Introduction

In the Philippines, marriage is a fundamental institution governed primarily by the Family Code of the Philippines (Executive Order No. 209, as amended). While obtaining a marriage license is a standard requirement for most couples intending to marry, the law provides specific exemptions to accommodate certain circumstances. One such exemption is the marriage without a license facilitated through a cohabitation affidavit, designed for couples who have already established a long-term, de facto marital relationship. This mechanism recognizes the practical realities of cohabitation while ensuring the marriage's legal validity. This article explores the concept in depth, including its legal foundation, requirements, procedural steps, implications, and potential challenges within the Philippine context.

Legal Foundation

The provision for marriage without a license via cohabitation affidavit is enshrined in Article 34 of the Family Code, which 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 article was introduced to simplify the formalization of unions for couples in long-standing cohabitation arrangements, reflecting the cultural and social prevalence of such relationships in the country. It builds on the principle that marriage is a special contract of permanent union, as defined in Article 1 of the Family Code, but adapts to situations where bureaucratic hurdles might otherwise prevent recognition. Notably, this exemption does not create a "common-law marriage" system, as the Philippines does not recognize automatic marital status from mere cohabitation. Instead, it allows for a streamlined marriage process to retroactively legitimize the relationship through a formal ceremony.

The provision aligns with broader family law objectives, such as promoting family stability and protecting the rights of children born from such unions. It is also consistent with international human rights standards, including the right to marry and found a family under Article 16 of the Universal Declaration of Human Rights, which the Philippines upholds.

Eligibility Requirements

To qualify for a marriage without a license under Article 34, couples must meet stringent criteria to ensure the union's legitimacy and prevent abuse of the exemption. These requirements are as follows:

Continuous Cohabitation for at Least Five Years: The couple must have lived together as husband and wife for a minimum uninterrupted period of five years immediately preceding the marriage. This cohabitation must be exclusive, public, and akin to a marital relationship, involving shared residence, mutual support, and the assumption of marital duties. Sporadic or non-exclusive living arrangements do not suffice. Evidence of cohabitation may include joint utility bills, shared bank accounts, affidavits from witnesses, or birth certificates of children naming both parties as parents.
Absence of Legal Impediments: Both parties must be free from any legal barriers to marriage at the time of the ceremony. Under Articles 2 and 3 of the Family Code, essential requisites include legal capacity, which means:
- Being at least 18 years old (or obtaining parental consent if between 18 and 21, though this is less relevant for long-term cohabitors).
- Not being married to another person (bigamy is void ab initio under Article 35).
- Not being related by blood or affinity in prohibited degrees (e.g., no incestuous marriages under Article 38).
- Being of sound mind and free from psychological incapacity (Article 36).
- No prior void or voidable marriages that remain unannulled.
If any impediment existed during the cohabitation but was resolved before the marriage (e.g., a prior spouse's death), the couple may still qualify, provided the five-year period was otherwise continuous.
Mutual Intent to Marry: The parties must genuinely intend to enter into a marriage, not merely use the affidavit as a loophole for other purposes.

These requirements are non-negotiable, and failure to meet them renders the marriage void from the beginning (Article 35). Courts have consistently upheld this in jurisprudence, such as in cases like Niñal v. Bayadog (G.R. No. 133778, March 14, 2000), where the Supreme Court clarified that the five-year cohabitation must be without impediments throughout the period.

Procedural Steps

The process for solemnizing a marriage via cohabitation affidavit is straightforward but requires careful adherence to formalities to ensure validity:

Preparation of the Affidavit: The couple drafts and executes a joint affidavit declaring:
- That they have cohabited as husband and wife for at least five years.
- The absence of any legal impediments.
- Details of their relationship, such as the start date of cohabitation and any children born therefrom.
This affidavit must be sworn before a notary public or any person authorized to administer oaths, such as a judge, mayor, or consul.
Verification by the Solemnizing Officer: The officer (e.g., a judge, priest, imam, rabbi, or authorized minister under Article 7) must personally ascertain the couple's qualifications. This involves interviewing the parties and reviewing supporting documents. The officer then executes their own affidavit confirming no impediments were found.
Marriage Ceremony: The marriage proceeds without a license, following the formalities in Articles 6 and 8 (e.g., in the presence of at least two witnesses, in a public place or church). The ceremony must include the exchange of consent.
Registration: Post-ceremony, the marriage certificate, including the affidavits, is submitted to the local civil registrar within 30 days (Article 23). Delayed registration may incur penalties but does not invalidate the marriage if all other requisites are met.

Local government units (LGUs) often provide templates for the affidavit, and fees are minimal, typically covering notarization (around PHP 100-500) and registration.

Implications and Benefits

Marriages solemnized under Article 34 enjoy full legal recognition, conferring the same rights and obligations as licensed marriages:

Property Relations: Defaults to absolute community of property (Article 75), unless a prenuptial agreement specifies otherwise.
Parental Authority: Legitimizes children born before the marriage (Article 178), granting them full inheritance rights.
Spousal Rights: Includes succession, support, and tax benefits.
Social Security and Benefits: Eligibility for PhilHealth, SSS, and GSIS spousal benefits.

Benefits include reduced administrative burden, cost savings (no need for the PHP 200-300 marriage license fee plus seminars), and immediate formalization for couples in rural or underserved areas where obtaining a license might be challenging. It also supports cultural practices where couples live together before formal marriage due to economic reasons.

Limitations and Challenges

Despite its utility, the cohabitation affidavit mechanism has limitations:

Not Applicable to All Couples: It excludes those with less than five years of cohabitation or existing impediments. Foreigners must comply with additional requirements under Article 21 (e.g., capacity to contract marriage under their national law).
Evidentiary Burdens: If challenged (e.g., in annulment or inheritance disputes), the couple must prove cohabitation. Courts require clear and convincing evidence, as seen in Republic v. Dayot (G.R. No. 175581, March 28, 2008), where insufficient proof led to voiding the marriage.
No Retroactive Effect on Property: While the marriage validates the union going forward, property acquired during cohabitation is governed by co-ownership rules (Article 147 or 148), not conjugal property, unless proven otherwise.
Cultural and Social Stigma: Some religious denominations may not recognize such marriages without additional rites, and societal views on cohabitation can vary.
Legal Risks: Falsifying the affidavit constitutes perjury (Revised Penal Code, Article 183), punishable by imprisonment. Bigamous attempts are criminally liable.

In practice, the provision is underutilized due to lack of awareness, with many couples opting for licensed marriages or civil unions abroad. Amendments to the Family Code have been proposed to shorten the period or expand eligibility, but none have been enacted as of the latest legislative sessions.

Conclusion

The cohabitation affidavit under Article 34 of the Family Code represents a pragmatic approach to marriage in the Philippines, bridging the gap between informal unions and legal recognition. By waiving the license requirement for qualifying couples, it promotes accessibility while safeguarding essential marital requisites. Couples considering this option should consult legal professionals to ensure compliance and address potential issues. Ultimately, this mechanism underscores the law's adaptability to evolving family dynamics, reinforcing the institution of marriage as a cornerstone of Philippine society.