Muslim Filipina Marriage: Is it a deal or No deal?

Muslim Filipina Marriage: Is it a Deal or No Deal?
By: Saliha Naila Abdullah


Introduction
“A thankful tongue, a soft-hearted wife is a friend of yours in religion.” These were the words of the Holy Prophet of Islam, Muhammad. His words expressly describe the qualities that Islam desires in a woman. Women in Muslim societies are considered as beings who shall nurture the future generations of mankind towards an Islamic society.
The large number of Islam followers as can be justified by the numerous Muslim societies around the world is also found here in the Philippines. Our country is one of the many other countries that are populated by Muslims since they have been part of our country’s history and ancestral culture.
The Philippines is one of the countries that observe a democratic state. Democracy shows full ambiguity. It is characterized by the principles of social equality. There is basically a common debate today about the real definition and basic fundamentals of democracy, as well as its impact on the governments’ domestic and foreign policies. Since it has been applied in different time frames, it shows flexibility in all aspects. Democracy can indeed work in different settings.
The general belief is that while all other cultures have adjusted to democracy, Islam’s totalitarianism hinders the emergence of democracy in the Muslim world. Despite diversity of both religious and political fields, it is widely believed that the key to understanding contemporary Muslim societies is to be found in structure of beliefs and traditions that was devised and implemented at the moment at which Islam was adopted. The success of this application on Muslim societies can work, provided there is an emphasis on pluralism and equality.
In all societies, families are considered to play a vital role in upholding development because they are seen to be the foundation or the basic unit that composes society. The importance of family life is more stressed out all over the world. Casualties and other issues regarding marriage are always raised. Take for example the west side of the world, where 5 out of 10 marriages end in divorce, where 60% of divorced women are prone to suicide, and almost every separated family has a history of a delinquent child.
In Islam, every family member has a specific responsibility in the family. The man or the husband is deemed responsible for managing the day-to-day affairs outside the house, striving to earn and maintaining the daily livelihood of the family. Men are basically considered as the “maintainer of a woman”. On the other hand, women have been given complete responsibility of the house, responsible for rearing the children, and doing household chores- basically a job that concerns managing the home. This division of management can be derogatory to the honor of woman since her empowerment within her family is lessened.
Islam, just like other societies in the world, has its own law. The Islamic sacred law otherwise called as the Shari`a law has been regarded by Muslims as a flawless and divinely ordained religious, political and ethical legal system. The Shari`a law links Muslims to God's purposes by providing comprehensive directions in which how they should live and act. It is provided for in two (2) fields of human activity: those actions that relate humanity to God, and those that relate humans to fellow humans. The former actions are categorized as the acts of honoring which includes God-human relationships while the latter are known as inter-human relationships.
However, there are epistemological problems connected with the way normative sources are retrieved and interpreted by Muslim jurists which have hampered the necessary progress towards one particular area in the inter-human relationships, namely, the personal status of Muslim women. Juridical deliberations have disregarded female voices in the emerging discourse connected with women's issues and human rights. The redefinition of the status of a Muslim woman in modern society is one of the major issues that confront Muslim jurists' claims to be authority on legal-ethical sources of Islam. Without their participation in legal-ethical deliberations, women's rights will always depend on a "representational discourse" conducted by male jurists who, in spite of their good intentions, treats the subject as "absent" and hence, lacking the necessary qualification to determine her rights in a patriarchal society. Muslim women stand little chance to overcome being reduced to the legally silent, morally segregated and religiously veiled half-the- man.
In lieu of which, former President Ferdinand Marcos created a Presidential Decree on the Code of Muslim Personal Law or P.D 1083. In this Presidential Decree, it ordains and promulgates a code recognizing the system of Filipino- Muslim laws, codifying Muslim personal laws, and providing for its administration and for other purposes as stated.

Statement of the Problem
The challenge faced by women nowadays is more of the theological aspect rather than the legal jurisprudence of Muslim societies. I believe that these problems arose not from the Qur’an but from human interpretations of it, in the form of Islamic law which has ossified over the centuries. Muslim societies are trapped in a battle between two visions of Islam. One, legalistic and absolutist, which emphasize the past. The other is pluralistic and more inclined toward democracy.
As said in an article, the issue of women in Islam is highly controversial. While it is generally agreed that the rights granted to women in the Qur'an and by the prophet Muhammad were a vast improvement in comparison to the situation of women prior to the advent of Islam, after the death of Muhammad, the condition of women in Islam began to decline and revert back to pre-Islamic norms.
As I have mentioned earlier, I consider the family as one of the vital units in society. In order to create a family, marriage is one of the procedures recognized by the state to actually formalize procreation.
The family code in defining marriage states that:
“Marriage is 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 this Code.”

Based on the definition of marriage stated above, both individuals should be able to follow the requisites of marriage. Since it is considered as a union of both individuals, matters which concern both parties should be pointed out.
The imperative form of the word marriage (nikah) implies that either it is obligatory or highly recommended. According to scholars, though marriage is a highly recommended act, it becomes obligatory when there is a chance of falling into sin.
The wife is a perfect partner for a man who is committed to build an Islamic family. In order to attain the real essence of a family, the foundation of it, which is marriage should be strengthened.
There are several problems occurring regarding marriage in Muslim societies. Challenges like the known tradition of fixed marriages within Muslim societies are faced by many generations, including ours. Since the Philippines have Muslim-Filipino nationals, the country greatly recognizes and protects the rights of each individual by promulgating laws and regulations.
In this paper I will be discussing the sections in the Code of Muslim Personal Law which I think is prejudicial to the interest of a Muslim Filipina, specifically about marriage.


