August 16 Islamic Law class notes

Property regime
Verse cited:
-RATIONALE for a regime of Separation of Property
-Institution of Sakah (?) (giving of donations for charity) - one of the means for distributing property

-land code of Ottoman Empire (in Turkey?) - based on Shari'a (as opposed to other land laws of other Muslim countries which are civil law based)
Why late codification (around 1858) when Shari'a was already established long ago? Time of Ottoman, Islamic civilization was already in the decline. The late codification of laws based on Shari'a: All properties belong to God, men are only stewards of God.
Ottomans are Turks, not anymore Arabs.
-land laws of Islam are more socialist in nature...

Islamic reformist: because of the civil law influence, some Muslims want to return to the fundamental Islamic teachings from the date of the revelation to Mohammad...within the sphere of atmosphere of Mohammad's time

Why no codification of land laws: Amanat (trust) - the concept of property in Islam
-all properties are owned by God and men only hold these in trust
Trustor: God
Trustee: man
Beneficiary: mankind

Mal (property)
2 meanings of mal:
• All things capacble of being earned
• All things capable of being subject to legal relations or mal mutaqawwin
Excluded: alcohol, pigs other forbidden things (can also be property but under first classification, not under mal mutaqawwin. Cannot be subjected to legal relations. If they are transacted, the transaction is void)

Treatment of property: 2: 188
-do not consume one another's wealth unjustly
...

4: 2
Give to orphans their properties...
(protection of orphan's properties)

As to acquisition: the means of acquisition of property should be LEGAL
Land ownership: all lands are owned by God
-the heavens and the earth, God has dominion over it

Category of land
Mil - owned by God
Miri - lands that are to be distributed and are now used by the people (concept of usufruct applicable)
Communally owned lands - similar to ancestral domain (in the Code of Muslim Personal laws - mentioned as Communal property - A173)
Religious property - land for religious purposes

As compared to other laws
ROMAN LAW
-use property for legal purposes
-2 classification of property

CIVIL LAW
-Property is aggregate of rights
-classification of property: marami!
-similar to Amanat, State owns property and only taken care of by the people (recognition of a greater owner of property) - in Islamic states, the Caliph is the administrator of lands in representation of God...Steward for God
-there are also limitations to the property one can own
-Real and personal property
-Highest form of property right: ownership
-different modes of acquiring ownership
-property regimes governing marriage

Family Code
Donations by reason of Marriage
-allows donation propter nuptias of future property
X: donations made in the marriage settlements

• What about in Islamic marriages, what if the marriage push through?
If the donation, under the Muslim Code, is given to the couple as a future husband and wife, and the marriage is not pushed through, the donation can no longer be enforced
Under the Family Code, it is still considered valid, and they should go to the courts just to invalidate it!

Property Regime
Under Islamic Law: Prenuptial agreement? But in default, separation of property. If other modes of property regime, Family Code would come in suppletorily
In Family Code: Prenuptial agreement. Separation of property shall only take place after judicial order of separation of property
Only limitation to prenuptial agreement: Art 1306, Civil Code
If situation not found in FC or CMPL, custom applies

CMPL FC
Art 37. How governed Art 74
1. Contract 1. Marriage settlement before marriage
2. CMPL 2. Code
3. Custom 3. Local customs
Art 38. default property regime: complete separation of propert Art 75. Absolute community of property
Stipulations in marriage settlements Art 81. void if marriage does not take place... (sorry naguluhan, please see the provision na lang)
Art 39. Void if depend in marriage, if marriage not push through

ACP
Art 88-104, FC
-default regime in FC
-before: CPG

2 reasons for adopting ACP
1. Established customs
2. Unity of the family

-regime not waivable unless judicial separation of property
What constitutes Community property
What excluded
Charges upon and obligations of ACP

-disposition of ACP: in case of disagreement, husband's decision prevails

Causes for terminating ACP
Effects of termination of ACP
Process of liquidation of ACP

CPG
-default prior to FC, Art 105 to 133
Exclusive property

Bottomline: in FC, husband's decision over administration of property governs, but wife can assail it through court process w/n 5 years
-Effects of dissolution

Property regime of unions w/o Marriage
Art 147: unions that can be validated
-presume co-ownership
Art 148: adulterous unions

