16175

SUPREME COURT OF THE PHILIPPINES

2016

ADVISORY OPINION ON THE LOWERING

OF MARRYING AGE FROM 18 TO 14/16

MEMORIAL FOR APPLICANT

TABLE OF CONTENTS

1
 Memorial for Applicant

TABLE OF CONTENTS…………………………………………………………2
INDEX OF
AUTHORITIES…………………………………………………………………...3
SUMMARY OF PLEADINGS…………………………………………………...6

PLEADINGS……………..………………………………………………………..7

I. MARRIAGE IS AN INHERENT RIGHT…………………………………….7

A. THE STATE HAS THE CAPACITY TO DETERMINE THE LEGAL
MARRYING
AGE………………………………………………………………………………………8
B. THERE IS A RIGHT TO PRIVACY…………………………………………………..8

II. BOYS OF 16 YEARS OF AGE AND GIRLS OF 14 YEARS OF AGE

HAVE THE CAPACITY TO
DISCERN……………………………………..8
A. THE REVISED PENAL CODE HAS SET THE AGE OF LIABILITIES IN
CRIMINAL OFFENSES AS WELL AS THE AGE OF CONSENT IN SEXUAL
CONDUCTS……………………………………………………………………………..8
B. POWER OF THE STATE TO DEFINE THE MARRYING AGE MUST BE IN
CONSONANT OF THE PERSON’S CAPACITY TO DISCERN…………………..9
C. THERE IS AN EVOLVING CAPACITY TO DISCERN…………………………..10

III. LOWERING THE AGE TO MARRY WOULD BE BENEFICIAL TO

SOCIETY…………………………………………………………………………1
1
A. LOWERING THE AGE TO MARRY WOULD MAXIMIZE THE FERTILITY OF
THE
WOMAN…………………………………………………………………………..11
B. THE TAX CODE GRANTS TAX EXEMPTIONS FOR MARRIED COUPLES..13

IV. LOWERING THE AGE TO MARRY WOULD BE

PRACTICAL……...13
A. AS COMPARED TO OTHER STATES, LOWERING THE AGE TO MARRY
WOULD BE FEASIBLE……………………………………………………………....13
B. MUSLIM LAWS ALSO PROVIDE AN EXAMPLE OF FEASIBILITY………….15

CONCLUSION…………………………………………………………………..17

INDEX OF AUTHORITIES

2
 Memorial for Applicant

CONSTITUTION
THE 1987 CONSTITUTION OF THE PHILIPPINES 7, 8

CODES AND STATUTES

MEMORANDUM CIRCULAR NO. 07 (STANDARD OFFICE 11
PROCEDURES IN EXTENDING LEGAL ASSISTANCE TO CHILDREN IN
CONFLICT WITH THE LAW UNDER R.A. NO. 9344 AND OTHER
RELATED LAWS)

MINIMUM AGE OF CRIMINAL RESPONSIBILITY, H.B. NO. 2 9, 10

NATIONAL INTERNAL REVENUE CODE OF 1997 14

PD NO. 1083 (A DECREE TO ORDAIN AND PROMULGATE A CODE 11,16

RECOGNIZING THE SYSTEM OF FILIPINO MUSLIM LAWS,
CODIFYING MUSLIM PERSONAL LAWS, AND PROVIDING FOR ITS
ADMINISTRATION AND FOR OTHER PURPOSES)

R.A. 8353 (AN ACT EXPANDING THE DEFINITION OF THE CRIME OF 10

RAPE RECLASSIFYING THE SAME AS A CRIME AGAINST PERSONS
AMENDING FOR THE PURPOSE ACT NO. 3815 AS AMENDED
OTHERWISE KNOWN AS THE REVISED PENAL CODE AND FOR
OTHER PURPOSES)

RA 9344 (AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE 9

JUSTICE AND WELFARE SYSTEM, CREATING THE JUVENILE
JUSTICE AND WELFARE COUNCIL UNDER THE DEPARTMENT OF
JUSTICE, APPROPRIATING FUNDS THEREFOR AND FOR OTHER
PURPOSES)

