CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES

2022 EDITION NOTES

Judge Bensaudi I. Arabani, Sr.
 Chapter Two: MARRIAGE (NIKAH)

Section 1. Requisites of Marriage

Article 14. Nature. Marriage is not only a civil contract but a social institution. Its nature,
consequences and incidents are governed by this Code and the Shari'a and not subject to
stipulation, except that the marriage settlements may to a certain extent fix the property relations
of the spouses.

 Nikah or Marriage- is a contract for the legalization of intercourse and the procreation of
children.

Contracts Muslim
Marriage
Law Governed by Governed by
law of contract Islamic Sharia
Parties Can either be Can only be
natural persons made by a man
of either sex or and woman
juridical who are not
persons under legal
regardless of impediment to
their number marry each
other
Terminatio Terminated by Can only be
n mutual terminated if
agreement of the conditions
both parties or of the law
by either one of intented to
them subject to safeguard the
certain liability sanctity of
for damages in marriage
case of breach contract are
thereof complied with
and any breach
by either
spouse of the
marital
obligation
renders the
offending
spouse to
certain liability
under the law
Witnesses Presence of Essential
witnesses is requirement for
not necessary its validity
for its validity

 Legal consequence or incidents of a Muslim marriage

1. It makes lawful the sexual relationship between a man and a woman;
2. It legitimizes children born of the marriage and establishes their paternity and
filiation;
3. It gives to the husband obligation to support the wife and his family;
4. It establishes the mutual rights to inheritance between the spouses;
5. It affects to a certain extent the parties capacity to act, i.e. restriction to
contract marriage with affinal relatives within the prohibited degree; the wife’s
right to receive donation from donation; to give donation to one another.
 6. The woman is emancipated from her wali, gets entitled to contract
subsequent marriage, after the dissolution of the first marriage, without wali
or a guardian in marriage;
7. The condition of iddah (waiting period) becomes incumbent upon the wife
before contracting a subsequent marriage, after the dissolution of her former
marriage;
8. The wife becomes entitled to her dower; and
9. Marriage settlement becomes effective, and nuptial gifts becomes due.

 Marriage settlement
o The future spouses may agree and fix to a certain extent the system of property
relations that will govern them during their marriage. However, should the
marriage not take place, such agreement shall be rendered void except
stipulations that do not necessarily depend thereon.

Article 15. Essential requisites. No marriage contract shall be perfected unless the following
essential requisites are compiled with:
(a) Legal capacity of the contracting parties;
(b) Mutual consent of the parties freely given;
(c) Offer (ijab) and acceptance (qabul) duly witnessed by at least two competent persons
after the proper guardian in marriage (wali) has given his consent; and
(d) Stipulation of customary dower (mahr) duly witnessed by two competent persons.

 Conditions (Surut) of Valid Marriage

1. Shurut al-in’gad- which are the formal conditions of marriage, namely, the
offer and acceptance pronounced at the same meeting, and which must be
issued by persons competent enough to prepare such contract;
2. Shurut al-sihha are the conditions that decide whether the contract, valid as
to form, actually creates a marriage valid as to essence. (example; parties
outside the prohibited degree of relationship)
3. Shurut al-luzum determines whether the contract is binding (ex.: the option of
puberty and inability of the husband to consummate the marriage)
4. Shurut al-sijill which refers to the modern innovation of registration.

a) Legal capacity of the contracting parties

o Must be adult and sane and not otherwise suffering from any inhibition from
contracting marriage to one another
o Muslim male- at least 15 years old
o Muslim Female- of the age of puberty or upwards and not suffering from any
impediment under the provisions of the Muslim code. A female is presumed to
have attained puberty upon reaching the age of 15.

b) Mutual consent is freely given

 It must be freely or voluntarily and knowingly given by the person EXCEPT in the
case of Betrothal Marriage.
 Female age between 12 and below 15, the father may give her in marriage with
or without her consent, provided:
i. she is under age,
ii. a virgin or without any marriage experience
iii. it is in her best interest
 The giving of consent must be done in one and the same occasion personally by
the bride and groom. Hence marriage by proxy is not allowed under Muslim code.
  Where the consent is obtain by means of violence, intimidation, fraud, deceit or
misrepresentation, the validity of the marriage contract is affected and is
classified as IRREGULAR (FASID) by law until it is ratified afterwards.
 A divorcee or a widow can already give consent to her own marriage without the
intervention of a guardian.
 A Muslim female who is a virgin, one who has no marriage experience, of major
age (15 y/o) and of sound mind, can give her consent to her own marriage with or
without a wali (guardian).
 LANGUAGE USED IN MARRIAGE: it can be recited in any language when it is
impossible to recite it in Arabic.
 KINDS OF FORMS OF CONSENT:

a.)Express Consent.
When the party expressly state in an unequivocal words or acts that he or she is
agreeing to the marriage contract, by the utterance of the words “I do” or “yes”, or by the
nodding of the head, or in the case of a deaf and dumb, by a sign language clearly and
intelligibly manifesting conformity to the marriage contract, or in writing if able to do so.

b)Implied Consent:
When upon being ask of her consent, she merely maintain her silencec, simply smile, or
weep silently.

