With one stroke of the pen, she empowered half of the country’s population
Part 2 of 2 By Raïssa Robles
Cory Aquino helped liberate and empower half of the Philippine population.
Nowadays we think nothing – or nothing much — of unmarried couples who openly live together; of wives who have their own bank accounts or who separate from husbands due to their abuse or philandering.
Yet a mere 28 years ago, none of this was legally possible.
Women then had the status of second-class citizens, under the odious Book 1 of the 1950 Civil Code – influenced by the ancient Código Civil of our Spanish colonizers, which the Americans never bothered to change and which our male lawmakers changed but little.
Up to 1987, a married woman needed her husband’s written consent (permission) before she could open her own bank account. If her husband wanted to work abroad, she was legally obligated to accompany him. Unless she got a court order.
It was Cory Aquino, a widow with four daughters, who with a single stroke of the pen, drastically changed all these.
In July 6, 1987, using legislative powers recognized by the 1987 Constitution,she signed Executive Order No. 209 promulgating the Family Code. This replaced Book 1 of the 1950 Civil Code.
Filipinas — 49.5 per cent of the current Philippine population — owe Cory Aquino their thanks for raising their status to the same level as the men (who slightly outnumber them at 50.488%).
Interestingly, one of the beneficiaries of Cory’s accomplishment is her youngest daughter Kris.
The Family Code, together with the now controversial Administrative Code of 1987, were both enacted, respectively, on July 6 and July 25, 1987 by Mrs. Aquino. In both instances, Mrs Aquino chose to preempt Congress which reopened on July 27, 1987 – fifteen years after Marcos had shut it down.
Had President Cory not legislated the Family Code in 1987, the male-dominated Congress would likely have sat on it, Professor Rowena Daroy-Morales who teaches Family Law at the University of the Philippines told me three years ago when I first wrote about the Family Code.
Can you imagine Fidel Ramos, and especially Joseph Estrada making it a priority during their macho presidencies?
Although it was during the dictator Ferdinand Marcos’ regime that work on the code reform started, Marcos himself was in no hurry to sign it into law. Prof. Daroy-Morales recalled that Marcos “was already in the process of putting together the Family Code through a commission” starting 1979, through the UP Law Center.
With his dictatorial powers, Marcos could have easily issued a decree ordering the implementation of the reforms. Although Marcos issued over 2,000 presidential decrees, he didn’t lift a finger on the Family Code.
Instead it was left to Cory Aquino to personally enact the law and liberate Filipinas from medieval restrictions imposed by the Civil Code, such as giving husbands total control of the conjugal property by having their wives confined in leprosariums.
It is for this reason that Prof. Daroy-Morales credits Mrs Aquino for the Family Code.
Pres. Cory’s achievement is even more remarkable given that she was a very devout Catholic. The Family Code contains sections that the Catholic Church would have strongly objected to, had it known beforehand. Here are three examples:
1.The Family Code legalized artificial insemination within the context of marriage and recognized the resulting offspring as “legitimate”. The Catholic Church condemns this up to now as “morally unacceptable” and “contrary to divine and natural law”.
2.The Family Code legally recognized the property rights of live-in couples or “unions without marriage”.
3.The Family Code relaxed rules for legal separation and annulment.
Pres. Cory’s action triggered profound change in Philippine society. However, it has taken a generation for that change to happen. The fact that we don’t even attribute that change to Cory Aquino — or even know about it — shows how subtle the process has been for the nation, the Filipino family and many Filipino women.
Change often happens subtly, like water scarring and penetrating the hardest of rocks. But this kind of change is just as powerful.
The enactment of the Family Code is what I would call the quiet revolution of Pres. Cory.
I’m using the word “revolution” in another sense. The word usually means a violent change, such as the overthrow of a social and political order. But it can also mean a rotation or revolving – the way a watch keeps time or a turbine produces energy. While Mrs Aquino quietly signed Executive Order No. 209 promulgating the Family Code, it took a long time for institutions to lock in step and for Filipinos, especially women, to adjust their mindset to this new social and even political order.
The revolution sparked by the Family Code overthrew the old social and even political order where Filipino men were more equal than women.
The Family Code made both husband and wife the center – and co-equal partners – in every Filipino family, the basic unit of society. Before that – under Book 1 of the old Civil Code which the Family Code replaced – a married couple’s parents and grandparents were given an important say in family decisions, including whether a wife would be allowed to work or start a business. I’m not kidding.
To show you how Pres. Cory’s Family Code revolutionized personal and family relations in Philippine society, I’ll spare you the grisly details. Let me just list FIFTEEN CHANGES it brought about:
ONE: The Family Code legalized artificial insemination by inserting this provision:
PATERNITY AND FILIATION
Chapter 1. Legitimate Children
Art. 164. Children conceived or born during the marriage of the parents are legitimate.
Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. (55a, 258a)
TWO. Couples “living in sin” have legal rights under the Family Code.
