CHILD NOT BRIDE: CRIMINALIZING CHILD

MARRIAGES IN THE PHILIPPINES

By
Acedera, Leira Mariel
Allada, Romulo Jr.
Francisco, Angemeir Chloe
Macapagal, Kaia Danelle
Mariano, Dean Allyson Fhey

A research proposal submitted

in partial fulfilment of the requirements in
Legal Research and Legal Writing

San Beda University Mendiola

College of Law

20 January 2020
 ABSTRACT

Prevailing literature on the effects of child marriages as well as the existing

Philippine laws and jurisprudence were examined to illustrate the current state of

child marriages in the Philippines. While global trends on child marriages point to

poverty as the main driver, in the Philippines, religion and tradition are at the

forefront of the problem. Despite having a law setting the minimum age for

marriage, the strict neutrality approach in the separation between Church and State

in the country has paved the way for child marriages under Sharia laws. Research

on the effects of child marriage showed that it negatively impacts a child’s

economic, sexual, psychosocial, and educational growth. These findings point to

an immediate and pressing threat to Filipino children. The authors believe that the

compelling state interest test should be applied in accommodating the right to

religious freedom conferred by the Constitution to every Filipino to enable

lawmakers to enact stricter laws banishing child marriages altogether in the

protection of the best interests of the child.

1
 TABLE OF CONTENTS
Abstract 1
Table of Contents 2
Introduction 3
Background of the Study
Research Problem
Objective and Limitations of the Study
Significance of the Study
Review of Related Literature 7
Defining Child Marriage
Factors Influencing Child Marriage
Effects of Child Marriage to Overall Health and Well-Being of a Child
Global Campaign to End Child Marriages
Philippine Laws and Adherence to International Standards
Conceptual Framework 14
Separation of Church and State
Human Rights and Cultural Variations
Methodology 21
Data Gathering
Limitations and Data Analysis
Findings of the Study 22
Conclusion 33
Recommendation 35
References 37

2
 INTRODUCTION

Background of the Study

Violence Against Women and Girls (VAWG) is considered as one of the

most systematic and widespread human rights violations. A notable manifestation

of VAWG is child, early, and forced marriages (CEFM). In developing countries

such as the Philippines, one out of four children are married before they reach the

age of majority (18 years old and below). Although the country already ratified

several international statutes that proscribe CEFM, and the local Family Code

which sets the minimum legal age of marriage at 18 is in effect, child marriages are

still prevalent in the country for such acts are protected under the Code of Muslim

Personal Laws (CMPL) and are considered legitimate by various indigenous

cultural communities.

The State, in Art. 15, Sec. 3 Par. 2 of the 1987 Constitution, grants children

with the right to assistance, including proper care and nutrition, and special

protection from all forms of neglect, abuse, cruelty, and other exploitation

prejudicial to their development. Thus, child marriage is a complete violation of

the Constitution and Family Code of the Philippines. According to Art. 2 of the

Family Code, “No marriage shall be valid, unless these essential requisites are

present: (1) legal capacity of the contracting parties who must be a male and a

female; and (2) consent freely given in the presence of the solemnizing officer.”

Art. 5 also provides that “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.”

In addition to that, it is also contrary to the provisions of Republic Act 7610

titled “An Act Providing for Stronger Deterrence and Special Protection Against

3
Child Abuse, Exploitation, And Discrimination, And For Other Purposes” which

specifically qualifies prohibited acts and outlines their respective penalties. Sec. 10

states that “(a) Any person who shall commit any other acts of child abuse, cruelty,

exploitation or to be responsible for other conditions prejudicial to the child's

development including those covered by Article 59 of Presidential Decree No. 603,

as amended, but not covered by the Revised Penal Code, as amended, shall suffer

the penalty of prision mayor in its minimum period”1.

Although the practice of child marriage is often linked to poverty and lack of

opportunities, it is also linked to traditional cultural and religious practices, as in

the case of the Philippines. Research shows that child marriage has substantial

negative impact on a child’s education, health, and psychological well-being 2.

According to the 2008 National Health and Demographic Survey, in the

Autonomous Region of Muslim Mindanao (ARMM), where majority of

inhabitants are Muslims, the maternal mortality risk is twice as high as the national

average. In addition to that, it also puts young women at high risk for intimate

partner violence (IPV) which, in turn, is linked to adverse physical and mental

health outcomes3. Non-consensual sex and marital rape also have devastating

mental consequences because they are at their formative stage of psychological

development. Moreover, child marriage also forces the child to focus on household

and marital duties ending their education forever. Even when children try to resist

marriage, they are still at risk of violence, imprisonment, and in extreme cases,

death in the hands of their families or husbands.

1
Sec. 10, RA 7610
2
Nour, N. (2009). “Child Marriage: A Silent Health and Human Rights Issue”. Reviews in Obstetrics &
Gynecology 2(1), 56.
3
Kidman, R. (2017). ‘’Child Marriage and Intimate Partner Violence: A Comparative Study of 34
countries.’’ International Journal of Epidemiology 46(2), 663.

4
 The Philippines, as a signatory to various international conventions,

including the Universal Declaration of Human Rights (1948), United Nations

Convention on the Rights of the Child (UNCRC) (1989), and Convention on the

Elimination of All Forms of Discrimination against Women (CEDAW) (1979), has

manifested its promise to end the practice of child marriage in the country and to

protect the basic rights of the child to health, education and security. A move

towards the criminalization of child marriage in the Philippines was initiated in

2018 by Bagong Henerasyon Representative Bernadette Herrera Dy and Albay

First District Representative Edcel Lagman. House Bill No. 8440 seeks to end the

facilization and solemnization of child marriage by declaring it a “public crime”

punishable by imprisonment. Proponents argue that child marriages are “grave

forms of child abuse and exploitation which threaten and endanger the

development of children physically, emotionally, and psychologically” 4. However,

until this bill, or a similar one prohibiting child marriage, has been approved as a

law, the practice of child marriage will continue to perpetuate in the country under

the guise of religious freedom.

Research Problem

The study problematizes the State’s countenance of child marriages within

the Muslim community in adherence to the State’s adoption of the principle of

benevolent neutrality in accommodating the right to religious freedom conferred

by the Constitution to every Filipino.