If the laughter is contemptuous or mere buffoonery, as usual among people, it shall not
be construed as her implied consent.

Implies consent is applicable only in the case of a virgin, a woman who has had no
coverture experience but not in the case of a divorcee or widow.

If a man gives his daughter in a marriage in spite of disagreement, such marriage is null
and void.

Marriage by Proxy
That is where the consent of one of the contracting parties to the marriage who is absent
during the marriage ceremony, is given by that party’s agent or representative in his or
her behalf, is not allowed under Article 6 of the suppletory provision of Family Code,
which requires that it is necessary for the contracting parties to appear personally before
the solemnizing officer and declare in the presence of not less that two witnesses of legal
age that they take each other as husband and wife, and a marriage contracted without
one of the contracting parties present to give his or her consent is invalid.

c.) Offer (ijab) and acceptance (qabul) duly witnessed by at least two competent persons
after the proper guardian in marriage (wali) has given his consent.

The words of proposal and acceptance must be uttered by the contracting parties or their
agents (wakils) in each other’s presence and hearing and in the presence of the two male
witnesses or of one male and two female witnesses, who must be sane and adult
Muslims; and the whole transactions must be completed at one meeting.

One authority who classifies marriage without witnesses of the proper number and quality
as fasid (irregular), but not void.

If all witnesses are women the contract is not valid.

Note: an irregularity in the formal requisites shall not affect the validity of the marriage but
the party or parties responsible for the irregularity shall be civilly, criminally, and
administratively liable.

Guardian (wali) in Marriage

the Muslim Code has in Art 79 fixed the persons who can act as guardian in marriage of
a Muslim Woman in the following order of precedence, namely:
 Father
 Paternal grandfather
 Brother
 Other paternal relatives
 Paternal grandfather’s executor nominee
 Court

A non-Muslim cannot be a guardian in a Muslim Marriage. However, where the

woman is a non-Muslim, her non-Muslim father, paternal grandfather, etc., it is
submitted is her proper guardian in marriage following the rule that if a Muslim
contracts a marriage with a non-Muslim, it may be contracted in the presence of two
non-Muslim witnesses belonging to her faith.

Legal Effect of Marriage of Minor Contracted by a Remote Guardian

The marriage of a minor contracted by a remote guardian when a nearer one was
present and available and when the latter did not consent or ratify the marriage is
void; and that the consummation would not validate the marriage.

The fact that a guardian has been appointed by the Court of the person of a minor
does not take away the power of the guardian for the marriage to dispose of the
minor in marriage. But the minor being in such case a ward of the Court, the
guardian for the marriage should not dispose of the minor in marriage without the
sanction of the Court to the proposed marriage.

Up to What Age of a Muslim female when guardianship in marriage is required

Art 234 of the family code on the age of majority applies and under said law it
provides that unless otherwise provided, majority commences at the age of 18.

(d) Stipulation of customary dower (mahr) duly witnessed by two competent persons.
“Mahr” as used in the Muslim Code is interpreted to mean customary dower. It is token
of the man’s love, affection, and esteem of the integrity and honor of the woman he is
marrying.
It is an obligation imposed by law on the husband as a mark of respect for the wife as is
evident from the fact that the specification of dower at the time of the marriage does not
affect the validity of the marriage.

A marriage contract without mentioning a dower is valid, even with denial to pay dower is
valid, but not in which no dower is to be given at all.

If the mahr is not mentioned in the contract, the contract is still valid. The Court shall, in
those cases, fix the proper dower for the woman.

Mahr Dower Dowry

Anything of Refers to that It is a gift given
value and money or by the parents
lawful (halal) property, and to their
 under the other material daughter at the
Muslim law objects which time of
which the man the man will marriage.
gives to the give to the
woman he shall woman’ family Sometimes, it
be marrying for the purpose refers to that
pursuant to an primarily of the which is
agreement to expenses of the rendered by the
marry, as a marriage bride or her
token of his celebration. family to the
love, affection groom or his
and esteem of family.
the woman, it
becomes the
exclusive
property of the
woman.
***However, in this code, the term mahr, dower, and dowry are used interchangeably to
mean mahr.

Objects that are lawful or unlawful for dower.

Lawful: anything that is within the commerce of man, or that may be legally sold and not
forbidden (haram) under Islamic law (Shari’a).

Unlawful: pork, wine, or, those that cannot be subject of lawful commerce, i.e, things not
yet in existence such as next year’s crop. And even personal services to be rendered by
husband, notwithstanding the tradition in which personal services was considered proper,
cannot be considered proper for dower.

Article 16. Capacity to contract marriage.

(1) Any Muslim male at least fifteen years of age and any Muslim female of the age of puberty or
upwards and not suffering from any impediment