The Family Code introduced this new section:
Chapter 7. Property Regime of Unions Without Marriage
Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. (144a)
Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit.
If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith. (144a)
THREE. A widow can marry any time she pleases under the Family Code.
The old Civil Code strictly barred a widow from obtaining a marriage license before the lapse of 300 days from her husband’s death. The period could only be cut short if she gives birth within that period. No such prohibition bars a widower.
The Family Code dropped this senseless provision in the old Civil Code. Senseless because it covers even post-menopausal women:
Art. 84. No marriage license shall be issued to a widow till after three hundred days following the death of her husband, unless in the meantime she has given birth to a child.(n)
FOUR. For those whose husband or wife goes missing, the time for declaring a marriage “null and void” is shortened.
Under the Family Code, a husband or wife – whose spouse goes missing – only has to wait for four years instead of seven before petitioning the court to declare the marriage null and void.
Here’s the provision under the old Civil Code:
(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court. (29a)
And here’s what replaced it in the current Family Code:
Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a)
FIVE. The Family Code dropped the nasty process in the old Civil Code whereby a husband could obtain total control of the conjugal property.
This used to involve getting a court to declare the wife mentally unsound or a spendthrift or even – horrors – confining the wife in a leprosarium. Here’s Article 166 of the old Civil Code that is no longer in the Family Code:
Art. 165. The husband is the administrator of the conjugal partnership. (1412a)
Art. 166. Unless the wife has been declared a non compos mentis or a spendthrift, or is under civil interdiction or is confined in a leprosarium, the husband cannot alienate or encumber any real property of the conjugal partnership without the wife’s consent. If she refuses unreasonably to give her consent, the court may compel her to grant the same.
SIX. Gambling debts of one spouse cannot be paid using conjugal property. But winnings are conjugal. Remember that when your spouse wins the lotto.
The old Civil Code had no such provision. This was inserted in the Family Code:
Art. 95. Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the community but any winnings therefrom shall form part of the community property. (164a)
SEVEN. The Family Code gave married women financial independence.
Under the old Civil Code, wives had to get their husband’s prior consent before opening a bank account, getting a credit card, borrowing from the bank, buying real property, jewelry or other precious objects.
Here’s the provision in the old Civil Code that was dropped in the Family Code:
Art. 115. The wife manages the affairs of the household. She may purchase things necessary for the support of the family, and the conjugal partnership shall be bound thereby. She may borrow money for this purpose, if the husband fails to deliver the proper sum. The purchase of jewelry and precious objects is voidable, unless the transaction has been expressly or tacitly approved by the husband, or unless the price paid is from her paraphernal property. (62a)
A word of caution to wives who buy jewelry under the mistaken notion that they can walk away with all of it should the marriage turn sour. Under the Family Code, all jewelry is conjugal:
Art. 92. The following shall be excluded from the community property:
(2)Property for personal and exclusive use of either spouse. However, jewelry shall form part of the community property;
Which, I guess is why some women would rather invest in Gucci, Louis Vuitton, Fendi or Prada bags.
EIGHT. A married woman now has the right to work or go into business.
Imagine this: in the past, if a married woman wanted to work and her husband, or parents or in-laws opposed it, she had to take them to court. The Family Code dropped the following provision in the Civil Code that gave husbands the right to keep their wives home and jobless if he said he was earning enough. If the wife insisted on working, she would have to convince her parents and in-laws. If they turn down her request, she would have to go to court. Good luck on that.
Here’s the old Civil Code provision that was totally repealed by the Family Code:
Art. 117. The wife may exercise any profession or occupation or engage in business. However, the husband may object, provided:
(1) His income is sufficient for the family, according to its social standing, and
(2) His opposition is founded on serious and valid grounds.
In case of disagreement on this question, the parents and grandparents as well as the family council, if any, shall be consulted. If no agreement is still arrived at, the court will decide whatever may be proper and in the best interest of the family. (n)
And here’s what the Family Code now states:
Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper; and
(2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent.
NINE. Wives can now refuse to go with their husbands who go abroad to work.
Under the old Civil Code, wives had to go to court to get an exemption. But the Court was barred from granting an exemption if the husband went abroad “in the service of the Republic.” Hmmm. The Civil Code practically forced wives to accompany the husband abroad “in the service of the Republic.” Shades of comfort women.
This is the old Civil Code provision that was dropped in the Family Code:
Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with the husband if he should live abroad unless in the service of the Republic. (58a)
TEN. The conjugal property is now jointly administered by both spouses under the Family Code.
Under the old Civil Code, the husband was the sole administrator:
Article 112. The husband is the administrator of the conjugal property, unless there is a stipulation in the marriage settlements conferring the administration upon the wife. She may also administer the conjugal partnership in other cases specified in this Code. (n)
The Family Code changed this to joint or conjugal administration:
Art. 71. The management of the household shall be the right and the duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70. (115a)
Art. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief. (116a)
ELEVEN. The Family Code drastically changed property relations between husband and wife.
