ACHIEVING SOCIAL JUSTICE THROUGH CIVIL PARTNERSHIP TO GOVERN

THE RIGHTS OF SAM-SEX COUPLES AS AN ALTERNATIVE TO SAME-SEX

MARRIAGE

PATRICIA RACHELLE C. ESPINOZA

I. Introduction

As the civilization of mankind develops, the perception of people towards the diversity of

sexuality and gender identity-based culture have drastically changed throughout the years. Other

countries had started to openly accept and acknowledge the rights of the Lesbian, Gay, Bisexual and

Transgender (LGBT) community. However, although there are countries which already recognize and

include the rights of the LGBT, there are still a lot of countries which remain adamant in the

acknowledgement of this community. It has been reported that as of 2018, 73 countries consider

homosexuality as illegal.1 Some of these include countries from Africa, Asia, North and South

Americas, and Oceania.2 On the other hand, there are several countries all over the world which

acknowledge the rights of the LGBT through the enactment of statutes governing same-sex marriage.

According to an article by abc News (2018), there are 27 countries which have officially legalized same-

sex marriage as of 2018.3

Despite the greater acceptance to diversity of sexuality and gender identity-based culture

nowadays, it is notable that the Philippines has not yet opened its doors in the recognition of the

1 Mike Daemon & Maurice Tomlinson, 73 Countries Where Homosexuality is Illegal, (Sept. 6, 2018),
https://76crimes.com/76-countries-where-homosexuality-is-illegal/ (last accessed October 3, 2018).
2 Ibid.
3 Elisa Tang, Here are the 27 Countries Where Same-Sex Marriage is Officially Legal, (June 22, 2018),

https://abcnews.go.com/GMA/Culture/27-countries-sex-marriage-officially-legal/story?id=56041136 (last accessed

October 3, 2018).
LGBT due to the absence of statutes which provide for some of the basic civil rights of the LGBT

community.

II. Foreign Jurisprudence on Civil Partnership of the LGBT

A. Civil Partnership in the Netherlands (1998)

The Netherlands was the first country in Europe to allow heterosexual couples to enter a civil

partnership.4 Book 1 of the Netherlands’ Civil Code regulated Registered Partnership (‘geregistreerd

partnerschap’) which was introduced on 1 January 1998 both for same-sex couples and of different-sex

couples.5 Almost all procedures and consequences of marriage also apply to registered partnership.

There are very few notable difference between registered partnership and marriage as provided in the

Netherlands’ Civil Code. Any registered partnership can be converted into a marriage, and vice versa,

however, the difference exists with respect to the ways to split up.6 Registered partnership, in contrast

to marriage can be terminated by way of a mutual contract.7 The Civil Code of the Netherlands also

include provisions which govern the property rights and relations of the registered partners. In the

absence of a prenuptial contract, spouses enjoy community of property wherein from the moment of

marriage almost all present and future goods and debts of each spouse are considered joint property.8

This also applies to registered partners but are subjected to exceptions. There are exceptions for some

gifts and inherited goods, for some very personal goods and debts, and for some pension rights. The

(future) spouses and (future) registered partners can prevent some or all of their goods and/or debts

from becoming joint property, by agreeing a prenuptial contract (‘huwelijkse voorwaarden’). 9

4
Georgina Rannard, Where In Europe a Man and Woman Can Get a Civil Partnership, (Feb. 22, 2017),
https://www.bbc.com/news/uk-39039954 (last accessed October 3, 2018).
5 Ibid.
6 Kees Waaldijk, Major Legal Consequences of Marriage, Cohabitation and Registered Partnership For Different-Sex and Same-Sex

Partners in the Netherlands, THE NETHERLANDS, 137-154 (2004).

7 Ibid.
8 Ibid.
9 Ibid.
B. De Facto Union in Portugal (1999)

Portuguese citizens or legal foreign residents who have lived together for at least two years can

enter a de facto union (common-law union).10 It was first enacted on 1999 and was amended in 2001

through Act 7/2001 which was effected on 11 May 2001.11 Act 7/2001 seeks to regulate the situation

of two persons, regardless of gender, who have lived together in a de facto union for more than two

years.12 The concept of de facto union embraces the exclusive and enduring relationships between two

persons, regardless of gender, who have ‘made a life together under the same roof’.13 Partners of a

same-sex de facto union cannot jointly adopt a child, however, each one of them can qualify for strong

adoption in the same conditions as unmarried people- he or she must be over 30 years old.14 The

Portuguese Civil Code does not recognize de facto unions as family relationships wherein cohabiting

partners do not belong to each other’s family; in other words they are treated as strangers. The de facto

union has no legal impact on the ownership of their property, each partner remains the owner of the

property that he/she has acquired prior to the de facto union, as well as the property that he/she has

acquired during the de facto union.15

C. Civil Solidarity Pact (PACS) of France (1999)

On 15 November 1999, PACS (Pacte Civil De Solidarité) was promulgated, after a passionate

debate in the National Assembly and the media in France16. PACS provides unmarried couples the

opportunity to organize their life together, with some social and tax advantages to boot and may be

