Same-Sex Marriage Not Yet Legally

Recognized in the Philippines

The state of New York recently passed a law that legalizes same-sex marriages. That
means gay and lesbian couples could marry, with legal protection ordinarily granted to
male-female couples. NY is the latest US state that allows same-sex marriage.
Also recently, weve seen Filipino gay and lesbian couples getting married in the
Philippines, re-sparking the debate on same-sex marriage. These individuals may have
undergone such a ceremony to express their love and commitment to one another. They
may have done it to rekindle the debate. They may have other reasons, but it could NOT
include seeking legal protection and benefits that flow from marriage.
Philippine laws do not recognize and protect same-sex marriage. It doesnt matter which
religion you belong. Unlike certain matters divorce, for instance, which is allowed for
the Muslim community the legal non-recognition of same-sex marriage applies to all
groups and religions.
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. This is part of the definition provided in Section 1 of the Family Code. The Supreme
Court stated in a 2007 case that one of the most sacred social institutions is a special
contract of permanent union between a man and a woman, referring to the institution of
marriage. One of its essential requisites of marriage is the legal capacity of the
contracting parties who must be a male and a female. The SC also noted that allowing a
change of name by reason of a sex reassignment surgery (sex change) will allow the
union of a man with another man who has undergone sex reassignment (a male-tofemale post-operative transsexual).
In our previous post Mr. Lito Basilio submits that same-sex marriage may be allowed
under exceptional circumstances. Art. 26 of the Family Code recognizes as valid in the
Philippines those marriage solemnized abroad and are valid there as such, except for
marriages forbidden under Art. 35(1), (4), (5) and (6) and Art. 36, 37 and 38 of the
Family Code. The argument makes sense because none of the provisions cited Art.
35(1), (4), (5) and (6) and Art. 36, 37 and 38 of the Family Code prohibit same-sex
marriage. This might lead some couples to go abroad, perhaps New York or some other
states/countries that recognize same-sex marriage, and have it recognized here in the
Philippines. However, the Family Code provides in no uncertain terms that the couple
must be a man and a woman. While a same-sex marriage is allowed in other
jurisdictions, it cannot be recognized here because it is contrary to law, public order and
public policy.
Another reader which goes by the name syelapin states that [w]ith our history and
culture as a backdrop, [I] highly doubt well see THE change in our lifetimes. I would
hazard a guess that divorce would be allowed way before same-sex marriage is
recognized, if ever it is recognized. Our informal poll reveals that a majority supports
divorce, but a majority opposes same-sex marriage.
[Read also The Divorce Issue Again: Year 2010 and Allowing Absolute Divorce in the
Philippines]
There are a number of privileges that apply only to marriage, some of which are
discussed in the previous post on Common-Law Marriage. They are not considered
compulsory heirs to each other, which means one could not inherit from the other, except
when there is a last will and testament that designates each other as an heir. If one or
both of the partners have children when they were single, the other partner cannot
have parental authority over such children.
On the other hand, it is not correct to say that there is no existing law which governs the
property relations between the same-sex couples. They could enter into a contract,
which has the force and effect of law between the parties, with respect to their

properties. General laws, including the rules on co-ownership, could apply in the
absence of such contract.
We previously noted that the solution is to amend the Family Code. On second thought,
this seems problematic because incorporating same-sex unions into the concept of
marriage may be contrary to the Constitution. The Constitution provides that:
Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State (Sec. 2, Article XV [Family]). While the Constitution does not
explicitly provide that only a man and a woman may get married, I presume that the
constitutional deliberations would show that marriage is between a man and a woman.