Comparative Analysis of the Family Code and Code of Muslim Personal Laws on Marriage, Legal Separation and Islamic Divorce in the Philippines

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Comparative Analysis of the Family Code and Code of Muslim Personal Laws on Marriage, Legal Separation and Islamic Divorce in the Philippines

Andres C. Soguilon
Juris Doctor-1 UNIVERSITY OF CEBU COLLEGE OF LAW

Comparative Analysis of the Family Code and Code of Muslim Personal Laws on Marriage, Legal Separation and Islamic Divorce in the Philippines Abstract
This paper is a comparison between the laws governing the Muslim marriage and Divorce through Presidential Decree No. 1083, otherwise known as the Code of Muslim Personal Laws and marriage and legal separation under the Family Code. It also compares the rights and obligations of spouses between the two codes. It analyzes the similarities and differences of the provisions on the requisites in contracting marriages between the two laws and the effects of legal separation as far as the Family Code is concern and the same with Islamic divorce as provided by law.

Introduction
The 1987 Philippine Constitution, in Article XV, Section 2, states that “Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.” The same constitution admits that “no law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof”1 and it respects the protection and conservation by the State of the customs, traditions, practices and beliefs of the Filipinos. Presidential Decree 1083 also known as the Code of Muslim Personal Laws took effect on February 14, 1977 and the governing constitution then was the 1973 Constitution. According to Andres H. Hagad in his work “Comments on the Muslim Code: A Paper on PD. No. 1038”, the code refers to Article XV, section 11 of the 1973 Constitution as the legal basis for its existence which states that “the State shall consider the customs, traditions, beliefs and interests of national cultural communities in the formulation and implementation of State policies.”2

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The 1987 Philippine Constitution, Article III, Section 5 Andres H. Hagad, Comments on the Muslim Code: A Paper on P.D. No. 1083, Philippine Law Journal [1977] Vol. 52

Andres C. Soguilon JD-1

Page 2

Comparative Analysis of the Family Code and Code of Muslim Personal Laws on Marriage, Legal Separation and Islamic Divorce in the Philippines Rationale
The Constitution, the laws and even Supreme Court’s decisions pertaining to issues involving marriage have been reflective of how the State wanted to protect the sanctity and value of marriage in the Philippines. The law even so provides that it shall not be governed by stipulations but by the Government and the latter must intervene in order to protect it. In line with this, the researcher seeks to be enlightened of the similarities and difference of marriages contracted in accordance with the Family Code in comparison to those contracted by Muslims provided by the Code of Muslim Personal Laws. Both codes give right to spouses to separate from each other on certain grounds, hence, comparison of the two would likely pave way to the idea of adopting one not only to protect the sanctity of marriage per se but also not to prejudice the constitutional and human rights of the parties involved.

The Family Code and the Code of Muslim Personal Laws
1. What is Marriage? The Family Code of the Philippines defines marriage as a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by the said code.3 On the other hand, the Code of Muslim Personal Laws definesmarriage as not only a civil contract but a social institution. Its nature, consequences and incidents are governed by...
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