COMPLETE SEPARATION OF PROPERTY
NCC, FC CMPL
Art 143-146 Art 37-44
-may be partial or total, may include present or future property (Default regime)
Why? 4:32 and 4:17

Ante-nuptial property
Art40, CMPL
Wife shall not lose ownership
Can dispose of the same even w/o consent of husband
Can sue and be sued independently of husband with regards her own property

Art 41. EXCLUSIVE PROPERTY OF EACH SPOUSE
Husband: capital
Wife: paraphernal
-wife cannot accept gifts from outside the prohibited decrees of marriage; can accept provided it's with the consent of the husband
Note: includes (d) Dower (mahr) of the wife and nuptial gifts to each spouse
• WIFE owns the mahr exclusively!

Art 43. Household property
-definition
-presumption of ownership to the spouse who customarily uses the property

Art 44. Right to sue and be sued
Note: number 4: if litigation concerns the exclusive property of husband
-can only concern the property if the administration of the property now pertains to the wife
-property of wife would not beheld liable


So difference of separation of property under FC and CMPL:
As to family expenses.
FC: borne proportionately by both spouses
CMPL: Only husband bears expenses
As to liability of creditors
FC: solidarily liable
CMPL: only husband liable
As to right to be sued and to sue
FC: should be sued jointly
CMPL: Can be sued separately

DIVORCE
GR: not allowed in the Philippines
x: MUSLIM divorces
Foreign divorces

Art. 14, CMPL
1. Social contract between husband and wife
2. Social institution taken care of by the society, foundation of society

Divorce, art 45
-Formal dissolution of the marriage bond
-Granted only after all means of reconciliation is resorted to

-most hateful to Allah
REASONS:
-by virtue of this, the family is destroyed
-contrary to the laws of nature
-gives mortal blow to the family

But why allowed:
Recognizes the reality that certain marriages can no longer be reconciled
If keep them together, they would only grow to hate each other more
Become more uncomfortable with each other: like putting together persons as if they had committed a crime
"Marriage is meaningless if there is no spark of love between the husband and the wife" - Jainal Rasul
-only possible when it would be the better option, and after all the safeguards are resorted to:
1. Idda
Purposes:
1) Bring about reconciliation
2) To avoid confusion of issues
-idda changes dependent on the basis of divorce
2. Exhaustion of all efforts to reconciliate: helped by well-meaning relatives
Why well-meaning relatives: interest in preservation of marriage; spouses would still feel that their issues/disputes are not made public (still confidential, private)
-allow divorce only after finding of irreparable breakdown of marriage and the relatives cannot do anything about it
-sir: there is nothing to prevent the parties from inviting marriage counsellors
Vs. Art 59, FC: no legal separation unless COURT has taken steps towards reconciliation...Reconciliation via marriage counsellors!

Right to divorce generally given to men
-objective ground: financial burden...
-subjective: men are the ones who accepts the women in marriage, so he is the one who can break the bonds + he is the one who pays the dowry

Classification of divorce
• By death of husband or wife
-not really divorce! More of automatic dissolution of marriage
-when wife dies, husband may immediately marry
-but when the husband dies, iddat should first expire
• By act of parties
○ By the Husband
-Talaq (repudiation)
Conditions
• Made under normal conditions (not drunk, angry, joking or coerced)
• Woman is repudiated during tuhr or clean-non-menstrual period
WHY: because if it is done during a non-menstrual period wherein the husband can have sex with wife, it means it is really serious. Minsan after sex, bati na.
• Husband, after talaq, will not have carnal knowledge of the wife thereafter
GROUNDS: none mentioned
PROCEDURE:
1. Muslim male shall file a written notice of talaq
2. Agama Arbitration Council shall be formed
LIMITATIONS:
Only on the 3rd time will the divorce be irrevocable. The first two instances, can marry again w/n Idda (but no need for another marriage ceremony). If after the Idda, should remarry (with all the requisites of marriage) (minor talaq). If after the third repudiation (GREATER talaq), the husband should first wait for another man to marry his wife in order to marry her again! It is as if the institution of marriage is reduced by the couple as something trivial!
-Ila
...continue next meeting...
○ By the Wife