Beruflich Dokumente
Kultur Dokumente
2016
1
Memorial for Applicant
TABLE OF CONTENTS…………………………………………………………2
INDEX OF
AUTHORITIES…………………………………………………………………...3
SUMMARY OF PLEADINGS…………………………………………………...6
PLEADINGS……………..………………………………………………………..7
CONCLUSION…………………………………………………………………..17
INDEX OF AUTHORITIES
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Memorial for Applicant
CONSTITUTION
THE 1987 CONSTITUTION OF THE PHILIPPINES 7, 8
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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
ARTICLES/SURVEYS
2011 Survey on Children 14
Laurence Steinberg, et. al., Are Adolescents Less Mature Than Adults? 10
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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
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
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Memorial for Applicant
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
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
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.
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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
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
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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.
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.
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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
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
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
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)
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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
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
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
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Memorial for Applicant
They thus can understand the nature of marriage and its requirements, and they have the ability to
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
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.
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Memorial for Applicant
of the 2013 National and Demographic Health Survey28, around one-third of adolescent
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
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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
Various provisions in the Tax Code36 provide for exemptions for married couples:
income from the practice of profession are entitled to personal exemptions: for single individual
(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
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.
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
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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
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).
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Memorial for Applicant
in accordance with the age and maturity of the child.”Any coercion to force such marriage would
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
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
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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:
2. 16 year old boys and 14 year old girls have the capacity to give consent.
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