4
Cepeda, M. (2018). “House Bill Seeks to Criminalize Child Marriage in PH”. Rappler.com. Retrieved
on: 16 August 2018. Retrieved from: https://www.rappler.com/nation/214034-house-bill-criminalize-
child-marriage-philippines

5
Objective and Limitations of the Study

The main objective of the study is to argue for the urgency and imperative of

enacting an all-encompassing legislation that would prohibit child marriages in the

Philippines. This will be achieved through referencing existing jurisprudence from

foreign courts, considering legal theories and principles conceived or analyzed by

legal scholars, and accounting merits of such prohibition to the general welfare and

well-being of children as evidenced by studies conducted by researchers and

academics.

The limitations of the study are mainly attributed to practical considerations

such as the time-boundedness of research and accessibility of materials. In terms of

data analysis, primary sources are limited to foreign jurisprudence and

international law given the absence of domestic jurisprudence that tackles the

problematized legal controversy.

Significance of the Study

The significance of the study is grounded on its potential to instigate a

discussion on the legal merits of extending the prohibition on child marriages to

the Muslim community. It provides a springboard for debates and further studies

on the topic that may serve as guides for legislators in drafting the much needed

law.

6
 REVIEW OF RELATED LITERATURE

Defining Child Marriage

Child marriage is legal or customary union involving a boy or girl below the

age of 185. It is a harmful, discriminatory practice 6 considered as a human rights

violation for it leads to a lifetime of suffering, affecting the psychosocial, physical,

and economic welfare of victims who are forced into such an arrangement. 7 In

Parsons et al. it defined child marriage as “an impediment to social and economic

development...rooted in gender inequality. The study that child marriages affects

girls to a far greater extent than boys, and has been generally increasing around the

world. Although the term child marriage is not explicitly mentioned in the 1989

Convention on the Rights of the Child (CRC), Article 4 of the same contains text

requiring governments to abolish “traditional practices prejudicial to the health of

children” and urging them to protect children from “all forms of sexual

exploitation and sexual abuse”8.

Factors Influencing Child Marriage

A wide variety of scholarly literature has substantively discussed some of

the factors that contribute to child marriages. According to Demographic and

Health Surveys, an institution which provides much of the present country-level

5
Parsons, J., Edmeades, J., Kes, A., Petroni, S., Sexton, M., & Wodon, Q. (2015). “Economic Impacts of
Child Marriage: A Review of the Literature”. The Review of Faith & International Affairs 13(3), 12–22
6
Arthur, M., Earle, A., Raub, A., Vincent, I., Atabay, E., Latz, I., Kranz, G., Nandi, A., and Heymann, J.
(2017). “Child Marriage Laws around the World: Minimum Marriage Age, Legal Exceptions, and Gender
Disparities”. Journal of Women, Politics & Policy 39(1), 71.
7
Nour, N. (2009). “Child Marriage: A Silent Health and Human Rights Issue”. Reviews in Obstetrics and
Gynecology 2(1), 55.
8
Art. 4, 1989 Convention on the Rights of the Child

7
child marriage data, child marriage is most prevalent in economically challenged

countries. The highest rates are in sub-Saharan Africa and South Asia, as well as

parts of Latin America and the Caribbean9. In all regions, the causes of child

marriages are complex, interrelated and interwoven with cultural and religious

traditions, as well as socioeconomic status10. Girls belonging to the impoverished

class of low-income countries have a higher propensity of being forced into child

marriages. The practice is also more prevalent among some faith traditions than

others, as well as in societies where girls and women are traditionally assigned a

lower status than men and boys within their household and community11.

Women and girls who are considered as second-class citizens in their own

countries are assumed neither as contributors to community life nor active

participants in economic development of their societies. As such, they are assigned

and limited to duties within the household that encompass the roles of caregiver,

wife, and mother. This attitude towards the female sex is closely linked to the

patriarchal structure of the family, likewise the influence of “traditional and tribal

norms and customs”12. As Scolaro pointed out, this type of social perception and

structure is particularly common in the Asia-Pacific region. This social perception

reinforces the assumption that marriage is the only way to ensure a girl’s future,

and hence, the earlier she is betrothed, the better.

Scolaro (2015) as well as Amin and Bajrachaya (2011) all discovered that

poverty is a major contributing factor underlying child marriages in the Asia-

9
International Center for Research on Women (ICRW). (2006). “Child Marriage and Poverty,” from
Too Young to Wed: Advocacy Toolkit: Education & Change Toward Ending Child Marriage. ICRW:
Washington, D.C.
10
Scolaro, E., Blagojevic, A., Filion, B., Chandra-Mouli, V., Say, L., Svanemyr, J., and Temmerman, M.
(2015). “Child Marriage Legislation in the Asia-Pacific Region”. The Review of Faith & International
Affairs 13(3), 26.
11
Id.
12
Id.

8
Pacific region. Low-income families view female children as financial burdens and

thus, their early marriage is seen as a convenient solution for poverty alleviation.

Marriage arrangements are also seen as opportunities for settling familial debts or

disputes, and/or securing economic, social, or political alliances, even in higher

income families. Dowries, bride prices, and other customary requirements are also

considerations.

Contributory factors leading to child marriages are not limited to the ones

already mentioned in the preceding chapter. In a study conducted by the UNFPA in

2012, child marriages are often seen as a safeguard against premarital sex 13.

Parents force their young daughters into marriage with the ultimate consideration

of the preservation of the girl’s virginity and her protection from any type of

lascivious behavior that is considered immoral or inappropriate before or outside of

marriage. Many sex-negative societies impose on the head of the family,

commonly the father or the eldest son, the duty of protecting women in their family

from all forms of sexual harassment and violence. As such, when young girls are

married off, it is seen that the father transfers the burden of preserving his

daughter’s sexual dignity to her husband.

More notable among these factors is the existing weak and often

contradictory legislation and lack of enforcement of existing laws concerning the

abandonment of child marriages in different countries. Recently, there has been a

rise in the criminalization of such practice within the regions mentioned prior.

However, the main hurdle remains to be the coexistence of multiple legal systems

within countries which are given equal footing in terms of regulating marriage.

United Nations Population Fund (UNFPA) and Engender Health. (2003). Obstetric Fistula Needs
13

Assessment Report: Findings from Nine African Countries. UNFPA and Engender Health: New York,
NY.