Discussion
It has been regarded that Muslim women in the Philippines follow the Islamic law and is being denied by her rights. She is sometimes subjected to as man’s slave since she should always submit herself to her husband. In all its wisdom, Islam has allotted different sets of duties to men and women because of their different physical and mental attributes. There should be equality among both individuals.
The Holy Qur'an states: "They (wives) are an apparel for you, and you are an apparel for them." What the Qur'an is stating is clear. Man and wife should complement each other and should work hand in hand to make the marriage work. Whether a man or a woman has an ideological or moral weakness, they will hide one another's faults and solve it together. By the unity of the married couple, they cover up each other’s natural shortcomings, and their union protects them from the miseries of living alone.
Implementation of the Code of Muslim Personal Law should empower the Shari’a Circuit Courts with the granting of protection orders against husbands where the wife is a domestic violence and is seeking divorce, increasing the penalties for illegal solemnization of marriage, marriages before the expiration of waiting period (idda), offenses relative to subsequent marriage, divorce, revocation of divorce, failure to report for registration.

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.
The age at marriage, which is the 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. The capacity of both individuals to face mental, social, emotional, moral and physical challenges inside marriage should be taken in consideration.
Another lapse in the Presidential Decree 1083(P.D. 1083) is the consent given by the guardian (wali) of both parties. Usually, the guardian often refuses to give his consent to a marriage desired by the woman herself. The guardian’s decision often prevails over the decision of the woman. This should not be the case because it will not meet up the real essence of marriage. In order to lessen the possibility of confusing the consent of the woman with that of the consent of the guardian, the guardian should not be considered as a deciding party. The guardian should be forbidden to compel the woman under his guardianship to marry or to prevent her from marrying.
Another practice in Muslim Filipino societies is the customary giving of dowry to the bride. I believe that the dowry should be totally eradicated since it can be derogatory to a woman’s pride and value. No person should be considered to have an equivalent material consideration, in any way.
In divorce, without providing the grounds for divorce, the wife is always placed at a disadvantaged situation as the husband with or without justifiable reason can divorce her. There should be legal grounds in which can protect the rights of the wife.
Regarding the property relations between spouses 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.


Recommendation
These are my recommendations insofar as the revisions of P.D. 1083 or the Code of Muslim Personal Law, specifically on the provisions of Marriage:

P.D. 1083 (Original Version):

Proposed Revision:

I. Essential Requisites
1. Legal capacity of the contracting parties:
(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 but has attained puberty;
(c) Marriage through a wali by a minor below the prescribed ages which is regarded as betrothal (Art. 16, Code of Muslim Personal Law).
I. Essential Requisites
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 following:
(a) The amount, schedule and mode of payment of the dower;
(b) Whether divorce by relegation (tafwid) will be available to the wife;
(c) Agreement on support of the family after the waiting period (idda), in case of divorce;
(d) Fixing of the family residence; and
(e) The governing property relations of the spouses.
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 that the parties have undergone marriage counseling.

II. Mutual Consent between Parties
1. Consent of the guardians (wali) - the consent of the guardian is equally important to that of the contracting parties as a requisite of marriage (Art. 15, Code of Muslim Personal Law).
II. Mutual Consent between Parties
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”.

III. Dowry
1. Customary dower (mahr)
(a) The amount or value of the dower may be fixed by contracting parties (Art. 20, Code of Muslim Personal Law);
(b) The dower may be fully or partially paid before, during, or after the marriage (Art. 21, Code of Muslim Personal Law);

III. Dowry
1. The dowry should be totally eradicated since it can be derogatory to a woman’s pride and value. No person should be considered to have an equivalent material consideration, in any way.

IV. Rights and obligations between Spouses
(a) husband shall fix the residence of the family (Art. 35,Code of Muslim Personal Law);
(b) The 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 lawful business that is keeping with Islamic modesty and virtue (Art. 36, Code of Muslim Personal Law).
(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);


IV. Rights and obligations between Spouses
Adopt the provision of Executive Order 209 (E.O. 209) which are the following:
(a) Husband and wife shall fix the family domicile.
(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
(e) Both spouses cannot acquire any property by gratuitous title, except from her relatives who are within the prohibited degrees in marriage, without both of them giving consent.


V. 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, Code of Personal Muslim Law)

V. Divorce
(a) The Code should specify the grounds for divorce by talaq and should only allow divorce by talaq after it has summoned both parties and have sufficiently deliberated on the case;
(b) Adding divorce by mutual agreement (mubarat) and “conditional tafwid” as allowable forms of divorce;
(c) Allowing anything that may lawfully be the subject of a contract to be a valid compensation in the case of divorce by khul;
(d) Extending the ground for divorce to include neglect or failure by the husband to provide support for the family at one time and when the neglect is habitual;
(e) In addition to the remedy of divorcing the husband either automatically due to the renunciation of Islam or by judicial decree (faskh), relevant provisions of the Anti-Violence against Women and Their Children Act (AVAWC or R.A. 9262) should be adopted.

VI. Property Relations between spouses
- Governed by the regime of complete separation of property (Art. 38, Code of Muslim Personal Law).


VI. Property Relations between spouses
- Adoption of Executive Order (EO) 209 which created a property regime of absolute community of property between the spouses when there is no antenuptial agreement.

VII. 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;
(e) The court (Art. 79, Code of Muslim Personal Law)
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, Code of Muslim Personal Law)

VII. Guardianship
1. Allowing not just the father, paternal grandfather, brother or other paternal relatives, paternal grandfather’s executor or the court to act as the guardian for marriage (wali) but also including the mother, the grandmother, sister, or maternal relatives, grandmother’s executor as those who can qualify a guardian.