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Conversion to Islam no protection against bigamy

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Dear PAO,

My wife and I have been married for about 10 years now. Due to the nature of my job as a member of the military, I only visit my family in Mindanao once in a while. At my workplace, I fell in love with a fellow soldier. We would like to get married. Please enlighten me if we can convert to Islam so that we can enter into a marriage safely without fear of being charged with bigamy.

sergeant. John

Dear Sergeant. John,

The Family Code of the Philippines and the New Civil Code of the Philippines primarily govern the marriage and property relations of Filipino spouses. As an exception, for Filipino Muslim spouses or where only the husband is a Muslim, and the marriage was solemnized in accordance with Muslim laws, their marital relations are governed by Presidential Executive Order (PD) 1083, otherwise known as of “Code of Muslim Personal Laws“. of the Philippines.” Article 349 of the Revised Penal Code (RPC) on bigamy provides:

“Will be punished with the penalty of mayor of prison anyone who has contracted a second marriage or a subsequent marriage before the first marriage has been legally dissolved, or before the absent spouse has been declared presumed dead by a judgment rendered in good and due form. “

On the other hand, Article 180 of PD 1083 provides:

“Applicable law – The provisions of the Revised Penal Code relating to the crime of bigamy do not apply to a person married under the provisions of this Code or, prior to its entry into force, under Islamic law.” Article 180 of the Muslim Code should be read in conjunction with Article 3 of the same Code which states that “the provisions of this Code apply only to Muslims and nothing herein shall be construed as acting to the detriment of ‘a non-Muslim’.

This interpretation is supported by the Supreme Court’s latest decision in Francis Malaki v. People (GR 221075, November 15, 2021), written by Associate Judge Marvic MVF Leonen, who concluded:

“Article 3 of the Muslim Code declares that its provisions should not be interpreted to the detriment of a non-Muslim. Certainly, granting a Muslim convert, like the petitioner François, the remedy provided for in Article 180 would be detrimental to the abandoned wife, and the State, injured party in the criminal proceedings.

In addition, Article 186 of the Muslim Code directs its prospective application to past acts, and that nothing “shall affect their validity or legality nor have the effect of extinguishing any rights acquired or any liability incurred thereby “, unless otherwise specified. Acts performed before the entry into force of the Muslim Code remain governed by the Civil Code, the then pre-existing law of general application. Likewise, any protection that the Muslim Code may afford to petitioner Francis when he converted to Islam – that is, when the Muslim Code became applicable to him – must also be applied prospectively.

Indeed, in case of conflict with a general law, the Muslim Code prevails. However, Article 13(2) of the Muslim Code explicitly states that the Civil Code governs marriages in which the party is non-Muslim and which have not been celebrated according to Muslim rites. There is no conflict here with common law. The nature, consequences and incidents of the applicant Francis’ prior and admittedly continuing marriage to Nerrian remain well within the scope of the Civil Code and its corresponding penal provisions in the revised Penal Code.

Whether the petitioner François converted to Islam before or after his marriage to the petitioner Jacqueline, the subsequent marriage consummated the crime of bigamy. He cannot successfully invoke the exculpatory clause of Article 180, considering that the Muslim Code finds no application in his then subsisting marriage with Nerrian, a marriage recognized by law which prohibits and penalizes a subsequent marriage.

Applying the above, it is clear that you must have your previous marriage dissolved before you can enter into another marriage. You cannot invoke the exculpatory provision of Article 180 of the Muslim Code because your previous marriage is governed by the Family Code and not by the Muslim Code.

We hope we were able to answer your questions. This advice is based solely on the facts you have related and our assessment of them. Our opinion may change when other facts are changed, altered or expanded.

Editor’s note: Dear PAO is a daily chronicle of the public ministry. Questions for Chef Acosta can be sent to [email protected]