9
Many countries in the Asia-Pacific region are characterized as having both

statutory law and religious law as controlling legislations for marriages.

Effects of Child Marriages to the Overall Health and Well-Being of a Child

Countless literature have been produced by scholars and policy-makers alike

which hazards societies of the ills of child marriages. Parsons et al (2015)

enumerated five dimensions of a child’s life that are adversely affected when s/he

is forced into marriage at such a young age. These dimensions are participation and

decision-making, educational attainment, labor force participation, violence, and

health. Naveed and Butt (2015)14 identified poverty, illiteracy, and gender

inequality as the main factors that influence the phenomenon of child marriage,

which then lead to economic deprivation and physical, emotional, and sexual

violence.

Ouattara, Purna, and Thomson (1998)15 expounded on how child marriages

infringe on the consent of girls, and young women. The authors opined that sexual

abuse is intrinsically linked to forced marriages by the very nature of the practice’s

outright erasure of agency, and its dismissal of the importance of consent.

Domestic violence, including but not limited to marital rape and a life of servility,

characterizes child marriages. Sexual abuse in the private sphere, described as

“denying women’s bodily integrity and control”16, carries with it severe dangers to

the health of women, especially girls. Sexual abuse leads to countless unwanted

pregnancies and a range of negative health implications.

14
Naveed, S. and Butt, K.M. (2015). “Causes and Consequences of Child Marriages in South Asia:
Pakistan’s Perspective”. Journal of South Asian Studies 30(2), 161-175.
15
Ouattara, M., Sen, P., & Thomson, M. (1998). “Forced Marriage, Forced Sex: The Perils of Childhood
for Girls”. Gender & Development, 6(3), 27–33
16
Ouattara, M., Sen, P., & Thomson, M. (1998). “Forced Marriage, Forced Sex: The Perils of Childhood
for Girls”. Gender & Development, 6(3), 27–33.

10
 There is a plethora of medical literature that show a strong association

between child marriage and early childbirth, partly because girls are forced to

prove their fertility to their husbands soon after marrying; mostly because they are

deprived of the opportunity to influence decision making on family planning. 17

Women who bear children at a young age may face serious health consequences

such as maternal mortality, obstructed labor, and pregnancy-induced hypertension

because their bodies are unprepared for childbirth18. Risk of suffering from

obstetric fistula–– a condition in which the vagina, bladder and/or rectum tear

during childbirth and, if left untreated, causes lifelong leakage of urine and feces––

is also high among girls who have babies19. The practice of child marriage also

exposes young girls to a greater risk of HIV infection because they have little

option to change their sexual behavior even with knowledge about HIV 20

particularly because of non-access to quality health care21.

Aside from the medical dangers that child brides and wives are exposed to,

socioeconomic vulnerabilities of the child are also important consequences to

consider. Mikhail (2010)22 posited how child marriages and child prostitution

operate in the same manner. Both practices involve economic transactions, lack of

freedom, and the violation of a child’s right to consent. Mahato (2016) 23 stated that

child marriages affect the education of a child and increases his/her risk of

depression.
17
Mathur, S., M. Greene, and A. Malhotra. (2003). Too Young to Wed: The Lives, Rights and Health of
Young Married Girls. International Center for Research on Women (ICRW): Washington, D.C.
18
Save the Children. (2004). State of the World’s Mothers 2004. Save the Children: Westport, CT.
19
United Nations Population Fund (UNFPA) and EngenderHealth. (2003). Obstetric Fistula Needs
Assessment Report: Findings from Nine African Countries. UNFPA and EngenderHealth: New York, NY
20
Clark, S. (2004). “Early Marriage and HIV Risk in Sub-Saharan Africa.” Studies in Family Planning
35(3), 149-160.
21
Mathur, S., M. Greene, and A. Malhotra. (2003). Too Young to Wed: The Lives, Rights and Health of
Young Married Girls. International Center for Research on Women (ICRW): Washington, D.C.
22
Mikhail, S.L. (2002). “Child Marriage and Child Prostitution: Two Forms of Sexual Exploitation”. Gender
and Development 10(1), 43-49.
23
Mahato, S. (2016). “Causes and Consequences of Child Marriage: A Perspective”. International Journal
of Scientific & Engineering Research 7(7), 698-702.

11
 Child marriages affect the holistic well-being of its victims. This archaic

practice imposes unto a child responsibilities that s/he is too young to fulfill, and

commitments s/he is incapable of consigning to. As such, the adverse effects of

child marriage chain a child to a life of suffering and disenfranchisement.

Global Campaign to End Child Marriages

Criminalizing child marriages has been gaining traction in different

countries throughout the world because of the rising trend in adopting universally

established principles that uphold human dignity. Arthur et al. (2017) analyzed the

national legislation of 193 United Nation (UN) Member States regarding minimum

marriage age and gender disparities in child marriages. Its findings indicate a

significant increase in the frequency of countries with legal provisions against

child marriages, with only about a fifth permitting children below 18 to be married

based on customary or religious exceptions to civil law provisions. Despite this

improvement, there remains to be huge gaps in terms of gender discrimination and

legal exceptions which leave children at risk. It provides statistical evidence that

girls are more likely to be forced into marriage than boys and that such disparity

greatly influences women’s discrimination and impedes their full participation in

education, the economy, politics, and policymaking. Scolaro et al (2015) provided

a five-level analysis of the legal systems of 37 Asia-Pacific countries. The five-

level analysis looked into (1) relevant international treaties; (2) constitutional

provisions; (3) statutory law; (4) customary/religious/ traditional/tribal

frameworks; and (5) provisions and sanctions. Its findings showed that while the

majority of the countries are signatories to the United Nations Convention on the

Rights of the Child (1989) and other relevant treaties, only four (4) have set their

12
legal marrying age to above eighteen (18) without exceptions. It revealed the

strong influence of religious, tribal, and patriarchal norms and practices in the

Asia-Pacific region and the resulting difficulty in harmonizing them with statutory

laws compliant with international set standards for the protection of the rights of

the child with.

