dower may be fully or partially paid before, during, or after the marriage (Art. 21, CMPL);

8. PROPOSED REVISION: 1) Declaring that the dower shall principally be fixed by the bride and groom, in consultation with their respective families; 2) Amount of dower should be fixed, specified and be paid fully before the celebration of marriage.

9. 2. Rights and obligations between spouses: (a) husband shall fix the residence of the family (Art. 35,CMPL); (b) wife shall dutifully manage the affairs of the household; (c) The wife may, with her husband’s consent, exercise any profession or occupation or engage in

10. lawful business that is keeping with Islamic modesty and virtue (Art. 36, CMPL). PROPOSED REVISION: Adopt provision in the E.O. 209 which are the following: (a) Husband and wife shall fix the family domicile.

11. In case of disagreement, the court shall decide (b) Spouses are jointly responsible for the support of the family (c) Management of the household shall be the right and duty of both spouses. (d) Spouses may exercise any legitimate profession, occupation business or activity without the consent of the other.

12. The latter may object only on valid, serious and moral grounds. Incase of disagreement, the court shall decide; (e) Articulating the Muslim law that allows the wife to retain her maiden name and surname during the marriage (d) the wife cannot, without the husband’s consent, acquire any property by gratuitous title, except from her relatives who are within the prohibited degrees in marriage (Art. 36,CMPL);

13. PROPOSED REVISION: The above provision be applied to both husband and wife.

14. 3. Polygamy: a) husband allowed to marry up to four provided he can deal with them with equal companionship and just treatment and can only be allowed in exceptional cases (Art. 27,CMPL); b) husband shall file a written notice to the Shari’a Court where his family resides. The Court shall serve copy to the wife/ wives. Should the wife object, the Agama Arbitration Council shall intervene or

15. The Court shall decide whether or not to sustain her objection; (c) If the Court decides not to sustain the wife’s objection, the husband is allowed to contract a subsequent marriage (Art. 162, CMPL) PROPOSED REVISION: (a) The need to specify and define the acts that constitute “equal companionship”, “just treatment”, and “exceptional cases”.

16. (b) the husband should also first discuss the matter with his current family/ies before service notice to the court; (c) It should be the husband, and not the wife who should have the burden of persuading/ proving to the court that he is capable of contracting subsequent marriage;

17. (d) The Court should not allow the husband to contract subsequent marriage while there is still objection from the wife.

18. 4. Divorce (a) The Code does not specify the grounds for divorce by talaq; (b) a husband is not required to petition the court when he divorces his wife by talaq; (Art. 45, CMPL) PROPOSED REVISION: (a) The Code should specify the grounds

19. for divorce by talaq; (b) the Court should only allow divorce by talaq after it has summoned both parties and have sufficiently deliberated on the case; (c) Adding divorce by mutual agreement (mubarat) and “conditional tafwid” as allowable forms of divorce; (d) Allowing anything that may lawfully be the

20. subject of a contract to be a valid compensation in the case of divorce by khul; (e) Extending the ground for divorce by faskh to include neglect or failure by the husband to provide support for the family for less than 6 months at one time, when the neglect is habitual in that the aggregate months will total to at

21. least one year; (f) Adoption of the relevant provisions of the Anti-Violence Against Women and Their Children Act (AVAWC or R.A. 9262), in addition to the remedy of divorcing the husband by faskh.

22. 5. Property Relations between spouses – governed by the regime of complete separation of property (Art. 38, CMPL). PROPOSED REVISION: Adoption of EO 209 which created a property regime of absolute community of property between the spouses when there is no ante-nuptial agreement.

