In the Philippines, the legal requirements for marriage are stringent. Generally, a marriage license is an indispensable formal requisite. However, Article 34 of the Family Code of the Philippines provides a specific exemption for couples who have lived together as husband and wife for at least five years without any legal impediment to marry. This exemption is manifested through an Affidavit of Cohabitation.
A common point of legal inquiry is whether this affidavit can be executed after the marriage ceremony has already taken place.
The Purpose of the Affidavit of Cohabitation
The Affidavit of Cohabitation serves as a substitute for a marriage license. Under Article 34, the contracting parties must state under oath that:
- They have lived together as husband and wife for at least five years.
- During those five years, they had no legal impediment to marry each other (e.g., neither party was tied to an existing prior marriage, and they are not related by blood within the prohibited degrees).
The rationale behind this provision is to encourage couples in long-term stable relationships to legalize their union by removing the "difficulty" of obtaining a marriage license.
Timing of Execution: Before vs. After Marriage
Under Philippine law, an Affidavit of Cohabitation cannot be validly executed after the marriage ceremony to cure a lack of a marriage license at the time of the wedding.
1. The Rule of Contemporaneous Execution
The law requires the affidavit to be presented to the Local Civil Registrar (LCR) and the Solemnizing Officer before or at the time of the celebration of the marriage. It is the legal document that grants the Solemnizing Officer the authority to perform the ceremony without a marriage license.
2. Void Ab Initio Status
If a couple marries without a license and without qualifying for the Article 34 exemption at the time of the ceremony, the marriage is void ab initio (void from the beginning) under Article 4 of the Family Code. A void marriage cannot be "ratified" or "cleansed" of its defect by executing an affidavit after the fact.
3. Falsification Concerns
Executing an affidavit after the marriage and backdating it, or claiming cohabitation that did not exist prior to the ceremony, constitutes Falsification of Public Documents and Perjury. Furthermore, the Solemnizing Officer may be held administratively and criminally liable for performing a marriage without the required documentation.
Key Requirements for a Valid Article 34 Marriage
For the Affidavit of Cohabitation to be legally sufficient in lieu of a license, the following conditions must be met at the time of the wedding:
| Requirement | Description |
|---|---|
| Duration | The five-year cohabitation must be characterized by exclusivity and continuity. |
| No Impediment | The parties must have been free to marry for the entire five-year period. If one party was married to someone else during the first three years of cohabitation and only got an annulment in the fourth year, the "five-year" clock only starts after the annulment became final. |
| Execution | The affidavit must be sworn to before a notary public or any person authorized to administer oaths. |
| Verification | The Solemnizing Officer has the duty to verify the truthfulness of the affidavit and ensure no impediments exist. |
Jurisprudence and Consequences
The Supreme Court of the Philippines has been consistent in rulings (e.g., Republic vs. Dayot) regarding the strict interpretation of Article 34. If the affidavit contains false statements—such as claiming five years of cohabitation when the parties only lived together for two—the marriage is considered void for lack of a marriage license.
Note: Because a marriage without a license (and without a valid affidavit) is void, the parties are technically not married in the eyes of the law. To rectify this, the couple typically must undergo a new marriage ceremony after obtaining either a valid marriage license or meeting the requirements for a legitimate Affidavit of Cohabitation.
Summary
The Affidavit of Cohabitation is a pre-requisite for a specific type of marriage ceremony. It functions as the legal authority for the solemnization. Therefore, it is legally impossible for it to be executed after the marriage to validate a ceremony that was originally performed without the necessary legal foundations. Accuracy in the timing and the facts stated within the affidavit is paramount to ensuring the validity of the marital bond.