Below is a comprehensive discussion of the Affidavit of Cohabitation in the Philippines—what it is, why and when it is required, the specific legal framework that governs it, and the practical steps and considerations when preparing one. While this article focuses primarily on the most common use of the Affidavit of Cohabitation (i.e., for marriage under Article 34 of the Family Code), it also touches on other scenarios in which a similar affidavit may be needed.

1. Definition and Purpose

An Affidavit of Cohabitation is a sworn statement, executed under oath, attesting that two individuals (usually a man and a woman in the context of Philippine law on marriage) have been living together as husband and wife for a specific period, without any legal impediment to marry. This affidavit is most often used to avail of the exemption from obtaining a marriage license under Article 34 of the Family Code of the Philippines, which provides:

“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 and found no legal impediment to the marriage.”

Key points about its purpose:

License-Free Marriage: Primarily used by couples who have cohabited for at least five (5) continuous years and wish to get married without going through the process of securing a marriage license.
Legal Clarity: It formally states and confirms that the parties have no legal impediments (e.g., prior subsisting marriage, close blood relation within prohibited degrees, etc.).
Evidence of Relationship: In other contexts, an Affidavit of Cohabitation (or a similar affidavit) may also be used for purposes of documentation—such as proof of a common-law relationship or joint residency requirements for immigration or other civil transactions.

2. Legal Basis: Article 34 of the Family Code

2.1. Requirements under Article 34

Under the Family Code, the contracting parties who wish to marry without a license must satisfy all the following:

They have lived together as husband and wife for at least five (5) years.
They have no legal impediment to marry each other (e.g., not married to someone else, not too closely related by blood, etc.).
They execute an affidavit stating the facts that (a) they have indeed cohabited continuously for at least five years, and (b) they are legally free to contract marriage.

It is important to note that the law requires:

Continuous cohabitation: The 5-year period should be unbroken. Occasional or frequent separations may disqualify the couple.
Good faith: The parties must have believed in good faith that they could legally marry each other during that entire 5-year period.

2.2. Effects of Non-Compliance or Misrepresentation

If a couple executes the Affidavit of Cohabitation without truly meeting the legal requirements (for example, they have lived together for less than five years, or one party is still legally married to someone else), they risk:

Nullity of the marriage: A marriage contracted without meeting Article 34’s requirements (e.g., forging or falsifying the affidavit) may be declared null and void ab initio.
Perjury or criminal liabilities: They could also face criminal charges for perjury if the false affidavit is proven in court to have been executed knowingly and intentionally.

3. Content and Format of the Affidavit

3.1. Essential Statements

An Affidavit of Cohabitation typically contains:

Personal Details of the Parties: Full names, addresses, citizenship, ages, and civil statuses.
Statement of Cohabitation: A clear assertion that the parties have been living together as husband and wife for at least five continuous years prior to the planned marriage.
Assertion of No Legal Impediment: A statement affirming that neither party is disqualified by law to marry (i.e., they are both single or their previous marriages have been validly dissolved or annulled, they are not related by blood within the prohibited degrees, etc.).
Acknowledgement of Legal Consequences: A section indicating that the affiants are aware of the penalties of perjury if any statement in the affidavit is false.
Signatures: The parties should sign in the presence of the notary public or any other authorized officer.

3.2. Formalities of Execution

Notarization: The affidavit must be notarized or executed under oath before a person authorized to administer oaths (e.g., a notary public). Falsely swearing under oath is punishable by law.
Supporting Documents: While not strictly part of the affidavit, couples are often required (by their local civil registrar or solemnizing officer) to submit proof of identity, proof of dissolution of any prior marriage (if applicable), or other documentation supporting the facts declared in the affidavit.

4. Procedures and Practical Steps

Draft the Affidavit: Either download a standard form provided by many local civil registrars or prepare one with a lawyer’s assistance. Ensure it contains all essential statements as required by law.
Appear Before a Notary Public: Both affiants must present valid identification to the notary to confirm their identities. They will then sign the affidavit before the notary, who will administer the oath.
Obtain Certified Copy: After notarization, request certified or extra notarized copies for submission and record-keeping.
Submission to the Solemnizing Officer or Local Civil Registrar: Present the affidavit along with any other required documents (e.g., birth certificates, CENOMAR if relevant, etc.). The solemnizing officer is also required by law to confirm your qualifications.

5. Common Misunderstandings

Not a Catch-All for All Couples
The 5-year cohabitation requirement is a strict one. If the couple has not lived together for at least five continuous years, they cannot use Article 34 to forego the marriage license.
Legal Impediment Must Be Absent From the Start
The law presupposes that during the entire 5-year cohabitation, they were free to marry each other. If, for example, someone was previously married and only obtained an annulment or divorce (where recognized) within that 5-year timeframe, the period of cohabitation prior to the legal clearance does not count toward the 5-year requirement.
An Affidavit Does Not Cure Nullities
Affidavits cannot override actual facts. If there truly is a legal impediment or the 5-year period is not met, executing the affidavit does not legitimize the marriage.
Different from Other Affidavits of Joint Living Arrangements
Sometimes, people use an affidavit to show joint household residency or common-law union for work or immigration purposes. While these may also be called “affidavits of cohabitation” or “affidavits of joint residency,” they have different purposes and formats. The key variant under Article 34 is specifically for marriage without a license.

6. Potential Uses Outside Marriage

Outside the marriage context, a similar affidavit of cohabitation (or “affidavit of common-law partnership” or “affidavit of joint residence”) might be used for:

Insurance or Pension Claims: Some insurance policies or benefit packages require proof of cohabitation when a common-law partner is designated as a beneficiary.
Property or Lease Agreements: Joint applications for mortgages or leases sometimes require proof of a shared household arrangement.
Immigration: In cases where a Philippine citizen and a foreign national claim to be common-law partners, an affidavit attesting to their joint residence might support a visa or immigration petition, though different jurisdictions have different rules.

7. Tips and Best Practices

Seek Legal Advice: If unsure about the requirements—especially regarding continuous cohabitation or possible legal impediments—consult a lawyer.
Gather Documentation: While the law does not strictly require documented proof of cohabitation for the affidavit, be prepared to supply evidence (e.g., joint bills, certificates, or witnesses) if the local civil registrar or solemnizing officer asks for it.
Honesty and Accuracy: Ensure all statements are accurate. Misrepresentations carry serious legal consequences.
Check Local Regulations: Local civil registrars may have additional guidelines (e.g., requesting Barangay Certificates attesting to your residency). It is always best to confirm the exact requirements in your city or municipality.
Keep a Copy: Always keep a personal copy of the notarized affidavit and any supporting documents for your records.

8. Conclusion

The Affidavit of Cohabitation in the Philippine setting, primarily governed by Article 34 of the Family Code, is a crucial legal instrument that can exempt long-term cohabiting couples from the usual requirement of obtaining a marriage license. Its primary purpose is to streamline the marriage process for couples who have already been living together for at least five (5) continuous years and who have no legal impediment to marry each other.

Whether you plan to execute this affidavit for a license-free marriage or need a similar statement for other legal or administrative purposes, it is essential to understand its scope, requirements, and potential consequences. Always exercise diligence, honesty, and consult legal counsel if you have any doubts about meeting the requirements or the veracity of the information you intend to state under oath.