23. 6. Inheritance – the Code provides for that the inheritance of sons be twice to that of daughters PROPOSED REVISION Allowing surviving daughter who is providing for or supporting the brothers and/ or other members of the family or a daughter who is in dire need, to petition the court for payment of her

24. incurred expenses of support, as well as payment for future expenses for support. Such expenses shall be charged to the estate of the decedent

25. 7. Guardianship (1) persons to act as guardian for marriage (wali) in order of precedence (a) father; (b) paternal grandfather; (c) brother and other paternal relatives; (d) paternal grandfather’s executioner or nominee; or (e) the court (Art. 79, CMPL)

26. 2) persons who shall exercise guardianship over the property of minors in the order of precedence: (a) father; (b) father’s executioner or nominee; (c) paternal grandfather; (d) paternal grandfather’s nominee; or (e) the court (Art. 80, CMPL)

27. PROPOSED REVISION Allowing not just the father, paternal grandfather, brother or other paternal relatives, paternal grandfather’s executor or the court to act as wali (or the guardian for marriage) or guardian of minor’s property, but also including the mother, the grandmother, sister, or

28. or maternal relatives, grandmother’s executor as those who can qualify as wali.

29. 8. Implementation of the CMPL- (a) establishing additional Shari’a District Courts in other parts of the country where there are huge concentration of migrant Muslim Filipino Muslims; (b) Declaring that no woman shall be disqualified for appointment to the position of Shari’a District or Shari’a Circuit judge on account of gender; (c) Requiring that gender sensitivity

30. trainings and other orientation seminars on dealing with family disputes be given to the judges of Shari’a Courts; (d) Empowering the Shari’a Circuit Courts with the granting of protection orders against husbands where the wife is a domestic violence and is seeking divorce; (e) Increasing the penalties for illegal solemnization of marriage, marriages before the expiration of ‘idda, offenses relative to subsequent marriage, divorce, revocation of divorce, failure to report for registration.

31. B. Arguments for reform Under PD 1083, some of the previously mentioned terms of the marriage are left to the discretion of the husband alone. Hence, the proposed revision is to incorporate the terms in a pre-nuptial agreement, so that the contracting parties know the terms prior to the wedding rites and the contract of marriage.

32. 1. Age at Marriage 1) age of puberty does not necessarily mean safe pregnancy and childbirth for the female and emotional and mental maturity for both the male and the female 2) there is no specific age for marriage mentioned in the Qur’an.

33. 2. Consent of the wali 1) the wali often refuses to give his consent to a marriage desired by the woman herself. The wali’s decision often prevails over the decision of the woman. 2) to lessen the possibility of confusing the consent of the woman with that of the consent of the wali.

34. 3) forbidden for the wali to compel the woman under his guardianship to marry or to prevent her from marrying. 3. Customary dower (mahr) 1) Contracting parties in practice is often represented by the parents therefore, it should be declared that the dower shall be principally fixed

35. principally be fixed by the bride and the groom in consultation with their respective families; (2) Several of those cases filed in the Shari’a Circuit Court were pertaining to demands for recovery of dower which were deferred at a later time after the celebration of marriage.

36. 4. Polygamy – (a) In the absence of any provision specifying and detailing the acts that constitute “equal companionship”, “just treatment” ,and “exceptional cases’, the article will be prejudicial to women/ wife; (b) She can also be easily divorced or repudiated

37. unilaterally by the husband if she objects to his subsequent marriage; (c) the wife has the burden of proving her objection to her husband’s subsequent marriage.

38. 5. Divorce (a) Without providing the grounds for divorce by talaq, the wife is always placed at a disadvantaged situation as the husband with or without justifiable reason can divorce her; (b) a husband is not required to petition the court when he divorces his wife by talaq.

39. 6. Property Relations between Spouse (a) the regime of complete separation of property appears to be disadvantageous to a wife who does not have a paid income or earning as she does not a have right to demand a share from her husband’s exclusive property.

40. Opposition faced 1. conservative forces, particularly MRLs; 2. the four male crafters of the law 3. Limited area of coverage if submitted at the ARMM-RLA; 4. no suitable proponent who could be chosen from among the Congresspeople, who could champion and defend the proposals among the other members of Congress.

41. D. Strategies Used 1. Popularization of the CMPL and AVAWC 2. Advocacy Lobby group/ network

42. References: 1. Muslim Personal Laws and Justice for Muslim Women: The Philippine Case ( Atty. Norma Maruhom-Barra) 2. Legislative Reforms in Philippine (Muslim) Family Laws (Atty. Raissa H. Jajurie) Sentro ng Alternatibong Lingap Panligal (SALIGAN) – Mindanaw 3. AMDF documents on FGDs on the CMPL