Law Rev Commentary.docx

Should the Philippines allow civil partnership to govern the property rights of same sex couples as an alternative to same sex marriage?

Isnihayah Pangandaman

I. Introduction II. Civil Partnership as an alternative to Marriage a. Laws on marriage and the Constitution b. Jurisprudence c. Effects III. Recommendation IV. Conclusion

Should the Philippines allow civil partnership to govern the property rights of same sex couples as an alternative to same sex marriage?

I.

Introduction Marriage is a life-long commitment between two persons where they promise to love each other and to become one in life. Upon marriage, a full commitment, that is more permanent in nature, arises to build their family life. Therefore, marriage is the building block of a family. Family plays an important role in honing and developing every person in our society. But not all people have the right to marry. Not all couples who wants to marry each other are fortunate to do so. In the Philippines, same sex marriage is prohibited. For same sex couples, civil partnership to govern their property rights is an option that is substantially different than marriage. In the recent years, several countries have enacted laws allowing same sex marriage or union. While in the Philippines, the Lesbians, Gays, Bisexuals, and Transgender (LGBT) community is generally tolerated but they enjoy limited rights as they are deprived of the

right to marry. The idea of same sex marriage is still highly frowned upon in the Philippines. Several attempts of bills allowing same-sex marriage were proposed, but nothing has passed. An option the lawmakers are proposing is the Civil Partnership Bill that would allow civil partnership between same sex couples. But not same-sex marriage. Recently, the House Bill No. 6595 was filed to give full support to the welfare and well-being of couples, of either the opposite or same sex, who are in a relationship. 1 The relationship contemplated is that of a civil partnership. It defined civil partnership as the legal relationship between two persons, of either the same or opposite sex. Under the said Bill, the parties enjoy the same benefits and protection granted to spouses in marriage under our existing laws. Namely, the parties shall enjoy the right in succession, adoption, child custody and support, insurance, and tax rights. But the property relation between the two parties shall have total separation of property in the absence of any stipulation and governed by the law on co-ownership. In 2015, a petition was filed to the Supreme Court to declare the portions of Family Code defining marriage as a “union between man and a woman” as unconstitutional. The oral arguments on legalizing

1 An Act Recognizing The Civil Partnership Of Couples Providing For Their Rights And Obligations, H. No. 6595, sec. 2

same sex union in the Supreme Court mark an historic first in the Philippines.

II.

Civil Partnership as an alternative to Marriage a. Laws on marriage and the Constitution The 1987 Constitution of the Philippines states marriage, as an inviolable institution, is the foundation of the family and shall be protected by the State.

2

The Constitution did not define the

marriage. It is noted that the Constitution does not prohibit nor discriminate the idea of civil union between same sex. It was the enactment of Executive Order No. 29 or otherwise known as the Family Code of the Philippines that defined marriage. Under the Family Code of the Philippines, marriage is a special contract of permanent union between a man and a woman entered in accordance with law for the establishment of conjugal and family life.3. The essential requisites for marriage are: first, the legal capacity of the contacting parties who must be a male and a female, and second, the consent freely given in the presence of the solemnizing officer. Any absence of the essential requisite shall render the marriage as void ab initio. It is expressly provided by the

2 CONST., art. XV, sec. 2. 3 FAMILY CODE, E.O. 209 as amended, art. 1.

law that a marriage must be between a man and a woman. Thus, the prohibition to same sex couples. The 1987 Constitution also recognizes the freedom of the people to associate.4 Under this right, an individual has a free choice on union or societies he deemed essential to join or choice of not joining any union or association. A person cannot be compelled to join what he does not want to be associated with. The right to association may involve intimate or personal relation such as marriage. The Bill of Rights affords to secure the freedom of an individual in forming and preserving highly personal relationship. But the right to association is coupled with limitation. The limitation provided must pass a substantial measure must be complied with to justify the prohibition imposed. The freedom of association must not be contrary to law.

b. Jurisprudence In the case of Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al, the Supreme Court of the United States ruled that marriage was central to social order, with states offering married couples rights, benefits and responsibilities. The Court further stated that, “There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their 4 CONST., art III, sec. 8.

exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. ”5 The Court presented four premises relevant to the right to marry of same sex couples. Firstly, the right to personal choice regarding marriage is inherent in the concept of individual autonomy. Decision concerning marriage are among the most intimate an individual can make as it will shape an individual’s destiny. Secondly, the right to marry supports two person union unlike any other in its importance to the committed individuals. It offers the hope of companionship and understanding and assurance that while both still alive there will be someone to care for the other. Thirdly, protecting the right to marry is that it safeguards the children and families and thus draws meaning from related rights of childbearing, procreation, and education. The Court further elaborated the role of marriage in the establishment of home and bringing up of children. Marriage provides material benefits. By recognizing the marriage, it allows the children to understand the integrity and closeness of their own family. It also affords permanency and stability that is important in the children’s best interest. Without recognition, stability, and 5 Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al. 576 US (2015)

predictability of marriage offers their children suffer the stigma of knowing their families are somewhat lesser. They also suffer the significant material cost of being raised by unmarried parents, though no fault for their own leading to a more difficult and uncertain family life. Lastly, the Court recognized marriage is a keystone in our social order. There is no question that marriage is the foundation of the family and of society. For that reason, just as couple vows to support each other, so does society pledge to support the couple offering symbolic recognition and material benefits to protect and nourish the union. The ruling, although not binding on the Philippine courts, may have a persuasive influence on the topic of same sex union in Philippines. In the case of Ang Ladlad vs. COMELEC, the respondent COMELEC refused to recognize Ang Ladlad LGBT Party who represents the lesbians, gays, bisexuals, and transgenders as a party list based on moral grounds. In their decision, COMELEC cited certain Biblical and Qur’anic passages. COMELEC also stated that their ways are immoral and contrary to public policy. The Supreme Court ruled in favor of the petitioner Ang Ladlad. The Court held that, “LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships between individuals of the same sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express that view. However, as far as this Court

is concerned, our democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other members of the community.” 6 The Court further stated that the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system in the bases as other political parties situated.

c. Effects Same-sex couples suffer on substantially lesser rights compared to those heterosexuals couples. Same sex couples face difficulties on different aspects. For example, there are limitations on adopting one’s child as the law gravitates within the meaning of husband and wife.7 There are also issues in entitlement of hereditary rights wherein their partners are not considered as compulsory heirs. Same sex couple have also difficulties to hospital and prison visitation rights, management and transfer of properties, medical and burial decisions, and entitlement to insurance proceeds. Even after death they remain as strangers. These limitations entail the sufferings and disrespect to same sex couples due to the lack of recognition of their relationship. Same sex couples are denied of the benefits afforded to heterosexual couples and a burden imposed on their liberty.

III.

Recommendations In the absence of same sex marriage, a law granting civil partnership for same sex couples to govern their property relations

6 Ang Ladlad v. COMELEC, G.R. 190582, April 8, 2010. 7 RA 8552, sec. 7.

is an option but still not the same. Indeed, it would help solve some of the issues that same-sex couples face. But allowing the civil partnership to exist between same sex couple would give an impression of distinction between same sex couple and heterosexual couples. It still would give rise to a situation wherein same sex couples are still not allowed to marry. They still suffer a substantially lesser rights than those of the heterosexual couples in our society. What they need is a full recognition. In lieu with this, there must be first an amendment of the Family Code in defining marriage. As long as it is required that marriage must be between a man and a woman, the Lesbians, Gays, Bisexuals, and Transgender (LGBT) community would still continue to suffer discrimination.

IV.

Conclusion Marriage is the ultimate showcase of commitment, an unbreakable love bond through sickness and health. It is fundamental right everyone should be able to enjoy. It embodies love, sacrifice, commitment, and family. Marriage is the building block of a family, an institution that nurtures the development of every individual in our society. It provides legal, social, health, and financial benefits. But most importantly it provides support for the married couples. The hope of the same

sex couples is not to be condemned to live in loneliness, excluded from the oldest institution. Any legal impediment can be cured by an amendment of the Family Code and an enactment of law enabling a marriage between same sex couples. We should not let our judgements to prevent others from sharing the rights that we usually enjoy.