10
Georgina Rannard, Where In Europe a Man and Woman Can Get a Civil Partnership, (Feb. 22, 2017),
https://www.bbc.com/news/uk-39039954 (last accessed October 3, 2018).
11 Rosa Martins, Same-sex Partnerships in Portugal from De Facto to De Jure?, 4(2) UTRECHT LAW REVIEW, 194-211

(2008).
12
Ibid.
13
Ibid.
14
Ibid.
15
Ibid.
16
Claude Martin, The PACS and Marriage and Cohabitation in France, 14(3) International Journal of Law, Policy and the
Family, Oxford University Press, 135-158 (2001).
established by a private or notarial instrument which is registered at the district court of the partners’

joint place of residence.17 The French Civil Code provides for the partners’ obligation to live together

which entails a duty to provide material support and mutual assistance, however, solidarity between

partners does not apply to debts that are clearly excessive. In terms of property, the law provides that

couples under PACS is governed by the rule of separation of property.18 In case of death, the surviving

partner may remain free one year in housing which was the main residence of the couple (even if the

deceased was the sole owner), however, it is to be noted that a partner cannot inherit without Wills.19

On the other hand, even in the absence of a will, the amount of money from a life insurance contract

paid to a surviving PACS partner, upon the death of his companion, are exempt from inheritance

tax.20

III. Local Statutes Governing Civil Partnership of the LGBT

As of today, there is no law enacted which provides for the rights between same-sex couples

here in the Philippines. However, last October 2017, House Representative Pantaleon Alvarez,

Geraldine Roman, et al. introduced House Bill No. 6595 which is entitled An Act Recognizing the

Civil Partnership of Couples, Providing for their Rights and Obligations. (H.B. No. 6595)21 This bill

allows couples, whether of the same-sex or opposite sex, to enter into a civil partnership which

provides for the civil rights, benefits and responsibilities to couples, previously unable to marry, by

giving them due recognition and protection from the State. It also protects the civil partnership

couples by penalizing unlawful and discriminatory practices committed by persons or institutions

17
Ibid.
18
Ibid.
19
Ibid.
20
Ibid.
21 Vince F. Nonato, Alvarez Files House Bill Recognizing LGBT Unions, (Oct. 21, 2017),

https://newsinfo.inquirer.net/939561/philippine-news-updates-speaker-pantaleon-alvarez-civil-partnership-act-hb-
6595-lgbt (last accessed: October 3, 2018).
committed against them on the basis of their civil partnership status.22 H.B. No. 6595 provides for the

requisites needed in entering into civil partnership23 which is almost entirely the same as provided in

the requisites of marriage under the Family Code24. The only difference is that the bill included the

requirement of sharing a common domicile for a minimum period of two (2) uninterrupted years and

that the relationship must be publicly known.25 Couples entering into civil partnership will have the

regime of total separation of property as the default regime in the absence of pre-civil partnership

agreement or when the regime agreed upon is void.26 The bill also included rights such as inheritance

rights, adoption rights and social security and insurance membership rights. Inheritance rights27

include that a partner in a civil partnership shall be considered as the compulsory heir of the other,

and shall have the same rights and benefits accorded to spouses as provided in the Civil Code28 and

the Family Code.29 Civil partnership couples are given the right to adopt children provided that they

are resident of the Philippines, and shall be afforded only when there are no other married couples

willing to adopt the child provided that the best interest and welfare of the child is given paramount

consideration.30 Civil partnership couples are given the same rights as those married couples in terms

of social security and other insurance membership rights.31 As of today, H.B. No. 6595 is still under

review in the Congress.

22 An Act Recognizing the Civil Partnership of Couples, Providing for their Rights and Obligations, House Bill No. 6595
(2017).
23 H.B. No. 6595.
24 FAMILY CODE, E.O. 209, as amended.
25 H.B. No. 6595, Sec. 5.
26
H.B. No. 6595, Sec. 9.
27
H.B. No. 6595, Sec. 13.
28
CIVIL CODE, R.A. 386 as amended.
29
FAMILY CODE, E.O. 209, as amended.
30
H.B. No. 6595, Sec. 14.
31
H.B. No. 6595, Sec. 15.
 IV. Legal and Social Effects of Civil Partnership Governing Property Rights

If the Philippines would allow civil partnership to govern the property rights of same sex

couples as an alternative to same sex marriage, it would not impair any principle as provided in our

constitution. Section 1, Article III of the 1987 Constitution provides that “No person shall be deprived

of life, liberty, or property without due process of law, nor shall any person be denied the equal

protection of the laws.”32 For many years, members of the LGBT community were seeking for

inclusion in the protection of rights in the Philippine law. However, by reason of their sexual

orientation, they have been repeatedly excluded from the enjoyment of some rights such as property

rights, adoption rights and inheritance rights. The equal protection clause, as pointed out in the case

of Farinas v. the Executive Secretary, states that:

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable

classification. If the groupings are characterized by substantial distinctions that make real differences, one class

may be treated and regulated differently from the other. The Court has explained the nature of the equal

protection guarantee in this manner:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as

hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited

either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute

equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and

conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by

legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within

such class, and reasonable grounds exist for making a distinction between those who fall within such class and

those who do not.33

32
CONST., art. III, sec. 1.
33 Farinas v. Executive Secretary, 417 SCRA 503 (2003).
 The Filipinos who are a part of the LGBT community, although they are different and peculiar

to the socially accepted norms of society, are human beings too. They are also citizens of the

Philippines which should be embraced and protected by our laws. As emphasized by the Supreme

Court in the above-mentioned case, the equal protection of the law clause is against undue favor and

individual or class privilege, as well as hostile discrimination or the oppression of inequality. The

continuing rejection in the acknowledgement of rights of the members of the LGBT community in

the Philippines is notably contrary to the principle of the equal protection clause as provided by our

Constitution.

According to the late President Ramon Magsaysay, “those who have less shall have more in

law”. Our constitution provides that the enactment of laws shall be anchored on social justice as stated

in Section 10, Article II of the 1987 Constitution.34 As demonstrated in the case of Calalang v. Williams,

social justice is defined as:

Social justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the

humanization of laws and the equalization of social and economic forces by the State so that

justice in its rational and objectively secular conception may at least be approximated. Social

justice means the promotion of the welfare of all the people, the adoption by the Government

of measures calculated to insure economic stability of all the competent elements of society,

through the maintenance of a proper economic and social equilibrium in the interrelations of

the members of the community, constitutionally, through the adoption of measures legally

justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of

all governments on the time-honored principle of salus populi est suprema lex.

Social justice, therefore, must be founded on the recognition of the necessity of interdependence among divers

and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a

combined force in our social and economic life, consistent with the fundamental and paramount objective of the

34 SECTION 10. The State shall promote social justice in all phases of national development. (CONST., art. II, sec. 10).
 state of promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest good to the

greatest number."35

The enactment of a statute that would allow couples of the same-sex to property rights

promotes social justice. As the courts emphasized in the aforementioned case, social justice id founded

on diverse units of society and providing for their protection by including them in the scope of

protection of our statutes. The recognition of their rights as citizens of this country is also a form of

bringing about the greatest good to the greatest number. Our constitution values the dignity of every

human person and provides for the guaranty of full respect for human rights.36 Same-sex couples

should be included in the scope of human rights. Their sexual preferences should not be a factor of

excluding them from the scope and protection of the law.

V. Impact on the Institution of Marriage or to any Other Laws on Family Relations

As the constitution emphasizes equal protection to its citizens, the constitution also provides

for the recognition of the sanctity of family life as stressed in section 12, Article II of the 1987

Constitution, “The State recognizes the sanctity of family life and shall protect and strengthen the

family as a basic autonomous social institution. It shall equally protect the life of the mother and the

life of the unborn from conception. The natural and primary right and duty of parents in the rearing

of the youth for civic efficiency and the development of moral character shall receive the support of

the Government.”37 Some people might argue that the enactment of civil partnership to govern the

property rights of same-sex couples will violate of this particular provision of our constitution. It is

worthy to note that allowing a civil partnership that would govern the property rights of same sex

couples is a good solution in recognizing and acknowledging the rights of the LGBT society without

35 Calalang v. Williams, 70 Phils. 725 (1940).

36 SECTION 11. The State values the dignity of every human person and guarantees full respect for human rights.
(CONST., art II, sec. 11).
37
CONST., art. II, sec. 12.
impairing and violating the value of the sanctity of family life. Giving same-sex couples who enter into

a civil partnership the rights such as property rights, adoption rights and social security and other

insurance rights would not hurt the principle of the sanctity of marriage.

VI. Conclusion

As stated in the case of Quinto v. COMELEC:

In the exercise of its power to make classifications for the purpose of enacting laws over

matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is

not necessary that the classification be based on scientific or marked differences of things or in

their relation. Neither is it necessary that the classification be made with mathematical nicety.

Hence legislative classification may in many cases properly rest on narrow distinctions, for the

equal protection guaranty does not preclude the legislature from recognizing degrees of evil or

harm, and legislation is addressed to evils as they may appear.38

The essence of democracy is not only limited to the protection of the majority, democracy is

embedded on the principle of the development of the state policies which extend not only the greatest

number but also to those people whose voices cannot be heard. Our constitutions provides for the

acknowledgement of the underrepresented groups of society and this includes the LGBT community.

Enactment of laws should be endowed I the principle of social justice, wherein the greatest good is

promoted. Enacting an alternative to same-sex marriage through civil partnership to govern property

rights without impairing the core values of upholding the sanctity of family life is a way to provide

recognition that the LGBT community also has the rights just like every other members of the society.

38
Quinto v. COMELEC, G.R. No. 189698 (2010)