Rethinking Family Law in the Internet Era

Yesterday, we learned about the profound developments brought about by the Voice Over Internet Protocol (VoIP). According the US Federal Communications Commission (US FCC, www.fcc.gov/voip), Voice over Internet Protocol (VoIP), is a technology that allows you to make voice calls using a broadband Internet connection instead of a regular (or analog) phone line. Some VoIP services may only allow you to call other people using the same service, but others may allow you to call anyone who has a telephone number - including local, long distance, mobile, and international numbers. Also, while some VoIP services only work over your computer or a special VoIP phone, other services allow you to use a traditional phone connected to a VoIP adapter.

Viewed against these developments, the Family Code of the Philippines took effect on 31 August 1988. At that time, the changes brought about by the Internet Revolution have not yet captured the imaginations of the framers. Today in 2010, more than two decades later, a reexamination of certain concepts in Family Law deserves some re-thinking or re-imagination.
Consider Article 3 of the Family Code on formal requisites, one of the three requisites is a “Marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wise in the presence of not less than two witnesses.” In a time where video-conferencing has become more affordable through VoIP platforms such as Skype, yahoo messenger and other platforms capable of streaming videos, the concept of “appearance” deserves rethinking. Will our constitutional and statutory policies be undermined if we allow “appearance” through the live video feeds from the internet?

A progressive interpretation would seem to allow appearance through skype or other platform. But a conservative interpretation could restrict the term to purely physical appearance. The conservative argument on physical appearance may be supported by discussions of the Family Law Revision Committee expressing strong public policy against proxy marriages. In addition, the issue with respect to Filipina mail (or email) order brides may be resurrected to bolster the conservative stance.

The counter-argument of course is the inapplicability of the policy against proxy marriages to the debate. In proxy marriages, the confusion of identity is the issue, a fact that may be remedied by regulation. A regulatory response may also be crafted to prevent abuses similar to the case of the Filipina mail (email) order brides.

While the wholesale allowance of marriages solemnized in a skype scenario might be controversial, the case of marriages in articulo mortis (Article 27, Family Code) presents a viable case for the allowance of “constructive” appearance through the use of the internet. In the first place, the public policy exempting marriages in articulo mortis from the license requirement obviously is the urgency of the situation (one party being at the point of death) such that the State policy on marriages is deemed not to have been infringed.

Consider a situation where a man with an early stage cancer goes to the United States for treatment. Due to unforeseen circumstances, the man’s disease progressed to terminal stage such that it will not be viable for him to come home to marry his fiancée in Manila. Due to visa restrictions, his fiancée is unable to fly to the United States.

This situation surely calls for relaxation of interpretation in the term “appearance.” Beyond doubt, the situation can no longer be characterized as “remote” in light of the global diaspora of Filipinos.

From the point of view of procedure, the use of the live internet conversations in the presentation of testimonies in court on family cases can help expedite trials and unclog court dockets. In the Office of Legal Aid (OLA) alone, we have family law cases which are currently pending since some of the parties are working abroad. This is not to turn a blind eye to the fact that at the moment, few courts in the country are technology friendly.

The issues thus raised should not diminish attention for the adoption or use of the internet on the administrative provisions of the Family Code. Articles 17-19 on application of marriage licenses can be modernized in the sense that these transactions could be facilitated through efficient use of the internet.

This re-imagination of our Family Code provisions would have ripple effects to the pertinent provisions of the New Civil Code. Legitimacy and succession for instance, depend in part on the validity of marriage. I think it is about time to restart the conversation to address these new dynamics affecting the family.

BRYAN A. SAN JUAN

Entry Number 13