Solemnizing a Marriage Through an Affidavit of Cohabitation in the Philippines

Solemnizing a Marriage Through an Affidavit of Cohabitation in the Philippines
All You Need to Know

1. Introduction

In the Philippines, the general rule for getting married is straightforward: couples must secure a marriage license before they can be legally wed. However, there is a special circumstance under the Family Code of the Philippines (Executive Order No. 209, as amended) which allows certain couples to get married without obtaining a marriage license. This exception can be found under Article 34, often referred to as “marriage through an affidavit of cohabitation.”

This article explores the legal framework for solemnizing a marriage under Article 34, the conditions for availing of this exception, the process of executing the affidavit of cohabitation, and the possible legal implications and pitfalls. While this discussion aims to provide an overview, it is always best to consult a qualified lawyer for legal advice specific to your circumstances.

2. Legal Basis: Article 34 of the Family Code

Article 34 of the Family Code 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 and found no legal impediment between them to marry.”

From this legal provision, we derive the following requirements:

  1. Both parties must have cohabited (lived together as husband and wife) for at least five (5) years.
  2. There must be no legal impediment for either party to contract marriage throughout the 5-year period of cohabitation.
  3. An affidavit of cohabitation must be executed by the parties, attesting to the facts above.
  4. The solemnizing officer (judge, priest, imam, minister, or any authorized officiant) must ascertain under oath that the qualifications and conditions are met.

3. Key Requirements in Detail

3.1. Continuous Cohabitation for Five Years

  • Minimum Duration: The law requires the couple to have lived together for an unbroken period of five years.
  • Nature of Cohabitation: Cohabitation under Article 34 is understood as living together as husband and wife, not merely sharing a living space. This typically implies an exclusive, public, and uninterrupted relationship resembling that of a married couple.
  • No Intervening Impediment: During these five years, neither partner should have any legal impediment to marry (e.g., a subsisting previous marriage, minority age, certain degrees of consanguinity, or other disqualifications).

3.2. Absence of Any Legal Impediment

  • The couple must be legally capable of marrying from the start and throughout the five-year period of cohabitation. If, for example, one party was still married to someone else at any time within those five years, the couple cannot avail themselves of the exemption under Article 34.
  • Other common impediments:
    • One or both parties is under the legal age of marriage (below 18).
    • One or both parties has a close blood relation to the other (e.g., direct line of ascendants or siblings).
    • Mental incapacity or other disqualification recognized under Philippine law.

3.3. The Affidavit of Cohabitation

  • Sworn Statement: An affidavit of cohabitation is a notarized document in which the parties jointly declare under oath that they have met the conditions for the license exemption.

  • Form and Contents: Although the Family Code does not prescribe a rigid template, the affidavit should at least contain:

    1. Full names and personal details of the parties.
    2. A statement that they have cohabited as husband and wife for at least five continuous years.
    3. A declaration that they do not have any legal impediment to marry each other.
    4. Date and place of the execution of the affidavit.
    5. Signatures of both parties, notarized by an authority who can administer oaths.

  • Perjury Concerns: Should the affidavit be found to be false, the parties may face criminal liability for perjury. Moreover, if found fraudulent, the marriage could be declared void or voidable, depending on the circumstances.

4. Procedure to Marry Without a License Under Article 34

  1. Preparation of Documents

    • Affidavit of Cohabitation: Draft and have the document notarized. It must state all necessary facts (five-year cohabitation, freedom from impediments, etc.).
    • Supporting Documents: While the law removes the need for a marriage license, couples typically still need to present valid IDs and proof of no legal impediment (often, a Certificate of No Marriage Record (CENOMAR) from the Philippine Statistics Authority is requested by the solemnizing officer to verify that there is no subsisting marriage).

  2. Choose an Authorized Solemnizing Officer

    • The solemnizing officer (judge, priest, minister, imam, or other authorized religious leader) must be duly licensed or authorized by their respective jurisdiction/faith to conduct marriages.
    • Inform them that the marriage will be under Article 34 so they can prepare any additional steps or confirmations needed.

  3. Solemnization Ceremony

    • Even though no marriage license is required, the formal ceremony must still occur.
    • The solemnizing officer, before conducting the marriage, is duty-bound to ascertain under oath that the parties are legally qualified under Article 34 (i.e., verifying the facts in the affidavit and ensuring no impediment exists).

