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
• husbands 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 husbands
  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 Sharia 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 wifes 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 grandfathers 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) fathers executioner or
• nominee (c) paternal grandfather (d)
• paternal grandfathers nominee or
• (e) the court (Art. 80, CMPL)

27

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

28

• or maternal relatives, grandmothers
• executor as those who can qualify as
• wali.

29

• 8. Implementation of the CMPL-
• (a) establishing additional Sharia
  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 Sharia
• District or Sharia 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 Sharia Courts (d) Empowering the
  Sharia 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 Quran.

33

• 2. Consent of the wali
• 1) the wali often refuses to give his
• consent to a marriage desired by the
• woman herself. The walis 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 Sharia 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 husbands 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 husbands 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