Conversion of a husband who converts to Islam for the purpose of contracting another marriage during the existence of the first marriage is still guilty of bigamy.
A married Muslim cannot marry another, unless in exceptional cases where:
1. The husband gives equal companionship to his wives as enjoined under Islamic laws
2. The wife must have knowledge of the impending subsequent marriage
A Muslim husband desiring to contract a subsequent marriage must file a written notice with the Clerk of Court of the Shari’a Circuit Court of the place where his family resides, and thereafter serve a copy to the wife or wives. In the event that any of them objects, an Agama Arbitration Council shall be constituted. If the Agama Arbitration Council fails to obtain the wife’s consent to the proposed marriage, the Court shall decide whether or not to sustain her objection.
While the Court understands the recognition of legal systems that preserve cultures, traditions, and institutions of the indigenous cultural communities and religious minorities, the court does not condone practices which circumvent laws in the guise of preserving culture.
In the case of Francis Malaki and Jacqueline Salanatin-Malaki vs. People (G.R. No. 221075, November 15, 2021), Francis and Jacqueline were charged of bigamy and they pleaded not guilty. Nerrian Maningo-Malaki claimed that she and Francis were married under the Iglesia ni Cristo rites and had two children.
Francis abandoned his family and cohabited with Jacqueline and they got married. However, the court ruled establishing proof beyond reasonable doubt declaring Francis and Jacqueline guilty. The CA likewise found them gulity given that the first marriage of Francis with Nerrian were not dissolved under Civil laws.
The petitioners assert that they are Muslims and were married under Muslim Law, providing the court with certificate of conversion and the marriage certificate.
The court held that bigamy exists in this case. To recall, the following are the elements of bigamy:
ARTICLE 349. Bigamy. — xxx
(1) that the offender has been legally married;
(2) that the first marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code;
(3) that he contracts a second or subsequent marriage; and
(4) that the second or subsequent marriage has all the essential requisites for validity. xxx
The following laws on shari’a should be observed:
ARTICLE 3. Conflict of provisions. – (1) In case of conflict between any provision of this Code and laws of general application, the former shall prevail.
(2) Should the conflict be between any provision of this Code and special laws or laws of local application, the latter shall be liberally construed in order to carry out the former.
(3) The provisions of this Code shall be applicable only to Muslims and nothing herein shall be construed to operate to the prejudice of a non-Muslim.
ARTICLE 13. Application. — (1) The provisions of this Title shall apply to marriage and divorce wherein both parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law or this Code in any part of the Philippines.
(2) In case of marriage between a Muslim and a non-Muslim, solemnized not in accordance with Muslim law or this Code, the Civil Code of the Philippines shall apply.
ARTICLE 178. Effect of conversion to Islam on marriage. — The conversion of non-Muslim spouses to Islam shall have the legal effect of ratifying their marriage as if the same had been performed in accordance with the provisions of this Code or Muslim law, provided that there is no legal impediment to the marriage under Muslim law.
ARTICLE 179. Effect of change of religion. — The change of religion by a Muslim shall not have the effect of extinguishing any obligation or liability whatsoever incurred prior to said change.
ARTICLE 180. Law applicable. — The provisions of the Revised Penal Code relative to the crime of bigamy shall not apply to a person married in accordance with the provisions of this Code or, before its effectivity, under Muslim law.
ARTICLE 186. Effect of code on past acts. — (1) Acts executed prior to the effectivity of this Code shall be governed by the laws in force at the time of their execution, and nothing herein except as otherwise specifically provided, shall affect their validity or legality or operate to extinguish any right acquired or liability incurred thereby.
(2) A marriage contracted by a Muslim male prior to the effectivity of this Code in accordance with non-Muslim law shall be considered as one contracted under Muslim law provided the spouses register their mutual desire to this effect.
ARTICLE 187. Applicability Clause. — The Civil Code of the Philippines, the Rules of Court and other existing laws, insofar as they are not inconsistent with the provisions of this Code, shall be applied suppletorily.
The Muslim Code applies to marriages, their nature, consequences, and incidents between fellow Muslims, between a male Muslim and a non-Muslim solemnized in Muslim rites, between spouses who both converted to Islam after their marriage,[55] and between a male Muslim and a non-Muslim entered into prior to the Code’s effectivity. It also penalizes specific offenses relative to marriages.
The general law, the Civil Code (superseded by the Family Code), governs marriages not solemnized under Muslim rites, including those between a Muslim and a non-Muslim. Crimes and offenses in connection with civil marriages are defined in the Revised Penal Code and special laws.
In this case, conversion to Islam to remarry and circumvent the laws on bigamy generates legal tensions as it exploits the protective mantle of religious freedom under the Constitution.