Philippine Laws and Its Adherence to International Law

In the Philippines, only persons who have reached the age of majority (18

years old) are allowed to marry (Family Code); and even then, if they are to marry

before the age of 21, it is a legal imperative to obtain parental consent. Our Family

Code’s prohibition on child marriages is in adherence with the call of the UNCRC

(United Nations Convention on the Rights of the Child). However, it is important

to note that the Philippine government also recognizes The Code of Muslim

Personal Laws (Presidential Decree No. 1083) which allows minors––15 years old

for boys, and 12 years old for girls––to marry. Although there have been attempts

in the past to impose a blanket policy that absolutely prohibits marrying off

children, these undertakings sadly did not come into fruition.

13
 CONCEPTUAL FRAMEWORK

Separation of Church and State

The separation of church and/or of religious beliefs from the affairs of the

state (nation) is an issue whose relative importance in any society cannot be

overemphasized. This stems from the impact of having state affairs directly

influenced by religious beliefs and practices in the case of the fusion of the state

and religion. Better still, the separation of the state from the clutches of religious

beliefs has the propensity to significantly affect way of life as well as the rate of

development in a society. For this reason, scholars of the law have consistently

advised governments to establish clear boundaries between the Church and the

State. Thomas Jefferson, one of America’s founding fathers, introduced the phrase

“wall of separation between Church and State” as an interpretive metaphor for the

Establishment Clause of the First Amendment24. Justice Hugo L. Black, the

foremost jurisprudential interpreter of the metaphor in the Supreme Court’s

contemporary period, is arguably responsible for the public’s familiarity with the

“wall” doctrine. Justice Black’s constitutional interpretation of the said doctrine is

founded on the “twin jurisprudential principles of literalism and absolutism” 25.

Conceptually, the term refers to the creation of a secular state (with or without

legally explicit church–state separation) and to disestablishment, the changing of

an existing, formal relationship between the church and the state.

In Philippine jurisprudence, the separation of Church and State is expounded

by the Court in the landmark case of Escritor vs Estrada. 26 The following excerpts

24
Hamburger, P. (2004). Separation of Church and State. Cambridge, MA: Harvard University Press.
25
Perry, B. (1989). “Justice Hugo Black and the “Wall of Separation Between Church and State”. Journal
of Church and State 31(1), 55–72.
26
Estrada v. Escritor, A.M. No. P-02-1651, August 4, 2003; June 22, 2006.

14
are directly lifted from the same case in the discussion of religious clauses in the

US context:

a. Strict Separation and Strict Neutrality/Separation

The Strict Separationist believes that the Establishment Clause was

meant to protect the State from the Church, and the State’s hostility towards

religion allows no interaction between the two. According to this

Jeffersonian view, an absolute barrier to formal interdependence of religion

and state needs to be erected. Religious institutions could not receive aid,

whether direct or indirect, from the state. Nor could the state adjust its

secular programs to alleviate burdens the programs placed on believers.

Only the complete separation of religion from politics would eliminate the

formal influence of religious institutions and provide for a free choice

among political views, thus a strict "wall of separation" is necessary. Strict

separation faces difficulties, however, as it is deeply embedded in American

history and contemporary practice that enormous amounts of aid, both direct

and indirect, flow to religion from government in return for huge amounts of

mostly indirect aid from religion.27

The tamer version of the strict separationist view, the strict neutrality

or separationist view, (or, the governmental neutrality theory) finds basis in

Everson v. Board of Education, where the Court declared that Jefferson’s

"wall of separation" encapsulated the meaning of the First Amendment.

However, unlike the strict separationists, the strict neutrality view believes

that the "wall of separation" does not require the state to be their adversary.

Rather, the state must be neutral in its relations with groups of religious
27
Estrada v. Escritor, A.M. No. P-02-1651, August 4, 2003; June 22, 2006.

15
 believers and non-believers. "State power is no more to be used so as to

handicap religions than it is to favor them." The strict neutrality approach is

not hostile to religion, but it is strict in holding that religion may not be used

as a basis for classification for purposes of governmental action, whether the

action confers rights or privileges or imposes duties or obligations. Only

secular criteria may be the basis of government action. It does not permit,

much less require, accommodation of secular programs to religious belief.

The problem with the strict neutrality approach, however, is if applied

in interpreting the Establishment Clause, it could lead to a de facto voiding

of religious expression in the Free Exercise Clause. As pointed out by

Justice Goldberg in his concurring opinion in Abington School District v.

Schempp, strict neutrality could lead to "a brooding and pervasive devotion

to the secular and a passive, or even active, hostility to the religious" which

is prohibited by the Constitution.28 Thus, the dilemma of the separationist

approach, whether in the form of strict separation or strict neutrality, is that

while the Jeffersonian wall of separation "captures the spirit of the American

ideal of church-state separation," in real life, Church and State are not and

cannot be totally separate. This is all the more true in contemporary times

when both the government and religion are growing and expanding their

spheres of involvement and activity, resulting in the intersection of

government and religion at many points.

b. Benevolent Neutrality/Accommodation

The theory of benevolent neutrality or accommodation is premised on

a different view of the "wall of separation," associated with Williams,

28
Estrada v. Escritor, A.M. No. P-02-1651, August 4, 2003; June 22, 2006.

16
 founder of the Rhode Island colony. Unlike the Jeffersonian wall that is

meant to protect the state from the church, the wall is meant to protect the

church from the state.

The First Amendment, however, does not say that in every and all

respects there shall be a separation of Church and State. Rather, it studiously

defines the manner, the specific ways, in which there shall be no concert or

union or dependency one or the other. That is the common sense of the

matter. Otherwise, the state and religion would be aliens to each other -

hostile, suspicious, and even unfriendly.

The Philippines adheres to the benevolent neutrality approach in

accommodation of individual freedom of religion. However, the compelling state

interest test also expounded on Estrada vs Escritor provides for a way where State

interest may prevail over religious freedom, to wit:

If the plaintiff can show that a law or government practice inhibits the free

exercise of his religious beliefs, the burden shifts to the government to

demonstrate that the law or practice is necessary to the accomplishment of

some important (or ‘compelling’) secular objective and that it is the least

restrictive means of achieving that objective. If the plaintiff meets this

burden and the government does not, the plaintiff is entitled to exemption

from the law or practice at issue. In order to be protected, the claimant’s

beliefs must be ‘sincere’, but they need not necessarily be consistent,

coherent, clearly articulated, or congruent with those of the claimant’s

religious denomination. ‘Only beliefs rooted in religion are protected by the

Free Exercise Clause’; secular beliefs, however sincere and conscientious,

do not suffice.

