Below is a comprehensive discussion of the Affidavit of Cohabitation as a substitute for a marriage license in the Philippine context. This is based on the relevant Philippine laws—particularly the Family Code—and common practices. Please note that this information is for general educational purposes only and is not a substitute for professional legal advice. If you have specific questions or concerns, it is always best to consult a qualified lawyer or the appropriate government agency.
1. Legal Basis Under Philippine Law
1.1. The Family Code of the Philippines
- Article 34 of the Family Code (Executive Order No. 209, as amended) provides for an exception to the general rule that couples must obtain a marriage license to marry.
- Normally, under Articles 9 to 17 of the Family Code, a valid marriage license issued by the local civil registrar is a prerequisite.
- However, under Article 34, no license is necessary where a man and a woman have lived together as husband and wife for at least five years, with no legal impediment to marry each other.
The key part of 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…”
Thus, the so-called “Affidavit of Cohabitation” (sometimes referred to as a “Joint Affidavit of Cohabitation” or “Sworn Statement of Cohabitation”) can be used in lieu of a marriage license for qualifying couples.
2. What Is an Affidavit of Cohabitation?
An Affidavit of Cohabitation is a sworn statement executed by a couple (and sometimes notarized or sworn to before a solemnizing officer) attesting that:
- They have cohabited or lived together as husband and wife.
- Their cohabitation has lasted continuously for at least five (5) years.
- They were without legal impediment to marry each other during the entire five-year period (e.g., neither party was previously married to someone else without a valid annulment or declaration of nullity).
- They now wish to marry under the exception provided by Article 34 of the Family Code.
- The person administering the oath (often the solemnizing officer, such as a judge, priest, imam, or other authorized official) has verified or ascertained that these requirements are met.
Because it is used to bypass the usual marriage license requirement, the law requires this affidavit to be part of the marriage contract and places a special emphasis on its truthfulness.
3. Requirements and Conditions
To validly invoke Article 34 and execute an Affidavit of Cohabitation, the following elements must be present:
Continuous Cohabitation for At Least Five Years
- The couple must have lived together as husband and wife—not merely on and off or occasionally—for uninterrupted five years before the marriage.
- Occasional separation (e.g., due to work) may need to be carefully assessed. The critical issue is continuity and the intent to live together as a marital unit.
No Legal Impediment to Marry
- Neither party should have been legally incapable of contracting marriage during the entire cohabitation period.
- Common legal impediments include a prior subsisting marriage, being underage, or having certain relationships by blood (consanguinity) or affinity.
- If there was an impediment at any time during that five-year period (e.g., one party’s prior marriage was still in force), then Article 34 would not apply.
Parties Must Execute a Sworn Statement
- Both parties must swear under oath that they have satisfied the above conditions.
- The solemnizing officer, or any other officer authorized to administer oaths, typically requires supporting documentation (government-issued IDs, possibly certifications showing single status or annulment/declaration of nullity if previously married, etc.).
Parties Must Marry Without Delay
- Generally, once they execute the affidavit, the marriage is performed relatively soon thereafter. This is unlike the typical scenario where a marriage license is valid for 120 days; under Article 34, the marriage is expected to happen promptly.
4. The Process of Using an Affidavit of Cohabitation
Preparation of Documents
- Gather proof of both parties’ single status (if never married) or legal capacity (if previously married but annulled or widowed).
- Prepare to show proof of cohabitation (some solemnizing officers may ask for witnesses, joint bills or leases, or other evidence, though not strictly required by the Family Code, to confirm that cohabitation actually occurred).
Drafting and Execution of the Affidavit
- The couple (often assisted by a lawyer or by the solemnizing officer) will draft the Affidavit of Cohabitation, stating the facts of their continuous cohabitation for at least five years and their eligibility to marry.
- Ensure that the affidavit precisely states the dates or durations of cohabitation, that there was no legal hindrance, and that the parties are entering the marriage in good faith.
Oath-Taking Before an Authorized Official
- The couple will sign the affidavit in the presence of an official authorized to administer oaths (e.g., a notary public, a judge, or a religious solemnizing officer with authority to solemnize marriages).
Verification by the Solemnizing Officer
- The solemnizing officer must attest that they have ascertained the parties’ qualifications.
- This step is crucial because if the officer later discovers a legal impediment or questionable cohabitation history, they may refuse to solemnize the marriage under Article 34.
Solemnization of Marriage
- After the affidavit is properly executed and the solemnizing officer is satisfied, the marriage ceremony can proceed without obtaining a separate marriage license from the Local Civil Registrar.
Registration of Marriage
- Just like any marriage, the marriage certificate—together with the Affidavit of Cohabitation—should be submitted for registration with the Local Civil Registrar. This ensures that the marriage is properly recorded.
