Introduction

In the Philippines, marriage is governed primarily by the Family Code of the Philippines (Executive Order No. 209, as amended), which outlines the requirements for a valid marriage. One notable provision is Article 34, which provides an exemption from the general requirement of obtaining a marriage license for certain couples. This exemption is facilitated through an "Affidavit of Cohabitation," a sworn statement that allows couples who have been living together as husband and wife for a specified period to marry without a license. This mechanism recognizes long-term cohabitation relationships and streamlines the marriage process for eligible pairs, reflecting the law's acknowledgment of de facto unions in Philippine society.

This article explores the affidavit in detail, including its legal basis, applicability, requirements, procedure for obtaining one, potential challenges, and related considerations. It aims to provide a comprehensive guide for individuals seeking to understand or utilize this provision.

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 to the marriage."

This provision is rooted in the principle that prolonged cohabitation without legal barriers effectively establishes a relationship akin to marriage, warranting exemption from formal licensing. It was introduced to address practical realities in Philippine culture, where many couples live together for years due to economic, social, or personal reasons before formalizing their union. However, it is not a form of "common-law marriage" as recognized in some jurisdictions; the Philippines does not legally recognize common-law marriages, and cohabitation alone does not confer marital rights or obligations unless formalized through marriage.

The affidavit serves as a substitute for the marriage license, but the marriage must still comply with other essential requisites under Articles 2 and 3 of the Family Code, such as legal capacity, consent, authority of the solemnizing officer, and a marriage ceremony.

When the Affidavit Applies: Eligibility and Conditions

The affidavit under Article 34 applies only in specific circumstances. It is not a blanket exemption but a targeted provision for couples meeting strict criteria. Below are the key conditions for applicability:

1. Duration of Cohabitation

The couple must have lived together as husband and wife for at least five continuous years immediately preceding the marriage.
"Lived together as husband and wife" implies a genuine marital-like relationship, including shared residence, emotional and financial interdependence, and public representation as a couple. Mere casual cohabitation or intermittent living arrangements do not qualify.
Interruptions in cohabitation (e.g., due to work abroad or temporary separations) may disqualify the couple if they break the continuity of the five-year period. Courts have interpreted this strictly, requiring proof of unbroken cohabitation.

2. Absence of Legal Impediments

There must be no legal impediment to marriage at the time of the affidavit and the subsequent marriage.
Legal impediments include:
- Being under the age of 18 (Article 5).
- Existing marriage (bigamy or polygamy, under Article 35).
- Insanity or psychological incapacity (Article 36).
- Relationships within prohibited degrees of consanguinity or affinity (Articles 37-38).
- Other void or voidable marriages under Articles 35-54.
Both parties must be single, widowed, divorced (if applicable, though divorce is not recognized for Filipinos unless under specific exceptions like foreign divorces), or have had prior marriages annulled/declared null.

3. Purpose: Solely for Marriage Exemption

The affidavit is executed solely to exempt the couple from obtaining a marriage license. It does not create property rights, legitimize children (though children born during cohabitation may be legitimated upon marriage under Article 178), or serve as evidence in other legal proceedings.
It applies only to civil or religious marriages solemnized in the Philippines. For marriages abroad, different rules may apply under the Nationality Principle (Article 15 of the Civil Code).

4. Non-Applicability Scenarios

Less than five years of cohabitation: Couples must obtain a standard marriage license.
With children: Interestingly, if the couple has children together during cohabitation, the five-year requirement may be waived under certain interpretations, but this is not explicitly stated in Article 34. Judicial decisions (e.g., Republic v. Dayot) have sometimes allowed flexibility, but it's advisable to consult legal counsel.
Same-sex couples: The Family Code defines marriage as between a man and a woman (Article 1), so this provision does not apply to same-sex unions, which are not legally recognized in the Philippines.
Foreigners: If one or both parties are foreigners, additional requirements under the Hague Convention or consular rules may apply, and the affidavit might not suffice without embassy involvement.

Failure to meet these conditions can render the marriage void or voidable, leading to legal complications such as bigamy charges or inheritance disputes.

