Introduction

In the Philippine legal system, marriage is governed primarily by the Family Code of the Philippines (Executive Order No. 209, as amended). One of its notable provisions is Article 34, which provides an exemption from the requirement of obtaining a marriage license for couples who have cohabited as husband and wife for a specified period. This exemption recognizes long-term de facto relationships and aims to formalize them without the usual bureaucratic hurdles. However, questions arise when such cohabitation is interrupted by prolonged separation, particularly when one or both parties are abroad. This article explores the intricacies of Article 34, focusing on the validity of cohabitation in the face of extended absences, and analyzes its implications under Philippine law.

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. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties are no legal impediment to the marriage."

This provision is rooted in the policy of promoting family stability by acknowledging relationships that function as marriages in all but name. It is not a recognition of common-law marriage per se, as the Philippines does not legally recognize common-law unions as equivalent to formal marriages. Instead, it offers a pathway to solemnize such unions without a license, provided strict conditions are met.

Key Requirements Under Article 34

To qualify for the marriage license exemption under Article 34, the following elements must be satisfied:

Continuous Cohabitation for at Least Five Years: The couple must have lived together as husband and wife for a minimum of five years immediately preceding the marriage. This cohabitation must be open, continuous, and exclusive, resembling a marital relationship in terms of shared residence, mutual support, and public acknowledgment.
Absence of Legal Impediment: There should be no legal barriers to marriage, such as prior undissolved marriages, minority age without consent, or other incapacities under Articles 2-4 and 35-38 of the Family Code.
Affidavit Requirement: The parties must execute a sworn affidavit attesting to their cohabitation and lack of impediments. The solemnizing officer must also affirm under oath that they verified these facts.

Failure to meet any of these renders the marriage void or voidable, depending on the circumstances (e.g., under Article 35 for lack of essential requisites).

What Constitutes Cohabitation?

Cohabitation under Article 34 is not merely physical proximity but a factual state of living together as spouses. Philippine jurisprudence, such as in Republic v. Dayot (G.R. No. 175581, 2008), emphasizes that it must be "continuous and uninterrupted" and characterized by exclusivity and permanence. It involves:

Shared Residence: The couple must have a common home, though temporary absences (e.g., for work or travel) do not necessarily break continuity if the intent to return persists.
Public Holding Out: They must present themselves to the community as married, often evidenced by joint financial accounts, shared children, or social recognition.
Exclusivity: No involvement with third parties in a romantic or marital capacity.

The five-year period is computed cumulatively but must be immediately before the marriage. Intermittent living together does not suffice if it lacks the marital character.

Impact of Long Separation on Cohabitation Validity

The core issue is whether a long separation disrupts the cohabitation required under Article 34. Philippine courts have addressed this in various rulings, balancing the intent of the law with factual realities.

General Rule on Interruptions: Brief or temporary separations do not invalidate cohabitation if they are due to necessity (e.g., employment, education) and the relationship remains intact. For instance, in Borja-Manzano v. Sanchez (G.R. No. 132480, 2001), the Supreme Court noted that cohabitation implies a stable union, but not necessarily constant physical presence. The key is the absence of intent to terminate the relationship.
Prolonged Separation: However, extended absences can raise doubts. If the separation lasts for years without communication or support, it may indicate abandonment or dissolution of the de facto marriage. In such cases, the five-year cohabitation period might not be deemed continuous. For example, if a couple cohabits for three years, separates for two years, and reunites for two more years, the total might exceed five years, but courts scrutinize whether the separation broke the marital bond. Jurisprudence like Niñal v. Bayadog (G.R. No. 133778, 2000) clarifies that the five years must be "without interruption," meaning no significant breaks that negate the spousal character.
Evidence Considerations: To prove cohabitation despite separation, parties may present affidavits from witnesses, photographs, correspondence, or remittance records showing ongoing support. The burden lies on the couple to demonstrate continuity in their affidavit.

If separation leads to one party entering another relationship, this could constitute a legal impediment (e.g., adultery or concubinage under the Revised Penal Code), disqualifying them from Article 34.

Special Considerations for Separation Abroad

When separation involves one or both parties residing abroad, additional layers of complexity arise due to jurisdictional, evidentiary, and international law issues.

Jurisdictional Reach: Philippine family law applies to Filipino citizens regardless of location (Article 15, Civil Code: "Laws relating to family rights and duties... are binding upon citizens of the Philippines, even though living abroad"). Thus, cohabitation periods spent abroad count toward the five years, provided they meet the criteria. For instance, if a couple cohabits in the Philippines for two years and then abroad for three years before separating, the entire period may qualify if continuous.
Validity After Long Separation Abroad: A prolonged absence abroad (e.g., for overseas work) does not automatically invalidate prior cohabitation, but it must not signify the end of the relationship. In cases like Overseas Filipino Workers (OFWs), courts often consider the economic necessity of separation. However, if the separation exceeds the cohabitation period or involves no contact, it could be seen as abandonment. For example, in Republic v. Orbecido (G.R. No. 154380, 2005), though focused on divorce, the Court discussed how foreign residences affect marital ties, emphasizing intent.
Evidentiary Challenges: Proving cohabitation abroad is harder due to distance. Documents like joint lease agreements, visa records, or affidavits from foreign witnesses may be needed. Consular offices can administer oaths for affidavits, ensuring compliance with Article 34 even if executed abroad.
Foreign Law Interactions: If the separation leads to a foreign marriage or divorce, this could create impediments. Under Article 26 of the Family Code, a divorce obtained abroad by a Filipino is invalid unless the alien spouse initiates it. Cohabitation claims must not conflict with foreign judgments, which might require recognition via Philippine courts.
Practical Implications for Marriage Solemnization: If attempting to marry under Article 34 after separation, the solemnizing officer (e.g., judge, mayor, or priest) must verify facts, potentially requiring additional proofs like passports or employment contracts to confirm the separation was temporary.

Potential Consequences of Invalid Application

If a marriage is solemnized under Article 34 but cohabitation is later deemed invalid due to separation:

Void Marriage: Under Article 35(3), lack of license without valid exemption renders the marriage void ab initio, affecting property rights, legitimacy of children, and inheritance.
Bigamy Risks: If one party marries another during separation, it could lead to bigamy charges (Article 349, Revised Penal Code), as the de facto relationship does not dissolve prior legal ties.
Remedies: Parties may petition for declaration of nullity (Article 36-54) or seek to ratify the marriage through a subsequent valid ceremony.

Policy Rationale and Reforms

Article 34 reflects the Philippine emphasis on family as the foundation of society (Article II, Section 12, 1987 Constitution). It accommodates cultural practices where couples live together before formalizing unions, especially in rural or low-income settings. However, critics argue it is outdated, as modern mobility (e.g., OFWs) often leads to separations, complicating applications. There have been calls for amendments to clarify "continuous cohabitation" in light of globalization, but no major changes have occurred as of the current legal framework.

Conclusion

Article 34 provides a valuable exemption for long-term cohabiting couples, but its validity hinges on proving uninterrupted spousal living for five years. Long separations, especially abroad, do not inherently invalidate cohabitation if they are temporary and the relationship endures through intent and actions. However, prolonged absences without maintenance of the bond can disrupt continuity, requiring robust evidence to overcome. Couples in such situations should consult legal experts to ensure compliance, as misapplication can lead to severe consequences. Ultimately, the provision underscores the law's flexibility while upholding the sanctity of marriage in the Philippine context.