Prof. Daroy-Morales explained to me that under the old Civil Code, property was under the “regime of conjugal partnership of gains” unless the couple opted out of it. This simply means, she said, that all the properties each spouse brought into the marriage remained their individual properties. Only the “fruits and income, the fruits of industry go into the conjugal property.”
For instance, if the wife owned a condo before marriage and rented out the unit after getting married, the rental income became “conjugal” but the unit remained the wife’s property.
The present Family Code changed that to “a regime of absolute community of property.” This simply means, Prof. Daroy-Morales said,that almost everything both spouses owned before and brought into the marriage becomes jointly owned. “All properties of spouses will go into that community,” she said. The only exceptions are, for instance, if one spouse had children from a previous marriage and acquired property before remarrying. Then the spouse’ children would have a cut in that property and any income from it.
Unless, however, there is a “pre-nup” (or pre-nuptial marriage settlement) signed before marriage stipulating that certain properties are not going to be part of the community of property, Prof. Daroy-Morales pointed out.
Not having a pre-nup was what actress Kris Aquino later regretted when the love soured with James Yap.
This is the provision on property relations under the old Civil Code:
Article 119. The future spouses may in the marriage settlements agree upon absolute or relative community of property, or upon complete separation of property, or upon any other regime. In the absence of marriage settlements, or when the same are void, the system of relative community or conjugal partnership of gains as established in this Code, shall govern the property relations between husband and wife. (n)
Which the Family Code changed to this:
Art. 75. The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern. (119a)
TWELVE. Property relations under the old Civil Code gave our mothers and grandmothers’ generation much grief and agony.
Such relations were most unkind to women who had philandering husbands or were in loveless unions but who went into the marriage without much property of their own, but who helped their husbands become financially successful.
Under the old Civil Code, many wives married to unfaithful men had no choice but to stay married because legal separation meant walking away with only that portion of property they had had brought into the marriage and leaving everything else to the husband.
In addition, legally separating from the husband was next to impossible because the old Civil Code allowed only three grounds:
If the wife herself committed adultery even once;
If the husband kept a mistress in their family abode, “cohabited” with one in another dwelling place, or had sex under scandalous circumstances”; or
If one tried to kill the other.
Here is the provision of the old Civil Code:
Article 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage on the part of the husband as defined in the Penal Code; or
(2) An attempt by one spouse against the life of the other. (n)
The Family Code remedied this unbearable situation for women by greatly expanding the grounds for legal separation to include domestic violence, coercion, “sexual infidelity or perversion”:
Here is the pertinent provision in the Family Code:
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.
This section means that a spouse (husband or wife) who successfully petitions for legal separation will be entitled to walk away with at least half of the conjugal property if they are under the “regime of absolute community of property.”
THIRTEEN. The Family Code also expanded the grounds for declaring a marriage null and void from the start by introducing these new provisions:
Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(3) That the consent of either party was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;
Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:
6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a)
The Family Code enabled Kris Aquino to get the court to nullify her marriage with James Yap. However, we don’t exactly know what grounds she used since the court records have been sealed.
FOURTEEN. The Family Code discourages teenage marriages.
Under the old Civil Code, marriage can be solemnized between:
Art. 54. Any male of the age of sixteen years or upwards, and any female of the age of fourteen years or upwards,
Provided neither has ever been married or are related.
The Family Code raised the marriageable age to 18 years:
Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. (54a)
This means, when a teenager gets pregnant, no parent can force her into marriage and another costly mistake for life.
Prof. Daroy-Morales explained to me that while medically, 14-year-olds can get pregnant, they still do not have the psychological capacity to raise a family. This was why the age for marrying was raised to 18.
FIFTEEN. The Family Code made the section on marriage between Muslims, Christians and ethnic minorities politically correct.
Here are the sections in the old Civil Code:
Art. 78. Marriages between Mohammedans or pagans who live in the non-Christian provinces may be performed in accordance with their customs, rites or practices. No marriage license or formal requisites shall be necessary. Nor shall the persons solemnizing these marriages be obliged to comply with Article 92.
However, twenty years after approval of this Code, all marriages performed between Mohammedans or pagans shall be solemnized in accordance with the provisions of this Code. But the President of the Philippines, upon recommendation of the Secretary of the Interior, may at any time before the expiration of said period, by proclamation, make any of said provisions applicable to the Mohammedan and non-Christian inhabitants of any of the non-Christian provinces. (25a)
Art. 79. Mixed marriages between a Christian male and a Mohammedan or pagan female shall be governed by the general provision of this Title and not by those of the last preceding article, but mixed marriages between a Mohammedan or pagan male and a Christian female may be performed under the provisions of the last preceding article if so desired by the contracting parties, subject, however, in the latter case to the provisions of the second paragraph of said article. (26)
These were replaced by this provision in the Family Code:
Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices. (78a)