THE FAMILY CODE OF THE PHILIPPINES 8. 13. 14

TREATIES, CONVENTIONS, AND INTERNATIONAL

SOURCES
CONVENTION ON CONSENT TO MARRIAGE, MINIMUM AGE FOR 8
MARRIAGE, AND REGISTRATION OF MARRIAGES

JAPAN CIVIL CODE 15

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 7

3
 Memorial for Applicant

JUDICIAL DECISIONS
FILIPINO CASES
Niel F. Llave v People of the Philippines, G.R. No. 166040 (2006, April 26) 9, 11

INTERNATIONAL CASES
MAYNARD V HILL 125 U.S. 190 (1888) 8

Zablocki v Redhail, 434 U.S. 374 (1978) 9

ARTICLES/SURVEYS
2011 Survey on Children 14

2013 Philippines National Demographic Survey 13

Laurence Steinberg, et. al., Are Adolescents Less Mature Than Adults? 10

Madabhushi Sridhar, Discussion Paper on Legal Provisions Regarding Age of 15

Child To protect the Rights of Children

Nandini Shahla Chowdhury, A dangerous clause to ‘legally’ decrease child 15

marriage in Bangladesh

Philippine Statistics Authority, One in Ten Young Filipino Women Age 15 to 10

19 Is Already A Mother or Pregnant With First Child (Final Results from the
2013 National Demographic and Health Survey)

Philippine Statistics Authority. (2014, August). Philippines National 13

Demographic and Health Survey 2013

Varga, C. A., & Zosa-Feranil, I. (2003). Adolescent and youth reproductive 13

health in Philippines: status issues policies and programs. Washington, D.C.,
Futures Group International, POLICY Project,

Vivian E. Hamilton. The Age of Marital Capacity: Reconsidering Civil 12

Recognition of Adolescent Marriage.

World Health Organization, United Nations Population Fund. (2016, February). 12

Sexual and Reproductive Health of Young People in Asia and the Pacific: A
Review of Issues, Policies, and Programmes

4
 Memorial for Applicant

OTHER
Minutes of the Meeting of the Civil Code Revision Committee Feb 18, 1983 11, 16

SUMMARY OF PLEADINGS
First, marriage is an inherent right. The State is recognized to be the protector as well

as the one which defines the parameters of marriage. It promotes the sanctity and inviolability of

the institution of marriage. The State has the power to define the legal capacity to marry. It acts

for the sole purpose of preserving the sanctity of married life. However, to deny the fundamental

right of marriage to those who are capacitated to do so goes against the obligation of the State to

protect the family as a basic social institution.

Second, males of 16 years of age and females of 14 years of age have the capacity to

give an informed consent to marriage and to its corresponding martial obligations. Through

its enactments, the State has recognized the discerning capability of persons below the age of

majority. Therefore, it has made parallel the capability of persons to discern from their

5
 Memorial for Applicant

obligations and responsibilities towards others in society. Consequently, this level of

discernment is sufficient for them to give an informed consent.

Third, lowering the marrying age is beneficial to society. The fertility of women would

be maximized given their health and youth. Seeing as how the basic end of marriage is the

family, and procreation is an essential obligation of marriage, the State must recognize the health

advantages inherent in early childbearing. The State must also recognize the capability of the

youth to provide and serve their state. In turn, it must grant the benefits that which married

spouses may avail of under the eyes of the law.

Fourth, lowering the marrying age is practicable. International and local communities

recognize the feasibility of contracting marriage at 16 and 14. This policy is in line with

maximizing the capacities of its people in providing for the state, as well as promoting the

institution of the family and marriage.

PLEADINGS
I. MARRIAGE IS AN INHERENT RIGHT.

A. The state has the capacity to determine the legal marrying age.

Under Section 12, Art. 2 of the 1987 Constitution, the State recognizes the sanctity of

family life and shall protect and strengthen the family as a basic autonomous social institution1. It

is given with great importance because of its status as an institution. The state of the people would

therefore depend on the guidance of the family. Further, according to the Art. 16 of the Universal

Declaration of Human Rights, (1) men and women of full age, without any limitation due to race,

nationality or religion, have the right to marry and to found a family. They are entitled to equal

