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.