Philippine Commission on Women Policy Brief No. 7
Ensuring Women’s Equal Rights in Marriage and Family Relations: REMOVING INEQUALITIES IN THE ADMINISTRATION AND ENJOYMENT OF COMMUNITY PROPERTY OR CONJUGAL PARTNERSHIP UNDER THE FAMILY CODE This policy brief provides the rationale for amending Articles 96 and 124 of the Family Code of the Philippines. It puts together illustrations on how traces of inequality between the spouses are still maintained in the said law, as well as legal and practical bases for policy makers to address the issue. WHAT IS THE ISSUE?
The Family Code of the Philippines (FCP) is believed to be rife with provisions that implement the declared policy of the State under the Constitution to ensure fundamental equality before the law between women and men. Among the provisions often cited are Articles 96 and 124 which provide for the joint administration by husband and wife of the absolute community of property and the conjugal partnership of gains, respectively. Article 96 of the Family Code of the Philippines (FCP) provides that: “Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.” (emphasis supplied) The same provision is repeated in Article 124 of the Code, except that Article 124 applies to conjugal partnership of gains1. While the provision on joint administration of property is a welcome development, the law proceeded with giving preference to the decision of the husband in case of disagreement with the wife. The basis of 1
Conjugal Partnership of Gains is the default property relations prior to the effectivity of the Family Code of the Philippines on August 3, 1988.
decision making should be one’s qualification or fitness to make decisions, but the present law is oblivious as to who between the spouses can make a better decision borne out of professional, educational or personal experiences on managing family matters. It blindly presumes that the man will always know the best thing to do with the property. The wife will have to resort to filing a case in court for her decision to be respected. WHY IS THE ISSUE IMPORTANT?
Articles 96 and 124 still reflect the age‐old view that the decision of the husband shall prevail in family matters. The said provisions discriminate against women by using the proxy standard of sex in presuming that all males are more intelligent, wiser, possess better judgment, and are therefore more fit to make decisions than their wives. The fact that the law gives the wife five years within which to sue in order to question the contract entered into by her husband does not recreate the balance. To be able to avail of this remedy, the wife has to have the resources to hire a lawyer, take the risk of suing her husband and worst, strain their marital relations, which may cause further deterioration of the family. WHAT ARE THE EXISTING LEGISLATIONS OR
POLICY ISSUANCES RELATED TO THE ISSUE?
Republic Act No. 9710 or the Magna Carta of Women provides that the government shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations. This includes ensuring that women and men have the same rights with respect to the ownership, acquisition, management, administration, enjoyment, and disposition of property. Further, the provision on equal treatment before the law mandates REMOVING INEQUALITIES IN THE ADMINISTRATION AND ENJOYMENT OF COMMUNITY PROPERTY OR CONJUGAL PARTNERSHIP
PCW Policy Brief No. 7 August 2013 the State to take steps to review and amend and/or repeal existing laws that are discriminatory to women, which include FCP Articles 96 and 124. WHAT ARE THE CONSIDERATIONS IN
ADDRESSING THIS ISSUE IN THE COUNTRY?
Promoting women’s rights and gender equality
Removing the preferential treatment for the husband’s decision in case of disagreement with the wife in the enjoyment and administration of absolute community or conjugal partnership of gains will contribute to promoting women’s rights, ensuring equality before the law between husband and wife, and transforming gender relations between the spouses. Responding to International Commitments
The Fourth World Conference on Women Declaration (Beijing, 1995) states that “equal rights, opportunities and access to resources, equal sharing of responsibilities for the family by men and women, and a harmonious partnership between them are critical to their well‐being and that of their families as well as to the consolidation of democracy.” Repealing the second sentence in paragraph one of both Articles is consistent with the Philippine Government’s State Obligation under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), particularly Article 16.1.h, which mandates State Parties to “take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: …(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.” Alignment with National Priorities
The proposed amendment is also consistent with item 13 on Gender Equality of the government’s 16‐Point Agenda which states, “from a lack of concern for gender disparities and shortfall, to the promotion of equal gender opportunity in all spheres of public policies and programs. “ More importantly, it responds to the mandate of Congress under the Magna Carta of Women to amend or repeal laws that are discriminatory to women. POLICY RECOMMENDATION
It is recommended that Articles 96 and 124 be amended by repealing the entire second sentence of the first paragraph of both provisions. Instead of favoring the decision of the husband, the law should just require the consent of both spouses since the property involved is one that belongs to their community or conjugal property which they own in equal parts. This will encourage mutual decision making which will contribute to strengthening the family as a basic unit of our society. CONCLUSION
Legislative proposals to repeal the said provisions in the Family Code were filed but remained pending during the previous Congress despite strong legal and practical bases. It is hoped that, in the interest of fulfilling their mandate under the Constitution and the Magna Carta of Women, our legislators will prioritize and favor the immediate enactment of a law to amend the said provisions.#
PCW Policy Briefs aim to stimulate informed discourse and guide policy actions on issues concerning the empowerment of women and promotion of gender equality. OFFICE OF THE PRESIDENT Philippine Commission on Women 1145 J. P. Laurel Street, San Miguel, 1005 Manila http://www.pcw.gov.ph | pdad@pcw.gov.ph | +632 735‐8918 REMOVING INEQUALITIES IN THE ADMINISTRATION AND ENJOYMENT OF COMMUNITY PROPERTY OR CONJUGAL PARTNERSHIP