Family Code considers homosexuality, lesbianism a disease or a crime? Somehow, yes
Being gay, under the Family Code, has the same effect as being a killer, having STD or being a drug addict. Doesn't this sound crazy or, at least, unfair?
Does the Family Code consider homosexuality and lesbianism a disease or a crime? The answer is more complicated than a yes or a no but we promise to discuss it briefly.
The Family Code of the Philippines mentions "homosexuality" and "lesbianism" only in two (2) articles: Article 46 on annulment of marriage and Article 55 of legal separation. In both these instances, they are considered a ground either to declare the marriage avoided or not valid or to declare the husband and wife separate from bed and board.
First, let's see what grounds are available to annul a marriage. Based on Article 45 and Article 46, they are the following:
[1] Lack of parental consent (if aged 18 to 21);
[2] Unsoundness of mind;
[3] Consent acquire through fraud, force, intimidation or undue influence (such as a forced marriage);
[4] Impotency of the husband or any other physical incapability to consummate the marriage on the part of either party (such as the wife's vaginal entry being too narrow or the husband's penis being too small); and
[5] Serious and incurable sexually-transmissible disease.
Article 46 explains what "fraud" means under Article 45. Any of the following constitutes fraud:
[1] Non-disclosure that the other party is actually a convicted criminal;
Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a)
Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.
[2] Non-disclosure that the wife was pregnant by another man at the time of the marriage;
[3] Non-disclosure of sexually transmissible disease regardless of nature (even if not serious or even if curable);
[4] Non-disclosure of drug addition;
[5] Non-disclosure of habitual alcoholism;
[6] Non-disclosure of homosexuality; and
[7] Non-disclosure of lesbianism.
Now, moving on to Article 55 on legal separation, it can be seen that the following are grounds for a spouse to separate from his wife or husband:
[1] Repeated domestic violence;
[2] Physical violence or moral pressure to change religious or political affiliation;
[3] Attempted prostitution of spouse or child;
[4] Imprisonment for a crime;
[5] Drug addition;
[6] Habitual alcoholism;
[7] Lesbianism;
[8] Homosexuality;
[9] Bigamy;
[10] Sexual infidelity;
[11] Sexual perversion;
[12] Attempted killing; and
[13] Abandonment for more than one (1) year.
From these enumerations alone, you can see that homosexuality and lesbianism are categorized either as a disease or something of the same level as a crime. It is as if the law is saying that, if you are homosexual or lesbian, you are either sick or criminal.
Attempting to kill your spouse, STD or drug addiction has the same effect, in law, of being homosexual or lesbian. Doesn't this sound crazy or, at least, unfair? Doesn't this violate equal protection, there being no substantial distinction between gays, lesbians or straights?
Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a)
Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. (86a)
Art. 55. A petition for legal separation may be filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.
Art. 55. A petition for legal separation may be filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a)