1
Phil. Const. art. 11, § 12.

6
 Memorial for Applicant

rights as to marriage, during marriage and at its dissolution, (2) marriage shall be entered into only

with the free and full consent of the intending spouses, (3) the family is the natural and fundamental

group unit of society and is entitled to protection by society and the State2 The definition of full

age is made dependent on the laws of the contracting states. Therefore, the Philippines, being a

signatory thereto, in exercising its sovereign prerogative through its people, may set the marriage

age at 16 for men and 14 for women as they may deem necessary. In addition, under Art. 2 of the

Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages,

States Parties to the present Convention shall take legislative action to specify a minimum age for

marriage. No marriage shall be legally entered into by any person under this age, except where a

competent authority has granted a dispensation as to age, for serious reasons, in the interest of the

intending spouses3, thereby the Philippines, being one of the contracting states parties, are

empowered to prescribe the minimum age for marriage to 14 or 16.

Marriage, as an inviolable social institution, is the foundation of the family and shall be

protected by the State.4 It is the foundation of the family and an inviolable social institution whose

nature, consequences, and incidents are governed by law and not subject to stipulation.5 The State

acts as the third-party in a marriage contract between two spouses. Marriage is of great interest to

the State and its legality is within the boundaries of public policy.6

2
The Universal Declaration of Human Rights, December 10, 1948, art. 16
3
Convention on Consent to Marriage, Minimum Age for Marriage and Registration of
Marriages, December 9, 1964, art. 2
4
PHIL. CONST. art. XV, § 2
5
The Family Code of the Philippines [FAMILY CODE] Article 1 (1988)
6
Id

7
 Memorial for Applicant

In the case of Maynard v Hill, the United States Supreme Court said that the marriage, as

creating the most important relation in life, as having more to do with the morals and civilization

of a people than any other institution, has always been subject to the control of the legislature. 7

Congress prescribes the age at which parties may contract to marry, the procedure or form essential

to constitute marriage, the duties and obligations it creates, its effects upon the property rights of

both, present and prospective, and the acts which may constitute grounds for its dissolution.8

Although Congress has the power to define the marrying age, it cannot deny the right of marriage

to those who are capacitated to give consent thereto and consequently fulfill the essential marital

obligations. Marriage must be subject only to limitations which are not discriminatory.

II. BOYS OF 16 YEARS OF AGE AND GIRLS OF 14 YEARS OF AGE

HAVE THE CAPACITY TO GIVE CONSENT TO MARRIAGE AND TO THE
CORRESPONDING MARITAL OBLIGATIONS.

A. The Revised Penal Code has set the age of liabilities in criminal offenses as well
as the age of consent in sexual conduct.
9
Sec. 6 of RA 9344 sets the minimum age of criminal responsibility at fifteen years old.

Further, Article 12 (2) of the Revised Penal Code provides that a person under nine years of age is

exempted from criminal liability.10 Jurisprudence has likewise recognized the involvement of

intelligence in the decision-making of a minor of twelve years of age.11 The case of Flave vs.

People recognizes a minor’s capacity to distinguish right from wrong as a product of voluntary

thinking.12

7
Maynard v Hill, 125 U.S. 190 (1888)
8
Id
9
AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE JUSTICE AND WELFARE SYSTEM,
CREATING THE JUVENILE JUSTICE AND WELFARE COUNCIL UNDER THE DEPARTMENT OF
JUSTICE, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES, [Juvenile Justice and
Welfare Act] Republic Act 9344 (2006)
10
An Act Revising the Penal Code and Other Penal Laws [REVISED PENAL CODE], Article 12 (1932)
11
Niel F. Llave v People of the Philippines, G.R. No. 166040 (2006)
12
Id.

8
 Memorial for Applicant

Currently, an amendment is being sought by the 17th Congress as manifested in House Bill

No. 2, which targets to lower the age of criminal liability to nine years old.13 A critical look at the

intention behind the given bill highlights the acknowledgment that the capacity to make an

informed choice is already present as early as the age of nine. 14 Lawmakers credit the continuous

development of technology and digital media in making information readily available to lower-

aged minors.15 Furthering this proposal is research data from the American Psychological

Association, which shows a lack of appreciable difference in the information-processing skills

between adolescents from the age of sixteen and adults.16

Moreover, the Anti-Rape Law of 1997 considers sexual activities with a person below

twelve years of age as statutory rape.17 It is submitted that the consent given by a minor who is at

least twelve years old to engage in sexual conduct has legal validity. Statistical data provides a

significant demographic of minors engage in consensual sex before reaching eighteen years old.

