Affidavit of Cohabitation and Marriage License Exemption

Below is a comprehensive discussion of the “Affidavit of Cohabitation and Marriage License Exemption” under Philippine law. This topic falls primarily under the Family Code of the Philippines, specifically Article 34. While this overview may serve as a general guide, please be reminded that laws and regulations may be subject to change, and specific legal advice should come from a qualified attorney.

1. Legal Framework: Article 34 of the Family Code

Article 34 of the Family Code of the Philippines provides an exemption from the usual requirement of obtaining a marriage license. Ordinarily, before a couple can marry, they must secure a valid marriage license from the local civil registrar. However, Article 34 states:

“No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties…”

From this provision, the concept of Affidavit of Cohabitation arises. This affidavit serves as the formal declaration that the couple has indeed cohabited for at least five continuous years, that there are no legal impediments to their marriage, and that they are marrying under the exemptions provided by law.

2. Definition and Purpose of the Affidavit of Cohabitation

An Affidavit of Cohabitation is a sworn statement, executed under oath, declaring:

  1. The couple (man and woman) have lived together as husband and wife for at least five (5) years.
  2. They have no legal impediment to marry each other (e.g., neither one is still married to someone else, they are not related within prohibited degrees, etc.).
  3. They are entering into the marriage in good faith.

This affidavit effectively replaces the need for a marriage license if all the requirements under Article 34 are satisfied.

Why is it needed?

  • The State normally requires a license to ensure that the parties are eligible to contract marriage (i.e., free from impediment).
  • In recognition of certain couples who have lived together (often with children, shared assets, etc.) for a substantial period, the law allows a simpler route to marriage, provided they can show continuous cohabitation for at least five years.
  • To do so, they must submit an Affidavit of Cohabitation in lieu of a marriage license.

3. Core Requirements for the Exemption

To lawfully avail of the marriage license exemption under Article 34, the following must be established:

  1. Five (5) Years of Continuous Cohabitation

    • The man and woman must have lived together as de facto husband and wife for at least five uninterrupted years immediately before their intended marriage.
    • “Living together as husband and wife” implies not only sharing a home but also manifesting to the public that they are a couple, taking on mutual obligations akin to marriage.

  2. No Legal Impediment to Marry

    • Both parties must be single, widowed, or otherwise legally free to marry. For instance, if one party is still married to someone else, the 5-year cohabitation affidavit cannot cure that impediment.
    • They must not be related within the prohibited degrees of consanguinity or affinity.

  3. Execution of the Affidavit

    • The couple must execute a sworn affidavit (Affidavit of Cohabitation) before a person authorized to administer oaths (e.g., notary public).
    • This affidavit should attest that the conditions required under Article 34 are satisfied.

  4. Good Faith and Truthfulness

    • Couples who falsely claim the 5-year cohabitation exemption to evade the license requirement can face legal consequences such as perjury charges or the nullification of the marriage itself.
    • The solemnizing officer (priest, judge, imam, pastor, etc.) must also state under oath that he or she has ascertained the eligibility of the parties and the truthfulness of their affidavit.

4. Sample Contents of an Affidavit of Cohabitation

Though formats differ depending on the notary or local civil registrar, a typical Affidavit of Cohabitation includes:

  1. Personal Details of the Affiants

    • Full legal names, ages, citizenship, and addresses of both parties.

  2. Statement on Five-Year Cohabitation

    • A clear declaration that the parties have been continuously living together as husband and wife for at least five (5) years before the intended date of marriage.

  3. Statement on No Legal Impediment

    • A confirmation that neither party is under any existing marriage bond, that neither party is incapacitated under the law, and that they are not within the prohibited degrees of relationship.

  4. Details of the Intended Marriage

    • Date and place of the planned marriage.
    • Identity of the solemnizing officer (if already chosen).

  5. Oath and Signatures

    • Both parties sign under oath, attesting to the truthfulness of their statements, witnessed by and notarized before a notary public or another authorized officer.

5. Procedural Steps to Use the License Exemption

  1. Preparation of Documents

    • Draft the Affidavit of Cohabitation, ensuring all required statements are included.
    • Verify that each party has valid government-issued identification and proof of single status if needed (especially if one was previously married and is now widowed or had the marriage annulled).

  2. Notarization

    • Both parties must appear before a notary public (or authorized officer) to swear to and sign the affidavit.
    • The notary public notarizes and seals the affidavit.

  3. Submission to the Solemnizing Officer

    • Present the notarized Affidavit of Cohabitation to the judge, priest, pastor, imam, or other authorized officiant.
    • The solemnizing officer typically reviews the affidavit and may require further questions or documentation to verify the truth of the statements.