17
Human Rights and Cultural Variations

As previously mentioned, the prevalence of child marriages is associated

with the premium placed on upholding customs, traditions, and even religious

practices observed by different societies. Its continued existence and pervasiveness

in our country is due to PD No. 1083 which basically exempted Filipino Muslims

from adhering to the laws under the Family Code, specifically provisions

regulating marriage. Outlawing child marriages in the Philippines will definitely

mean either an amendment to the Code of Muslim Personal Laws or a composition

of an entirely new legislation that would find the balance between upholding the

separation of Church and State, and the right to religious expression. It is therefore

important to investigate, explore, and review not only existing literature that

expounds on the practice of child marriage, but also present laws that criminalized

child marriages; especially in countries that are of similar characteristic to that of

our own society.

Hasan’s (2013) article29 correlates Islamic as a religion and child marriages

per se. It says that Quran does not contain specific legal age of marriage, but it

does make clear that men and women must be both physically mature and of sound

judgement in order to get married. It is also an apt reminder why most Muslim-

majority countries have minimum age for marriage codified in law: to deter adults

from exploiting children and to protect the most innocent members of our society.30

29
Hasan, M. (2013). “British Muslims Should Stand Up and Say It: There is Nothing Islamic About Child
Marriage.'' New Statesman 142(5185), 40.
Kamal, S. M.M., Hassan, C.H., Alam, G.M., and Ying, Y. (2015) “Child Marriage in Bangladesh:
30

Trends And Determinants.” Journal of Biosocial Science 47(1), 120–39.

18
 Toyo (2006)31 takes the Minimum Age of Marriage clause of the Nigerian

Child Rights Act of 2003 as an entry point through which to analyze the politics of

women's rights in Nigeria. It reviews the introduction of this legislation, the

reaction of different stakeholders to it and the ways in which different women's

groups and programs have engaged with the emerging controversy over the age of

marriage. Ultimately the lesson that emerges from this case is that, for international

human rights treaties to make a difference for vulnerable groups such as children,

they have to go beyond being evoked and advocated by groups to become tools for

political action, which also means the creation of mechanisms that challenge

powerful agents in society and compel accountability.

Marriages in which a child under the age of 18 years is involved occur

worldwide, but are mainly seen in South Asia, Africa, and Latin America. A

human rights violation, child marriage directly impacts girls’ education, health,

psychologic well-being, and the health of their offspring. It increases the risk for

depression, sexually transmitted infections, cervical cancer, malaria, obstetric

fistulas, and maternal mortality. Their offspring are at an increased risk for

premature birth and, subsequently, neonatal or infant death. The tradition, driven

by poverty, is perpetuated to ensure girls’ financial futures and to reinforce social

ties. One of the most effective methods of reducing child marriage and its health

consequences is mandating that girls stay in school.32

Media attention raises awareness of the issue and can prompt change. Nour’s

study is relevant to serve as an example to other countries to eliminate child

marriages due to the harmful effects it imposes upon the child. This report is vital
31
Toyo, N. (2006). “Revisiting Equality as a Right: The Minimum Age of Marriage Clause in the Nigerian
Child Rights Act 2003”. Third World Quarterly 27(7), 1299-1312.
Nour, N. (2009). “Child Marriage: A Silent Health and Human Rights Issue”. Reviews in Obstetrics and
32

Gynecology 2(1), 55.

19
as it calls decision makers, parents, communities and to the world to end child

marriage. The documents are presented in a current scope, prevalence and

inequities associated with child marriage.

METHODOLOGY

20
Data Gathering

Both primary and secondary sources are used in this study. Most of the

primary sources are foreign jurisprudence and are obtained through credible

websites (e.g. legal journal websites, government websites, etc) from the internet.

Local primary sources are limited to the Civil Code as well as the Code of Muslim

Personal Laws. For secondary sources, legal articles as well as medical and social

science journals are used. These are procured from online journals, electronic

copies, as well as physical copies available in the College of Law library of San

Beda University.

Limitations and Data Analysis

The researchers of this paper chose to employ a non-doctrinal qualitative

legal research or the “problem, policy, law reform” based research methodology in

conducting this study. This type of methodology is deemed by the researchers to be

the most appropriate method to be utilized in order to achieve the objective of the

study for it provides the necessary guidelines and tools in determining an existing

law, allowing for an assessment of a problem inherent to the law, and evaluating

such policy which may lead to its reform.

FINDINGS OF THE STUDY

21
 Influences Affecting Child Marriage

The Impact of Education

Education played an important role when it comes to the limiting of child

marriages in the countries which are still practicing it. In a research regarding the

child marriages in Bangladesh, it shows that the association between education and

age at first marriage has a long history in the field of demography. A number of

studies have shown a significant negative relationship between education and

fertility. Like the studies on women in Kenya and Nepal have shown that each

additional level of education beyond primary school level lowers the probability of

early marriage significantly. Consistent with these earlier studies, this current study

reveals that the higher the post-primary education among women, the lower the

probability of child marriage.

Moreover, the higher the level of education among husbands, the lower the

likelihood of child marriage among their wives. The effect of husband’s education

on child marriage was somewhat weaker than that of women. It is likely that a

woman with higher education will spend a longer period in schooling.

Additionally, women with higher education attainment would usually have higher

occupational aspiration and would want to have jobs suitable for them rather than

getting married earlier. The completion of education is an important step in the

normative and economic conception of the transition to adulthood, and, in this

way, becomes a socially significant precondition for entering into marriage. Higher

educated women are expected to gain more control over household resources and

personal behavior so that they can achieve better bargaining power in deciding the

timing of their marriage as well as the selection of grooms. Hence, due to

prolonged schooling and desire for career development, higher educated women

22
are more likely to marry later than their lower educated counterparts. Although

higher education of both females and males seems to play a protective role in child

marriage, it is not the higher education itself, but the environment and other

external elements developed through education that reduce the chances of child

marriage.33

Cultural and Religious Influence on Marriage

Poverty is not the only contributor to child marriage, and the traditions,

culture and social settings of Bangladesh are also powerful drivers. For many,

marriage is not just a civil union between a man and a woman but it also relates to

the cultural and religious union between a man and a woman. One of the reasons

why child marriages is still prevalent is because some religious beliefs condone the

idea of child marriage. Just like in Bangladesh, they allow the wedding of a

younger child to an older man. Caldwell et al. (1983) reported that parents are

unwilling to postpone marriage beyond the teenage years because of the increased

cost of dowries for older brides. UNICEF’s 2002 study in Bangladesh in 2002

found the same 20 years after the study of Caldwell et al. (UNICEF, 2002).

