ANSWERS TO 2008 SHARI’A BAR EXAMINATION ON

PERSON, FAMILY RELATIONS AND PROPERTY

I.

A) Distinguish juridical capacity from capacity to act. Please explain and give
examples.

Suggested Answer:

Capacity to act which is referred to merely as “Capacity” is the

ability, power, qualification, or competency of a person, natural or juridical
for the performance of civil acts depending on the state of condition as
defined or fixed by law. This condition, begins in the case of natural
person, upon attaining maturity of age to intelligently contemplate on the
volition of his act and in the case of artificial person, upon meeting all, the
conditions of the law that would enable it through its officers to legally
exercise the rights appertaining to natural person, and is lost only by
death. Capacity to act is acquired and may be lost. Briefly stated, while
juridical capacity is the fitness of a person, natural or juridical to be
subject of legal relation, capacity to act is the power of such person or
entity to do acts with legal effects.
For example, the fetus while still in the mother’s womb has already
the legal capacity of being the subject of legal relation, e.g. to be the
beneficiary of a donation, conditioned that thereafter, it acquire a full legal
capacity by its being born when the right under the donation attaches.

B) What is the effect of death upon the rights and obligations of a deceased
person? Please explain.

Suggested Answer:

The effect of death upon the rights and obligations of the deceased
is determined by this Code, by contract, and by will.
As regards his rights they continue to inhere in him in so far as may
be necessary for his last requirements, such as payment of his burial, and
his debts and legacies, the legacies to be paid from one third of the residue
which may be left after making other payments. Rights which are purely
personal to the person himself are extinguished upon his death but those
which are not and are transmissible passes to his heirs.
As regards his obligations relating to this world, a person on his
death is necessarily released from all obligations which are to be
discharged personally, for example, obligation to perform a work which he
alone can do. But his liability with respect to any property recoverable from
him in specie remains unaffected, for example anything which he was
holding in trust at the time of the death will be restored to the owner of
the succeeding trustee. Any obligation of the nature of a benevolent act
(sila) ceases on a man’s death, such as maintenance of relatives.

II.
A) What are the sanctions that the court may impose upon a husband who
contracts a subsequent marriage without informing his wife? Please
explain.

Suggested Answer:
B) May a widow validly contract a subsequent marriage before the expiration
of her iddah? Can her former husband file a case against her? Please
justify your answers.
Suggested Answer:
No, a widow contracting a subsequent marriage prior the end of her
iddah is not valid. Before a widow can contract a subsequent marriage,
the following conditions of the law must be met: First, that she has
observed an idda of four months and ten days counted from the death of
her husband. The idda of a pregnant widow continues for the full period
of four months and ten days even if a child is born within that period.
Second, she should produce the corresponding death certificate.
Moreover, the husband cannot file a case against the widow because
the former is already dead and for purposes of the law, a person loses his
civil personality upon death and in effect the marital bond between him
and his wife is severed upon his demise. The dead husband cannot rise
from the grave to contest the remarrying of her former wife.
III.

A) Can the husband and wife enter into a marriage settlement that the wife
will provide support for the family if the husband cannot find a job? Please
explain.

Suggested Answer:

No, a stipulation to that effect is void. The future spouse may

stipulate in their marriage settlement on anything not contrary to law,
public order good custom and public policy. The stipulation provided in
the question is clearly contrary to Shari’a. Under our Muslim laws, a man
is obligated to provide support (nafaqa) to his wife or wives equitably, if he
has more than one, and his children. Any stipulation contrary to this is
clearly unenforceable and is want of any legal effect whatsoever.

B) What are the instances when the wife may refuse to live with the husband,
and what are the instances when the husband is exempt from providing
support to his wife?

Suggested Answer:

Article 35 of the Muslim Code provides that the court may exempt
the wife from living with her husband on any of the following grounds:
a) Her dower is not satisfied in accordance with the stipulations; or
b) The conjugal dwelling is not in keeping with her social standing
or is, for any reason not safe for the members of the family or her
property.