A 2013 survey by the Philippine Statistics Authority revealed that 20% of Filipino females

voluntarily began sexual activity before hitting the age of majority.18

Given the foregoing, it is clear that the level of maturity and discernment of these ages are

sufficient to give an informed consent to marriage that likewise entails a full understanding of the

essential marital obligations.

13
Minimum Age of Criminal Responsibility Act, H.B. No. 2, 17th Cong., 1st Reg. Sess. (2016)
14
Id.
15
Id.
16
Laurence Steinberg, et. al., Are Adolescents Less Mature Than Adults?, available at
http://www.apa.org/pubs/journals/releases/amp-64-7-583.pdf (last accessed Oct. 19, 2016)
17
An Act Expanding the Definition of the Crime of Rape, Reclassifying the Same As a Cime Against Persons
Amending for the Purpose Act No. 3815 As Amended Otherwise Known As the Revised Penal Code and For Other
Purposes [Anti-Rape Law of 1997] Republic Act 8353 (1997)
18
Philippine Statistics Authority, One in Ten Young Filipino Women Age 15 to 19 Is Already A Mother or
Pregnant With First Child (Final Results from the 2013 National Demographic and Health Survey), available at
https://psa.gov.ph/content/one-ten-young-filipino-women-age-15-19-already-mother-or-pregnant-first-child-final-
results (last accessed Oct. 19, 2016)

9
 Memorial for Applicant

B. Power of the state to define the marrying age must be in consonant of the
person’s capacity to give consent.

Discernment is the mental capacity to understand the difference between right and wrong

and its consequences.19 In the case of Flave v People, the court recognizes that as early as the age

of twelve, adolescents can determine right from wrong.20

Recognition of the capacity to marry of both males and females at an earlier age is also

prevalent in recognized laws of ethnic groups in the Philippines. Under the Article 16 of PD No.

1083, any Muslim male at least fifteen years of age and any Muslim female of the age of puberty

or upwards and not suffering from any impediment under the provisions of this Code may contract

marriage.21 A female is presumed to have attained puberty upon reaching the age of fifteen.22 The

Muslim Code recognizes that persons of the age of 15 are already both physically and

psychologically capable of assuming the duties of marriage.

C. There is an evolving capacity to discern.

By age fifteen, adolescents have already attained adult level cognitive-processing

capacities.23 In other words, they are as able as are adults to acquire, retain, and retrieve relevant

information and apply to that information reasoning processes that lead to justifiable conclusions.24

19
Memorandum Circular No. 07 [2007], Standard Office Procedures in Extending Legal
Assistance to Children in Conflict with the Law (CICL) Under R.A. NO. 9344 and Other Related
Laws
20
Niel F. Llave v People of the Philippines, G.R. No. 166040 (2006, April 26)
21
PD No. 1083 (A Decree to Ordain and Promulgate a Code Recognizing the System of Filipino
Muslim Laws, Codifying Muslim Personal Laws, and Providing for its Administration and for
Other Purposes)
22
Id
23
Vivian E. Hamilton. The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent Marriage.
http://www.bu.edu/law/journals-archive/bulr/volume92n4/documents/hamilton.pdf
24
Id

10
 Memorial for Applicant

They thus can understand the nature of marriage and its requirements, and they have the ability to

make a rational decision whether to marry or not.25

III. LOWERING THE AGE TO MARRY IS BENEFICIAL TO SOCIETY.

A. Lowering the age to marry maximizes the fertility of the woman.

The average age of ovulation for the female occurs at 12 years old. At this point, the female

is now capable of child-bearing. In fact, back in 1983, a student of Professor Balane in Civil Law

Review asked the professor, “Why is it that at entering into a contract of sale, one is required to be

twenty one years old, but in entering into an all-important contract of marriage, it is enough that

one is fourteen or sixteen?” Director Romero replied that this is so because of biological reasons.

In fact, biologically, a female has the capacity to get pregnant at the early age of eleven.

