Divorce under Shari'a law | The Manila Times

Dear PAO,
My husband and I are Muslims, and we got married under Muslim rites. Immediately after our first child was born, his behavior changed, and he increasingly became cruel toward me. Due to the maltreatment I have suffered from him, I no longer intend to stay married to him. Can I file for divorce against my husband? If so, how will the divorce affect our child and our properties?
Fatima

Dear Fatima,
Please be informed of Presidential Decree 1083, also known as the Code of Muslim Personal Laws. This law governs the personal legal matters of Muslims in the Philippines, such as personal status, marriage and divorce, matrimonial and family relations, succession and inheritance, and property relations.

Divorce, under this Code can be initiated by either party. Article 45 of the said Code enumerated the grounds for divorce whereas the effects thereof are provided under Article 54 and Article 55 of the same law, to wit:
"Article 45. Definition and forms. Divorce is the formal dissolution of the marriage bond in accordance with this Code to be granted only after the exhaustion of all possible means of reconciliation between the spouses. It may be effected by:
"(a) Repudiation of the wife by the husband (talaq);
"(b) Vow of continence by the husband (ila);

"(c) Injurious assanilation of the wife by the husband (zihar);
"(d) Acts of imprecation (li'an);

"(e) Redemption by the wife (khul');
"(f) Exercise by the wife of the delegated right to repudiate (tafwld); or

"(g) Judicial decree (faskh).
"Article 54. Effects of irrevocable talaq or faskh. A talaq or faskh, as soon as it becomes irrevocable, shall have the following effects:
"(a) The marriage bond shall be severed and the spouses may contract another marriage in accordance with this Code;
"(b) The spouses shall lose their mutual rights of inheritance;

"(c) The custody of children shall be determined in accordance with Article 78 of this code;
"(d) The wife shall be entitled to recover from the husband her whole dower in case the talaq has been affected after the consummation of the marriage, or one-half thereof if effected before its consummation;
"(e) The husband shall not be discharged from his obligation to give support in accordance with Article 67; and
"(f) The conjugal partnership, if stipulated in the marriage settlements, shall be dissolved and liquidated.

"Article 55. Effects of other kinds of divorce. The provisions of the article immediately preceding shall apply to the dissolution, of marriage by ila, zihar, li'an and khul', subject to the effects of compliance with the requirements of the Islamic law relative to such divorces."
Under the abovementioned provisions of law, the effects of divorce would differ depending on the marriage settlement and the kind of divorce entered upon by the parties. Thus, in matters of property relations between the divorced parties, if so stipulated in the marriage settlement, the conjugal partnership, will be dissolved and liquidated. However, there are matters such as severity of the marriage bond, loss of mutual rights of inheritance, and custody of children, generally have the same effect despite the kind of divorce entered upon. Article 78 of the same Code provides:
"Article 78. Care and custody.
"(1) The care and custody of children below seven years of age whose parents are divorced shall belong to the mother or, in her absence, to the maternal grandmother, the paternal grandmother, the sister and aunts. In their default, it shall devolve upon the father and the nearest paternal relatives. The minor above seven years of age but below the age of puberty may choose the parent with whom he wants to stay.

"(2) The unmarried daughter who has reached the age of puberty shall stay with the father; the son, under the same circumstances, shall stay with the mother."
Applying the aforesaid provisions of law in your case, you, as the mother, shall have the care and custody of the children below seven years of age. However, if your children are already above seven years of age but below the age of puberty, then they have the freedom to choose the parent with whom they want to stay. On the other hand, if you have an unmarried daughter who has already reached the age of puberty, then she shall stay with her father. Whereas if you have a son who has already reached the age of puberty, then he shall stay with you.
We hope that we are able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.