  4. Registration of the Marriage Certificate

    • After the ceremony, the marriage certificate must be signed by the parties, witnesses, and the solemnizing officer.
    • The solemnizing officer or the couple (depending on who handles the paperwork) should then register the certificate with the Local Civil Registrar where the marriage took place. This step is essential to make the marriage a matter of public record.

5. Common Issues and Pitfalls

  1. Misrepresentation of the Five-Year Period

    • Some couples mistakenly think that having an on-and-off relationship totaling five years meets the requirement. The law requires continuous, uninterrupted cohabitation resembling a marital union.
    • If you cohabited intermittently or started living together only recently, you do not qualify.

  2. Existing Impediments During Cohabitation

    • If at any point in the supposed five-year cohabitation there was a legal barrier (for instance, if one party was waiting for an annulment decree), Article 34 does not apply.
    • Even if the impediment was cured eventually, the couple cannot use the period during which the impediment existed to satisfy the five-year requirement.

  3. Potential for Later Nullity Proceedings

    • If the affidavit was executed under questionable or false circumstances, the marriage might be subjected to nullity or annulment proceedings.
    • Providing false statements under oath exposes the parties to criminal charges (perjury) and jeopardizes the validity of the marriage.

  4. Confusion with Common-Law Marriage

    • Philippine law does not recognize “common-law marriage.” Simply living together does not create a legal marriage. Article 34 only exempts the couple from obtaining a marriage license if they have already lived together for five years, but the marriage itself is still solemnized through a formal ceremony.

6. Practical Tips

  1. Consult a Lawyer

    • If you are uncertain about any impediment or the nature of your cohabitation, consult a lawyer before executing an affidavit of cohabitation. Legal guidance ensures that you do not expose yourselves to potential legal liabilities or invalidation of the marriage.

  2. Prepare Documentary Evidence of Cohabitation

    • While not always mandatory, it may be prudent to keep records (e.g., shared bills, lease contracts, joint bank accounts) that show continuous cohabitation for five years.
    • Such evidence can help confirm your eligibility under Article 34 if there are any doubts or contests later.

  3. Obtain CENOMAR

    • Even if the law does not explicitly require it, a Certificate of No Marriage Record (CENOMAR) from the Philippine Statistics Authority can help establish that neither party was previously married, thereby reducing questions about impediments.

  4. Adhere to Proper Notarization

    • The affidavit of cohabitation must be notarized by someone authorized to administer oaths. Proper notarization ensures the document’s validity.

  5. Coordinate with the Solemnizing Officer and Local Civil Registrar

    • Inform them well in advance that you intend to get married under Article 34. This will help streamline the process, avoid last-minute confusion, and ensure your marriage certificate is properly recorded.

7. Frequently Asked Questions (FAQs)

  1. Can we shorten the five-year requirement if we have children together?

    • No. The law specifically states a five-year cohabitation period. Having children together does not reduce or waive this requirement.

  2. Can we apply if one of us was previously married but is now legally annulled?

    • It depends on whether the annulment was already final before the cohabitation started and continued throughout the entire five-year period. If at any time during the five years there was still a legal impediment (e.g., the annulment was not yet final), the exemption cannot be used based on that cohabitation period.

  3. Does a mere boyfriend-girlfriend relationship count as ‘cohabitation’?

    • The law requires that parties live together as husband and wife in a relationship that is public, exclusive, and uninterrupted. Simply being in a relationship without sharing a household is insufficient.

  4. Is there a penalty for submitting a false affidavit?

    • Yes. Submitting any false affidavit can result in perjury charges. Additionally, the marriage itself may be declared null if it is based on fraudulent statements.

  5. If we fulfill the five-year requirement, does that mean we are automatically married without a ceremony?

    • No. The marriage still needs to be solemnized by an authorized officiant and recorded with the Local Civil Registrar. Article 34 merely removes the need for a marriage license, not the entire process of a formal marriage ceremony.

8. Conclusion

Solemnizing a marriage by executing an affidavit of cohabitation under Article 34 of the Family Code is a unique legal pathway for couples who meet the stringent criteria of five years of continuous cohabitation without any impediment. While it saves time and effort compared to the usual route of securing a marriage license, it requires strict compliance with the law’s conditions.

Couples should be fully aware of the legal consequences of misrepresentation or any undisclosed impediment. To avoid future complications, always consider seeking professional legal advice, gathering evidence of cohabitation, and ensuring complete honesty when drafting your affidavit of cohabitation. By doing so, you can confidently and lawfully celebrate your union under Philippine law.

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

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