Are divorce decrees issued out of customs or by religion legally binding?

By Atty. Eduardo T. Reyes III

It is hard to tell which one is more painful: the loss of a loved one because of Covid-19, or the death of a marriage occasioned by a loved one falling out of love.

This pandemic had certainly spawned a thousand heartaches.

The mental and emotional strain that had been caused on the people are becoming more and more devastating to the point of disrepair.

Marriage is such an elusive idea that no cookbook, recipe or formula can be concocted to ensure a perfect blend. This is because marriage has facets of the emotional, economic, parental, familial, societal, and many other factors that must be balanced in the right way. Too, a marriage must reckon the spouses’ respective habits, traditions or customs.

Interestingly, are marriages solemnized in accordance with certain customs and traditions legally binding?

First, Article 1 of the New Family Code defines marriage as:

Art. 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.

Second, no ritual or ceremony is prescribed for the parties to perform except to declare before the solemnizing officer in the presence of at least two witnesses “that they take each other as husband and wife”, thus:

Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer.

In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. 

And in regard to the apolitical or areligious treatment of marriage, chiming in is Section 8, Rule 6 of the IRR of IPRA which recognizes marriages between members of indigenous groups, viz:

Section 8. Recognition of Customary Laws and Practices Governing Civil Relations. Marriage as an inviolable social institution shall be protected. Marriages performed in accordance with customary laws, rites, traditions and practices shall be recognized as valid. As proof of marriage, the testimony of authorized community elders or authorities of traditional sociopolitical structures shall be recognized as evidence of marriage for purposes of registration. X x x

The state of our Family Law therefore is clear that marriages performed by tribes, indigenous groups, or non-Christian religions, are legally recognized and such marriages shall be accorded all the rights and privileges that may be found in the Family Code of the Philippines.

Troublingly, however, despite the fact that the divorce bill in Congress had gained some steam, it was stymied by the pandemic. In short, the Philippines is still without a divorce law and thus marriages that had broken down must still contend with the more restrictive mode known as annulment to wriggle out of their ill-fated marriages.

But what if the practice, customs and traditions of a certain tribe or group advocate divorce and they hand out divorce decrees? Will these edicts be recognized in law such as to allow a party who had secured such a divorce, the legal right to remarry and his/ her subsequent marriage enjoy the benefits of a valid marriage under the law?

This issue was answered in the recent case of   Cristita Anaban, et al. v. Betty Anaban-Alfiler, et al. (G.R. No. 249011) which was handed down only this March 15, 2021.  

            Harking back to the Spanish Civil Code which even preceded and is the precursor of the old Civil Code which took effect on June 18, 1949, the Supreme Court explained that:

         “The question now comes to fore: can the divorce granted under Ibaloi customs and practices be legally recognized as to make Pedrito’s subsequent marriage to Pepang as valid. 

         “All of the courts below resolved the validity of the so-called divorce between Pedrito and Virginia through the lens of the old Civil Code. But, in reality, when Pedrito and Virginia got married and even when they later on supposedly divorced, the old Civil Code was not yet in effect. For it took effect on June 18, 1949, or two (2) years after the divorce decree was purportedly handed down by the Ibaloi council of elders. The law in effect prior thereto was still the Spanish Civil Code of 1889, Article 5 of which stated:

         Article 5. Laws are abrogated only by other subsequent laws, and the disuse or any custom or practice to the contrary shall not prevail against their observance. (Emphasis supplied)

Indeed, as early as the time when our Family law was under the aegis of the Spanish Civil Code which took effect in 1889, the settled-rule was already that customs, practice or traditions cannot prevail over laws enacted by the Philippine government.

Explaining further, the Supreme Court expounded in Cristita Anaban, et al. v. Betty Anaban-Alfiler, et al. that: 

x x x As the trial court in Bitdu held, the laws governing marriage and its incidents are moral in nature and as such they are laws relating to public policy. The habits and customs of a people, the dogmas and doctrines of a religion cannot be superior to or have precedence over laws relating to public policy, because as stated above laws relating to marriage and its incidents are normal in nature and as such they affect public policy. This holds true even up to this time.

X x x

Clearly, both the old Civil Code and the IPRA-IRR provisi0ns limited the State recognition to “marriages performed” in accordance with customary laws, rites, traditions, and practices. There is no mention of the recognition of dissolution of marriage in accordance with the IP’s customs. On this score, we emphasize that Muslim customs, rites, and practices are the only non-Christian customary law recognized by the State through the enactment of Presidential Decree No. 1083 otherwise known as the Code of Muslim Personal Laws of the Philippines. The same in fact bears an entire chapter exclusively dedicated to divorce.” 

         As discussed, with the exception of Muslims, no other tribe, group or religion can issue divorce decrees and should they do so, the same will not be legally recognized in terms of property division, inheritance or entitlement to the right to remarry.

Marriage in the eyes of Philippine law, it may therefore be said, is sacrosanct. The gates that lead to marriage may be wide; but once the spouses are inside, they are securely locked-down.

And the irony for those who tied the knot through a marriage by custom, tradition or ritual is that the one who bound the parties to the marriage does not hold the key to unbind them.

But the starker paradox is that perhaps the key to freedom is to save the marriage if it’s still possible.

(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).