5. Common Issues and Misconceptions
Misuse to Circumvent the Marriage License Requirement
- Some couples might attempt to execute an Affidavit of Cohabitation without truly having cohabited for the full five years or while still having legal impediments. This is illegal and could result in criminal liability for perjury and/or a declaration of nullity of the marriage if the misrepresentation is discovered.
Five-Year Period Must Precede the Marriage
- The five-year cohabitation period is counted back from the date of marriage. If you started living together only recently and try to get married under Article 34, it will not qualify.
No Partial Periods
- The five years must be consecutive, with no point in time during that period in which the couple was ineligible to marry (such as pending annulments).
- If the “cohabitation clock” is interrupted by an impediment, the period should start counting only when that impediment ceased to exist.
Affidavit of Cohabitation vs. Common-Law Marriage
- A common misconception is that living together for five years automatically grants a “common-law marriage” in the Philippines. The Family Code does not recognize common-law marriages in the same way some other jurisdictions do. Article 34 simply waives the marriage license requirement under these specific circumstances.
Legal Consequences of a False Affidavit
- If it is later proven that the affidavit contained false statements (e.g., the couple had not truly cohabited for five years or one party had a prior undissolved marriage), there could be:
- Civil consequences, such as the declaration of nullity or annulment of the marriage.
- Criminal consequences, such as charges for perjury.
- If it is later proven that the affidavit contained false statements (e.g., the couple had not truly cohabited for five years or one party had a prior undissolved marriage), there could be:
6. Practical Tips for Couples
Be Honest and Accurate
- Ensure that you truly meet the five-year requirement prior to marriage and that you had no legal impediment.
- Remember that you must swear under oath; perjury carries potential penalties.
Confirm Documents in Advance
- Each party should secure recent Certificates of No Marriage Record (CENOMAR) or equivalent documents from the Philippine Statistics Authority (PSA) if never previously married, or certified copies of annulment/declaration of nullity if previously married.
- This also helps assure the solemnizing officer that you meet the “no legal impediment” standard.
Consult With the Local Civil Registrar
- While Article 34 waives the marriage license requirement, local civil registrars typically have their own office procedures or checklists. Before proceeding, inquire about any local guidelines to avoid delay or confusion.
Keep Documentation of Cohabitation
- Though not strictly required by the Family Code, it can be helpful to have evidence such as a lease agreement, proof of living arrangements, joint bank accounts, or the testimony of friends/family in case your cohabitation is ever questioned.
Seek Legal Advice If in Doubt
- If there’s any uncertainty—e.g., about counting the five-year period, prior marriages, or how to draft the affidavit—consulting a lawyer will help prevent complications and ensure compliance with the law.
7. Frequently Asked Questions
Can the period of being boyfriend-girlfriend in separate residences count as cohabitation?
- No. “Cohabitation” under Article 34 means living together under the same roof as husband and wife. Dating or visiting does not count.
Is the Affidavit of Cohabitation the same as a marriage license?
- No. It serves as a substitute for the license requirement under very specific conditions (Article 34). It does not replace a marriage certificate or the need to register your marriage; it only replaces the license.
Do we still have to undergo pre-marriage counseling?
- Pre-marriage counseling requirements differ by locality and religious denomination. You may still need to attend or present documentation of counseling or seminars required by the local government or the religious official solemnizing your marriage.
What if one party is a foreign national?
- If one party is a foreigner, additional requirements often apply, such as a Certificate of Legal Capacity to Contract Marriage from the foreigner’s embassy. The five-year cohabitation requirement also must still be satisfied in the Philippines (or sometimes acknowledged in official documents if it occurred abroad). Consultation with a lawyer is recommended.
What happens if the affidavit is rejected by the solemnizing officer or local civil registrar?
- You may be asked to provide additional proof of cohabitation, or to obtain a traditional marriage license instead. Always clarify the local guidelines beforehand.
8. Conclusion
An Affidavit of Cohabitation under Article 34 of the Philippine Family Code is a special legal instrument allowing couples who have continuously lived together for at least five years (with no legal impediment to marry) to dispense with the usual marriage license requirement. This streamlines the marriage process for long-time cohabiting partners, but it carries strict obligations to ensure that the couples genuinely meet the criteria.
Because false statements can lead to serious legal consequences—both civil and criminal—couples should approach this option with caution and honesty. Before proceeding, it is best to consult with a lawyer or your local civil registrar to confirm that you meet the statutory prerequisites and to avoid any future complications regarding the validity of your marriage.
Disclaimer
This article is for informational purposes only and does not constitute legal advice. For specific questions about your situation, please consult a licensed attorney or the appropriate government office in the Philippines.