Requirements for the Affidavit

To execute the affidavit, the following elements must be present:

Content: The affidavit must explicitly state:
- That the parties have lived together as husband and wife for at least five years.
- The exact duration and nature of cohabitation.
- That there are no legal impediments to marriage.
- Personal details of both parties (full names, ages, residences, etc.).
Sworn Statement: It must be subscribed and sworn to before a person authorized to administer oaths, such as a notary public, judge, or other public official.
Solemnizing Officer's Affidavit: Separately, the person officiating the marriage (e.g., judge, priest, or mayor) must execute their own affidavit confirming they verified the couple's qualifications and found no impediments.
Supporting Documents: While not mandatory, it is prudent to attach evidence like:
- Barangay certification of cohabitation.
- Birth certificates.
- CENOMAR (Certificate of No Marriage) from the Philippine Statistics Authority (PSA) to prove no prior marriages.
- Affidavits from witnesses attesting to the cohabitation.

The affidavit must be in writing, typically in English or Filipino, and free from erasures or alterations to avoid invalidation.

How to Get an Affidavit of Cohabitation: Step-by-Step Procedure

Obtaining and using the affidavit involves a straightforward process, but precision is crucial to ensure validity. Here's a detailed guide:

Step 1: Verify Eligibility

Self-assess against the five-year cohabitation and no-impediment criteria.
Gather preliminary documents like IDs, birth certificates, and CENOMARs (obtainable from PSA offices or online via e-Census).

Step 2: Draft the Affidavit

Prepare a draft using a standard template. A sample might read:

"We, [Man's Name], of legal age, and [Woman's Name], of legal age, both residents of [Address], do hereby depose and state: That we have been living together as husband and wife continuously for [number] years since [start date]; That there exists no legal impediment to our marriage; That this affidavit is executed to avail of the exemption under Article 34 of the Family Code."
Include jurat (notarization clause) at the end.

Step 3: Notarization

Bring the draft to a notary public (found in law offices, courts, or government buildings).
Present valid IDs (e.g., passport, driver's license).
Sign in the notary's presence; pay the notarization fee (typically PHP 100-500).
The notary will administer the oath and affix their seal.

Step 4: Secure the Solemnizing Officer's Affidavit

Coordinate with your chosen solemnizing officer (e.g., municipal mayor, judge, or religious minister authorized under Article 7).
Provide them with your affidavit and supporting documents.
They will investigate (e.g., interview witnesses) and execute their own affidavit.

Step 5: Proceed to Marriage

Schedule the marriage ceremony.
Submit the affidavits to the Local Civil Registrar (LCR) along with other requirements (e.g., marriage application form).
The LCR will register the marriage post-ceremony, issuing a marriage certificate.

Timeline and Costs

The process can take 1-2 weeks, depending on document gathering.
Costs: Minimal, including notarization fees, PSA document fees (PHP 155-500 each), and possible LCR fees.

Potential Challenges and Legal Implications

Validity Disputes: If cohabitation is contested (e.g., in annulment cases), courts may require proof like utility bills, joint accounts, or witness testimonies. Cases like Niñal v. Bayadog (G.R. No. 133778) emphasize strict compliance.
Bigamy Risks: Falsely claiming no impediments can lead to criminal charges (Revised Penal Code, Article 349-350).
Property and Succession: Marriage via this affidavit grants full marital property rights under the Absolute Community of Property regime (unless a prenup exists).
Children: Offspring born before marriage are considered illegitimate but can be legitimated upon marriage (Article 177-182).
Amendments: If errors are found post-marriage, petition the court for correction under Rule 108 of the Rules of Court.

Conclusion

The Affidavit of Cohabitation under Article 34 offers a practical pathway for long-term couples to formalize their union without the bureaucratic hurdle of a marriage license. However, it demands careful adherence to legal standards to avoid invalidating the marriage. Couples are encouraged to seek advice from a lawyer or the LCR to ensure compliance, especially in complex situations. This provision underscores the Family Code's balance between tradition and practicality in Philippine family law.