  4. Ceremony and Reporting

    • The marriage is then solemnized without a marriage license.
    • After the ceremony, the marriage certificate must still be registered with the local civil registry for it to be considered valid and for the issuance of the official Marriage Certificate from the Philippine Statistics Authority (PSA).

6. Common Misconceptions and Pitfalls

  1. Misconception: A Few Years of “On-and-Off” Cohabitation Is Enough

    • Article 34 is strict in requiring a continuous five-year cohabitation. Sporadic or interrupted cohabitation may disqualify the couple from using this exemption.

  2. Misconception: The Exemption is Automatic

    • Simply having lived together for five years does not automatically exempt a couple from obtaining a marriage license. The parties must properly execute the affidavit and the solemnizing officer must concur.

  3. Pitfall: Perjury and Legal Consequences

    • Falsifying statements in the Affidavit of Cohabitation is grounds for criminal liability (perjury). It can also void the marriage if it is proven that the parties were not actually qualified under Article 34.

  4. Pitfall: Existing Marriage or Other Legal Impediments

    • A party who is separated but not legally annulled or divorced (in the case of a foreign divorce recognized under Philippine law) still has a legal impediment.
    • The 5-year rule cannot rectify an invalid or bigamous relationship.

  5. Pitfall: Confusion with Common-Law Marriage

    • The Philippines does not recognize “common-law marriage” in the same sense as some jurisdictions. While cohabitation may give rise to some property relations or claims under certain laws (e.g., co-ownership in certain circumstances), it is not in itself a legally recognized marriage.

7. Frequently Asked Questions (FAQs)

Q1. Can same-sex couples use Article 34’s exemption?

  • Under current Philippine law, only a man and a woman can legally contract marriage, and the Family Code specifically refers to “a man and a woman.” Hence, same-sex unions are not covered.

Q2. What if we lived together for less than five years?

  • You cannot invoke the exemption. You must secure a marriage license through the regular process.

Q3. What if one of us was previously married and is now divorced, but the Philippine courts have not recognized it yet?

  • Until the prior marriage is legally terminated or declared null/void under Philippine law, there remains a legal impediment to marry someone else. Foreign divorces involving a Filipino spouse typically require recognition by a Philippine court to be valid locally.

Q4. Do we need to present proof of cohabitation (e.g., joint bank statements, lease agreements)?

  • Different solemnizing officers or local civil registrars may impose varying degrees of diligence. Some may request evidence of the 5-year cohabitation. However, the minimum legal requirement is the Affidavit of Cohabitation, executed under oath. The solemnizing officer must be convinced of its truth.

Q5. What if the local civil registrar refuses to accept our affidavit?

  • Some local civil registrars may be cautious with Article 34 marriages due to abuse or misrepresentations in the past. If so, you could consult legal counsel or escalate to higher authorities to clarify your eligibility and your right under the law.

8. Legal Consequences of Non-Compliance

  1. Nullity or Annulment of Marriage

    • If it is later discovered that the parties lied about the cohabitation period or that a legal impediment existed, the marriage can be declared null and void.

  2. Criminal Liability

    • False statements in an affidavit can constitute perjury or other falsification offenses.

9. Practical Tips

  1. Maintain Tangible Records

    • Although not strictly required, keeping some form of documentation (e.g., leases, bills, receipts, or testimonies from neighbors) helps support the claim of 5-year continuous cohabitation.

  2. Check with Local Civil Registry or Solemnizing Officers

    • Requirements can slightly vary across municipalities or religious institutions. It is best to verify in advance.

  3. Seek Legal Advice When in Doubt

    • If there is any complication (e.g., prior marriages, foreign divorces, uncertain periods of separation, etc.), consult an attorney to avoid future issues with the marriage’s validity.

10. Key Takeaways

  • The Affidavit of Cohabitation under Article 34 of the Family Code provides a marriage license exemption for couples who have lived together as husband and wife for at least five continuous years, with no legal impediment to marry.
  • This affidavit must be executed under oath before a notary or another authorized official, then presented to the solemnizing officer who must verify the parties’ qualifications.
  • Falsification of the affidavit or failure to meet the precise legal requirements can result in the nullity of the marriage and potential criminal penalties.
  • The process simplifies marriage formalities for couples genuinely cohabiting, but it demands strict honesty and compliance.

Final Note

While an Affidavit of Cohabitation can make the process of marriage more straightforward for those who truly qualify, it is critical to ensure that you meet all the requirements under Philippine law. Always confirm with the local civil registrar, your chosen solemnizing officer, or seek legal counsel for particularized guidance.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

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