Adherents of reproductive rights believe that laws specifying a minimum age at

marriage are rarely enforced; rather, customary practice takes precedence over civil

law.

Arguments for Child Marriage

In today’s era, many countries all over the world still practice the culture of

child marriage. Child marriages seems inevitable for many countries which
Kamal, S. M.M., Hassan, C.H., Alam, G.M., and Ying, Y. (2015) “Child Marriage In Bangladesh:
33

Trends And Determinants.” Journal of Biosocial Science 47(1), 120–39.

23
tradition of marriage is rooted from different cultural platforms and cultural

standards. However, we can trace the origin of child marriage practices in most of

the countries who practices conservative, religious communities and those who are

located in the poor and rural areas. But it can be found in all socio-economic strata

and in secular, as well as pious, families. According to The Economist, more than

207,000 American minors were married between 2000 and 2015. Frontline, a

television program in the United States of America found that over two-thirds of

the women population were 17 years old, but 985 were 14, and ten were just 12. It

came up with the conclusion that twenty-seven states have no minimum age for

marriage.

According to the United Nations Children's Fund’s report on the State of the

World’s Children in the year 2017 the following countries still practice a strong

culture of child marriages: Niger, Central African Republic, Chad, Bangladesh,

Mali, South Sudam, Burkina Faso Guinea, Mozambique, and India.

Cultural Norm of having a lot of children and lack of interest on ‘’Family

Planning’’.

In the country of Niger, they suffer the problem of population control. In

fact, it became the world’s fastest growing population. Though they had access

with the contraceptives in the year 2000, still the demographic records shows that

only around 5% of the women population uses contraceptives. Since Niger is a

patriarchal society, many women do not have the autonomy or freedom to manage

childbearing. The country has not ratified the Maputo Protocol outlawing early

marriage, the median age of marriage among women is 15.5 and the median age at

first birth is 17.9. Niger is one of the few countries in the world with little or no

24
overall unmet need for family planning, not because of access to contraceptive

methods, but because of a strong pronatalist culture in which the desired family

size is higher than the actual family size. In 2006, married women and men

reported wanting an average of 8.8 and 12.6 children, respectively. More than one-

quarter of women older than 40 have 10 or more children. Only one in 100 women

want to have at most two children.34

Researchers saw that the aid for the growing child marriages is that to

increase the age of marriage. The early age of sexual debut of women in Niger is a

key factor influencing the country's high total fertility rate. The mean age of

marriage is younger than 14 in some areas, and the high ratio of young women to

older men in the population enables affluent older men to engage in polygynous

marriages with teenage women. Increasing the age of childbearing by five years in

a country such as Niger would reduce future population growth by 15-20%.

Child marriage is at time by force and at time by choice. It has shown that a

young mind is easier to adaptability and sustenance. As the mind grows old, it

tends to become more habituated to firmness in the decision making process, thus

leaving far less possibilities for the couples to compromise on situations; (2) For

women, an early marriage is safer in terms of pregnancy. According to health care

practitioners, 25 is the ideal age for pregnancy in women.

On the other hand, late marriage sets the biological clock ticking and leaves

more scope for ectopic pregnancies and miscarriages. protects the health of women

while getting birth from a woman whose age is under 18-30 then their uterus side

present a bone, which is pubic symphysis that gets separated very easily and while

a baby is taking birth then the pubic symphysis bone started going to its original
Kamal, S. M.M., Hassan, C.H., Alam, G.M., and Ying, Y. (2015) “Child Marriage In Bangladesh:
34

Trends And Determinants.” Journal of Biosocial Science 47(1), 120–39.

25
position after the birth even after some weeks it comes its proper position.; (3)

Early marriage gives more time for couples to pursue their career comfortably and

plan a child soon after.

Late marriages often come with this conflict whether their spouses should

give more importance to their already established career or plan a family; and (4)

Also, being committed to a partner early in life and deciding to marry is the biggest

advantage in early marriages because you get to choose your partner freely and

decide whom to spend the rest of your life with at your own pace.

Strategies for postponing the age of marriage are limited, but there is an

increasing consensus that much more investment needs to be made in young

women: Delaying marriage and childbearing increases the time between

generations and slows population growth, young women's education enhances their

autonomy and their power to manage childbearing, and it benefits the next

generation as educated mothers invest in their children. Experimental mechanisms

are being explored for creating physically and psychologically "safe spaces" where

young women can learn about their bodies and ways of limiting family size. Pilot

projects in Hausa communities in Northern Nigeria have found that small cash

payments can give parents an incentive to keep their daughters in schools.

Patriarchal Society

One important impetus for marrying girls at an early age in traditional

societies is that it helps to prevent premarital sex. Many societies, like Bangladesh,

prize virginity before marriage; and this can manifest itself in a number of

practices designed to ‘protect’ a girl from unsanctioned sexual activities.

Consequently, parents, guardians and society impose a large number of restrictions

26
upon girls. They may, for example, be secluded from social interaction outside of

family. In extreme family and social poverty, a young girl may be regarded as an

economic burden. Marriage of a teenage girl to an older, or even elderly, man is a

common practice in some Middle Eastern and South Asian societies as a family

survival strategy. Like other developing countries, Bangladesh has a long heritage

of early marriage, particularly for girls. Bangladesh is not only the champion of

child marriage within southern Asia but also in the world. According to recent

statistics on child marriage in southern Asia, the prevalence of child marriage in

Bangladesh is highest at 71%, followed by Nepal (62%), India (59%) and Pakistan

(50%).35

Arguments Against Child Marriage

The arguments for the proposed legislation revolve around three main

principles. First, consent is an essential requirement in contracting a marriage.

