Legal ratification of marital cohabitation

One of the formal requisites of a valid marriage, in consonance with Article 3 of the Family Code of the Philippines (Family Code), is a “valid marriage license,” the absence of which will, as a rule, render the marriage void ab initio (from the beginning).

Marriage License

A marriage license is the written permission issued by the civil registrar to the contracting parties authorizing their marriage before any authorized solemnizing officer. In brief, it is the authority to marry.

While it is beyond dispute that the absence of a valid marriage license will render the marriage void, there are, however, marriages that are exempted by law from this formal requirement, one of which is found in Article 34 of the Family Code.

Provision on Legal Ratification of Marital Cohabitation

Known as the “provision on legal ratification of marital cohabitation,” Article 34 of the Family Code provides:

“Article 34. 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.”

Requisites

For this provision on legal ratification of marital cohabitation to apply, the following requisites must concur:

1. The man and woman must have been living together as husband and wife for at least five years before the marriage;

2. The parties must have no legal impediment to marry each other;

3. The fact of absence of legal impediment between the parties must be present at the time of marriage;

4. The parties must execute an affidavit stating that they have lived together for at least five years [and are without legal impediment to marry each other]; and

5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage.

There should be no exemption from securing a marriage license unless the circumstances clearly fall within the ambit of the exception.

Rationale

The rationale why no license is required in such case is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant’s name for a marriage license. The publicity attending the marriage license may discourage such persons from legitimizing their status. To preserve peace in the family, avoid the peeping and suspicious eye of public exposure and contain the source of gossip arising from the publication of their names, the law deemed it wise to preserve their privacy and exempt them from that requirement.

Five-Year Common-Law Cohabitation Period

The five-year common-law cohabitation period, which is counted back from the date of celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity – meaning no third party was involved at any time within the 5 years and continuity – that is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any distinction as to whether the parties were capacitated to marry each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law relationships and placing them on the same footing with those who lived faithfully with their spouse.

Affidavit of Marital Cohabitation

The contracting parties, whose marriage falls within the scope of the provision on legal ratification of marital cohabitation under Article 34 of the Family Code, must, in lieu of a valid marriage license, execute an affidavit of marital cohabitation, stating that they have lived together as husband and wife for at least five years and are without any legal impediment to marry each other.

Effect of a Falsified Affidavit of Marital Cohabitation

If the parties falsify their affidavit in order to have an instant marriage, although the truth is that they have not been cohabiting for five years, their marriage will be void for lack of a marriage license, and they will also be criminally liable.

In other words, if the parties falsified the affidavit to facilitate their marriage as it takes time to secure a license and fully knowing the falsity, the “marriage” is not exceptional but an ordinary marriage. As such, there being no license obtained, the marriage is void for lack of valid marriage license. Moreover, the parties are liable for perjury under Article 183 of the Revised Penal Code.

In the consolidated cases of Republic v. Dayot (G.R. No. 175581, March 28, 2008) and Dayot v. Dayot (G.R. No. 179474, March 28, 2008), the Supreme Court (of the Philippines), speaking through Justice Minita V. Chico-Nazario, held in essence that “the falsity of an affidavit of marital cohabitation, where the parties have in truth fallen short of the minimum five-year requirement, effectively renders the marriage void ab initio for lack of a marriage license.”

Nevertheless, what is certain is that if all the requisites for the application of the provision on legal ratification of marital cohabitation under Article 34 of the Family Code are present, the marriage may then be solemnized even in the absence of a valid marriage license, it being one of the marriages exempted by law from such formal requirement.

[References: Article 3 of the Family Code of the Philippines (Family Code), Article 4, in relation to Article 35 [3], of the Family Code, Page 6 of The Family Code of the Philippines Annotated [2001 Edition] by Dean Ernesto L. Pineda, Article 34 of the Family Code, Herminia Borja-Manzano v. Judge Roque R. Sanchez, A.M. No. MTJ-00-1329, March 8, 2001, Niñal v. BayadogG.R. No. 133778, March 14, 2000, Page 37 of the Handbook on The Family Code of the Philippines [1995 Edition-Reprint October, 2000 with additional jurisprudence and new legislation] by Alicia V. Sempio-Diy, Art. 35 [3] of the Family Code, Page 48 of The Family Code of the Philippines Annotated [2001 Edition] by Dean Ernesto L. Pineda, Article 183 of the Revised Penal Code, Republic v. Dayot (G.R. No. 175581, March 28, 2008) and Dayot v. Dayot (G.R. No. 179474, March 28, 2008].

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2 thoughts on “Legal ratification of marital cohabitation

  1. Dear Atty. Angelo Lopez III,

    Your post is very helpful for us. Thank you.
    We are seeking to be married by civil judge here in roxas city capiz. we secured birth certificate and cenomar for me and capacity to married by consul of my partners embassy here in Philippines.
    Leaving together continues without third parties or interruption for almost 8 years and both having single status. both sides of the family and friends are well aware of this and French embassy acknowledge this as basis of giving a capacity to marry to my partner with me.
    However, after securing an affidavit of cohabitation in public attorneys office in roxas city hall of justice. I was denied by a staff (to follow on this and get staff name and position and clear statement) and told me that the judges in that branch 3&4 are not solemnizing marriage under article 34 of our family code. feeling that i was deprive of our rights and proper law i search for any legal basis for judge to decide like this (or judge not knowing of his/her staff statement). and so far did not see any legal basis. referring to Administrative order 125-2007 and Executive order 209 of the family code of the Philippines.

    I am not against the marriage license, but I don’t like when Law is clear and simple is denied to you without any other legal basis.

    Just sharing,

    thank you if you can comment.

    Mario Alemania

    Like

  2. Good Day,

    Tanong ko lang po kung may babaguhin ba kami sa birth certificate ng anak namin kung halimbawang after 5 years pa nga kami nakapagdecide na magpakasal?

    Like

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