The obligation of the husband to provide support to his wife during

the marriage may be excused if the wife without any valid reason or
just cause commits any of the following:
a) Refuses to live with him in the same dwelling place;
b) She leaves their conjugal dwelling to live elsewhere;
c) She denies the husband entry to the house to live with her;
d) Their marriage proved to be irregular is not consummated except,
in case of marriage without witnesses;
e) When she turns apostate;
 f) She is guilty of infidelity; and
g) If inspite of her husband’s valid objection she engages herself in
some employment and thus he loses control over her.

IV.

A) Why is divorce allowed under Muslim law? Please explain fully.

Suggested Answer:
The Shari’a regards marriage as an act of chastity established by
law, which may be dissolved only in accordance with the formula
prescribed for such purpose. The Muslim law allows divorce to be availed
by either or both of the spouses as a means of dissolving their contract of
marriage in abnormal circumstances. Divorce becomes a necessity
because of irreconcilability of the spouses, or due to a just cause, that it
becomes inevitable that divorce must necessarily be effected as the only
possible just recourse and appropriate remedy. In this case, divorce as a
corollary of the contract of marriage, as a consequence, becomes a natural
law, that the irreconcilable relationship which brings more sufferings than
happiness to the parties be ended or that the injustice caused by remedied
through the institution of divorce. Thus, the Shari’a gives the man the
right to dissolve the marriage, if the wife by her indocility, or her bad
character, renders injury to the husband or happens to be impious. And,
it is “wajib” when the husband cannot fulfill his duties as when he is
impotent or a eunuch. The Quran in Surah IV, Verse 54 says: “SO if they
(women) obey you seek not a way against them,” and a tradition (hadith)
from the Prophet of Islam which says: “marry, do not divorce, for God does
not favor a spouse who discriminate the other (spouse) of their
matrimony;” therefore, when there is no just cause for separation or no
valid ground for talaq, or release from the marriage bond, it is considered
forbidden and unlawful to ask for divorce.

B) May a Shari'ah Judge disregard the pronouncement of divorce by the

husband? Please explain.

Suggested Answer:

Yes, since the pronouncement of divorce, according to our Muslim

Code is effected by a decree from the Shari’a Court of competent
jurisdiction, a pronouncement of divorce by a husband may be disregarded
if the Court deemed that such is not in accord with this Code. Further, the
State is so interested in the preservation of the marriage as a basic social
institution it requires the exhaustion of all efforts and avenues for
reconciliation and if such fails only then a divorce may be had.

V.

Saddam and Indira, both Filipinos, got married in Saudi Arabia and later
secured a divorce paper in that place. Is their marriage and subsequent
divorce recognized under the Code of Muslim Personal Laws of the
Philippines (P.D. 1083)? Please justify your answer.

Suggested Answer:

Yes, it is recognized under P.D. 1083. The Code applies to Muslim

Filipinos abroad, or those outside of the country for the reason that the
Code is a personal law, or a law which appertain to person, that which
follows the person as distinguished from the place where the person may
be. According to Muslim law jurisprudence, the Muslim law is personal in
its application, that is to say, it is not affected by the constitution of a
particular political society. This is because the authority of the law,
 according to Muslim law theory is primarily based on men’s conscience
rather than on political force regardless of the existence of a political
authority which may be changed with its enforcement. Thus, if a Muslim
goes from one state to another, he is bound by the same laws and if he
does not live within the jurisdiction of non-Muslim State, the Muslim law
still applies to his conscience.
Under the Muslim law theory, Islam has ordained for all Muslim a
common Code of Personal Law applicable to all Muslims regardless of his
domicile and nationality.

VI

A) What are the presumptions of legitimacy under the Code of Muslim

Personal
Laws of the Philippines?

Suggested Answer
The presumptions of legitimacy under Article 59 of P.D. 1083 are
the following, to wit:
1. Children conceived in lawful wedlock shall be presumed to be
legitimate; and
2. Children born after six months following the consummation of marriage
or within two years after the dissolution of the marriage shall be
presumed to be legitimate.

B) How should legitimacy be impugned? Please explain in detail.