Since children are presumed to have not developed proper discernment and

sufficient intelligence for the law to grant them full legal capacity, it logically

implies that they cannot enter into a binding legal contract such as marriage.

Second, countless studies have shown the disadvantages and harms of child

marriages to the physical health, psyche, and economic well-being to the children

who are forced by their parents to contract marriage. The State has the duty to

actively protect its citizens, especially children who are considered to be the future

of the country, from all types of threats to their well-being. Lastly, freedom of

religion nor customs and traditions cannot be used as excuses nor justifying tools

to legitimize an arrangement that produces a lasting harm to an individual.

Kamal, S. M.M., Hassan, C.H., Alam, G.M., and Ying, Y. (2015) “Child Marriage In Bangladesh:
35

Trends And Determinants.” Journal of Biosocial Science 47(1), 128.

27
 Adolescence, between the ages of 10 to 24 years old, is normally viewed as

a time when young people focus on education, learn skills that will be later on used

in adulthood, and, perhaps, enter their first jobs and into romantic relationships.

But, for a large number of adolescents, especially those living in the poorest

countries settle for early marriages that marked the end of their youth and any

possibility of future personal growth and development. This kind of practice tends

to continue in areas that are remote and rural, underdeveloped, and poor. Child

brides are at a distinct disadvantage and the impact of early marriage on their lives

is far-reaching36.

Increased Risk of Sexually Transmitted Infection and Cervical Cancer

A married girl is usually expected to bear a child immediately after the

marriage which poses a significant health risk to both the married girl and her

baby. Studies conducted in sub-Saharan Africa suggest that girls who marry early

have increased risk of HIV infection, even compared to unmarried girls that are

sexually active. The cause of such high infection is related to frequent intercourse,

limited use of condoms, and husbands who are more experienced because they are

significantly older and is more likely to be HIV-positive 37. Similarly, numerous

studies conducted in Africa, Kenya, Zambia, and Uganda, all show that girls were

being infected by their husbands. A hypothesis relevant to this finding is that a girl

at her early age may be physiologically more prone to HIV infection because her

vagina is not yet well lined with protective cells and her cervix may be more easily

eroded. Risk for HIV transmission is also increased because hymenal, vaginal, or

36
Erulkar, A. (2013). “Early Marriage, Marital Relations and Intimate Partner Violence in Ethiopia”.
International Perspective on Sexual Reproductive Health 39, 6–13.
37
Clark, S. (2004). “Early Marriage and HIV Risk in Sub-Saharan Africa.” Studies in Family Planning
35(3), 149-160.

28
cervical lacerations rise the transmission rate, and many of these young girls lost

their virginity to HIV-positive husbands. In Kenya and Zambia, married girls are

under intense pressure to prove their fertility. Therefore, they have more

unprotected intercourse than any other unmarried girls. Also, sexually

transmissible diseases (STDs) such as herpes simplex virus type 2 infection,

gonorrhea, or chlamydia enhance the young girl’s vulnerability to HIV38.

One ultimate difficulty with child marriage is that the married girls are

financially dependent on their husbands. Parents often push their daughters to

marry at a young age in order to receive a bride wealth, a behavior linked to

poverty39. They cannot refuse or leave because they cannot repay their high dowry.

Also, returning to their parents’ home is not an option because divorce is

considered unacceptable and abandoning their husbands may have grave

consequences on the social or tribal ties that were established during the marriage.

Research demonstrates that child marriages also increases the risk of

cervical cancer. Cervical cancer ranks as the 12th most frequent cancer among

women in Iraq, and the 10th most frequent cancer among women between 15 and

44 years of age40. The result of a study in Iraq proved that early marriage and

polygamy play an important role in developing cervical cancer. It revealed that

girls who marry at an early age are not yet mature physically. Moreover, the first

year of marriage increases the girl’s exposure to Cervical Cancer41.

38
Fleming, D.T., and Wasserheit, J.N. (1999). “From Epidemiological Synergy to Public Health Policy
and Practice: The Contribution of Other Sexually Transmitted Diseases to Sexual Transmission of HIV
Infection”. Sexually Transmitted Infections 75, 9.
39
Fleming, D.T., and Wasserheit, J.N. (1999). “From Epidemiological Synergy to Public Health Policy
and Practice: The Contribution of Other Sexually Transmitted Diseases to Sexual Transmission of HIV
Infection”. Sexually Transmitted Infections 75, 9.
40
Al-Alwan, N.A. (2001). “Colposcopy, Cervical Cytology and Human Papilloma Virus Detection as
Screening Tools for Cervical Cancer”. East Mediterranean Health 7, 100-105.
41
Id.

29
Victims of Violence at the Hands of their Partners

Men who marry young girls may hold traditional masculine ideologies, and

because of this be more likely to abuse their wives 42. By the time these young girls

marry, they may have internalized dangerous beliefs. For one, they are more likely

to believe that husbands can be justified in beating their wives. Therefore, they

submit themselves to their husbands43.

Child marriages are typically arranged by the young girl’s family, and young

girls have no voice into the decision of their parents. Most of these girls had never

met their husbands before their wedding day. Studies show that this lack of

familiarity before marriage can lead to greater marital conflict and increases the

risk of violence44.

Another reason that young girls who marry at an early age is more likely to

experience violence is that they are socially vulnerable. This means that they are

uneducated, poor, and young. The young girl’s family see that marriage is a

pathway to greater economic security, especially when education is expensive 45. In

child marriages, the husbands are older, educated, and have higher social status,

such power dynamics can increase the likelihood of abuse.

Risks During Pregnancy and Labor

Pregnancy for young girls may be challenging because it suppresses the

immune system. Pregnant girls are at increased risk of acquiring diseases like

Id.
42

Santhya, K., Ram, U., Acharya, R., Jejeebhoy, S.J., Ram, F., and Singh, A. (2010). “Associations
43

Between Early Marriage and Young Women’s Marital and Reproductive Health Outcomes: Evidence
From India”. International Perspective on Sexual Reproductive Health 36, 134.
44
Erulkar, A. (2013). “Adolescence Lost: The Realities of Child Marriage”. Journal of Adolescent Health
52, 513-514.
45
Bicchieri, C., Jiang, T., and Lindemans, J.W. (2014). A Social Norms Perspective on Child Marriage:
The General Framework. UNICEF.