Age is a very important criterion for women, especially for conception. Delayed age greatly

affects the fertility of a woman, reducing the possibility of conception. In February 2016, the

United Nations Population Fund reported that adolescent fertility rates have declined in the last

two decades in all countries with available data, with the exception of the Philippines where there

has been little change.26

At present, there are nearly one billion young people aged between 10 and 24 living in the

Asia-Pacific region, accounting for more than a quarter of its population; a "significant

proportion" of which are sexually active. While for many the onset of sexual activity is associated

with marriage, an increasing number are initiating sex before marriage27. According to an analysis

25
Id
26
World Health Organization, United Nations Population Fund. (2016, February). Sexual and Reproductive Health
of Young People in Asia and the Pacific: A Review of Issues, Policies, and Programmes [Press release]. Retrieved
October 20, 2016, from http://asiapacific.unfpa.org/sites/asiapacific/files/pub-pdf/UNFPA SHR YP AP_2015 for
web-final.pdf
27
Id.

11
 Memorial for Applicant

of the 2013 National and Demographic Health Survey28, around one-third of adolescent

pregnancies were conceived prior to marriage.

Because of the sensitive nature of reproductive health issues in general in the Philippines,

marital status, instead of age, has generally been the major factor determining how reproductive

health programs are organized and provided29. As the head of a prominent NGO working with

youth and adolescents explained30, a married adolescent would not be treated as a teenager but as

an adult as access to reproductive health services is considered appropriate for married women.

Varga and Zosa-Feranil31 further state that “politically, age is not really the issue in this country.

It is always marital status. Lowering the marital age from 18 to 16, therefore, would help address

the need of adolescents to have access to proper health care and vital information, as statistics

show that one in ten young Filipino women aged 15-19 has begun childbearing: 8 percent are

already mothers and another 2 percent are pregnant with their first child32.

The welfare of the child and his family should always be of utmost priority. However, the

steady increase of teenage pregnancy and prevalence of premarital sex has led to a raise in the

number of child-births outside marriage which gives the status of illegitimacy for these children.

Children born outside marriage are illegitimate33. Illegitimate children are not awarded with the

same rights as those given to legitimate children. The illegitimate child can receive only half of

the legitime given to a legitimate child34 and in terms of support, such may be sought by the

28
Philippine Statistics Authority. (2014, August). Philippines National Demographic and Health Survey 2013
[Press release]. Retrieved October 20, 2016, from https://dhsprogram.com/pubs/pdf/FR294/FR294.pdf
29
Varga, C. A., & Zosa-Feranil, I. (2003). Adolescent and youth reproductive health in Philippines: status issues
policies and programs. Washington, D.C., Futures Group International, POLICY Project, 2003 Jan. iv, 31 p. 21.
Date accessed: October 18, 2016. http://www.policyproject.com/pubs /countryreports/ARH_Philippines.pdf
30
Id.
31
Id.
32
2013 Philippines National Demographic Survey, supra note 39.
33
Family Code of the Philippines, Art. 165
34
Id. Art. 176

12
 Memorial for Applicant

illegitimate child only from his or her parents and grandparents35. Further, there is a stigma

surrounding illegitimacy which can easily be resolved in the event that males aged 16 and 14 aged

14 are granted the right to marry.

B. The Tax Code grants tax exemptions for married couples.

Various provisions in the Tax Code36 provide for exemptions for married couples:

Individuals who are earning compensation income, engaged in business or deriving

income from the practice of profession are entitled to personal exemptions: for single individual

or married individual judicially decreed as legally separated with no qualified dependents

(P50,000), for head of family (P50,000), and for each married individual ( P50,000 to be claimed

only by the spouse deriving gross income). Taxpayers may also claim an Additional Exemption

of P25,000 for each qualified dependents, up to four (4) dependents.

In 2011, the number of working children below 18 years old is estimated at 5.5 million37.

With this figure and given the country’s young population, a portion of which already raising

their own families- exemptions in taxes could definitely be of great help. Lowering the marrying

age would then exempt more people who are already faced with the burden of providing for their

own families.

