Muslim-Christian couple’s divorce upheld

By: Tarra Quismundo - Reporter / @TarraINQPhilippine Daily Inquirer / 12:24 AM February 05, 2016

Divorce is possible in the Philippines, after all.

In a unanimous ruling, the Supreme Court has upheld the divorce of a Muslim man and a Roman
Catholic woman over “irreconcilable religious differences,” affirming the practice called talaq, or
divorce, under the Code of Muslim Personal Laws of the Philippines, which is based on the Sharia, or
Islamic law.

The decision, written by Associate Justice Jose Mendoza and concurred in by the entire court,
“maintained” the divorce of John Maliga and Sheryl Mendez, which was granted by the Cotabato City 1st
Sharia Circuit Court (ShCC) on Aug. 19, 2011, on Maliga’s request because of conflict in religious views
and practices.

The Supreme Court also upheld the ShCC order for Maliga to give Mendez P24,000 as a “consolatory
gift” or mut’a, also a practice under the Muslim Code.

The high court then remanded to the ShCC proceedings for the custody of the now divorced couple’s
daughter, saying the mother had been deprived of due process.

Maliga and Mendez were married in Muslim rites in April 2008, with Mendez agreeing to convert to
Islam.

Presidential Decree No. 1083, or the Code of Muslim Personal Laws of the Philippines, allows divorce as
“the formal dissolution of the marriage bond … to be granted only after the exhaustion of all possible
means of reconciliation between the spouses.”

Reasons for divorce

The Muslim Code allows different forms of cutting marital ties, including situations where the man may
seek “perpetual divorce” from his wife when the wife commits adultery (divorce by li’an), or if a wife
seeks release from marriage when the husband commits “unusual cruelty,” suffers from insanity or
affliction of incurable disease, or neglects family support for six consecutive months, among other
conditions (divorce by faskh).

In the case of Maliga and Mendez, Maliga sought a divorce by talaq, a separation that “may be effected
by the husband in a single repudiation of his wife” after totally abstaining from sexual relations with her.

Muslim marriage in the Philippines falls under the Muslim Code and not the Family Code, which does
not recognize divorce.

Marriage in the Philippines may be nullified under the law in a process that voids the union from the
beginning, as if husband and wife were never married. A divorce terminates the marriage but recognizes
the years the couple were together.

Many marital separations in the country invoke Article 36 of the Family Code, where one party alleges
that the other is “psychologically incapacitated to comply with the essential obligations of marriage” as
a ground to dissolve a union.

Proving such incapacity against the other party would void the marriage.

Void from the beginning

Marriage may also be declared void from the beginning due to technical and legal flaws, including if one
party is below legal age, or if the couple married without a license, or if the marriage is bigamous or
polygamous.

The Family Code also provides for legal separation in case one party commits domestic abuse, addiction
to vices, sexual infidelity and criminal conviction among other grounds. But this process does not
terminate a marriage and parties are not allowed to remarry.

There have been several attempts to legalize divorce in the Philippines, but none has prospered.
Maliga married Mendez in April 2008 under Muslim law, when they already had a child.

At the time, Maliga already had “several wives” and three children, according to court records.

Mendez agreed to convert to Islam. But their relationship turned “sour” shortly after, according to the
court, with Maliga seeking a divorce because Mendez reverted to Christianity just eight months after
their marriage.

Maliga also filed for custody of their daughter.

No changes

The court said Maliga “claimed he started to doubt the sincerity of his wife’s submission to Islam,
having noticed no changes in her moral attitude and social lifestyle despite his guidance.”

He sought custody of his daughter after learning that Mendez, who returned to Manila just months after
their wedding, had enrolled the child in a Catholic school.

The court said Maliga felt her daughter was placed in an environment where she faced “religious growth
and values repugnant to Islam.”

In granting Maliga’s repudiation of his wife, the ShCC also granted his urgent motion to take custody of
his daughter “because of social, financial and religious standing.”

The local court also noted that he had “raised a good Muslim daughter as evidenced by her
appearance,” and said the couple were married in Muslim rites in the first place.
The differences came to a point that Mendez filed a kidnapping complaint against her estranged
husband in the National Bureau of Investigation.

The ShCC ruling, which was later upheld by the Sharia District Court (ShDC), did not sit well with the
Supreme Court. It ruled that the ShCC deprived Mendez of due process and did not even give her a
notice of hearing.

The court said the ShCC was “remiss in its duty to state the precise factual and legal basis on which its
ruling awarding custody to Maliga was based.”

“The award of custody to Maliga by the ShCC was void, as it was rendered in violation of the
constitutional right of Mendez to due process,” the court said in the ruling dated Jan. 12 but released
just this week.

“Not only was the award of custody violative of the constitutional right of Mendez to due process, but
also both the orders of the ShCC and the ShDC awarding custody of (the daughter) to Maliga were
without evidentiary basis because no hearing was actually conducted. There was no explanation given
as to why the motion was resolved without notice,” the court said.