30
malaria. Of the 10.5 million girls and women who become infected with malaria,

50% die. Their highest risk is during their first pregnancy.46

On the other hand, deliveries from child marriages are “too soon, too close,

too many, or too late.” Girls aged 10 to 15 years old have still small pelvises and

are not ready for child-bearing. This makes it difficult for the young girl to deliver

her child. Complications like obstetric fistula is high. Obstructed labor is the result

of a young girl’s pelvis being too small to deliver a fetus. The fetus’ head passes

into the young girl’s vagina, however its shoulders cannot fit through the young

girl’s pelvic bones. This exposes the young girl and her child at danger.47

Effects on Offspring

Aside from the possible complications in the young girl’s pregnancy and

labor, there may also be some effects on the offspring. Their offspring are at a high

risk of acquiring HIV at delivery and during breastfeeding. Young girls who had

malaria are at increased risk for premature delivery, anemia, and death. The infant

mortality rate is higher when the mother is below the age of 18 years old. This

morbidity and mortality is due to the young girl’s poor nutrition, physical and

emotional immaturity, and lack of access to social and reproductive services, and

higher risk for infectious diseases48.

46
World Health Organization. (2009). Malaria and HIV Interactions and Their Implications for Public
Health Policy
47
Nour, N. (2006). “Emerging Infectious Diseases”. Center for Disease Control and Prevention 12(11).
48
Id.

31
 CONCLUSION

Violence Against Women and Children (VAWC) comes in many forms,

prevalent of which is child early forced marriages (CEFM). Child marriage the is

32
legal or customary union involving a boy or girl below the age of 18. 49 It is a

harmful, discriminatory practice considered as a human rights violation for it leads

to a lifetime of suffering, affecting the psychosocial, physical, and economic

welfare of victims who are forced into such an arrangement. Vast literature on this

subject shows that child early forced marriages puts the child at increased risk of

intimate partner violence, sexually transmitted infections and cervical cancer, and

labor-related complications. Worse, it also puts their offspring at risk. High infant

mortality and morbidity has been exhibited by offspring of child mothers due to the

young girl’s poor nutrition, physical and emotional immaturity, and lack of access

to social and reproductive services, and higher risk for infectious diseases.50

For most third world countries, poverty is the main driver of child marriage,

the case is different for the Philippines. Philippine laws and jurisprudence are not

completely bereft of legal safeguards to combat the problem of child marriages.

The 1987 Constitution has a provision which grants children the right to assistance,

including proper care and nutrition, and special protection from all forms of

neglect, abuse, cruelty, and other exploitation prejudicial to their development

(Sec. 3(2), Art. XV). The Family Code of the Philippines also explicitly limits

marriage among those who are aged eighteen and above (Art.5) and who can give

consent freely (Art. 2). Furthermore, Republic Act 7610 qualifies prohibited acts

which constitute child abuse, cruelty, exploitation or to be responsible for other

conditions prejudicial to the child's development and outlines their respective

penalties.

49
Parsons, J., Edmeades, J., Kes, A., Petroni, S., Sexton, M., & Wodon, Q. (2015). “Economic Impacts of
Child Marriage: A Review of the Literature”. The Review of Faith & International Affairs 13(3), 22.
50
Nour, N. (2009). “Child Marriage: A Silent Health and Human Rights Issue”. Reviews in Obstetrics
and Gynecology 2(1).

33
 Despite these legal safeguards, child marriage exists in the Philippines due

to religion and tradition. Following a benevolent neutrality approach in

accommodating for religious expression, provisions of the Family Code and

Republic Act No. 7610 are toothless against religious customs which allows for

child marriage especially in Muslim tradition. The problem therein lies in enacting

stricter laws without essentially trampling on the separation of Church and State.

Estrada v Escritor has provided for the compelling state interest test to determine

when the State interest can prevail over religion.

Following this test, the State can intervene if it can prove that such religious

practices are against the secular objective of protecting the best interests of the

child. The evidence of the detrimental effects of child marriage should be enough

to prove such. The State has the duty to actively protect its citizens, especially

children who are considered to be the future of the country, from all types of

threats to their well-being. Freedom of religion nor customs and traditions cannot

be used as excuses nor justifying tools to legitimize an arrangement that produces a

lasting harm to an individual.

RECOMMENDATIONS

34
 After presenting the conclusion that the researchers were able to construct

through the data-gathering they performed, the researchers now formulated set of

recommendations to the readers of the study. Incidentally, these prescriptions that

will be given should be able to aid the study become a better one. Also, these

recommendations may also help the readers find a good use to this study.

The researchers would like to recommend, that (1) further studies be

performed in these issue areas. Admittedly, the researchers have constraints that

they have to face in the course of the study. Among these, data availability

constraints have been the most problematic for the researchers. The researchers

recommended that further studies should be done in this area. The researchers also

recommend that this study should be given a chance to be applied in other studies

that would be done in the future. The study would aid them by serving as

foundation in their studies. In relation to this, the study, as also said in the

significance of the study, can also serve as policy foundations. Apparently, due to

the stand of this research study, future policy-makers can use the study to

strengthen the policies that they would make, especially in the elimination of the

practice of child marriages.

Second, (2) the researchers recommend that effective legal measures be

applied to initially incorporate laws that will effectively eliminate child marriages

in the Philippines. One good example is The Prohibition of Child Marriage Act,

2006 implemented in India. However, efforts and initiatives must not stop there.

The laws should be applied strictly. While the laws exist, they are not strict

enough. There should be a powerful law against child marriage. Thus, most

importantly, the researchers recommend that (3) there must be a fundamental

reshaping of the mindset of the people when it comes to child marriages.

35
Awareness campaigns should be made about the issue. More people need to know

about the problem and attempt to take action. The rural inhabitants need to be

educated more about the consequences that child marriage can cause, and about the

harm, it can do to their children.

Child marriages, while valid in some countries, does not mean that it should

be valid in the Philippines. From the findings of the researchers, it results to

exploitation which threaten and endanger the development of children physically,

emotionally, and psychologically. Future research efforts should prioritize

establishing well-founded transformative education and economic strengthening

interventions, including cost-effectiveness considerations to better analyze the

necessary actions and policies needed to be implemented to end child marriages in

the Philippines and globally.

36
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