IV. LOWERING THE AGE TO MARRY IS PRACTICABLE.

A. As compared to other states, lowering the age to marry would be feasible.

The justifiability of the difference of ages between the men and women, 16 and 14

respectively, can find its legal basis on foreign law. Under Art. 731 of the Japan Civil Code, a man

may not marry until the completion of his full eighteen years of age, nor a woman until the

35
Id. Title VIII
36
National Internal Revenue Code of 1997
37
2011 Survey on Children

13
 Memorial for Applicant

completion of her full sixteen years of age.38 There is reason with the difference of the prescribed

minimum ages between men and women because the two sexes are not the same on their physical

and mental development.39 This can be applied to the Philippines because the disparity with the

ages stems from the sex wherein nationality or race is not a relevant factor. People who will be

able to get married early and receive support from the government, will be exposed immediately

at a young age about the responsibility of having a family which will maximize the capability of

people in performing obligations in the family. Men and women who start a family at an early

opportunity will have the advantage of knowing what to do to be a good contributor to the

community as a social institution, as compared to people who get married at a later age. This will

instill maturity and responsibility to the teenagers which will make them more efficient to the

community as soon as possible.

In Bangladesh40, “under special circumstances” generates a situation where a girl and a boy

can be forced to be married by their parents. This would not be the case if such provision would

be applied in the Philippines as the proposed jurisprudence would require parental consent. The

choice and consent of marriage should come from the contracting parties first, before having the

consent of the parents. As Article 12 of the Convention on the Rights of the Child says, “States

Parties shall assure to the child who is capable of forming his or her own views the right to express

those views freely in all matters affecting the child, the views of the child being given due weight

38
Japan Civil Code [JAPAN CIVIL CODE], Act No. 89, art. 731 (1896)
39
Madabhushi Sridhar, Discussion Paper on Legal Provisions Regarding Age of Child To protect
the Rights of Children, available at http://ncpcr.gov.in/showfile.php?lid=87 (last accessed Oct.
21, 2016)
40
Nandini Shahla Chowdhury, A dangerous clause to ‘legally’ decrease child marriage in Bangladesh, Devex, Apr.
22, 2015, available at https://www.devex.com/news/a-dangerous-clause-to-legally-decrease-child-marriage-in-
bangladesh-85966 (last accessed Oct. 19, 2016).

14
 Memorial for Applicant

in accordance with the age and maturity of the child.”Any coercion to force such marriage would

create an impediment and could be a ground for a voidable marriage.

Here in the Philippines, a minimum age requirement lower than 18 used to be existent in

our laws particularly in the Old Civil Code. In the Minutes of Civil Code Revision Committee

Meetings, Prof. Balante shared with the group the question raised by one of his students in Civil

Law Review, that is: Why is it that for entering into a contract of sale, one is required to be 21

years old, but in entering into the all-important contract of marriage, it is enough that one is 14 or

16? Director Romero replied that this is so because of biological reasons.”41

B. Muslim laws also provides an example of feasibility.

Under the Article 16 of PD No. 1083, any Muslim male at least fifteen years of age and

any Muslim female of the age of puberty or upwards and not suffering from any impediment

under the provisions of this Code may contract marriage.42 A female is presumed to have

attained puberty upon reaching the age of fifteen.43 The Muslim Code recognizes that persons of

the age of 15 are already both physically and psychologically capable of assuming the duties of

marriage. The fact that a religion, which is used as a basis by other countries in imposing a

minimum age requirement, is given weight, should be given application to the Philippines, since

the rationale of such age limitation comes from the capacity and not on belief (religion).

41
Minutes of Civil Code Revision Committee Meetings January 21- Dec 16 1983 V.1 (page 7-8)

42
A Decree to Ordain and Promulgate a Code Recognizing the System of Filipino Muslim Laws,
Codifying Muslim Personal Laws, and Providing for its Administration and for Other Purposes,
[Code of Muslim Personal Laws of the Philippines] PD 1083 (1977)
43
Id

15
 Memorial for Applicant

CONCLUSION
The applicants respectfully request for the Court to make final judgement on lowering the

age to marry from 18 to 16 for boys and 14 for girls with reasons of:

1. Marriage is an inherent right.

2. 16 year old boys and 14 year old girls have the capacity to give consent.

3. Lowering would be beneficial to society.

4. There is evident feasibility.

16